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Air Force Department
Federal Energy Regulatory Commission
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Presidential Documents
Aging Administration
Centers for Disease Control and Prevention
Food and Drug Administration
Health Care Financing Administration
Health Resources and Services Administration
Inspector General Office, Health and Human Services Department
Inspector General Office, Health and Human Services Department
Fish and Wildlife Service
Indian Affairs Bureau
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Immigration and Naturalization Service
Centers for Disease Control and Prevention
Food and Drug Administration
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National Highway Traffic Safety Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain Dornier Model 328-300 series airplanes, that requires replacement of the hydraulic line between the main hydraulic pump and the pulsation damper in hydraulic system “B” with a new hydraulic flex hose. This action is necessary to prevent cracking in the hydraulic line (due to a production defect), leading to heavy leakage in hydraulic system “B,” which could impair the functioning of the airplane's flaps, roll spoilers, inner ground spoilers, and nose wheel steering. This action is intended to address the identified unsafe condition.
Effective July 18, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 18, 2001.
The service information referenced in this AD may be obtained from Fairchild Dornier, Dornier Luftfahrt GmbH, P.O. Box 1103, D-82230 Wessling, Germany. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Dan Rodina, Aerospace Engineer, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Dornier Model 328-300 series airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
The FAA estimates that 17 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required replacement, and that the average labor rate is $60 per work hour. There is no charge for required parts. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $1,020, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been
To prevent a crack in the hydraulic line, leading to heavy leakage in hydraulic system “B,” which could impair the functioning of the airplane's flaps, roll spoilers, inner ground spoilers, and nose wheel steering, accomplish the following:
(a) Within 45 days from the effective date of this AD: Remove the hydraulic hose having part number (P/N) 001D291A2050010 between the main pump 50DA and the pulsation damper, and replace it with a new hose having P/N 001D291A1102000, in accordance with Dornier Service Bulletin SB-328J-29-040, dated June 8, 2000.
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(c) Special flight permits may be issued in accordance with sections §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(d) The actions shall be done in accordance with Dornier Service Bulletin SB-328J-29-040, dated June 8, 2000. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Fairchild Dornier, Dornier Luftfahrt GmbH, P.O. Box 1103, D-82230 Wessling, Germany. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
The subject of this AD is addressed in German airworthiness directive 2000-378, dated December 14, 2000.
(e) This amendment becomes effective on July 18, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain Boeing Model 767-300 series airplanes, that requires a one-time general visual inspection to find chafing and determine adequate clearance of certain wire bundles in the ceiling panel near the main passenger door, and corrective actions. The actions specified by this AD are intended to prevent damage to the wires in the bundles due to contact between the bundles and the adjacent ceiling support bracket. Such damage could result in electrical arcing, smoke, or fire in the cabin, and failure of certain systems essential to safe flight and landing of the airplane. This action is intended to address the identified unsafe condition.
Effective July 18, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 18, 2001.
The service information referenced in this AD may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Elias Natsiopoulos, Aerospace Engineer, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1279; fax (425) 227-1181.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 767-300 series airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 135 Model 767-300 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 53 airplanes of U.S. registry will be affected by this AD.
It will take approximately 1 work hour per airplane to accomplish the required inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $3,180, or $60 per airplane.
It will take approximately 2 work hours per airplane to accomplish the required repair or replacement, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the repair or replacement required by this AD on U.S. operators is estimated to be $6,360, or $120 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up,
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent damage to the wires in certain wire bundles due to contact between the bundles and the adjacent ceiling support bracket, which could result in electrical arcing, smoke, or fire in the cabin, and failure of certain systems essential to safe flight and landing of the airplane, accomplish the following:
(a) Accomplish the requirements in paragraphs (a)(1) and (a)(2) of this AD, as applicable, at the times specified.
(1) Within 6 months after the effective date of this AD: Do a one-time general visual inspection to find chafing and determine adequate clearance of the wire bundles above the F4/G2 galley, per Figure 1 or Figure 3, as applicable, of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-33A0085, Revision 2, dated December 7, 2000.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to find obvious damage, failure, or irregularity. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or drop-light and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(2) If chafing and/or inadequate clearance is found: Before further flight, repair or replace damaged wires in the wire bundles; install a bracket assembly on the wire bundle support bracket; install nut spacer plates; and re-route the wire bundles away from the ceiling support bracket, as applicable, as specified by and per Figure 2 or Figure 3, as applicable, of the Accomplishment Instructions of the alert service bulletin.
Accomplishment of the one-time inspection and corrective actions before the effective date of this AD per Boeing Alert Service Bulletin 767-33A0085, dated May 11, 2000; or Revision 1, dated August 31, 2000, is considered acceptable for compliance with paragraph (a) of this AD.
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Seattle ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Seattle ACO.
(c) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(d) The actions shall be done in accordance with Boeing Alert Service Bulletin 767-33A0085, Revision 2, dated December 7, 2000. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on July 18, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain Learjet Model 55 series airplanes and Model 60 airplanes, that requires replacement of the brake valve adjustment screw with a new improved screw, and for certain airplanes, it would also require installation of a new brake valve lever stop. The actions specified by this AD are intended to prevent bottoming of the valve components before contact of the brake valve lever with the stop, which
Effective July 18, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 18, 2001.
The service information referenced in this AD may be obtained from Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Shane Bertish, Aerospace Engineer, Systems and Propulsion Branch, ACE-116W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4156; fax (316) 946-4407.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Learjet Model 55 series airplanes and Model 60 airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.
The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 331 Model 55 series airplanes and Model 60 airplanes of the affected design in the worldwide fleet. The FAA estimates that 285 airplanes of U.S. registry will be affected by this AD, that it will take approximately 16 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $2,368 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $948,480, or $3,328 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (b) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent bottoming of the valve components before contact of the brake valve lever with the stop, which could result in loss of all hydraulic fluid and consequent loss of normal braking; accomplish the following:
(a) Within 300 flight hours or one year after the effective date of this AD, whichever occurs first, accomplish the actions specified in paragraph (a)(1), (a)(2), or (a)(3) of this AD, as applicable.
(1) For Learjet Model 60 airplanes having serial numbers 60-002 through 60-093 inclusive, and 60-095 through 60-188 inclusive: Replace the existing brake valve lever stop switch with a new brake valve lever stop switch, and replace the brake valve adjustment screws with new improved screws, per Bombardier Service Bulletin 60-32-10, Revision 1, dated June 22, 2000.
(2) For Learjet Model 60 airplanes having serial number 60-094 or 60-189: Replace the brake valve adjustment screws with new improved screws, per Bombardier Service Bulletin 60-32-10, Revision 1, dated June 22, 2000.
(3) For Learjet Model 55 series airplanes having serial numbers 55-003 through 55-147 inclusive: Replace the existing brake valve lever stop with a new brake valve lever stop, and replace the brake valve adjustment screws with new improved screws, per Bombardier Service Bulletin 55-32-14, dated November 9, 1999.
(b) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Wichita Aircraft Certification Office, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Wichita ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Wichita ACO.
(c) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(d) The actions shall be done in accordance with Bombardier Service Bulletin 60-32-10, Revision 1, dated June 22, 2000; and Bombardier Service Bulletin 55-32-14, dated November 9, 1999; as applicable. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on July 18, 2001.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission is amending its rules to delegate to the Director of the Division of Market Regulation authority to publish notice of a filing of an application for registration as a national securities exchange, or for exemption from registration based on limited volume, and amendments to such applications filed under section 6 of the Securities Exchange Act of 1934. This delegation will facilitate and expedite the process of exchange registration and exemption from registration based on limited volume. This delegation will not include the authority to approve an application for registration as a national securities exchange or exemption from registration based on limited volume.
June 13, 2001.
Rebekah Liu, Special Counsel, at (202) 942-0133; Susie Cho, Attorney, at (202) 942-0748, Office of Market Supervision, Division of Market Regulation, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-1001.
The Securities and Exchange Commission (“Commission”) has adopted an amendment to Rule 30-3 of its Rules of Organization and Program Management governing Delegations of Authority to the Director of the Division of Market Regulation (“Director”).
Section 6(a) of the Exchange Act provides that an exchange may be registered as a national securities exchange “by filing with the Commission an application for registration in such form as the Commission, by rule, may prescribe containing the rules of the exchange and such other information and documents as the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors.”
The delegation of authority to the Director to publish a notice of filing of an application for registration, or an exemption from registration based on limited volume, and amendments to such applications filed pursuant to Rule 6a-1, is intended to conserve Commission resources by permitting Division staff to review and publish for comment a notice of filing of an application and any amendments to such applications on a more expedited basis. The Division has received several applications for registration as a national securities exchange which, after careful review by Division staff, must be published for comment. In addition, the Division anticipates that, when an application for registration as a national securities exchange or exemption from registration based on limited volume is filed and published for comment, there will be significant comment on the application and amendments to the application will be necessary. Granting the Division delegated authority to publish amendments will provide the Division with greater flexibility to respond to any commenters' concerns, and may expedite the process of publishing amendments to the Form 1. Nevertheless, the staff may submit matters to the Commission for consideration as it deems appropriate. The Commission retains authority to approve an application for exchange registration or exemption from exchange registration based on limited volume.
The Commission finds, in accordance with section 553(b)(3)(A) of the Administrative Procedures Act,
Administrative practice and procedure, Authority delegations (Government agencies), Organization and functions (Government agencies).
15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78
(a) * * *
(73) Pursuant to section 6(a) of the Act, 15 U.S.C. 78f(a), and Rule 6a-1 thereunder, 17 CFR 240.6a-1:
(i) To publish a notice of filing of an application for registration as a national securities exchange, or for exemption from registration based on limited volume; and
(ii) To publish amendments to an application for registration as a national securities exchange, or for exemption from registration based on limited volume.
By the Commission.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the food additive regulations to provide for the safe use of acidified sodium chlorite solutions as an antimicrobial agent on processed, comminuted or formed meat food products (unless precluded by United States Department of Agriculture’s standards of identity) prior to packaging of the food for commercial purposes in accordance with current industry standards of good manufacturing practice. This action is in response to a petition filed by Alcide Corp.
This rule is effective June 13, 2001. Submit written objections and requests for a hearing by July 13, 2001.
Submit written objections to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Robert L. Martin, Center for Food Safety and Applied Nutrition (HFS-215), Food and Drug Administration, Washington, DC 20204-0001, 202-418-3074.
In a notice published in the
FDA has evaluated data in the petition and other relevant material. FDA is approving the use of acidified sodium chlorite solutions on processed, comminuted or formed meat food products, unless such use is precluded by standards of identity in 9 CFR part 319, prior to packaging of the food for commercial purposes. For example, this acidified sodium chlorite solution is not permitted to be added to ground beef under 9 CFR 319.15. Based on this information, the agency concludes that the proposed use of the additive is safe, that the additive will achieve its intended technical effect, and therefore, that the regulation in § 173.325 should be amended as set forth below.
In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.
In the notice of filing, FDA gave interested parties an opportunity to submit comments on the petitioner’s environmental assessment. FDA received no comments in response to that notice.
The agency has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. The agency’s finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Branch (address above) between 9 a.m. and 4 p.m., Monday through Friday.
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by July 13, 2001. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Food additives.
21 U.S.C. 321, 342, 348.
(f) The additive is used as an antimicrobial agent on processed, comminuted or formed meat food products (unless precluded by standards of identity in 9 CFR part 319) prior to packaging of the food for commercial purposes, in accordance with current industry standards of good manufacturing practice. Applied as a dip or spray, the additive is used at levels that result in sodium chlorite concentrations of 500 to 1200 ppm, in combination with any GRAS acid at levels sufficient to achieve a pH of 2.5 to 2.9.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Ottawa River, Toledo, Ohio. This zone restricts the entry of vessels into the area designated for the June 23, 2001, Summerfest fireworks display. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays.
This rule is effective from 6:30 p.m. until 11 p.m. on June 23, 2001.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [CGD09-01-036] and are available for inspection or copying at U.S. Coast Guard Marine Safety Office Toledo, 420 Madison Ave, Suite 700, Toledo, Ohio, 43604 between 9:30 a.m. and 2 p.m., Monday through Friday, except Federal holidays.
LT Herb Oertli, Chief of Port Operations, Marine Safety Office, 420 Madison Ave, Suite 700, Toledo, Ohio 43604; (419) 418-6050.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and, under 5 U.S.C. 553(d)(3), good cause exists for making this rule it effective less than 30 days after publication in the
This temporary rule is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the City of Toledo's Summerfest Fireworks. The fireworks display will occur between 6:30 p.m. and 11 p.m. on June 23rd.
This safety zone will encompass all waters and the adjacent shoreline of the Ottawa River, Toledo, Ohio, bounded by the arc of a circle with a 560-foot radius with its center in approximate position 41° 43.21 N, 083° 28.46 W. The fireworks will be launched off the southeast end of the Summit Street Bridge. The Captain of the Port Toledo or his designated on scene representative have the authority to terminate the event.
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Chicago or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This finding is based on the historical lack of vessel traffic during this time of year.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only a few hours for one event and vessel traffic can pass safely around the safety zone.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Toledo (see
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-6, and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
In Title 40 of the Code of Federal Regulations, Parts 72 to 80, revised as of July 1, 2000, part 75 is corrected in § 75.10 by adding paragraph (g), and in § 75.32 by adding a sentence to paragraph (a)(3) after the second sentence to read as follows:
(g)
(a) * * *
(3) * * * For a unit that has accumulated less than 8,760 unit operating hours in the previous three years (26,280 clock hours), replace the words “during previous 8,760 unit operating hours” in Equation 9 with “in the previous three years” and replace “8,760” with “total unit operating hours in the previous three years”.
Coast Guard, DOT.
Direct final rule.
The Coast Guard is amending its appellate procedures to provide explicit authority for appeal of decisions or actions taken by the Director, Great Lakes Pilotage. The Coast Guard has consistently applied those procedures whenever a decision or action taken by the Director has been appealed to higher
This rule is effective September 11, 2001, unless an adverse comment, or notice of intent to submit an adverse comment, reaches the Docket Management Facility on or before August 13, 2001. If an adverse comment, or notice of intent to submit an adverse comment, is received, we will withdraw this direct final rule and publish a timely notice of withdrawal in the
To make sure that your comments and related material do not enter the docket [USCG 2001-8894] more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Docket Management Facility maintains the public docket for this rulemaking. Comments and related material received from the public, as well as documents mentioned in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http://dms.dot.gov.
If you have questions on this rule, call Mr. John Bennett, Coast Guard, telephone 202-267-2856. If you have questions on viewing or submitting material to the docket, call Ms. Dorothy Beard, Chief, Dockets, Department of Transportation, telephone 202-366-5149.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [USCG 2001-8894], indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, delivery, fax, or electronic means to the Docket Management Facility at the address under
We are publishing a direct final rule under 33 CFR 1.05-55, because we do not expect an adverse comment. Unless we receive an adverse comment or notice of intent to submit one within the comment period specified under
A comment counts as “adverse” if it explains why this rule or a part of this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change.
A review of our rules indicates that our policy and practice of permitting a party to appeal any decision or action of the Director, Great Lakes Pilotage, in accordance with the procedures 46 CFR Part 1.03 is not one provided for, explicitly, by those rules. Yet it also indicates that the practice has met universal acceptance by persons affected. The purpose of this direct final rule is to codify our established policy and practice on appeals.
To codify these entails (1) amending 46 CFR 1.03-15 to take account of 46 U.S.C. Chapter 93 and 46 CFR Chapter III and identify the particular Coast Guard office for appeals; and (2) adding a new 46 CFR 1.03-50 to describe the appellate process for decisions or actions of the Director, Great Lakes Pilotage.
Because of an oversight affecting 46 CFR Subpart 1.03—Rights of Appeal, the appellate procedures of the Coast Guard do not by their terms apply to decisions or actions taken by the Director, Great Lakes Pilotage, under 46 U.S.C. Chapter 93 or 46 CFR Chapter III. Nonetheless, the Coast Guard has consistently followed them whenever a decision or action taken by the Director has been appealed to higher authority within the Coast Guard, Commandant (G-MW). This practice has met universal acceptance by persons affected. At this point, the Coast Guard is simply codifying its procedures to reflect its own policy and practice and meet the public's expectation.
This direct final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) [44 FR 11040, February 26, 1979]. Because this rule is administrative in nature and simply codifies the policy and practice already in use since the beginning of Great Lakes Pilotage, we expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.
Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we considered whether this direct final rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. We will evaluate, under the criteria in “Regulatory Information”, any comments submitted in response to this finding.
This direct final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].
We have analyzed this direct final rule under Executive Order 13132 and have determined that it does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 [2 U.S.C. 1531-1538] requires Federal agencies to assess the effects of their regulatory actions not specifically required by law. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this direct final rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This direct final rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This direct final rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this direct final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This direct final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Coast Guard considered the environmental impact of this direct final rule and concluded that, under figure 2-1, paragraph (34)(a) of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. It is “procedural” within the meaning of that paragraph. A Determination of Categorical Exclusion is available in the docket where indicated under
Organization, General Course and Methods Governing Marine Safety Functions.
5 U.S.C. 552; 14 U.S.C. 633; 46 U.S.C. 7701; 46 U.S.C. Chapter 93; 49 CFR 1.45, 1.46; § 1.01-35 also issued under the authority of 44 U.S.C. 3507.
(a) Any person directly affected by a decision or action taken under this chapter or under chapter III of this title, by or on behalf of the Coast Guard, except for matters covered by subpart J of part 5 of this chapterdealing with suspension-and-revocation hearings, shall follow the procedures contained in this section when requesting that the decision or action be reviewed, set aside, or revised.
(h) * * *
(5) Commandant (G-MW) for appeals involving decisions or actions of the Director, Great Lakes Pilotage.
Any person directly affected by a decision or action of the Director, Great Lakes Pilotage, may make a formal appeal of that decision or action to Commandant (G-MW), in accordance with the procedures contained in § 1.03-15 of this subpart.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Retention limit adjustments.
NMFS adjusts the daily retention limit for the recreational fisheries for Atlantic bluefin tuna (BFT) for the fishing year that began June 1, 2001, and ends May 31, 2002. Vessels permitted in the Atlantic Tunas Angling and the Atlantic Highly Migratory Species (HMS) Charter/Headboat categories are eligible to land BFT under the BFT Angling category quotas. The seasonal adjustments to the daily retention limit and the measurements for each BFT size class are specified in the
Effective June 15 through October 31, 2001, the daily retention limit in all areas for all vessels fishing under the Angling category quota is adjusted to four BFT per vessel, which may be from the school, large school, or small medium size class.
Effective November 1, 2001 through May 31, 2002, the daily retention limit in all areas is adjusted to one large school or small medium BFT for all vessels fishing under the Angling category quota.
Brad McHale, (978) 281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
Implementing regulations for the Atlantic tuna fisheries at § 635.23 set the daily retention limits for the BFT recreational fishery and allow for adjustments to the daily retention limits in order to provide for maximum utilization of the quota over the longest possible period of time. NMFS may increase or reduce the per angler retention limit for any size class BFT or may change the per angler limit to a per boat limit or the per boat limit to a per angler limit. Size class categories of BFT are defined as follows: school size BFT measure 27 to less than 47 inches (69 to less than 119 cm) curved fork length (CFL); large school BFT measure 47 to less than 59 inches (119 to less than 150 cm) CFL; small medium BFT measure 59 to less than 73 inches (150 to less than 185 cm) CFL; large medium BFT measure 73 to less than 81 inches (185 to less than 206 cm) CFL; and giant BFT measure 81 inches or greater (206 cm or greater) CFL.
A recommendation of the International Commission for the Conservation of Atlantic Tunas (ICCAT) requires that NMFS limit the catch of school BFT to no more than 8 percent by weight of the total domestic landings quota over each 4-consecutive-year period. NMFS is implementing this ICCAT recommendation through annual and inseason adjustments to the school BFT retention limits, as necessary, and through the establishment of a school BFT reserve (64 FR 29090, May 28, 1999; 64 FR 29806, June 3, 1999).
The ICCAT recommendation allows for interannual adjustments for overharvests and underharvests, provided that the 8-percent landings limit is met over the applicable 4-consecutive-year period. The 2001 fishing year is the third year in the current accounting period. This multi-year block quota approach provides NMFS with the flexibility to enhance fishing opportunities and to collect information on a broad range of BFT size classes.
Regulations at 50 CFR 635.23(b) restrict vessels fishing under the BFT Angling category quota to one BFT per vessel per day, which may be from the school, large school, or small medium category and, in addition, one large medium or giant BFT per vessel per year. This retention limit is subject to adjustment to provide for maximum utilization of the quota and enhanced fishing opportunities over the range of the recreational fisheries. NMFS has received comment from BFT fishermen that the implementation of an increased daily retention limit over a date-certain period is preferable to a longer season with a lower daily retention limit as it facilitates the scheduling of fishing trips, particularly charter trips.
Since the beginning of the fishing year on June 1, 2001, the default Angling category daily retention limit at 50 CFR 635.23(b) has been in effect and applies until the effective date of this catch limit adjustment. Effective June 15 through October 31, 2001, NMFS adjusts the recreational fishing daily retention limit for all fishing areas to four BFT in any combination of the school, large school, or small medium size classes. This limit applies to all vessels permitted in the Atlantic Tunas Angling category and to vessels permitted in the Atlantic HMS Charter/Headboat category.
From November 1, 2001, through May 31, 2002, the daily retention limit for all vessels fishing under the Angling category quota will be adjusted to one large school or small medium BFT per vessel. Regardless of the length of the trip, no more than a single day’s allowable catch may be possessed or retained.
NMFS selected the daily retention limit and the duration of the daily retention limit adjustment after examining past catch and effort rates and the available quota for 2001. NMFS will continue to monitor the Angling category fishery closely through the Automated Landings Reporting System, the state harvest tagging programs in North Carolina and Maryland, and the Large Pelagics Survey. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that an interim closure or an additional retention limit adjustment is necessary to enhance scientific data collection from, and fishing opportunities in, all geographic areas. Additionally, NMFS may determine that an allocation from the school BFT reserve is warranted to further fishery management objectives.
Closures or subsequent adjustments to the daily retention limit, if any, will be announced through publication in the Federal Register. In addition, anglers may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9305 for updates on quota monitoring and retention limit adjustments. Anglers aboard Atlantic HMS Charter/Headboat category vessels, when engaged in recreational fishing for school, large school, and small medium BFT, are subject to the same rules as anglers aboard Angling category vessels.
All BFT landed under the Angling category quota must be reported within 24 hours of landing to the NMFS Automated Landings Reporting System via toll-free phone at (888)872-8862; or the Internet (www.nmfspermits.com); or, if landed in the states of North Carolina or Maryland, to a reporting station prior to offloading. Information about these state harvest tagging programs, including reporting station locations, can be obtained in North Carolina by calling (800) 338-7804, and in Maryland by calling (410) 213-1531.
In addition, anglers aboard permitted vessels may continue to tag and release BFT of all sizes under a tag-and-release program, provided the angler tags all BFT so caught, regardless of whether previously tagged, with conventional tags issued or approved by NMFS, returns such fish to the sea immediately after tagging with a minimum of injury, and reports the tagging, and, if the BFT was previously tagged, the information on the previous tag (50 CFR 635.26).
This action is taken under 50 CFR 635.23(b)(3). This action is exempt from review under E.O. 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Amendments to an emergency interim rule; request for comments.
NMFS amends an emergency interim rule implementing 2001 Steller sea lion protection measures. These modifications prohibit directed fishing for Pacific cod by specified vessels until the July 17, 2001, expiration of that emergency interim rule. It is expected
Effective 1200 hrs, Alaska local time (A.l.t.), June 10, 2001, through July 17, 2001. Comments must be received July 9, 2001.
Comments may be sent to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 99802, Attn: Lori Gravel, or delivered to room 401 of the Federal Building, 709 West 9th Street, Juneau, AK. Comments will not be accepted if submitted via e-mail or Internet.
Copies of the November 30, 2000, Biological Opinion and Incidental Take Statement on Authorization of the Bering Sea and Aleutian Islands (BSAI) groundfish fisheries, based on the Fishery Management Plan for the Groundfish Fisheries of the Bering Sea and Aleutian Islands and Authorization of the GOA groundfish fisheries, based on the Fishery Management Plan for Groundfish of the Gulf of Alaska (Comprehensive Biological Opinion), including the Reasonable and Prudent Alternative (RPA), may be obtained from the same address. The Comprehensive Biological Opinion is also available on the NMFS Alaska Region home page at
Sue Salveson, NMFS, 907-586-7228 or e-mail at
NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the Fishery Management Plan for the Groundfish Fisheries of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801,
On January 22, 2001, NMFS published an emergency rule that established 2001 harvest specifications for the BSAI and GOA groundfish fisheries and implemented 2001 Steller sea lion protection measures for these fisheries (66 FR 7276). These protection measures initiated a 1-year phase-in of the RPA developed in the Comprehensive Biological Opinion (see
The January 22, 2001, emergency rule extended the Steller sea lion protection measures that were in place during 2000 for the BSAI Atka mackerel fisheries and the BSAI and GOA pollock fisheries. The emergency rule also implemented several new measures, including two fishing seasons for GOA Pacific cod and for non-Community Development Quota (CDQ) Pacific cod in the BSAI. A complete description and justification of the 2001 Steller sea lion protection measures is discussed in the preamble to the January 22, 2001, emergency rule (66 FR 7276).
On March 23, 2001, NMFS amended the emergency rule to change fishing restrictions on vessels fishing for groundfish off Alaska with jig gear and on vessels less than 60 ft (18.3 meters (m)) length overall (LOA) fishing for BSAI Pacific cod with hook-and-line or pot gear (66 FR 17083, March 29, 2001). On March 20, 2001, NMFS also issued a correction to the January 22, 2001, emergency rule that addressed various technical and editorial errors (66 FR 15656, March 20, 2001).
As mentioned previously, the January 22, 2001, emergency rule established two fishing seasons for the BSAI and GOA Pacific cod fisheries, January 1 to June 10 (60 percent of the total allowable catch (TAC)), and June 10 to December 31 (40 percent of the TAC), except that directed fishing for Pacific cod with trawl gear was prohibited after October 31, 2001. The March 23, 2001, emergency rule removed the season restrictions for the BSAI jig gear fisheries and BSAI vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line gear. Separate allocations of the BSAI Pacific cod TAC are established for these two groups of vessels under § 679.20(a)(7)(i)(C) that facilitated separate seasonal fishing restrictions of this species. Justification for this relief of seasonal harvest constraints is discussed in the preamble to the March 23, 2001, emergency rule (66 FR 17083).
At its April 2001 meeting, the Council requested NMFS to issue an emergency rule establishing modified Steller sea lion protection measures for the second half of 2001 that would be implemented at the expiration of the January 22, 2001, emergency rule on July 17, 2001. NMFS is in the process of reviewing the Council’s recommendation.
In addition to recommending measures for the second half of 2001, the Council, at its April meeting, requested NMFS delay the June 10 opening date of the GOA Pacific cod fishery and the BSAI Pacific cod fishery by vessels greater than 60 ft (18.3 m) LOA using pot or hook-and-line gear. The Council’s request was intended to promote management of the Alaska Pacific cod fisheries in a manner that would maintain the objective of 2001 Steller sea lion protection measures to avoid localized depletion of Pacific cod through temporal and spatial distribution of the directed fisheries for this species. The Council’s requested season delays also would address salmon and Pacific halibut bycatch concerns. Other fishery management concerns addressed included poor product recovery and quality in summer months; competition with summer salmon fisheries for processing facilities; potential gear conflicts between pot and trawl gear fleets; and coordination between BSAI Pacific cod fisheries within the CDQ and non-CDQ sectors. Regulations to prohibit directed fishing for Pacific cod in the GOA and in the BSAI by vessels equal to or greaater than 60 ft (18.3) LOA using pot or hook-and-line gear must be effective by June 10, 2001, to meet the intent of the Council and to avoid industry confusion and a race for available Pacific cod TAC on this date.
The Pacific cod seasons adopted by the Council and approved by NMFS
The purpose of this amendment to the existing emergency interim rule is to support the Council’s management intentions for the Pacific cod season delays through prohibitions on directed fishing for Pacific cod by specified vessels as of June 10. These closures will remain effective until the expiration of the January 22 emergency rule. An expected upcoming rule will establish new opening dates for the second Pacific cod season for different harvesting sectors. The justification for the fishery closures implemented under this amendment to the January 22 emergency rule follows.
The Council recommended that the second season opening date for the GOA Pacific cod fisheries be delayed from June 10 to September 1. Except for an allocation between inshore and offshore sectors under § 679.20(a)(6)(iii), the GOA Pacific cod TAC is not allocated among different gear sectors that would facilitate separate treatment of vessels using jig, pot, hook-and-line, or trawl gear. Thus, the Council’s intent was to delay the second season for vessels using any gear type.
The Council recommended a season delay to September 1 in consideration of the fact that only 40 percent of the 2001 TAC remains for the remainder of the year, that the fishery would not be sufficiently compromised to the extent it would effect foraging Steller sea lions, and that trawl fishing would continue to be prohibited after October 31 to eliminate the potential of relatively high volume harvest amounts during winter months.
Further, a September 1 opening date for the second GOA Pacific cod season also would address concerns for salmon bycatch in the June and July trawl fisheries that could increase significantly if the Pacific cod fishery were to open June 10. Specifically, chum salmon move through the Gulf of Alaska and concentrate in Aleutian Island passes on their way to Western Alaska spawning grounds. During this time, they are vulnerable to interception in other fisheries, including GOA groundfish trawl fisheries. In the January 22 emergency interim rule that established NMFS’ intent for 2001 Steller sea lion conservation measures, NMFS anticipated that the summer GOA pollock fishery would be delayed to August 20, thus avoiding the potential for significant salmon bycatch and the Council desired the same mitigation for the GOA Pacific cod trawl fisheries.
Finally, Pacific halibut bycatch rates in both the trawl and hook-and-line gear fisheries for GOA Pacific cod would increase significantly in summer months when halibut move into shallower waters where the cod fisheries typically are conducted. Furthermore, catch-per-unit of effort for Pacific cod is low at this time of year when fish are dispersed, and fishing gear is in the water for a longer period of time and has greater opportunity for increased incidental catch rates of prohibited species. The flesh quality and product recovery of Pacific cod also is relatively low in summer months, when a target fishery generally has been avoided in favor of other times of the year when harvest and revenues would be more optimal. Last, GOA processing capacity for groundfish in summer months is constrained by processing needs of the salmon industry and these competing uses of processing facilities would be avoided by the proposed delay of the Pacific cod fishery until early September when the salmon fisheries generally have concluded.
The Council also requested a delay of the second season opening date of the BSAI hook-and-line catcher/processor and catcher vessel fisheries for Pacific cod from June 10 until August 15. In taking this action, the Council recognized that NMFS already has implemented the 2001 seasonal apportionment of the non-trawl Pacific halibut bycatch limit in a manner that currently delays the BSAI hook-and-line Pacific cod fisheries to August 1. The additional delay from August 1 to August 15 was adopted by the Council to maintain temporal distribution of the fishery consistent with the objectives of existing Steller sea lion protection measures, while minimizing high halibut bycatch rates during summer months. This delay also reduces the potential for interaction of the hook-and-line gear fisheries with the endangered short-tailed albatross and other seabird species during summer months. Finally, this delay provides additional opportunity for the harvest of CDQ Pacific cod with hook-and-line gear to the extent that fishing for CDQ Pacific cod would occur in summer months prior to the start of the non-CDQ fisheries when partner vessels contracted to harvest or process CDQ Pacific cod become less available.
Finally, the Council requested a June 10 to September 1 delay in the second season opening date for the BSAI Pacific cod pot gear fishery by vessels equal to or greater than 60 ft (18.3 m) LOA. This action was requested in recognition that the amount of BSAI Pacific cod that remains to be harvested by these vessels in the second season represents less than 2 percent of the BSAI Pacific cod TAC. The Council also recognized that harvest removals by this gear type are slow paced and are unlikely to effect Steller sea lions in a manner not already considered by NMFS when it implemented the 2001 Steller sea lion protection measures. This season delay for the pot gear fleet also is intended by the Council to help avoid gear conflicts with the groundfish trawl fisheries.
The June 10 second season opening date for BSAI Pacific cod harvested by trawl vessels remains unchanged to maintain overall spatial and temporal distribution of the BSAI Pacific cod fisheries. Potential bycatch concerns ensuing from a summer trawl effort for Pacific cod was assumed by the Council to be self limiting due to low summer catch rates and the fleets’ avoidance of high Pacific halibut bycatch rates that could preempt more lucrative fall fishing. Salmon bycatch in the non-pollock trawl fisheries typically has not posed a concern given that summer trawl fisheries typically are limited due to halibut bycatch concerns and restrictions. These fisheries also tend to operate on fishing grounds that avoid high bycatch rates of salmon.
NMFS has assessed the Council’s request for delay of the second season opening date for Pacific cod by specified sectors relative to the objective of distributing Pacific cod fisheries in time and space to minimize fishery competition with Steller sea lion foraging success. The season delay only affects the BSAI Pacific cod pot and hook-and-line gear fisheries and the GOA Pacific cod fisheries. These fisheries will be limited to 40 percent of their 2001 Pacific cod TAC allocations. Any existing seasonal constraints for the BSAI trawl, jig, CDQ, and small vessel pot or hook-and-line fisheries for Pacific cod are unchanged. The BSAI Pacific cod pot gear allocation for the remainder of year totals less than 5,000 metric tons (mt). The magnitude and expected rate of removal by this gear type starting on September 1 for the remainder of 2001 does not pose concern for disproportionate removals of Pacific cod in critical habitat areas. The hook-and-line gear harvest of BSAI Pacific cod during the second season starting on August 15 historically is spread spatially in a manner that does not pose concern for disproportionate removal in Steller sea lion critical habitat. Further, the maximum historical weekly harvest rate by this sector in recent years (less than 5,600 mt) is sufficiently low as to not pose undue concern for prey competition with Steller sea lions during the 2001 phase-in year of the RPA.
The GOA Pacific cod fishery during the delayed second season would continue to be limited to 40 percent of the annual TAC and regulatory provisions will remain unchanged for the closure of the directed fishery by trawl vessels after October 31, 2001. Weekly catch rates of GOA Pacific cod are anticipated to be low during the second season given that Pacific cod are not aggregated in a manner conducive to intense harvest effort and removals.
Based on these determinations, NMFS finds that the compressed duration of the second Pacific cod season for the GOA fisheries and the BSAI pot and hook-and-line gear fisheries and the rate of removal of the remaining Pacific cod allocated to these fisheries are of sufficiently small temporal scale and impact as to not pose concern for a disproportionate rate of harvest removal. Thus, the effects of this amendment to the January 22, 2001, emergency interim rule on the ability of Steller sea lions to forage on available Pacific cod would not be compromised to the extent that the compressed seasons would lead to any effect that has not been previously considered in the implementation of the January 22, 2001, emergency rule, including any increased takes of Steller sea lions or any other species listed under the ESA.
This action also addresses prohibited species bycatch concerns. The second season delay for the BSAI hook-and-line and pot gear fisheries and the GOA fishery by any gear type is advisable in consideration of salmon, seabird, and Pacific halibut bycatch concerns, as well as general management of competing BSAI fisheries using the same fishing platforms (CDQ vs non-CDQ Pacific cod fisheries) and fishing grounds (pot gear vs non-pot gear).
The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this emergency interim rule is necessary for the conservation and management of the groundfish fisheries of the BSAI and GOA. The Regional Administrator also has determined that this emergency interim rule is consistent with the Magnuson-Stevens Act and other applicable laws.
This action has been determined to be not significant for purposes of Executive Order 12866. This emergency interim rule contains no reporting, recordkeeping, or compliance requirements, and no relevant Federal rules exit which may duplicate, overlap, or conflict with this action.
This amended emergency interim rule is consistent with the objectives for Steller sea lion protection measures implemented in 2001 under section 209(c)(6) of Pub. L. 106-554, the ESA, and other applicable laws. This action also will minimize bycatch rates of salmon and Pacific halibut in the Pacific cod fisheries while providing for continued temporal distribution of the Pacific cod fisheries. As such, the opportunity for harvest of Pacific cod will be optimized under prohibited species catch restrictions and the desire to avoid high bycatch rates of chum salmon in the GOA groundfish fisheries. The short-term directed fishing prohibitions implemented under the amended emergency interim rule must be effective by June 10, 2001, to realize the intent of the Council and NMFS and avoid more long-term fishery closures that could occur if the fishery were to be conducted when bycatch rates are high and cod catch rates are low. Thus, this action must be implemented as soon as practical and in a manner that makes impracticable prior opportunity for notice and public comment. Therefore, good cause exists to waive those requirements pursuant to 5 U.S.C. 553(b)(3). For the same reason, good cause exists to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3). Because this emergency interim rule is not subject to the requirement to provide notice or an opportunity for comment by 5 U.S.C. 553 or any other laws, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Alaska, Fisheries, Recordkeeping and reporting requirements.
16 U.S.C. 773
(d) * * *
(5)
(e) * * *
(6) * * *
(iv)
(A)
(B)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is closing directed fishing for yellowfin sole by vessels using trawl gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the third seasonal apportionment of the 2001 Pacific halibut bycatch allowance specified for the trawl yellowfin sole fishery category.
Effective 1200 hrs, Alaska local time (A.l.t.), June 11, 2001, until 1200 hrs, A.l.t., July 1, 2001.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The third seasonal apportionment of the 2001 halibut bycatch allowance specified for the BSAI trawl yellowfin sole fishery category, which is defined at § 679.21 (e)(3)(iv)(B)(
In accordance with § 679.21 (e)(7)(v), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the third seasonal apportionment of the 2001 halibut bycatch allowance specified for the trawl yellowfin sole fishery in the BSAI has been caught. Consequently, the Regional Administrator is closing directed fishing for yellowfin sole by vessels using trawl gear in the BSAI.
Maximum retainable bycatch amounts may be found in the regulations at § 679.20 (e) and (f).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to avoid exceeding the halibut bycatch allowance for the yellowfin sole fishery category constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553 (b)(3)(B) and 50 CFR 679.20 (b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to avoid exceeding the halibut bycatch allowance for the yellowfin sole fishery category constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553 (d), a delay in the effective date is hereby waived.
This action is required by 50 CFR 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Notice of review and request for comments.
This action announces that the Agricultural Marketing Service (AMS) plans to review Marketing Order 981 for almonds grown in California, under the criteria contained in section 610 of the Regulatory Flexibility Act (RFA).
Written comments on this action must be received by August 13, 2001.
Interested persons are invited to submit written comments concerning this notice of review. Comments must be sent to the Docket Clerk, Fruit and Vegetable Programs, AMS, USDA, Room 2525-S, Box 96456, Washington, DC 20090-6456; Fax: (202) 720-8938; or E-mail: moab.docketclerk@usda.gov. All comments should reference the docket number and the date and page number of this issue of the
Martin Engeler, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B, Fresno, California 93721; telephone: (209) 487-5901; Fax: (209) 487-5906; E-mail: Martin.Engeler@usda.gov; or George Kelhart, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-2491; Fax: (202) 720-8938; E-mail: George.Kelhart@usda.gov.
Marketing Order No. 981, as amended (7 CFR part 981), regulates the handling of almonds grown in California. The marketing order is effective under the Agricultural Marketing Agreement Act of 1937 (AMAA), as amended (7 U.S.C. 601-674).
AMS published in the
The purpose of the review will be to determine whether the California marketing order for almonds should be continued without change, amended, or rescinded (consistent with the objectives of the AMAA) to minimize the impacts on small entities. In conducting this review, AMS will consider the following factors: (1) The continued need for the marketing order; (2) the nature of complaints or comments received from the public concerning the marketing order; (3) the complexity of the marketing order; (4) the extent to which the marketing order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the marketing order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the marketing order.
Written comments, views, opinions, and other information regarding the almond marketing order's impact on small businesses are invited.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations under sections 441, 442, 706, and 1378 of the Internal Revenue Code of 1986 that relate to certain adoptions, changes, and retentions of annual accounting periods. The proposed regulations are necessary to update, clarify, and reorganize the rules and procedures for adopting, changing, and retaining a taxpayer's annual accounting period. The proposed regulations primarily affect taxpayers that want to adopt an annual accounting period under section 441 or that must receive approval from the Commissioner to adopt, change, or retain their annual accounting periods under section 442. This document also contains a notice of public hearing on these proposed regulations.
Written and electronic comments and requests to speak (with outlines of oral comments) at a public hearing scheduled for October 2, 2001, must be received by September 11, 2001.
Send submissions to: CC:M&SP:RU (REG-106917-99), room 5226, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 5 p.m. to: CC:M&SP:RU (REG-106917-99), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively,
Concerning the proposed regulations, Roy A. Hirschhorn and Martin Scully, Jr. (202) 622-4960; concerning submissions of comments and the hearing, and/or to be placed on the building access list to attend the hearing, Treena Garrett (202) 622-7180 (not toll-free numbers).
The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S:O, Washington, DC 20224. Comments on the collections of information should be received by August 13, 2001. Comments are specifically requested concerning:
Whether the proposed collections of information are necessary for the proper performance of the functions of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collections of information (see below);
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collections of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
The collection of information can be found in §§ 1.441-2(b)(1), 1.442-1(b)(1) and (b)(4) and (d), and 1.1378-1 of these regulations. Section 1.441-2(b)(1) requires certain taxpayers to file statements on their federal income tax returns to notify the Commissioner of the taxpayers' election to adopt a 52-53-week taxable year. Section 1.442-1(b)(4) provides that certain taxpayers must establish books and records that clearly reflect income for the short period involved when changing their taxable year from their taxable year to a proposed fiscal taxable year. Section 1.442-1(d) requires a newly married husband or wife to file a statement with their short period return when changing to the other spouse's taxable year. This collection of information is mandatory. The likely respondents are businesses or other profit entities and individuals.
The estimated average annual burden per respondent and/or recordkeeper required by §§ 1.442-1(b)(1) and 1.1378-1 are reflected in the burdens of Forms 1128 and 2553.
Further, the estimated average burden per respondent and/or recordkeeper required by §§ 1.441-2(b)(1), 1.442-1(b)(4) and 1.442-1(d) is as follows:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains proposed amendments to regulations under section 441 (period for computing taxable income), and sections 442, 706, and 1378 (regarding the requirement to obtain the approval of the Commissioner to adopt, change, or retain an annual accounting period).
1.
In addition to general implementation provisions, the temporary regulations include transition and anti-abuse provisions specific to taxpayers in existence at the time the 1986 Act became effective. For example, § 1.441-3T provides rules intended to prevent taxpayers from circumventing the effective date of the provisions of the 1986 Act by adopting or changing to (or from) a 52-53-week taxable year during the period beginning after September 29, 1986, and ending before January 5, 1987.
Generally, this document reproposes the temporary regulations under section 441. However, this document also reorganizes, clarifies, modifies, and updates the temporary regulations. Many of the provisions contained in the temporary regulations remain essentially the same, including the general rules for adopting a taxable year, the provisions relating to electing a 52-53-week taxable year, and the rules for PSCs. However, provisions that are now obsolete have been removed, and new rules and definitions have been added, as described in more detail below. In addition, new cross-references to section 442 and the proposed regulations thereunder are included to guide taxpayers, where appropriate, to the rules and procedures for obtaining approval to adopt, change, or retain their annual accounting periods.
2.
In addition, the proposed regulations clarify the meaning of the requirement to keep books for taxpayers using a fiscal year. The temporary regulations provide that a fiscal year will be recognized only if the books of the taxpayer are kept in accordance with that fiscal year. The proposed regulations conform the book keeping requirement for taxpayers using a fiscal year to that of § 1.446-1(a)(4), which allows for a reconciliation between the taxpayer's books and return. However, as a term and condition of obtaining approval to adopt, change to, or retain an annual accounting period under section 442, certain taxpayers nevertheless may be required to compute income and keep their books (including financial statements and reports to creditors) on the basis of the requested annual accounting period. See, e.g., Rev. Proc. 2000-11 (2000-3 I.R.B. 309).
The proposed regulations also provide that a taxable year is adopted by filing the first federal income tax return using that taxable year. Accordingly, filing an application for an employer identification number, filing an extension, or making estimated tax payments, indicating a particular taxable year do not constitute an adoption of that year. Consequently, Rev. Rul. 57-589 (1957-2 C.B. 298), and Rev. Rul. 69-563 (1969-2 C.B. 104), holding that the filing of an extension and estimated tax payments establishes a taxable year, are proposed to be superseded. The IRS will continue to follow the decision in
3.
The proposed regulations also expand the applicability of the rules for determining the inclusion of income and deductions from a pass-through entity where either the entity or its owner uses a 52-53-week taxable year. In addition to applying to partnerships, S corporations, and PSCs (as in the temporary regulations), the proposed regulations apply these inclusion rules to trusts, common trust funds, controlled foreign corporations, foreign personal holding companies, and passive foreign investment companies that are qualified electing funds.
4.
5.
Comments were received on the notice of proposed rulemaking that is cross-referenced by the temporary regulations under § 1.441-4T. Most significantly, one commentator suggested that the testing period for determining whether a taxpayer is a PSC should be the three preceding taxable years, rather than the preceding taxable year, to prevent taxpayers from becoming a PSC due to temporary or aberrational conditions. The proposed regulations retain the one-year testing period provided in the temporary regulations. However, the IRS and Treasury Department will reconsider this testing period, as well as other comments received on the temporary regulations, to the extent similar comments are received on these proposed regulations now that taxpayers have significantly more experience with the provisions in the temporary regulations.
1.
2.
3.
As a result, the IRS and Treasury Department published Notice 99-19 (1999-1 C.B. 919) soliciting comments on how the rules for obtaining approval of an adoption, change, or retention in annual accounting period could be clarified and simplified. In response, commentators urged the IRS and Treasury Department to expand the categories of taxpayers that would be granted automatic approval for an annual accounting period and to revise the substantial business purpose requirement to broaden the circumstances in which a taxpayer will be granted approval to change an annual accounting period.
The IRS and Treasury Department believe that the proposed regulations, in combination with automatic and prior approval revenue procedures, will clarify the rules governing accounting periods, expand the circumstances in which taxpayers will be granted approval (automatically and otherwise), and result in a more clear, uniform ruling practice.
The proposed regulations continue to provide the general standards for obtaining approval for an adoption, change, or retention in annual accounting period: taxpayers must demonstrate the existence of a “business purpose” and must agree to the terms, conditions, and adjustments for the adoption, change, or retention. In modifying the “substantial business purpose” requirement to “business purpose,” the IRS and Treasury Department intend merely to conform to the language of the business purpose requirement found in sections 441(i), 706, and 1378 and not to lower the current standard. In addition, the proposed regulations contain business purpose guidelines generally applicable to all taxpayers. For example, the proposed regulations provide the general rule that deferral of income will not be treated as a business purpose. They also explain that a taxpayer will have demonstrated a business purpose by applying to adopt, change to, or retain a year coinciding with its required taxable year, ownership taxable year, or natural business year.
The prior approval revenue procedure is intended to provide more detailed guidance about how a taxpayer's business purpose will be evaluated, and the terms, conditions, and adjustments that will apply to an adoption, change, or retention of annual accounting period. Notice 2001-34, issued concurrently with these proposed regulations, proposes a revenue procedure that, when finalized, will provide the rules and procedures applicable to taxpayers who must apply to the national office to obtain the Commissioner's prior approval for an adoption, change, or retention. Under the proposed revenue procedure, the IRS in its ruling practice would no longer weigh the merit of the taxpayer's stated business purpose against the amount of distortion of income or other tax consequences resulting from an adoption, change, or retention. Taxpayers wanting to adopt, change to, or retain a natural business year generally would be granted approval (provided they agree to general terms and conditions) under the proposed revenue procedure as under the current IRS ruling practice. Also consistent with the current IRS ruling practice, establishing a natural business year generally will be the only circumstance under which a partnership, S corporation, electing S corporation, or PSC will be granted approval. However, the IRS ruling practice for other taxpayers generally will be liberalized. These other taxpayers that do not establish a natural business year generally would be granted approval under the proposed revenue procedure if they agree to certain additional terms, conditions, and adjustments designed to neutralize the tax effects of substantial distortion of income resulting from the change. Under the IRS's current ruling practice, these other taxpayers generally would have been denied approval to change their annual accounting period if the change would have resulted in more than de minimis distortion of income.
4.
Further, the proposed regulations provide that the procedures to obtain automatic approval of the Commissioner for an adoption, change, or retention of annual accounting period generally are contained in administrative procedures. The IRS and Treasury Department believe that this structure will allow for the issuance of more detailed and useful guidance. See, for example, Rev. Proc. 2000-11 (2000-3 I.R.B. 309), which provides procedures for automatic approval for corporations; Notice 2001-35, proposing to update and supersede Rev. Proc. 87-32 (1987-2 C.B. 396), which provides procedures for automatic approval for partnerships, S corporations, electing S corporations, and PSCs; and Rev. Proc. 66-50 (1966-2 C.B. 1260), which provides automatic approval provisions for individuals. As part of the finalization of these proposed regulations and the proposed revenue procedures contained in Notices 2001-34 and 2001-35, the IRS and Treasury Department intend to update the procedures in Rev. Proc. 2000-11 to make conforming changes. For example, Rev. Proc. 2000-11 may be modified to reduce the time period between automatic changes from six to four years (as proposed in Notice 2001-34) and to provide audit protection for taxpayers making voluntary period changes (as proposed in both notices).
5.
Similarly, the rules relating to certain foreign corporations contained in the current regulations are proposed to be
Finally, the proposed regulations would remove the following transitional provisions, which are now obsolete: §§ 5c.442-1, 5f.442-1, 1.442-2T, and 1.442-3T.
The current regulations under § 1.706-1 have not been updated to reflect changes made to section 706(b) by the 1986 Act. These proposed regulations modify the current regulations to reflect the required taxable year of a partnership consistent with the 1986 Act and § 1.706-1T (regarding the taxable year that results in the least aggregate deferral of income). The proposed regulations also remove the procedural aspects of establishing a business purpose and requesting approval of the Commissioner to adopt or change a taxable year and instead refer to the procedures in § 1.442-1 (including the administrative procedures prescribed thereunder).
These regulations also propose to remove § 1.706-1T. This removal is not intended to effect a substantive change because the provisions of § 1.706-1T generally are adopted by the proposed regulations. The IRS and Treasury recently expressed a commitment to the finalization of § 1.706-1T, as well as other previously proposed regulations under section 706, LR-183-84 (49 FR 47048) and LR-53-88 (53 FR 19715). See 66 FR 3920, 3922. However, it is believed that adopting the substantive provisions of § 1.706-1T in the current proposed regulations will promote clarity and efficiency.
Section 1.706-1(a)(2) of the current regulations provides that any gain or loss from a partnership distribution or from a sale or exchange of all or part of a partnership interest is includible in the partner's gross income for the taxable year in which the payment is made. Gain or loss from a distribution or a sale or exchange of a partnership interest generally is includible in gross income in the taxable year in which payment is made, but not always. For example, a partner who sells his partnership interest in exchange for an installment note may be able to defer inclusion of the gain from that sale under the installment method of accounting. Because the IRS and Treasury Department believe that other provisions of the Code and regulations provide adequate guidance on the time for including gain or loss from a partnership distribution or from a sale or exchange of a partnership interest, the inclusion rule in § 1.706-1(a)(2) is proposed to be removed.
To apply any of the three required taxable year tests, a partnership must determine the partners' interests in partnership profits and capital. The proposed regulations elaborate on the meaning of a partner's interest in partnership profits and capital for purposes of these tests. With respect to profits interests, the regulations clarify that a partner's profits interest is the partner's share of the taxable income, rather than the book income, of the partnership. The regulations also clarify that the partners' profits interests are determined on an annual basis based on the manner in which the partnership expects to allocate its income for the year. If the partnership does not expect to have income in the current year, then the partnership determines the partner's profits interests based on the manner in which it expects to allocate its income in the first taxable year in which the partnership expects to have income.
Generally, a partner's interest in partnership capital is determined through reference to the assets of the partnership that the partner would be entitled to upon withdrawal from the partnership or upon the liquidation of the partnership. See, e.g., § 1.704-1(e)(v), Rev. Proc. 93-27 (1993 C.B. 343). As a practical matter, such a determination will require a valuation of the partnership's assets. Because the determination under section 706 must be made on an annual basis, the burden associated with actual valuations may make it difficult for partnerships to identify their taxable years quickly and easily. Therefore, for partnerships that maintain capital accounts in accordance with § 1.704-1(b)(2)(iv), these proposed regulations provide that in making this determination, it will be reasonable for the partnership to assume that a partner's interest in partnership capital is the ratio of the partner's capital account to all partners' capital accounts. The IRS and Treasury Department are aware that this method will not always be as precise as an actual valuation, but believe that any imprecision is outweighed by the strong interest that partnerships have in being able to easily determine their taxable year.
This definition of a partner's interest in partnership profits and capital was designed to be compatible with the provisions of, and policies underlying, section 706(b). Many other sections of the Code also contain references to a partner's interest in partnership profits or capital. As those sections address concerns that differ substantially from the concerns addressed by section 706(b), this proposed regulation should not be read to create any implication as to the meaning of a partner's interest in partnership profits and capital for purposes of those sections.
The current regulations under § 18.1378-1 describe the permitted year of an S corporation and provide procedural rules for an S corporation or electing S corporation to obtain approval to adopt, change, or retain its taxable year. However, the automatic change provision contained in these regulations is more restrictive than the automatic change proposed in Notice 2001-35. For this reason, and to be consistent with the policy decision to provide the procedural aspects of adopting, retaining, or changing a taxable year under § 1.442-1 (including the administrative procedures prescribed thereunder), these regulations propose to modify § 18.1378-1 to remove these procedural rules and instead refer to § 1.442-1.
These regulations are proposed to be applicable for taxable years ending on or after the date these regulations are published in the
Rev. Rul. 57-589 is obsolete.
Rev. Rul. 65-316 (1965-2 C.B. 149) is obsolete.
Rev. Rul. 68-125 (1968-1 C.B. 189) is obsolete.
Rev. Rul. 69-563 is obsolete.
Rev. Rul. 74-326 (1974-2 C.B. 142) is obsolete.
Rev. Rul. 78-179 (1978-1 C.B. 132) is obsolete.
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) and electronic comments that are submitted timely to the IRS. The IRS and Treasury Department specifically request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.
A public hearing has been scheduled for October 2, 2001, at 10 a.m., in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the 10th Street entrance, located between Constitution and Pennsylvania Avenues, NW. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 15 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing.
Persons who wish to present oral comments at the hearing must submit timely written or electronic comments and must submit an outline of the topics to be discussed and the time to be devoted to each topic (preferably a signed original and eight (8) copies) by September 11, 2001.
A period of 10 minutes will be allocated to each person for making comments.
An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal authors of these regulations are Roy A. Hirschhorn and Martin Scully, Jr. of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accounting, Income taxes, Reporting and recordkeeping requirements.
Administrative practice and procedure, Income taxes.
Accordingly, 26 CFR parts 1, 5c, 5f, 18, and 301 are proposed to be amended as follows:
26 U.S.C. 7805 * * *
This section lists the captions contained in § 1A1.441-1 through 1.441-4 as follows:
(a) Computation of taxable income.
(1) In general.
(2) Length of taxable year.
(b) General rules and definitions.
(1) Taxable year.
(2) Required taxable year.
(i) In general.
(ii) Exceptions.
(A) 52-53-week taxable years.
(B) Partnerships, S corporations, and PSCs.
(C) Specified foreign corporations.
(3) Annual accounting period.
(4) Calendar year.
(5) Fiscal year.
(i) Definition.
(ii) Recognition.
(6) Grandfathered fiscal year.
(7) Books.
(c) Adoption of taxable year.
(1) In general.
(2) Approval required.
(i) Taxpayers with required taxable years.
(ii) Taxpayers without books.
(d) Retention of taxable year.
(e) Change of taxable year.
(f) Obtaining approval of the Commissioner or making a section 444 election.
(a) In general.
(1) Election.
(2) Eligible taxpayer.
(3) Example.
(b) Procedures to elect a 52-53-week taxable year.
(1) Adoption of a 52-53-week taxable year.
(i) In general.
(ii) Filing requirement.
(2) Change to (or from) a 52-53-week taxable year.
(i) In general.
(ii) Special rules for short period required to effect the change.
(3) Examples.
(c) Application of effective dates.
(1) In general.
(2) Examples.
(3) Changes in tax rates.
(4) Examples.
(d) Computation of taxable income.
(e) Treatment of taxable years ending with reference to the same calendar month.
(1) Pass-through entities.
(2) Personal service corporations and employee-owners.
(3) Definitions.
(i) Pass-through entity.
(ii) Owner of a pass-through entity.
(4) Examples.
(5) Transition rule.
(a) Taxable year.
(1) Required taxable year.
(2) Exceptions.
(b) Adoption, change, or retention of taxable year.
(1) Adoption of taxable year.
(2) Change in taxable year.
(3) Retention of taxable year.
(4) Procedures for obtaining approval or making a section 444 election.
(5) Examples.
(c) Personal service corporation defined.
(1) In general.
(2) Testing period.
(i) In general.
(ii) New corporations.
(3) Examples.
(d) Performance of personal services.
(1) Activities described in section 448(d)(2)(A).
(2) Activities not described in section 448(d)(2)(A).
(e) Principal activity.
(1) General rule.
(2) Compensation cost.
(i) Amounts included.
(ii) Amounts excluded.
(3) Attribution of compensation cost to personal service activity.
(i) Employees involved only in the performance of personal services.
(ii) Employees involved only in activities that are not treated as the performance of personal services.
(iii) Other employees.
(A) Compensation cost attributable to personal service activity.
(B) Compensation cost not attributable to personal service activity.
(f) Services substantially performed by employee-owners.
(1) General rule.
(2) Compensation cost attributable to personal services.
(3) Examples.
(g) Employee-owner defined.
(1) General rule.
(2) Special rule for independent contractors who are owners.
(h) Special rules for affiliated groups filing consolidated returns.
(1) In general.
(2) Examples.
(a)
(2)
(b)
(1)
(i) The period for which a return is made, if a return is made for a period of less than 12 months (short period). See section 443 and the regulations thereunder;
(ii) Except as provided in paragraph (b)(1)(i) of this section, the taxpayer's required taxable year (as defined in paragraph (b)(2) of this section), if applicable;
(iii) Except as provided in paragraphs (b)(1)(i) and (ii) of this section, the taxpayer's annual accounting period (as defined in paragraph (b)(3) of this section), if it is a calendar year or a fiscal year; or
(iv) Except as provided in paragraphs (b)(1)(i) and (ii) of this section, the calendar year, if the taxpayer keeps no books, does not have an annual accounting period, or has an annual accounting period that does not qualify as a fiscal year.
(2)
(A) In the case of a foreign sales corporation or domestic international sales corporation, the taxable year determined under section 441(h) and § 1.921-1T(a)(11), (b)(4), and (b)(6);
(B) In the case of a personal service corporation (PSC), the taxable year determined under section 441(i) and § 1.441-3;
(C) In the case of a nuclear decommissioning fund, the taxable year determined under § 1.468A-4(c)(1);
(D) In the case of a designated settlement fund or a qualified settlement fund, the taxable year determined under § 1.468B-2(j);
(E) In the case of a common trust fund, the taxable year determined under section 584(i);
(F) In the case of certain trusts, the taxable year determined under section 644;
(G) In the case of a partnership, the taxable year determined under section 706 and § 1.706-1;
(H) In the case of an insurance company, the taxable year determined under section 843 and § 1.1502-76(a)(2);
(I) In the case of a real estate investment trust, the taxable year determined under section 859;
(J) In the case of a real estate mortgage investment conduit, the taxable year determined under section 860D(a)(5) and § 1.860D-1(b)(6);
(K) In the case of a specified foreign corporation, the taxable year determined under section 898(c) and §§ 1.898-1 through 1.898-4;
(L) In the case of an S corporation, the taxable year determined under section 1378 and § 1.1378-1; or
(M) In the case of a member of an affiliated group that makes a consolidated return, the taxable year determined under § 1.1502-76.
(ii)
(A)
(B)
(C)
(3)
(4)
(5)
(A) A period of 12 consecutive months ending on the last day of any month other than December; or
(B) A 52-53-week taxable year, if such period has been elected by the taxpayer. See § 1.441-2.
(ii)
(6)
(7)
(c)
(2)
(ii)
(d)
(e)
(f)
(a)
(i) Varies from 52 to 53 weeks;
(ii) Ends always on the same day of the week; and
(iii) Ends always on—
(A) Whatever date this same day of the week last occurs in a calendar month; or
(B) Whatever date this same day of the week falls that is the nearest to the last day of the calendar month.
(2)
(3)
If the taxpayer elects a taxable year ending always on the last Saturday in November, then for the year 2001, the taxable year would end on November 24, 2001. On the other hand, if the taxpayer had elected a taxable year ending always on the Saturday nearest to the end of November, then for the year 2001, the taxable year would end on December 1, 2001. Thus, in the case of a taxable year described in paragraph (a)(1)(iii)(A) of this section, the year will always end within the month and may end on the last day of the month, or as many as six days before the end of the month. In the case of a taxable year described in paragraph (a)(1)(iii)(B) of this section, the year may end on the last day of the month, or as many as three days before or three days after the last day of the month.
(b)
(ii)
(A) The calendar month with reference to which the new 52-53-week taxable year ends;
(B) The day of the week on which the 52-53-week taxable year always will end; and
(C) Whether the 52-53-week taxable year will always end on the date on which that day of the week last occurs in the calendar month, or on the date on which that day of the week falls that is nearest to the last day of that calendar month.
(2)
(ii)
(3)
A taxpayer having a fiscal year ending April 30, obtains approval to change to a 52-53-week taxable year ending the last Saturday in April for taxable years beginning after April 30, 2001. This change involves a short period of 362 days, from May 1, 2001, to April 27, 2002, inclusive. Because the change results in a short period of 359 days or more, it is not placed on an annual basis and is treated as a full taxable year.
Assume the same conditions as
(c)
(2)
Assume that an income tax provision is applicable to taxable years beginning on or after January 1, 2001. For that purpose, a 52-53-week taxable year beginning on any day within the period December 26, 2000, to January 4, 2001, inclusive, is treated as beginning on January 1, 2001.
Assume that an income tax provision requires that a return must be filed on or before the 15th day of the third month following the close of the taxable year. For that purpose, a 52-53-week taxable year ending on any day during the period May 25 to June 3, inclusive, is treated as ending on May 31, the last day of the month ending nearest to the last day of the taxable year, and the return, therefore, must be made on or before August 15.
X, a corporation created on January 1, 2001, elects a 52-53-week taxable year ending on the Friday nearest the end of December. Thus, X's first taxable year begins on Monday, January 1, 2001, and ends on Friday, December 28, 2001; its next taxable year begins on Saturday, December 29, 2001, and ends on Friday, January 3, 2003; and its next taxable year begins on Saturday, January 4, 2003, and ends on Friday, January 2, 2004. For purposes of applying the provisions of Part II, subchapter B, chapter 6 of the Internal Revenue Code, X's first taxable year is deemed to end on December 31, 2001; its next taxable year is deemed to begin on January 1, 2002, and end on December 31, 2002, and its next taxable year is deemed to begin on January 1, 2003, and end on December 31, 2003. Accordingly, each such taxable year is treated as including one and only one December 31st.
(3)
(4)
Assume a change in the rate of tax is effective for taxable years beginning after June 30, 2002. For a 52-53-week taxable year beginning on Friday, November 2, 2001, the tax must be computed on the basis of the old rates for the actual number of days from November 2, 2001, to June 30, 2002, inclusive, and on the basis of the new rates for the actual number of days from July 1, 2002, to Thursday, October 31, 2002, inclusive.
Assume a change in the rate of tax is effective for taxable years beginning after June 30, 2001. For this purpose, a 52-53-week taxable year beginning on any of the days from June 25 to July 4, inclusive, is treated as beginning on July 1. Therefore, no computation under section 15 will be required for such year because of the change in rate.
(d)
(e)
(2)
(3)
(ii)
(4)
ABC Partnership uses a 52-53-week taxable year that ends on the Wednesday nearest to December 31, and its partners, A, B, and C, are individual calendar year taxpayers. Assume that, for ABC's taxable year ending January 3, 2001, each partner's distributive share of ABC's taxable income is $10,000. Under section 706(a) and paragraph (e)(1) of this section, for the taxable year ending December 31, 2000, A, B, and C each must include $10,000 in income with respect to the ABC year ending January 3, 2001. Similarly, if ABC makes a guaranteed payment to A on January 2, 2001, A must include the payment in income for A's taxable year ending December 31, 2000.
X, a PSC, uses a 52-53-week taxable year that ends on the Wednesday nearest to December 31, and all of the employee-owners of X are individual calendar year taxpayers. Assume that, for its taxable year ending January 3, 2001, X pays a bonus of $10,000 to each employee-owner on January 2, 2001. Under paragraph (e)(2) of this section, each employee-owner must include its bonus in income for the taxable year ending December 31, 2000.
(5)
(a)
(2)
(b)
(2)
(3)
(4)
(5)
X, whose taxable year ends on January 31, 2001, becomes a PSC for its taxable year beginning February 1, 2001, and does not obtain the approval of the Commissioner for using a fiscal year. Thus, for taxable years ending before February 1, 2001, this section does not apply with respect to X. For its taxable year beginning on February 1, 2001, however, X will be required to comply with paragraph (a) of this section. Thus, unless X obtains approval of the Commissioner to use a January 31 taxable year, or makes a section 444 election, X will be required to change its taxable year to the calendar year under paragraph (b) of this section by using a short taxable year that begins on February 1, 2001, and ends on December 31, 2001. Under paragraph (b)(1) of this section, X may obtain automatic approval to change its taxable year to a calendar year. See § 1.442-1(b).
Assume the same facts as in
(c)
(i) The taxpayer is a C corporation (as defined in section 1361(a)(2)) for the taxable year;
(ii) The principal activity of the taxpayer during the testing period is the performance of personal services;
(iii) During the testing period, those services are substantially performed by employee-owners (as defined in paragraph (g) of this section); and
(iv) Employee-owners own (as determined under the attribution rules of section 318, except that “any” applies instead of “50 percent” in section 318(a)(2)(C)) more than 10 percent of the fair market value of the outstanding stock in the taxpayer on the last day of the testing period.
(2)
(ii)
(A) The last day of that taxable year; or
(B) The last day of the calendar year in which that taxable year begins.
(3)
Corporation A's first taxable year begins on June 1, 2001, and A desires to use a September 30 taxable year. However, if A is a personal service corporation, it must obtain the Commissioner's approval to use a September 30 taxable year. Pursuant to paragraph (c)(2)(ii) of this section, A's testing period for its first taxable year beginning June 1, 2001, is the period June 1, 2001 through September 30, 2001. Thus, if, based upon such testing period, A is a personal service corporation, A must obtain the Commissioner's permission to use a September 30 taxable year.
The facts are the same as in
(d)
(2)
(e)
(2)
(A) Wages and salaries; and
(B) Any other amounts, attributable to services performed for or on behalf of the corporation by a person who is an employee of the corporation (including an owner of the corporation who is treated as an employee under paragraph (g)(2) of this section) during the testing period. Such amounts include, but are not limited to, amounts attributable to deferred compensation, commissions, bonuses, compensation includible in income under section 83, compensation for services based on a percentage of profits, and the cost of providing fringe benefits that are includible in income.
(ii)
(3)
(ii)
(iii)
(A)
(B)
(f)
(2)
(i) The corporation's compensation cost attributable to its activities that are treated as the performance of personal services is determined under paragraph (e)(3) of this section; and
(ii) The portion of the amount determined under paragraph (f)(2)(i) of this section that is attributable to personal services performed by employee-owners is to be determined by the taxpayer in any reasonable and consistent manner.
(3)
For its taxable year beginning February 1, 2001, Corp A's testing period is the taxable year ending January 31, 2000. During that testing period, A's only activity was the performance of personal services. The total compensation cost of A (including compensation cost attributable to employee-owners) for the testing period was $1,000,000. The total compensation cost attributable to employee-owners of A for the testing period was $210,000. Pursuant to paragraph (f)(1) of this section, the employee-owners of A substantially performed the personal services of A during the testing period because the compensation cost of A's employee-owners was more than 20 percent of the total compensation cost for all of A's employees (including employee-owners).
Corp B has the same facts as corporation A in
(g)
(i) The person is an employee of the corporation on any day of the testing period; and
(ii) The person owns any outstanding stock of the corporation on any day of the testing period.
(2)
(h)
(i) The members of the affiliated group are treated as a single corporation;
(ii) The employees of the members of the affiliated group are treated as employees of such single corporation; and
(iii) All of the stock of the members of the affiliated group that is not owned by any other member of the affiliated group is treated as the outstanding stock of that corporation.
(2)
The affiliated group AB, consisting of corporation A and its wholly owned subsidiary B, filed a consolidated Federal income tax return for the taxable year ending January 31, 2001, and AB is attempting to determine whether it is affected by this section for its taxable year beginning February 1, 2001. During the testing period (i.e., the taxable year ending January 31, 2001), A did not perform personal services. However, B's only activity was the performance of personal services. On the last day of the testing period, employees of A did not own any stock in A. However, some of B's employees own stock in A. In the aggregate, B's employees own 9 percent of A's stock on the last day of the testing period. Pursuant to paragraph (h)(1) of this section, this section is effectively applied on a consolidated basis to members of an affiliated group filing a consolidated federal income tax return. Because the only employee-owners of AB are the employees of B, and because B's employees do not own more than 10 percent of AB on the last day of the testing period, AB is not a PSC subject to the provisions of this section. Thus, AB is not required to determine on a consolidated basis whether, during the testing period, its principal activity is the providing of personal services, or the personal services are substantially performed by employee-owners.
The facts are the same as in
Sections 1.441-0 through 1.441-3 are applicable for taxable years ending on or after the date these regulations are published in the
(a)
(b)
(2)
(3)
(4)
(c)
(d)
(2) The provisions of this paragraph (d) may be illustrated by the following example:
H & W marry on September 25, 2001. H is on a fiscal year ending June 30, and W is on a calendar year. H wishes to change to a calendar year in order to file joint returns with W. W's first taxable year after marriage ends on December 31, 2001. H may not change to a calendar year for 2001 since, under this paragraph (d), he would have had to file a return for the short period from July 1 to December 31, 2000, by April 16, 2001. Since the date of marriage occurred subsequent to this due date, the return could not be filed under this paragraph (d). Therefore, H cannot change to a calendar year for 2001. However, H may change to a calendar year for 2002 by filing a return under this paragraph (d) by April 15, 2002, for the short period from July 1 to December 31, 2001. If H files such a return, H and W may file a joint return for calendar year 2002 (which is W's second taxable year ending after the date of marriage).
(e)
(a)
(2) The rules of this paragraph (a)(1) may be illustrated by the following example:
Partner A reports his income using a calendar year, while the partnership of which he is a member reports its income using a fiscal year ending May 31. The partnership reports its income and deductions under the cash method of accounting. During the partnership taxable year ending May 31, 2002, the partnership makes guaranteed payments of $120,000 to A for services and for the use of capital. Of this amount, $70,000 was paid to A between June 1 and December 31, 2001, and the remaining $50,000 was paid to A between January 1 and May 31, 2002. The entire $120,000 paid to A is includible in A's taxable income for the calendar year 2002 (together with A's distributive share of partnership items set forth in section 702 for the partnership taxable year ending May 31, 2002).
(3) If a partner receives distributions under section 731 or sells or exchanges all or part of a partnership interest, any gain or loss arising therefrom does not constitute partnership income.
(b)
(2)
(A) The majority interest taxable year, as defined in section 706(b)(4);
(B) If there is no majority interest taxable year, the taxable year of all of the principal partners of the partnership, as defined in 706(b)(3) (the principal partners' taxable year); or;
(C) If there is no majority interest taxable year or principal partners' taxable year, the taxable year that produces the least aggregate deferral of income as determined under § 1.706-1(b)(3).
(ii)
(3)
(ii)
(iii)
(iv)
Partnership P is on a fiscal year ending June 30. Partner A reports income on the fiscal year ending June 30 and Partner B reports income on the fiscal year ending July 31. A and B each have a 50 percent interest in partnership profits. For its taxable year beginning July 1, 1987, the partnership will be required to retain its taxable year since the fiscal year ending June 30 results in the least aggregate deferral of income to the partners. This determination is made as follows:
The facts are the same as in
The facts are the same as in
The facts are the same as in
The facts are the same as in
(i) Partnership P has two partners, A who reports income on the fiscal year ending March 31, and B who reports income on the fiscal year ending July 31. A and B share profits equally. P has determined its taxable year under § 1.706-1(b)(3) to be the fiscal year ending March 31 as follows:
In May 1988, Partner A sells a 45 percent interest in the partnership to C, who reports income on the fiscal year ending April 30. For the taxable period beginning April 1, 1989, the fiscal year ending April 30 is the taxable year that produces the least aggregate deferral of income to the partners. However, under paragraph (b)(3)(iii) of this section the partnership is required to retain its fiscal year ending March 31. This determination is made as follows:
(4)
(ii)
(B)
(C)
(iii)
(5)
(6)
(7)
(8)
(B)
(C)
(ii)
(9)
(10)
(d)
(c) * * *
(3) * * *
(iv)
(a)
(b)
(c)
(d)
(e)
(2)
(f)
26 U.S.C. 168(f)(8)(G) and 7805.
26 U.S.C. 7805 * * *
26 U.S.C. 7805.
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard proposes to establish permanent special local regulations for fireworks displays to be held over the waters of the Patapsco River, Baltimore, Maryland. These special local regulations are necessary to provide for the safety of life on navigable waters during the fireworks displays. This action is intended to temporarily restrict vessel traffic in the Patapsco River to protect spectator craft and other vessels transiting the event area from the dangers associated with the fireworks.
Comments and related material must reach the Coast Guard on or before August 13, 2001.
You may mail comments and related material to Commander (Aoax), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, hand-deliver them to Room 119 at the same address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays, or fax them to (757) 398-6203. Commander (Aoax), Fifth Coast Guard District, maintains the public docket for this rulemaking. Comments and materials received from the public as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the above address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays.
Chief Warrant Officer R. Houck, Marine Events Coordinator, Commander, Coast Guard Activities Baltimore, telephone number (410) 576-2674.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-00-046), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address listed under
The Baltimore Office of Promotions sponsors fireworks displays at various times throughout the year over the waters of the Patapsco River, Inner Harbor and Northwest Harbor, near Baltimore, Maryland. The events consist of pyrotechnic displays fired from two barges positioned in the Inner Harbor and Northwest Harbor. A large fleet of spectator vessels gathers nearby to observe the fireworks. Due to the need for vessel control during the fireworks displays, vessel traffic would be temporarily restricted to provide for the safety of spectators and transiting vessels.
The Coast Guard proposes to establish special local regulations on specified waters of the Patapsco River. The special local regulations would temporarily restrict general navigation in the event area during the fireworks. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the enforcement time period. These regulations are needed to control vessel traffic during the fireworks displays to enhance the safety of spectators and transiting vessels.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.
Although this proposed rule will prevent traffic from transiting a portion of the Patapsco River during the events, the economic effect of this regulation will not be significant due to the limited duration of the regulation and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers so mariners can adjust their plans accordingly.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the owners or operators of vessels, some of whom may be small entities, intending to transit or anchor in the effected portions of the Patapsco River during the events.
Although this regulation would prevent traffic from transiting or anchoring in portions of the Patapsco River during the event, the economic effect of this regulation would not be significant because of its limited duration and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this proposed rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule will not impose an unfunded mandate.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
We prepared an “Environmental Assessment” in accordance with Commandant Instruction M16475.1C, and determined that this proposed rule will not significantly affect the quality of the human environment. The “Environmental Assessment” and “Finding of No Significant Impact” is available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233 through 1236; 49 CFR 1.46; 33 CFR 100.35.
2. Section 100.526 is added to read as follows:
(a)
(2)
(3)
(4)
(b)
(2) The operator of any vessel in these areas shall:
(i) Stop the vessel immediately when directed to do so by any official patrol.
(ii) Proceed as directed by any official patrol.
(c)
(1) Annually from 8:30 p.m. on July 4 until 9:30 p.m. on July 4; and
(2) Annually from 11:45 p.m. on December 31 until 12:45 a.m. on January 1.
(d)
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard proposes to create a permanent security zone around the Naval Supply Center Pier at Naval Base, San Diego, at the request of the U.S. Navy. The establishment of this security zone is needed to ensure the physical protection of naval vessels moored at the Naval Supply Center Pier.
Comments must be received on or before August 13, 2001.
Comments may be mailed to LTJG Erin Calvert, U.S. Coast Guard Marine Safety Office, 2716 North Harbor Drive, San Diego, CA, 92101-1064, (619) 683-6477. The Marine Safety Office maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection and copying at the Marine Safety Office between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Patricia Springer, Vessel Traffic Management Section, 11th Coast Guard District, telephone (510) 437-2951; e-mail pspringer@d11.uscg.mil.
Interested persons are invited to participate in this proposed rulemaking by submitting written views, data, or any other materials to the address listed under
No public hearing is planned, but one may be held if written requests for a hearing are received and it is determined that the opportunity to make oral presentations will aid in the rulemaking process. Persons may request a public hearing by writing to the address listed above in
The Coast Guard proposes to create a permanent security zone around the Naval Supply Center Pier at Naval Base, San Diego. The security zone consists of the waters of San Diego Bay extending approximately 100 feet out from the north, west, and south sides of the Naval Supply Center Pier.
Currently, there is a restricted area around the Naval Supply Center Pier, 33 CFR 334.870(d). The Navy believes that this restricted area, by itself, is insufficient to adequately safeguard its vessels. The Navy has been reviewing all aspects of its anti-terrorism and force protection posture in response to the attack on the USS COLE. The creation of this security zone will safeguard vessels moored at the Naval Supply Center Pier and waterside facilities from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. The creation of this security zone will also prevent recreational and commercial craft from interfering with
Vessels or persons violating this section would be subject to the penalties set forth in 50 U.S.C. 192 and 18 U.S.C. 3571: seizure and forfeiture of the vessel, a monetary penalty of not more than $250,000, and imprisonment for not more than 10 years.
The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U.S. Navy.
This regulation is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This proposal will have minimal additional impact on vessel traffic because it is only a slight modification and expansion of the existing security zone codified at 33 CFR 165.1105.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this proposal would have significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities because vessel traffic would be allowed to pass through the zone with the permission of the Captain of the Port.
This proposed regulation contains no collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
The Coast Guard has analyzed this proposed regulation under Executive Order 13132 and has determined that this rule does not have implications for federalism under that Order.
The Unfunded mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630m Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard has considered the environmental impact of this regulation and concluded that, under Figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1C, it will have no significant environmental impact and it is categorically excluded from further environmental documentation. A Categorical Exclusion Determination and Environmental Analysis Checklist will be available for inspection and copying in the docket to be maintained at the address listed in
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for 33 CFR Part 165 continues to read as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g) 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new § 165.1121 is added to read as follows:
(a) Location. The following area is a security zone: the waters of San Diego Bay extending approximately 100 feet from the north, west, and south sides of the Naval Supply Center Pier enclosed by lines connecting the following points: Beginning at 32°42′50″ N, 117°10′25″ W (Point A); to 32°42′50″ N, 117°10′38″ W (Point B); to 32°42′54″ N, 117°10′38″ W (Point C); to 32°42′54″ N, 117°10′25″ W (Point D).
(b) In accordance with the general regulations in § 165.33 of this part, entry into the area of this zone is prohibited unless authorized by the Captain of the Port or the Commanding Officer, Naval Base, San Diego. Section 165.33 also contains other general requirements.
(c) The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U.S. Navy.
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard proposes to create a permanent security zone around the Naval Amphibious Base, Coronado, California, at the request of the U.S. Navy. This security zone will be established inside an already exiting restricted area defined by the U.S. Navy maintained buoys. The establishment of this security zone is needed to ensure the physical protection of naval vessels and their activities at Naval Base, Coronado.
Comments must be received on or before August 13, 2001.
Comments may be mailed to LT Kathleen Garza, U.S. Coast Guard Marine Safety Office, 2716 North Harbor Drive, San Diego, CA, 92101-1064, (619) 683-6477. The Marine Safety Office maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection and copying at the Marine Safety Office between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Patricia Springer, Vessel Traffic Management Section, 11th Coast Guard District, telephone (510) 437-2951; e-mail pspringer@d11.uscg.mil.
Interested persons are invited to participate in this proposed rulemaking by submitting written views, data, or any other materials to the address listed under
No public hearing is planned, but one may be held if written requests for a hearing are received and it is determined that the opportunity to make oral presentations will aid in the rulemaking process. Persons may request a public hearing by writing to the address listed above in
The Coast Guard proposes to create a permanent security zone around the Naval Amphibious Base, Coronado, California, at the request of the U.S. Navy. The security zone will consist of the waters of San Diego Bay around the perimeter of the Naval Amphibious Base, extending approximately 100 yards out.
Currently, there is a restricted area around the Naval Amphibious Base, 33 CFR 334.860. The Navy believes that this restricted area, by itself, is insufficient to adequately safeguard its vessels and the military operations involving the base. The Navy has been reviewing all aspects of its anti-terrorism and force protection posture in response to the attack on the USS COLE. The creation of this security zone will safeguard vessels moored at the Naval Amphibious Base and waterside facilities from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. The creation of this security zone will also prevent recreational and commercial craft from interfering with military operations involving naval vessels and it will protect transiting recreational and commercial vessels, and their respective crews, from the navigational hazards posed by such military operations. Unlike the current restricted area, under this proposed rule entry into, transit through, or anchoring within this security zone would be prohibited unless authorized by the Captain of the Port, the Commander, Naval Base San Diego, or the Commanding Officer, Naval Station, San Diego.
Vessels or persons violating this section would be subject to the penalties set forth in 50 U.S.C. 192 and 18 U.S.C. 3571: seizure and forfeiture of the vessel, a monetary penalty of not more than $250,000, and imprisonment for not more than 10 years.
The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U. S. Navy.
This regulation is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This proposal will have minimal additional impact on vessel traffic because it is only a slight modification and expansion of the existing security zone codified at 33 CFR 165.1105.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this proposal would have significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities because vessel traffic would be allowed to pass through the zone with the permission of the Captain of the Port.
This proposed regulation contains no collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
The Coast Guard has analyzed this proposed regulation under Executive Order 13132 and has determined that this rule does not have implications for federalism under that Order.
The Unfunded mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630m Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard has considered the environmental impact of this regulation and concluded that, under Figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1C, it will have no significant environmental impact and it is categorically excluded from further environmental documentation. A Categorical Exclusion Determination and Environmental Analysis Checklist will be available for inspection and copying in the docket to be maintained at the address listed in
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for 33 CFR Part 165 continues to read as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g) 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new § 165.1120 is added to read as follows:
(a) Location. The following area is a security zone: the waters of San Diego Bay, enclosed by lines connecting the following points: Beginning at 32°40′30.0″ N, 117°10′03.0″ W (Point A); thence running northeasterly to 32°40′54.0″ N, 117°09′35.5″ W (Point B); thence running northeasterly to 32°40′55.0″ N, 117°09′27.0″ W (Point C); thence running southeasterly to 32°40′43.0″ N, 117°09′09.0″ W (Point D); thence running southerly to 32°40′39.0″ N, 117°09′08.0″ (Point E); thence running southwesterly to 32°40′30.0″ N, 117°09′12.9″ W (Point F); thence running a short distance to 32°40′29.0″ N, 117°09′14.0″ W (Point G); thence running southwesterly to 32°40′26.0″ N, 117°09′17.0″ W (Point H); thence running northwesterly to the shoreline to 32°40′31.0″ N, 117°09′22.5″ W (Point I).
(b) In accordance with the general regulations in §165.33 of this part, entry into the area of this zone is prohibited unless authorized by the Captain of the Port or the Commanding Officer, Naval Base, San Diego.
(c) The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U.S. Navy.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to change the boundaries of the Searles Valley, California moderate PM-10 nonattainment areas (NA) by dividing that area into three separate NAs: Coso Junction, Indian Wells Valley, and Trona. Because air quality violations or inadequate monitoring data, EPA is also proposing to find that the proposed Coso Junction and Indian Wells Valley NAs have not attained the 24-hour and annual PM-10 national ambient air quality standards (NAAQS) by the Clean Air Act (CAA) mandated attainment date for moderate nonattainment areas. EPA is further proposing to find that the proposed Trona NA has attained the 24-hour and annual NASQS.
If EPA takes final action on this proposal, the Searles Valley NA would be split into three new NAs, and the Coso Junction and Indian Wells Valley NAs would be reclassified by operation of law as serious PM-10 NAs under section 188(b)(2)(A) of the CAA. The classification of the proposed Trona PM-10 NA would remain moderate.
Comments on this proposed action must be received in writing by August 13, 2001.
Comments should be addressed to John Ungvarsky, U.S. Environmental Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, California 94105.
John Ungvarsky, U.S. Environmental Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, California 94105, (415) 744-1286, ungvarsky.john@epa.gov.
The NAAQS are safety thresholds for certain ambient air pollutants set by
On November 15, 1990, the date of enactment of the 1990 Clean Air Act Amendments, PM-10 areas with PM-10 levels exceeding health standards and meeting the qualifications of section 107(d)(4)(B) of the Act were designated nonattainment by operation of law. Once an area is designated nonattainment, section 188 of the Act outlines the process for classification of the area and establishes the area's attainment date. Pursuant to section 188(a), all PM-10 nonattainment areas were initially classified as moderate by operation of law upon designation as nonattainment. These nonattainment designations and moderate area classification were codified in 40 CFR part 81 in a
States containing areas which were designated as moderate nonattainment by operation of law under section 107(d)(4)(B) were to develop and submit state implementation plans (SIPs) to provide for the attainment of the PM-10 NAAQS by no later than December 31, 1994. Pursuant to section 189(a)(2), those SIP revisions were to be submitted to EPA by November 15, 1991.
Situated at the southeastern end of the Sierra Nevada Mountains, the Searles Valley NA includes portions of three counties (i.e., Inyo, Kern, and San Bernardino) with its boundaries defined by United States Geological Survey (USGS) Hydrologic Unit #18090205, an area of approximately 2000 square miles. 40 CFR 81.305.
Because of the nature of the PM-10 exceedances and the local jurisdictional boundaries within the NA, the California Air Resources Board (CARB) has historically treated the Searles Valley NA as three separate planning subregions. When the original moderate area SIP was developed in 1991, the PM-10 exceedances that formed the basis for the planning strategies were determined to be caused by local sources in each of the subregions.
County boundaries have also played a major role in the apportionment of planning responsibilities and development of subregions within the Searles Valley NA. The Inyo County portion of the NA is under the jurisdiction of the Great Basin Air Pollution Control District (APCD) and is referred to as the Coso Junction subregion. The Kern County portion is under the jurisdiction of the Kern County APCD and is referred to as the Indian Wells Valley subregion.
In October 1993, CARB submitted to EPA a moderate area SIP jointly developed by the Great Basin Unified APCD, Kern County APCD, and Mojave Desert AQMD. The affected districts asserted, and CARB concurred, that three distinct, localized and independent PM-10 problems existed in the Searles Valley NA.
Although CARB has historically treated the Searles Valley NA as three separate planning areas, they did not officially request the area be divided into three NAs until very recently.
On May 4, 2001, CARB submitted to EPA a request under CAA section 107(d)(3)(D) to revise the boundaries for the Searles Valley NA by dividing the area into three separate PM-10 nonattainment areas, Coso Junction, Indian Wells Valley, and Trona, to be separated along the Inyo, Kern, and San Bernardino county lines within the Searles Valley NA. Together, the three proposed NAs would cover the same geographic area as the existing Searles Valley PM-10 NA.
Under section 107(d)(3)(D), the Governor of any State, on the Governor's own motion, is authorized to submit to the Administrator a revised designation
As discussed below, air quality data for the Searles Valley NA and analysis of wind patterns indicate that the recorded exceedances of the 24-hour PM-10 NAAQS during the 1992 through 2000
From April 1993 through May 1996, the Great Basin Unified APCD conducted a study of PM-10 transport from Owens Valley.
In April 1995 and March 1998, the Indian Wells Valley subregion exceeded the 24-hour PM-10 NAAQS. The 1995 exceedance was captured as part of the Great Basin Unified APCD's transport study and, like the same day exceedance at Coso Junction, appears to have been caused when winds were from the north, thus implicating Owens Lake in the adjacent Owens Valley NA, and not Trona sources, as a likely contributor to the exceedance. See Ono letter. The cause of the 1998 exceedance (165 ug/m
The Tronba subregion has not recorded an exceedance of the 24-hour PM-10 NAAQS since 1990.
Each of the subregions in the Searles Valley NA is associated with a separate valley in the NA. The corresponding topography of the valleys limits the transport of PM-10 emissions between the Searles Valley subregions. See Kenny letter. With the exception of transport of PM-10 from Owens Lake into Searles Valley, as described above, there is no indication or record of sources in any one subregion impacting PM-10 levels in an adjacent subregion.
The proposed Coso Junction NA corresponds with the current Coso Junction subregion planning area and the Rose Valley. The Rose Valley is bounded by the Coso Range to the east and south. The Sierra Nevada Range bounds the Valley to the west, and the intersection of the two ranges makes up the northern boundary.
The proposed Indian Wells Valley NA corresponds with the current Indian Wells Valley subregion planning area and the Indian Wells Valley. This valley is bounded by the Argus Range to the east, the Sierra Nevada Range to the west. The El Paso Mountains bound the southern area, and the Coso Range closes off the northern end.
The proposed Trona NA corresponds with the Trona subregion planning area and the Searles Valley, which contains the Searles (dry) Lake. This valley is bounded by the Slate Range to the east and Argus Range to the west. These two ranges join together at the north and south to fully encompass the Searles (dry) Lake. The Mojave Desert AQMD is primarily responsible for this subregion, although a small portion of Inyo County, which is under the jurisdiction of Great Basin Unified APCD, falls within the proposed Trona NA.
These valleys are distinct from one another and do not share the same PM-10 exceedances. As a result, separate NAs with localized strategies on the basis of the area's geography and topography are appropriate.
In addition, as stated earlier, CARB's moderate area SIP incorporates an attainment strategy and demonstration for each of the respective subregions corresponding to the jurisdictions of the three local air districts. Subsequent SIP revisions for the Searles Valley NA have been prepared and adopted by the responsible air district in each subregion, each reflecting the unique contributors to nonattainment under its jurisdiction. These administrative and planning considerations further support CARB's request that the Searles Valley NA be divided into three separate NAs.
Based on the State's request and consideration of the supporting factors described above, we are today proposing to change the boundaries for the Searles Valley NA by dividing the area into the Coso Junctiuon, Indian Wells Valley and Trona NAs reflecting the historical subregional divisions that have been in place since the early 1990's.
The proposed Coso Junction NA boundaries would consist of the portion of Inyo County contained within USGS Hydrologic Unit #18090205. The proposed Indian Wells Valley NA boundaries would include the portion of Kern County contained within USGS Hydrologic Unit #18090205. The proposed Trona NA boundaries would include the portion of the San Bernardino County contained within USGS Hydrologic Unit #18090205. The combination of these three proposed NAs would comprise the same area included in the Searles Valley NA as set forth in 40 CFR 81.305.
EPA has the responsibility, pursuant to sections 179(c) and 188(b)(2) of the Act, of determining within 6 months of the applicable attainment date, whether PM-10 nonattainment areas have attained the NAAQS. Section 179(c)(1) of the Act provides that these determinations are to be based upon an area's “air quality as of the attainment date,” and section 188(b)(2) is consistent with this requirement. For the Searles Valley, the attainment date was December 31, 1994. Therefore, for purposes of the attainment finding, EPA must use monitoring data from 1992-1994. EPA makes the determinations of whether an area's air quality is meeting the PM-10 NAAQS based upon air quality data gathered at monitoring sites in the nonattainment area. These data are reviewed to determine the area's air quality status in accordance with EPA guidance at 40 CFR part 50, appendix K.
Pursuant to appendix K, attainment of the annual PM-10 standard is achieved when the annual arithmetic mean PM-10 concentration is equal to or less than 50 μg/m
The proposed findings pursuant to CAA sections 179(c) and 188(b)(2) for the proposed Coso, Indian Wells Valley and Trona NAs are discussed below and are based on air quality data for 1992-1994, the 3 years up to and including the attainment deadline year. In addition, more recent data support our proposal.
As stated above, the 24-hour NAAQS is attained when the expected number of days per calendar year with a 24-hour average concentration above 150 μg/m
In addition, an important consideration in making air quality determinations for both the 24-hour and annual standards is data completeness. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, is comprised of all 4 calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days. EPA requires pollutant data sets to be complete according to this definition in order for us to determine that an area is in attainment of the PM—10 NAAQS. For example, if an area samples for PM-10 on a one in six day sampling schedule, there would be 60-61 samples scheduled to be collected in a given calendar year or 15-16 samples in a calendar quarter. In order for a PM-10 data set to be deemed complete, an agency must collect 75 percent of the scheduled samples in a quarter. See 40 CFR part 50, appendix K.
EPA recognizes that data from some scheduled sampling days may be missing for any number of reasons, e.g. damaged filters (sample loss), miscalibrated equipment, or other equipment failure. 40 CFR part 50, appendix K specifies a minimum 75 percent data capture rate of required PM-10 samples, but states that “data not meeting these criteria may also suffice to show attainment, however, such exceptions will have to be approved by the Regional Administrator in accordance with established guidelines.”
EPA has provided guidance on how and when the Agency can make attainment findings when the data capture rate is less than 75 percent per calendar quarter. See “Guideline on Exceptions to Data Requirements for Determining Attainment of Particulate Matter Standards,” Office of Air Quality Planning and Standards, April 1987 (hereafter referred to as “data substitution policy”). There are minimum criteria that must be met in order for EPA to utilize this policy. For areas that have two or more years of monitoring data, there must be at least 50 percent of the required samples in each quarter and at least one of the years must indicate attainment based on monitored concentrations that meet the minimum 75 percent data capture requirement. The policy may also be used if only one year of every day sampling is available and the data capture rate exceeds 75 percent in each quarter.
In the case of the Searles Valley NA, there are three monitoring sites that need to be evaluated in our determination of the area's attainment status. In the 1992-1994 period, the sites in Coso Junction and Indian Wells Valley have at least one year that did not meet the 75 percent data completeness criteria. Since none of the sites samples on an every day schedule, we need to evaluate whether they met the requirement of having at least 50 percent data capture for those quarters not meeting the 75 percent data capture requirement. The guidance document cited above allows for the substitution of missing data using monitored data from the same quarter in anyone of the years used to determine attainment. The maximum PM-10 value that was observed in that quarter over the attainment period may be substituted for missing scheduled sampling days, provided emissions and meteorology for these quarters are representative of the emissions and meteorology for the quarter in question.
In evaluating the data for the proposed Coso, Indian Wells Valley and Trona NAs, EPA considered the actual recorded PM-10 concentrations for 1992-1994, the sampling frequency of the monitors used in the PM-10 network, and the completeness of the data collected.
Table 1 presents a summary of the data collected for the 24-hour standard in the Searles Valley NA during 1992-1994.
Based
For the proposed Indian Wells Valley NA, data collection was inadequate and the data substitution policy cannot be used because the monitor did not collect at lasts 50 percent of the scheduled samples during certain quarters in the 1992-1994 period. As a result, EPA cannot make a fining of attainment of the proposed Indian Wells Valley NA for the 24-hour standard and must propose instead to find that this area also failed to attain the 24-hour standard for the 1992-1994 period.
For the proposed Trona NA, EPA proposes to find that the area attained the 24-hour PM-10 NAAQS during the 1992-1994 period.
The 1992-1994 annual average for each monitoring site is provided in Table 2.
The monitoring sites for the proposed Coso and Indian Wells Valley NAs did not meet the 75 percent data completeness requirement. Furthermore, some quarters of data at each site also did not meet the 50 percent minimum data capture requirement. Therefore, EPA's data substitution policy cannot be used and EPA must propose to find that the proposed Coso Junction and Indian Wells Valley NAs failed to attain the annual standard for the 1992-1994 period.
For the proposed Trona NA, EPA proposes to find that the area attained the annual standard during the 1992-1994 period.
Exceedances of the 24-hour NAAQS
Under CAA section 188(b)(2)(A), a moderate PM-10 nonattainment area must be reclassified as serious by operation of law after the statutory attainment date if the Administrator finds that the area has failed to attain the NAAQS. Pursuant to section 188(b)(2)(B) of the Act, EPA must publish a notice in
PM-10 nonattainment areas reclassified as serious under section 188 (b) (2) of the CAA are required to submit, within 18 months of the Area's reclassification, SIP revisions providing for implementation of best available
Data from the most recent three year period (1998-2000) indicates the proposed Coso Junction and Indian Wells Valley NAs exceeded the PM-10 24-hour NAAQs. The proposed Coso Junction NA recorded two exceedance in March, 1998, and the proposed Indian Wells Valley NA recorded an exceedance March, 1998. In their May 4, 2001 letter
In today's action, EPA is proposing to divide the Searles Valley NA into three, newly created NAs: Coso Junction, Indian Wells Valley, and Trona. EPA is also proposing to find that the proposed Coso Junction and Indian Wells Valley NAs did not attain the 24-hour and annual PM-10 NAAQS.
The EPA is requesting comment on any or all aspects of today's proposals. As indicated at the outset of this notice, EPA will consider any comments received by August 13, 2001.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.
Under section 188(b)(2) of the CAA, findings of failure to attain are based solely upon air quality considerations and the subsequent nonattainment area reclassification must occur by operation of law in light of those air quality conditions. These actions do not, in and of themselves, impose any new requirements on any section of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because these requirements are automatically triggered by classifications that, in turn, are triggered by air quality values, findings of failure to attain and reclassification cannot be said to impose a materially adverse impact on State, local, or tribal governments or communities. The proposed splitting of the Searles Valley NA into three new, separate NAs with a moderate classification will not impose any new requirements on any sectors of the economy because the area is already classified as moderate.
Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
These proposed actions do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) for the following reasons: (1) The proposed finding of failure to attain is a factual determination based on air quality considerations; (2) the resulting reclassification must occur by operation of law and will not impose any federal intergovernmental mandate; and (3) the proposed splitting of the Searles Valley NA into three, new and separate NAs with a moderate classification will not impose any new requirements on any sectors of the economy. For the same reason, this proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). For these same reasons, these proposed actions will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). These proposed actions are also not subject to Executive Order 13045 (62 FR 19885, April 23, 1997). because they are not economically significant. Finally, for these same reasons, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing these proposed actions, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. These proposed actions do not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401-7671q.
Federal Communications Commission.
Notice of proposed rulemaking.
This document solicits comment regarding the Commission's options with respect to providing public safety answering points (PSAPs) with the ability to call back to obtain further information from 911 calls made from
Comments are due on or before July 9, 2001, and reply comments are due on or before August 8, 2001. Public comments on the information collections are due August 13, 2001, and comments by the Office of Management and Budget (OMB) are due October 11, 2001.
Send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
Jane Phillips, 202-418-1310. For further information concerning the information collection contained in this Further Notice of Proposed Rulemaking, contact Judy Boley, Federal Communications Commission, 202-418-0214, or via the Internet at jboley@fcc.gov.
This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in CC Docket No. 94-102; RM 8143; FCC 01-175, adopted May 23, 2001, and released May 25, 2001. The complete text of this FNPRM is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW., Washington, DC.
1. This FNPRM originated in the Commission's earlier decision in this proceeding, which regards wireless enhanced 911 (E911) service, requiring wireless carriers to forward all 911 calls regardless of their service subscription status and limiting carriers obligations for 911 calls lacking call back capability to delivering the call to the PSAP. (
2. The Commission recently invited comment on this issue in a Public Notice (65 FR 3560, June 5, 2000) in response to a request for further consideration filed by several public safety entities. Conflicting assertions regarding technological constraints on call back capability for noninitialized phones and the importance of the issue from a public safety perspective lead the Commission to conclude that additional information is necessary for an informed decision on this matter. The FNPRM, therefore, solicits comments on possible technical solutions and on several of the Commission's alternatives, including requirements that all carrier-donated handsets be initialized on a limited basis to enable call back by a PSAP and labeled accordingly, and that all 911-only handsets permit call back by the PSAP and be labeled accordingly.
3. A third category of phones exists: noninitialized phones for which the service subscription has lapsed that are retained by the owner or given to friends or family members for emergency use. The FNPRM tentatively concludes that nothing can be done to correct the call back problem for such phones in the absence of a general technical solution to the call back problem because the Commission has no authority to bar the use of such phones or to mandate public education with respect to their limitations. The FNPRM therefore concludes that carrier publicity concerning the problems inherent in the use of noninitialized phones, including those received from friends and family, is the best means of addressing this issues and should be encouraged.
4. Pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's Rules, interested parties may file comments in response to the FNPRM in CC Docket No. 94-102 and RM-8143 on or before July 9, 2001, and reply comments on or before August 8, 2001. Comments and reply comments should be filed in CC Docket No. 94-102 and should include a separate heading to identify the comments for the Docket Number. All relevant and timely comments will be considered by the Commission before final action is taken in this proceeding. To file formally, interested parties must file an original and four copies of all comments, reply comments, and supporting comments. If interested parties want each Commissioner to receive a personal copy of their comments, they must file an original plus nine copies. Interested parties should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Room TW-A325, 445 Twelfth Street, SW., Washington, DC 20554, with copies to Jane Phillips, Policy Division, Wireless Telecommunications Bureau at 445 Twelfth Street, SW., Washington, DC 20554.
5. Comments also may be filed using the Commission's Electronic Comment Filing System (ECFS). Comments filed through the ECFS can be sent as an electronic file via the Internet to
6. Comments and reply comments will be available for public inspection during regular business hours at the FCC Reference Center, Room CY-A257, at the Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. Copies of comments and reply comments are available through the Commission's duplicating contractor: International Transcription Service, Inc. (ITS, Inc.), 1231 20th Street, NW., Washington, DC 20037, (202) 857-3800.
7. The actions contained in this FNPRM have been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose a new reporting requirement or burden on the public. Implementation of this new reporting requirement will be subject to approval by the Office of Management and Budget, as prescribed by the Act.
8. As required by the Regulatory Flexibility Act (RFA) (
9. The FNPRM solicits additional comment regarding enhanced 911 (E911) service to wireless phones without call back capability, including non-service initialized phones issued through donor programs and 911-only phones that limit usage to outgoing 911 calls and are incapable of receiving any incoming calls. Conflicting assertions regarding technological constraints on call back capability for noninitialized phones and the importance of a responsive E911 system in general and of facilitating PSAP response to E911 calls leads the Commission to conclude that additional information is necessary for an informed decision on this matter.
10. The proposed action is authorized under Sections 1, 4(i), 7, 10, 201, 202, 208, 214, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 303, 308, 309(j), and 310 of the Communications Act of 1934, 47 U.S.C. 151, 154(i), 157, 160, 201, 202, 208, 214, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 303, 308, 309(j), 310.
11. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under Section 3 of the Small Business Act, unless the Commission has developed one or more definitions that are appropriate for its activities. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations.
12. The definition of “small governmental entity” is one with populations of fewer than 50,000. Of the 85,006 governmental entities in the United States, the Commission estimates that ninety-six percent, or about 81,600, are small entities that may be affected by our rules.
13. This FNPRM could result in rule changes that, if adopted, would affect small entities that currently are or may become licensees in the cellular, broadband Personal Communications Services (PCS), or Specialized Mobile Radio Services.
14. Cellular Equipment Manufacturers. A labeling requirement, if adopted, would affect manufacturers of cellular equipment. The Commission does not know how many cellular equipment manufacturers are in the current market. The 1994 County Business Patterns Report of the Bureau of the Census estimates that there are 920 companies that make communications subscriber equipment. This category includes not only cellular equipment manufacturers, but television and AM/FM radio manufacturers as well. Thus, the number of cellular equipment manufacturers is considerably lower than 920. Under SBA regulations, a “communications equipment manufacturer,” which includes not only U.S. cellular equipment manufacturers but also firms that manufacture radio and television broadcasting and other communications equipment, must have a total of 750 or fewer employees in order to qualify as a small business concern. Census Bureau data from 1992 indicate that at that time there were an estimated 858 such U.S. manufacturers and that 778 (91%) of these firms had 750 or fewer employees and would therefore be classified as small entities. The Commission estimates that the current action may affect approximately 837 small cellular equipment manufacturers.
15. Cellular Radiotelephone Service. Neither the Commission nor the SBA has developed a definition of small entities specifically for cellular licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to radiotelephone communications. This provides that a small entity is a radio telephone company employing no more than 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms from a total of 1,178 such firms, which operated during 1992, had 1,000 or more employees. Therefore, even if all twelve of these firms were cellular telephone companies, nearly all cellular carriers were small businesses under the SBA's definition. In addition, we note that there are 1,758 cellular licenses; however, a cellular licensee may own several licenses. According to the most recent Telecommunications Industry Revenue data, 808 carriers reported that they were engaged in the provision of either cellular service or PCS, which are combined in the data. The Commission estimates that there are no more than 808 small cellular service carriers that may be affected by these proposals, if adopted.
16. Broadband Personal Communications Service (PCS). The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with their affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These regulations defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. The Commission concludes that the number of small
17. Specialized Mobile Radio (SMR). Pursuant to 47 CFR 90.814(b)(1), the Commission has defined “small business” for purposes of auctioning 900 MHz SMR licenses, 800 MHz SMR licenses for the upper 200 channels, and 800 MHz SMR licenses for the lower 230 channels on the 800 MHz band as a firm that has had average annual gross revenues of $15 million or less in the three preceding calendar years. The SBA has approved this small business size standard for the 800 MHz and 900 MHz auctions. The auction of the 1,020 SMR geographic area licenses for the 900 MHz SMR band began on December 5, 1995, and was completed on April 15, 1996. Sixty winning bidders for geographic area licenses in the 900 MHz band qualified as small businesses under the $15 million size standard. The auction of the 525 800 MHz SMR geographic area licenses for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten winning bidders for geographic area licenses for the upper 200 channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard.
18. The lower 230 channels in the 800 SMR band are divided between General Category channels (the upper 150 channels) and the lower 80 channels. The auction of the 1,053 800 MHz SMR geographic area licenses (1,050-800 MHz licenses for the General Category channels, and 3-800 MHz licenses for the upper 200 channels from a previous auction) for the General Category channels began on August 16, 2000, and was completed on September 2, 2000. At the close of the auction, 1,030 licenses were won by bidders. Eleven winning bidders for geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. The auction of the 2,800 800 MHz SMR geographic area licenses for the lower 80 channels in the 800 MHz SMR service began on November 1, 2000, and was completed on December 5, 2000. Nineteen winning bidders for geographic area licenses for the lower 80 channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In addition, there are numerous incumbent site-by-site SMR licensees on the 800 and 900 MHz bands. The Commission awards bidding credits in auctions for geographic area 800 MHz and 900 MHz SMR licenses to firms that had revenues of no more than $15 million in each of the three previous calendar years.
19. 220 MHz Radio Service—Phase II Licensees. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. The Commission has adopted criteria for defining small businesses and very small businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. The Commission has defined a small business as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a very small business is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these definitions. The Commission has held two auctions for Phase II licenses for the 220 MHz band. Fifty-three (53) winning bidders qualified as small or very small entities.
20. If certain options discussed in the FNPRM are adopted, all carrier-donated handsets would be required to be initialized on a limited basis to enable call back by a PSAP and labeled accordingly. Furthermore, all 911-only handsets could be required to permit call back by PSAPs and be labeled accordingly. In both instances, this would involve assigning the handsets a phone number and accompanying software upgrades. Details of these proposed requirements are discussed in paragraphs 7 through 19 of the full FNPRM,
21. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
22. The critical nature of the E911 proceeding in general and in particular of providing PSAPs with the flexibility to contact the caller in an emergency situation limits the Commission's ability to provide small carriers with a less burdensome set of E911 regulations than those placed on large entities. A delayed or less than adequate response to an E911 call can be disastrous regardless of whether a small carrier or a large carrier is involved. The importance of PSAP call back capability in wireless E911 situations is that, in the excitement of a crisis situation, the caller could easily forget to provide the PSAP with location information, and the PSAP might not be able to trace the location of a wireless phone because the individual could be moving from place to place, and may not be able to call the handset user back to verify a location. The PSAP would, at worst, be unable to respond, or would respond on a delayed basis.
23. PSAPs and the majority of wireless carriers who commented on the call-back issue represent two different perspectives on the issue. (
24. As indicated in paragraph five of the FNPRM, suggestions of record for resolving the problem range from assigning a prescribed series of numbers
25. In the absence of sufficient information supporting a general technical solution, the Commission is considering several possible solutions to the call-back problem, including a requirement that all carrier-donated handsets be initialized on a limited basis to enable call back by a PSAP and be labeled as such, and a requirement that all 911-only handsets permit call back by a PSAP and bear a label apprising users of their limitations.
26. Paragraphs 9 through 12 of the FNPRM discuss options regarding carrier donated handsets. The most obvious alternative would be for the Commission to decline to adopt any regulation regarding their distribution. The Commission rejects this option as a preliminary matter because it would effectively nullify the benefits of E911 where the PSAP is unable to ascertain the location or needs of an E911 caller. Another alternative would be for the Commission to adopt a regulation merely requiring that donors label donated handsets and provide associated guidance to donees regarding their handset's lack of call back capability. The labeling option would focus the user on the urgency of the E911 caller's providing location information immediately upon contacting the PSAP, and would be easier and less expensive for carriers than a limited initialization solution. However, the Commission has concerns that a labeling requirement may be inadequate, by itself, to satisfy the needs of the populace in question. The final option, a limited initialization solution, could exacerbate the scarcity of phone numbering resources and could deter carriers from participating in donor programs. However, the public safety benefits offered by a limited initialization solution appear to outweigh the possible negative repercussions. Thus, the Commission solicits comment on a requirement that carrier-donors initialize service on a limited basis by assigning donated handsets a call back number for the limited purpose of permitting call back by PSAPs. The Commission seeks comment on the effects of such a requirement on small businesses, and on the extent of the burden of updating software to accommodate PSAP call back capability on donated handsets.
27. Paragraphs 13 through 17 of the FNPRM consider alternative solutions to the call back problems of 911-only phones, which limit out-going calls to 911 and presently are incapable of receiving any incoming calls. Again, the option of taking no action is unacceptable. Alternatively, the Commission could require all manufacturers of 911-only phones to encode a standardized non-service initialized “telephone number” that would provide notice to PSAPs that the handset used for a E911 call lacks call back capability. On the positive side, this alternative would put the PSAP on notice that location information must be obtained quickly from the E911 caller as call back is impossible. On the other hand, this alternative would apply only prospectively and would not cover previously marketed handsets. It could also raise the price of 911-only handsets, providing only limited service to those who can afford them. A third alternative would require that manufacturers of 911-only phones label the handsets and educate consumers regarding the absence of call back capability. The Commission is concerned that, while a labeling and education requirement would be easier and less expensive to implement than a limited initialization requirement, the requirement would not cover handsets previously marketed by manufacturers and would be insufficient to reduce the threat to public safety that a lack of vital information concerning the caller's location or specific emergency needs represents.
28. The Commission is considering a requirement that these phones be modified to allow a return call by the PSAP. The requirement would apply only prospectively and would not cover previously marketed handsets. The disadvantages of this approach include the possibility that the additional costs of implementing such a solution could be a disincentive to the manufacturers of 911-only handsets, thus eventually removing them from the marketplace or driving the cost up. Additionally, the assignment of unique handset numbers to such phones could exacerbate the numbering shortage.
29. Finally, the Commission, as discussed in paragraphs 18 and 19 of the FNPRM, has identified a third category of noninitialized phones,
30. None.
31. The FNPRM proposes a new paperwork collection. As part of its continuing effort to reduce paperwork burdens, the Commission invites the general public and the Office of Management and Budget (OMB) to take this opportunity to comment on the information collections contained in this FNPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due August 13, 2001. OMB comments are due October 11, 2001. Comments should address (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (2) the accuracy of the Commission's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
32. Pursuant to sections 1, 4(i), 4(j), 7, 10, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157, 160, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310, this Further Notice of Proposed Rulemaking is adopted.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Denial of petition for reconsideration.
The Federal motor vehicle safety standard on child restraint anchorage systems requires vehicle manufacturers to install child restraint anchorage systems in passenger motor vehicles. The standard specifies “marking and conspicuity” requirements for the lower bars of a child restraint anchorage system to help users locate and use the bars and to inform or remind them that the anchorage system is present. The standard was amended to permit manufacturers to meet these requirements, for a limited period, by installing at least one anchorage bar so that it is visible, or by installing a guidance fixture or one seat marking feature that is visible to a person installing a child restraint test fixture. Volkswagen AG and Volkswagen of America, Inc. (Volkswagen) petitioned for reconsideration of the rule. Volkswagen had been providing guidance fixtures on an “as requested” basis, rather than providing them with each new vehicle. The petitioner requested NHTSA to defer the effective date of the requirement for a guidance fixture until the manufacturer could obtain a supply of guidance fixtures from its supplier. For the reasons provided in this document, we have denied the petition.
Both can be reached at the National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 20590.
On March 5, 1999, NHTSA published a final rule establishing Federal Motor Vehicle Safety Standard No. 225, “Child Restraint Anchorage Systems” (49 CFR 571.225), to require motor vehicle manufacturers to install child restraint anchorage systems that are standardized and independent of the vehicle seat belts (64 FR 10786) (Docket No. 98-3390, notice 2). Each new system has two lower anchorages and one tether anchorage. Each lower anchorage is a rigid round rod or bar onto which the connector of a child restraint system can be snapped. The bars are located at the intersection of the vehicle seat cushion and seat back. The upper anchorage is a fixture to which the tether of a child restraint system can be hooked.
The final rule required vehicle manufacturers to begin phasing-in the tether anchorage of the child restraint anchorage system in the production year beginning September 1, 1999, with full implementation beginning September 1, 2000. Manufacturers were required to begin phasing-in the lower anchorages in the production year beginning on September 1, 2000, with full implementation beginning September 1, 2002.
The final rule was based on technical specifications set forth in November 1996 and June 1998 drafts of a child restraint anchorage system standard being developed by a working group of the International Organization for Standardization (ISO). The technical specifications covered matters such as the design and configuration of the anchorage system, and the strength of each component of the system. While many concepts and requirements of the draft ISO standard were incorporated into the final rule on Standard No. 225, the final rule highlighted differences between the rule and the draft ISO standard with regard to the strength required of the anchorages, and well as to the marking of the anchorages and other requirements.
There were a number of petitions for reconsideration suggesting revisions to the March 1999 final rule. Most of the petitioners were vehicle manufacturers concerned about their ability to meet the strength requirements of the final rule, particularly within the given leadtime. The vehicle manufacturers stated that they had been designing child restraint anchorage systems to meet the strength requirements that were under consideration by the ISO for the lower anchorages and by Transport Canada for the tether anchorage, and were prepared to meet those requirements by the compliance date of the rule, but not the strength requirements that the rule had specified. In response to this concern, NHTSA published a final rule that permitted vehicle manufacturers to meet alternative requirements during an initial several-year period (64 FR 47566, August 31, 1999) (Docket No. 99-6160). We specified in that document that, from September 1, 2000 until August 31, 2002,
The March 1999 final rule had required a permanent mark on the vehicle seat back at the location of each lower bar location to help knowledgeable motorists locate and use the bars, and to inform or remind other motorists that the bars are present (S9.5). The mark would not be required, the rule had specified, if the lower bars were visible (S9.5(b)). In a April 16, 1999 petition for reconsideration of the rule, Volkswagen stated that a “guide device installed onto the anchorage at the seat bight” should be considered “as a marking device or an anchorage locator.”
NHTSA received a number of petitions for reconsideration of various provisions of the August 1999 final rule. The Alliance submitted an October 15, 1999 petition requesting reconsideration of a number of provisions, including the marking alternative in S15.4. The Alliance asked NHTSA to add a parenthetical phrase, “(when installed),” after “guidance fixture.” The petitioner said that the parenthetical should be added to S15.4 because “the intent of the S15 is to incorporate the provisions of the ISO Draft.” The Alliance did not specify which version (i.e., what date) of the draft ISO standard it was referring to.
In a July 31, 2000 response to petitions for reconsideration (65 FR 46628; July 31, 2000) (Docket No. NHTSA-7648), NHTSA declined to add the parenthetical “(when installed)” sought by the Alliance. We reasoned that adding the parenthetical would suggest, contrary to our intent, that manufacturers could satisfy marking requirements if they provided the guidance fixtures with a new motor vehicle without actually installing them in the motor vehicle. The agency's intent was that the guidance fixtures be installed prior to delivery to consumers to ensure that the consumer could see the anchorage system, its location, and its appearance when the fixtures are properly installed. We concluded that requiring manufacturers to install the guidance fixtures would result in the vehicle owner either leaving them attached and thus ready to use or taking some affirmative action to determine how to remove them and then actually removing them. We believed that, in either event, the owners would be more likely to notice and remember the fixtures than if the fixtures were simply provided with the vehicle, but not actually installed in it.
In addition, we explained in the July 2000 final rule that NHTSA had permitted manufacturers the option of meeting draft ISO requirements to facilitate and thus accelerate the installation of child restraint anchorage systems in vehicles. We stated that manufacturers could meet the draft ISO requirements for strength and location of anchorages more expeditiously than they could meet the March 1999 final rule's requirements for strength and location. However, we concluded that guidance fixtures could be easily snapped on to the lower bars when the vehicles were offered for sale. Having to install them would not delay or impede introduction of child restraint anchorage systems in vehicles. We noted further that, in the June 1998 draft version of the ISO standard that we used in developing the March 1999 final rule, the parenthetical was not present. For all these reasons, we denied the request to add the parenthetical. Instead, to clarify S15.4, we added a sentence stating that “If guidance fixtures are used to meet this [marking] requirement, the fixture(s) (although removable) must be installed.”
On August 17, 2000, Volkswagen filed a petition for reconsideration concerning S15.4. Volkswagen indicated that it was surprised that NHTSA denied the Alliance's request to add the parenthetical. Volkswagen stated that it had been providing lower anchorages in some of its models beginning with the 1999 model year, but had not been providing the guidance fixtures. Volkswagen stated in its petition:
Those anchorages are not visible and no seat marking feature is provided but a guidance fixture has been developed and is available for user installation consistent with the 1999 ISO draft. Immediately upon becoming aware of NHTSA's July 31, 2000 Notice, Volkswagen requested its supplier of guidance fixtures to furnish sufficient quantities for installation in production on a best effort basis but in no event later than August 30, 2000. Based upon information furnished by the supplier, Volkswagen is not certain that it can comply with S15.4 by the end of August * * *. Volkswagen therefore petitions that the effective date of S15.4 be deferred for an additional 30 days at which time Volkswagen will be certain that all vehicles can be delivered to consumers in strict compliance with the new regulations. Volkswagen will also conduct a mailing campaign to the owners of all Jetta, Golf, Cabrio and New Beetle vehicles manufactured since September 1, 1999 or later * * *.
To justify the deferral, Volkswagen stated:
Because guidance fixtures serve to identify existing anchorages in the vehicle only and are not essential to the safe use of the vehicle, and because child restraint systems using rigid attachments which are suitable for use with the guidance fixtures are not available in the market at this time, Volkswagen believes there is no detriment to motor vehicle safety which would be caused by the deferral of the effective date.
NHTSA is denying the petition for the reasons set forth below.
As discussed above, installation of guidance fixtures is not the sole means by which a manufacturer may comply with the marking and conspicuity requirements specified in the standard. While Volkswagen's request for an extension of time to provide the guidance fixtures was based on its uncertainty regarding the ability of a supplier of these fixtures to provide sufficient quantities of the fixtures in a time period that would enable Volkswagen to meet the requirements of the standard, we note that Volkswagen could have alternatively taken steps to mark the location of the lower anchorages on the vehicle seat in accordance with S9.5(a).
The August 1999 response to petitions for reconsideration permitted manufacturers to use a guidance fixture to meet the marking and conspicuity requirements for a limited time. In interpreting the August 1999 rule, Volkswagen apparently concluded that a manufacturer relying on guidance features to comply with those requirements need not provide the guidance fixtures with each vehicle. Volkswagen apparently concluded that it was possible to comply with the requirements by offering the guidance fixtures to new vehicle purchasers on an “as requested” basis.
We believe Volkswagen's interpretation of S15.4 was unreasonable. The language of S15.4, “Marking and conspicuity of the lower anchorages,” has stated since its adoption that “at least one anchorage bar (when deployed for use), one guidance fixture, or one seat marking feature” shall be readily visible. For each vehicle to meet the requirement that the bar, guidance fixture or seat marking feature be visible by means of guidance fixtures, the fixtures had to be provided with each vehicle. The agency notes that Volkswagen was the only
It was also unreasonable of Volkswagen to conclude that the guidance fixtures need not be provided, given the reasons why the agency had required them. The preamble to the final rule establishing Standard No. 225 made clear that NHTSA considered the standard's marking and conspicuity requirements to be crucial elements contributing to the correct use of child restraint anchorage systems. Marking the lower anchorage bars and making them conspicuous helps knowledgeable motorists locate and use the bars and informs or reminds other motorists that the anchorage system is present.
Consumers may not otherwise learn of the existence of a child restraint anchorage system in a particular vehicle or at a particular seating position in a vehicle without some type of visual reminder that the anchorage system is present. Even when they know the bars are present, they may not know precisely where in the seat bight to look for the bars.
64 FR at 10802. It was unreasonable for Volkswagen to conclude that NHTSA would identify a need to make the anchorages conspicuous and would identify specific alternatives manufacturers may take to meet the need (mark the seat back, provide a guidance fixture, or place an anchorage where it is visible), then allow manufacturers the option of selling vehicles that do not meet any of the alternatives.
Volkswagen believes there is no detriment to motor vehicle safety which would be caused by the deferral of the effective date because guidance fixtures serve to identify existing anchorages in the vehicle only and are not essential to the safe use of the vehicle, and because child restraint systems using rigid attachments which are suitable for use with the guidance fixtures are not available in the market at this time. To the contrary, we believe that anchorage bars that are not visible, marked with a circle or made conspicuous by a guidance fixture are not so likely to be noticed by consumers. This lower visibility would likely result in reduced overall use of the child restraint anchorage system. Installed guidance fixtures also clearly show the anchorage bars of a child restraint anchorage system to users, which can reduce the likelihood that users may mistakenly latch their child restraints on to an incorrect or unsuitable part of the vehicle structure. Because guidance fixtures increase the visibility and therefore likelihood of correct use of the anchorage bars, they are a benefit to all child restraint users, not just to owners of child restraints with rigid attachments. Further, since child restraint systems using rigid attachments which are suitable for use with the guidance fixtures will be available in the market in the future, we believe that during the life span of a vehicle equipped with an anchorage system, there is a high likelihood that the vehicle will be owned by someone having a child restraint with rigid attachments. As discussed, the guidance fixtures would facilitate use of the child restraint anchorage system throughout the life of the vehicle.
For these reasons, NHTSA is denying Volkswagen's petition for reconsideration. The marking and conspicuity requirements of S15.4 apply to any child restraint anchorage system installed on a vehicle on or after September 1, 1999, including those voluntarily installed.
49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50.
The Grain Inspection, Packers and Stockyards Administration, United States Department of Agriculture, has information that the livestock markets named below are stockyards as defined in section 302 of the Packers and Stockyards Act (7 U.S.C. 202) and should be made subject to the provisions of the Packers and Stockyards Act (Act), 1921, as amended (7 U.S.C. 181
Pursuant to the authority under section 302 of the Act, notice is hereby given that it is proposed to designate the stockyards named above as posted stockyards subject to the provisions of said Act.
Any person who wishes to submit written data, views or arguments concerning the proposed designation may do so by filing them with the Director, Office of Policy/Litigation Support, Grain Inspection, Packers and Stockyards Administration, Room 1521, South Building, U.S. Department of Agriculture, Washington, DC 20250-3646, by June 28, 2001.
All written submissions made pursuant to this notice will be made available for public inspection in the Office of the Director of the Office of Policy/Litigation Support during normal business hours.
Natural Resources Conservation Service, USDA.
Notice of a finding of no significant impact.
Richard Sims, State Conservationist, Natural Resources Conservation Service, 9173 W. Barnes Dr., Suite C, Boise, Idaho 83709-1574, telephone (208) 378-5700.
NOTICE: Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Guidelines (40 CFR part 1500); and the Natural Resources Conservation Service Guidelines (7 CFR part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice that an environmental impact statement is not being prepared for the Scott's Pond Watershed Protection Project, Jerome County, Idaho.
The Plan/Environmental Assessment of this federally assisted action indicates that the project will not cause significant local, regional, or national adverse impacts on the environment. As a result of these findings, Richard Sims, State Conservationist, has determined that the preparation and review of an environmental impact statement was not needed for this project.
The Scott's Pond Watershed Protection Project consists of a system of land treatment measures designed to protect the resource base, reduce off-site sediment and associated nutrients and bacteria, improve the quality of ground water, and the waters entering the Snake River. Planned treatment practices include: buffer strips, composting facility, conservation crop rotation, cover and green manure crop, critical area planting, dike (berm), fence, forage harvest management, irrigation pit or regulating reservoir, irrigation system (sprinkler), irrigation system (surface—gated pipe with surge), irrigation water management, watering facility (livestock), nutrient management, pasture and hayland planting, pest management, prescribed grazing, pumping plant for water control, residue management (direct seeding and no-till), waste management system, waste storage pond and liner, waste utilization, well decommissioning (injection well), wildlife upland habitat management, wildlife wetland habitat management, and windbreak/shelterbelt establishment.
The Notice of Finding of No Significant Impact (FONSI) has been forwarded to the Environmental Protection Agency. The basic data developed during the plan/environmental assessment are on file and may be reviewed by contacting Mr. Richard Sims. The FONSI has been sent to various Federal, State, and local agencies, and interested parties. A limited number of copies of the FONSI are available to fill single copy requests at the address stated on the previous page.
No administrative action on the proposal will be initiated until 30 days after the date of this publication in the
(This activity is listed in the catalog of Federal Domestic Assistance under NO. 10.904, Watershed Protection and Flood Prevention, and is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.)
Natural Resources Conservation Service, USDA.
Notice of a finding of no significant impact.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Regulations (40 CFR Part 1500); and the Natural Resources Conservation Service Regulations (7 CFR Part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives
Homer L. Wilkes, State Conservationist, Natural Resources Conservation Service, Suite 1321, A.H. McCoy Federal Building, 100 West Capitol Street, Jackson, Mississippi 39269, Telephone 601-965-5205.
The environmental assessment of this federal assisted action indicates that the project will not cause significant local, regional, or national impacts on the environment. As a result of these findings, Homer L. Wilkes, State Conservationist has determined that the preparation and review of an environmental impact statement are not needed for this project.
The project concerns a watershed plan to provide supplemental flood protection and reduce threat to loss of life from sudden dam failure to the residents of the Hubbard and Murphree Creeks Watershed and others. The planned works of improvement consists of rehabilitating three floodwater retarding structures (FWRS) Y-17-72, Y-17-73, and Y-17-74.
The Notice of a Finding of No Significant Impact (FONSI) has been forwarded to the Environmental Protection Agency and to various Federal, State, and local agencies and interested parties. A limited number of copies of the FONSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment are on file and may be reviewed by contacting Homer L. Wilkes. No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
“(This activity is listed in the Catalog of Federal Domestic Assistance under No. 10.904—Watershed Protection and Flood Prevention and is subject to the provisions of Executive Order 12372 which requires intergovernmental consultation with State and local officials.)”
USDA Natural Resources Conservation Service.
Notice of Availability of proposed changes to conservation practice standards in Section IV of the Field Office Technical Guide (FOTG) of NRCS in South Dakota for review and comment.
It is the intention of NRCS in South Dakota to issue revised conservation practice standards in Section IV of the FOTG for the following practice Constructed Wetland (656).
Comments on this notice must be received within 30 days from the publication date in the
All comments concerning the proposed conservation practice standard changes should be addressed to: Ronald Nadwornick, State Resource Conservationist, NRCS, 200 Fourth Street SW, Huron, South Dakota 57350. Copies of these standards will be made available upon written request.
Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture.
Notice of availability of proposed changes in the Field Office Technical Guide. NRCS is also seeking review and comments to the proposed changes.
It has been determined by the NRCS State Conservationist for Washington State, that changes must be made in the Field Office Technical Guide specifically for the following practice standards:
Proposed changes are to include new and improved technology.
Comments will be received for a period of 30 days following the publication date of this notice.
Leonard Jordan, State Conservationist, Natural Resources Conservation Service, 316 West Boone Avenue, Suite 450, Spokane, WA, 99201-2348; phone (509) 323-2900; or FAX (509) 323-2909.
If you would like to review any of the practice standards mentioned, contact Leonard Jordan at the above address or phone number to receive a copy of the draft standards.
For the next 30 days the NRCS will receive comments relative to the proposed changes.
Following that period a determination will be made by the NRCS regarding disposition of those comments and a final determination of change will be made to the subject standards.
June 19, 2001; 1 p.m.-4 p.m.
Radio Free Asia, Suite 300, 2025 M Street, NW., Washington, DC 20036.
The members of the Broadcasting Board of Governors (BBG) will meet in closed session to review and discuss a number of issues relating to U.S. Government-funded non-military international broadcasting. They will address internal procedural, budgetary, and personnel issues, as well as sensitive foreign policy issues relating to potential options in the U.S. international broadcasting field. This meeting is closed because if open it likely would either disclose matters that would be properly classified to be kept secret in the interest of foreign policy under the appropriate executive order (5 U.S.C. 552b. (c)(1)) or would disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action. (5 U.S.C. 552b. (c)(9)(B)) In addition, part of the discussion will relate solely to the internal personnel and organizational issues of the BBG or
Persons interested in obtaining more information should contact either Brenda Hardnett or Carol Booker at (202) 401-3736.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Postponement of Final Antidumping Duty Determination and Final Countervailing Duty Determinations.
June 13, 2001.
Angelica Mendoza or Nancy Decker (antidumping duty investigation) at (202) 482-3019 and (202) 482-0196, respectively, Office 8, and Dana Mermelstein (countervailing duty investigations) at (202) 482-1391, Office 7, AD/CVD Enforcement, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce (Department) regulations are to the regulations at 19 CFR part 351 (April 2000).
This antidumping duty investigation was initiated on December 4, 2000. See Initiation of Antidumping Duty Investigation: Certain Hot-Rolled Carbon Steel Flat Products from Argentina, India, Indonesia, Kazakhstan, the Netherlands, the People's Republic of China, Romania, South Africa, Taiwan, Thailand, and Ukraine, 65 FR 77568 (December 12, 2000). The period of investigation (POI) is October 1, 1999 through September 30, 2000. On May 3, 2001, the Department published the notice of preliminary determination. See Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products From Thailand, 66 FR 22199.
On March 23, 2001, petitioners submitted letters requesting alignment of the final determinations in the countervailing duty investigations involving Thailand and South Africa with the final determinations of the companion antidumping duty investigations of certain hot-rolled carbon steel flat products from Argentina, India, Indonesia, Kazakhstan, the Netherlands, the People's Republic of China, Romania, South Africa, Taiwan, Thailand and Ukraine. In accordance with section 705(a)(1) of the Act, we aligned the final determinations in these countervailing duty investigations with the final determinations in the companion antidumping investigations of certain hot-rolled carbon steel flat products. See Notice of Preliminary Affirmative Countervailing Duty Determination and Alignment With Final Antidumping Duty Determinations: Certain Hot-Rolled Carbon Steel Flat Products From Thailand, 66 FR 20251 (April 20, 2001), and Notice of Preliminary Affirmative Countervailing Duty Determination and Alignment With Final Antidumping Duty Determinations: Certain Hot-Rolled Carbon Steel Flat Products From South Africa, 66 FR 20261 (April 20, 2001).
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the publication of the preliminary determination if, in the event of an affirmative determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by petitioners. The Department's regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a request for extension of provisional measures from a four-month period to not more than six months.
On May 1, 2001, Sahaviriya Steel Industries (respondent) requested that the Department postpone its final determination until not later than 135 days after the date of the publication of the preliminary determination in the
Import Administration, International Trade Administration, Department of Commerce.
Initiation of antidumping duty investigations.
June 13, 2001.
Ron Trentham or Jeffrey Pedersen at (202) 482-6320 and (202) 482-4195, respectively; AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are references to the provisions codified at 19 CFR Part 351 (2000).
On May 17, 2001, the Department of Commerce (the Department) received petitions filed in proper form by the following parties: DuPont Teijin Films, Mitsubishi Polyester Film, and Toray Plastics (America) Inc., (collectively, the petitioners). The Department received from the petitioners information supplementing the petitions throughout the 20-day initiation period.
In accordance with section 732(b) of the Act, the petitioners allege that imports of polyethylene terephthalate film, sheet and strip (PET film) from India and Taiwan are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring an industry in the United States.
The Department finds that the petitioners filed these petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9) (C) of the Act and have demonstrated sufficient industry support with respect to each of the antidumping investigations that they are requesting the Department to initiate (
For purposes of these investigations, the products covered are all gauges of raw, pretreated, or primed PET film, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00. HTSUS subheadings are provided for convenience and Customs purposes. The written description of the scope of this proceeding is dispositive.
During our review of the petitions, we discussed the scope with the petitioner to ensure that it accurately reflects the product for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the Department's regulations, we are setting aside a period for parties to raise issues regarding product coverage.
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. Thus, to determine whether the petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to separate and distinct authorities. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to the law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
The domestic like product referred to in the petitions is all PET film, including equivalent PET film. In a prior antidumping investigation, the ITC adopted this definition of the domestic like product.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (1) At least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Finally, section 732(c)(4)(D) of the Act provides that if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the administering agency shall (i) poll the industry or rely on other information in order to determine if there is support for the petition as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
In order to estimate production for the domestic industry as defined for purposes of this case, the Department has relied upon not only the petition and amendments thereto, but also “other information” it obtained through research and which is attached to the Initiation Checklist (
Accordingly, the Department determines that these petitions are filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.
The petitioners determined export prices (“EP”) and constructed export prices (“CEP”) based on their own market research reports tracking the selling activities of two Indian producers active in the United States market, Garware Polyester Ltd. (“Garware”) and Polyplex Corporation (“Polyplex”). According to the petitioners, neither company sells directly to U.S. end users, but rather sell through the companies' respective U.S. sales agent/distributor. The petitioners state that Garware sells its products through its affiliated sales agent/distributor, Global PET Films (“Global”), while Polyplex sells through an unaffiliated sales agent/distributor. The petitioners based their U.S. price calculations on the prices of the U.S. distributors to U.S. end users. We do not believe it is appropriate, in this instance, to use the submitted U.S. prices for Polyplex because these prices are based on the prices of an unaffiliated U.S. distributor to a U.S. end user, and not on Polyplex's prices to that unaffiliated U.S. distributor. The petition also contains two other U.S. prices from India (
To derive CEP for Garware, the petitioner deducted from the price quote an affiliated party selling markup, ocean freight, U.S. brokerage and handling, U.S. inland freight from port to warehouse, marine insurance, U.S. customs duties, U.S. warehousing, U.S. inland freight from warehouse to customer, slitting costs and material losses associated with slitting. We recalculated the affiliated party selling markup to more accurately reflect Global's indirect selling expenses incurred in the United States. The petitioners made no adjustment for CEP profit as Garware's fiscal year 1999 financial statement showed no profit.
With respect to normal value (NV), the petitioners provided home market prices that were based on their own market reports tracking the selling activities of Garware and Polyplex in the Indian market for 48 gauge film and thick industrial film. Since we are not using the submitted U.S. prices for Polyplex, we are not using any of the submitted home market prices for Polyplex. Furthermore, we did not use the submitted home market price for Garware for thick industrial film because the petitioners could not substantiate this price with documentation or other market reports that would support the veracity of this price. Thus, the Department determined that Garware's home market price for the 48 gauge film is the only price in the petition that is directly comparable to the products exported to the U.S. which serve as the basis for CEP.
The petitioners calculated an NV by making deductions from the quoted home market price for 48 gauge film for Garware's credit expenses, packing costs, slitting costs, material loss, and advertising expenses. We adjusted the petitioners' NV calculations by adding the petitioners' reported U.S. packing costs to NV. For NV compared to CEP, the petitioners deducted a CEP offset.
Although the petitioners provided a margin based on a price-to-price comparison, they also made a country-wide cost allegation and provided information demonstrating reasonable grounds to believe or suspect that sales of PET film in the home market were made at prices below the fully absorbed cost of production (COP), within the meaning of section 773(b)(3) of the Act. As a result, they requested that the Department initiate sales-below-cost investigations on a country-wide basis.
Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacture (COM), selling, general, and administrative (SG&A) expenses, and packing costs. The petitioners calculated COM based on the average consumption rates of a U.S. PET film producer. The petitioner adjusted COM for known differences in costs between the United States and India. To calculate SG&A and interest expense, the petitioner relied upon Garware's 1999 financial statements.
Pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioners also based NV for sales in India on constructed value (CV). The petitioners calculated CV using the same COM, depreciation, SG&A and interest expense figures used to compute Indian home market costs.
Based on a comparison of CEP to NV, we calculated a margin of 77.52 percent. Based on comparisons of CEP to CV, we calculated margins of 128.33 percent and 142.21 percent.
The petitioners determined EP based on their own market research tracking the activity of the largest Taiwanese exporter of PET film to the United States, Nan Ya Plastics Industry Co., Ltd. (Nan Ya).
The petitioners submitted Nan Ya's prices for 48 gauge film and DFR base (industrial) film. For DFR base film, the petitioners submitted a price from a direct sale from Nan Ya to an unrelated U.S. purchaser. For this sale, the petitioners calculated a net U.S. price by deducting ocean freight, U.S. brokerage and handling, U.S. inland freight from port to warehouse, marine insurance, U.S. customs duties, U.S. warehousing, U.S. inland freight from warehouse to customer, slitting costs and material losses associated with slitting.
For 48 gauge film, the petitioners' cited price was a price from an unaffiliated U.S. distributor to a U.S. end user. We do not believe it is appropriate, in this instance, to use the submitted 48 gauge film U.S. price for Nan Ya because this is the price from an unaffiliated U.S. distributor to a U.S. end user, and not Nan Ya's price to that unaffiliated U.S. distributor. However, the petition also contains one other U.S. price from Taiwan on which we can calculate an estimated dumping margin,
With respect to NV, the petitioners provided home market prices that were obtained from an independent marketing consultant for 48 gauge and DFR base film. The petitioner also made a country-wide cost allegation and provided information to support its claim that sales of PET film in the home market were made at prices below the fully absorbed COP, within the meaning of section 773(b)(3) of the Act. As a result, they requested that the Department initiate a sales-below-cost investigation on a country-wide basis. However, since the submitted home market prices were from outside of the anticipated POI and we are able to calculate a margin based on constructed value, we did not use these prices in our analysis and therefore have not conducted an analysis for sales below cost.
Pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioners also based NV on constructed value (CV), consisting of COM, depreciation, SG&A expenses, interest expense, profit and packing. The petitioner calculated COM based on the average consumption rates of a U.S. PET film producer. The petitioner adjusted COM for known differences in costs between the United States and Taiwan. To calculate SG&A, interest expense, and profit, the petitioner relied upon the 1999 financial statements of Nan Ya. We recalculated profit to more accurately reflect the profits attributable to plastic products (which predominantly consist of PET film products).
Based on a comparison of EP to CV, calculated in accordance with section 773(c) of the Act, the estimated dumping margin for PET film from Taiwan is 15.65 percent.
As noted above, pursuant to section 773(b) of the Act, the petitioners provided information demonstrating reasonable grounds to believe or suspect that sales in India were made at prices below the fully absorbed COP and, accordingly, requested that the Department conduct country-wide sales-below-COP investigations in connection with the requested antidumping investigation for India. The Statement of Administrative Action (SAA), submitted to the U.S. Congress in connection with the interpretation and application of the URAA, states that an allegation of sales below COP need not be specific to individual exporters or producers.
As also noted above, the petitioners alleged that sales in Taiwan were made at prices below the fully absorbed COP and, accordingly, requested that the Department conduct country-wide sales-below-COP investigations in connection with the requested antidumping investigation for Taiwan. However, since we could not determine whether sales in Taiwan were made at prices below COP, we are not initiating a sales-below-COP investigation at this time in the Taiwan investigation.
Section 733(e)(1) of the Act states that the Department will find that critical circumstances exist, at any time after the date of initiation, when there is a reasonable basis to believe or suspect that under paragraph (A) “there is a history of dumping and material injury by reason of dumped imports in the United States or elsewhere of the subject merchandise, or . . . the person by whom, or for whose account, the merchandise was imported know or should have known that the exporter was selling the subject merchandise at less than fair value and that there was likely to be material injury by reason of such sales, and (B) there have been massive imports of the subject merchandise over a relatively short period of time.” Section 351.206(h) of our regulations defines “massive imports” as imports that have increased by at least by 15 percent over the imports during an immediately preceding period of comparable duration. Section 351.206(i) of the regulations states that “relatively short period” will normally be defined as the period beginning on the date the proceeding begins and ending at least three months later.
At this time, the petitioners have not supported their allegation under section 733(e)(1) of the Act and section 351.206 of the Department's regulations. Although the petitioners provided data indicating significant increases in imports over a three-year period, we do not consider this to be sufficient evidence of massive imports over a relatively short period of time within the meaning of section 733(e)(1)(B) of the Act and section 351.206 of the Department's regulations. If, at a later date, the petitioners adequately allege the elements of critical circumstances, based on reasonably available information, the Department will investigate this matter further.
Based on the data provided by the petitioners, there is reason to believe that imports of PET film from India and Taiwan are being, or are likely to be, sold at less than fair value.
The petitions allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the individual and cumulated imports of the subject merchandise sold at less than NV. The petitioners contend that the industry's injured condition is evident in declining trends in U.S. selling prices, sales, revenue and market share.
The allegations of injury and causation are supported by relevant evidence including U.S. Customs import data, lost sales, and pricing information. The Department assessed the allegations and determined that these allegations are supported by accurate and adequate evidence and meet the statutory requirements for initiation.
Based upon our examination of the petitions on PET film, and the petitioners' responses to our supplemental questionnaire clarifying the petitions, we have found that they meet the requirements of section 732 of the Act. Therefore, we are initiating antidumping duty investigations to determine whether imports of PET film from India and Taiwan are being, or are likely to be, sold in the United States at less than fair value. Unless this deadline
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of each petition has been provided to the representatives of the governments of India and Taiwan. We will attempt to provide a copy of the public version of each petition to each exporter named in the petition, as appropriate.
We have notified the ITC of our initiations, as required by section 732(d) of the Act.
The ITC will determine, no later than July 2, 2001, whether there is a reasonable indication that imports of PET film from India and Taiwan are causing material injury, or threatening to cause material injury, to a U.S. industry. A negative ITC determination for any country will result in the investigation being terminated with respect to that country; otherwise, these investigations will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Initiation of Countervailing Duty Investigation.
June 13, 2001.
Alexander Amdur or Howard Smith, AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; (202) 482-5346 or (202) 482-5193, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are references to the provisions codified at 19 CFR Part 351 (2000).
On May 17, 2001, the Department received a petition filed in proper form by the following parties: DuPont Teijin Films, Mitsubishi Polyester Film, and Toray Plastics (America) Inc. (collectively, the petitioners). The Department received from the petitioners information supplementing the petition throughout the 20-day initiation period.
In accordance with section 702(b)(1) of the Act, the petitioners allege that manufacturers, producers, or exporters of polyethylene terephthalate film, sheet and strip (PET film) in India receive countervailable subsidies within the meaning of section 701 of the Act.
The Department finds that the petitioners filed this petition on behalf of the domestic industry because they are interested parties as defined in sections 771(9)(C) of the Act and have demonstrated sufficient industry support with respect to the countervailing duty investigation that they are requesting the Department to initiate (
For purposes of this investigation, the products covered are all gauges of raw, pretreated, or primed PET film, whether extruded or coextruded. Excluded are metalisized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00. HTSUS subheadings are provided for convenience and Customs purposes. The written description of the scope of this proceeding is dispositive.
During our review of the petition, we discussed the scope with the petitioner to ensure that it accurately reflects the product for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the Department's regulations, we are setting aside a period for parties to raise issues regarding product coverage.
Pursuant to section 702(b)(4)(A)(ii) of the Act, the Department invited representatives of the Government of India (GOI) for consultations with respect to the petition. The GOI did not accept our invitation to hold consultations before the initiation.
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. Thus, to determine whether the petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to separate and distinct authorities. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to the law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
The domestic like product referred to in the petition is all PET film, including equivalent PET film. In a prior antidumping investigation, the ITC adopted this definition of the domestic like product.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (1) At least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Finally, section 702(c)(4)(D) of the Act provides that if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the administering agency shall (i) poll the industry or rely on other information in order to determine if there is support for the petition as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
In order to estimate production for the domestic industry as defined for purposes of this case, the Department has relied upon not only the petition and amendments thereto, but also “other information” it obtained through research and which is attached to the Initiation Checklist (
Accordingly, the Department determines that this petition is filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.
Because India is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from India materially injure, or threaten material injury to, a U.S. industry.
The petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of subsidized and, as noted below, dumped imports of the subject merchandise. The petitioners contend that the industry's injured condition is evident in declining trends in U.S. selling prices, sales, revenue and market share.
The allegations of injury and causation are supported by relevant evidence including U.S. Customs import data, lost sales, and pricing information. The Department assessed the allegations and determined that these allegations are supported by accurate and adequate evidence and meet the statutory requirements for initiation.
The petitioners contend that the POI is April 1, 2000 through March 31, 2001, which is the last completed fiscal year for each of the alleged producers/exporters of the subject merchandise. If these companies do not have the same fiscal year then the POI would be calendar year 2000.
Section 702(b) of the Act requires the Department to initiate a countervailing duty proceeding whenever an interested party files a petition, on behalf of an industry, that (1) alleges the elements necessary for an imposition of a duty under section 701(a), and (2) is accompanied by information reasonably available to petitioners supporting the allegations.
We are initiating an investigation of the following programs alleged in the petition to have provided countervailable subsidies to manufacturers, producers and exporters of the subject merchandise in India (a full description of each program is provided in the
We are not initiating an investigation of the following programs alleged in the petition to have provided countervailable subsidies to manufacturers, producers and exporters of the subject merchandise in India:
The petitioners claim that the SUP provides a state transport subsidy at the rate of 25 percent of the cost of transport. However, the petition does not provide any information on whether this program is specific under section 771(5A) of the Act.
The petitioners, citing to a document entitled “Gujarat Industrial Policy—2000,” allege that the SOG provides three types of infrastructure assistance: (1) Assistance for creating infrastructure facilities and research to specific industries, including “plastic processing industries;” (2) assistance for
The petitioners based their allegations concerning this program on a SMP state profile. The SMP state profile includes one sentence on this program under “Industrial Incentive Schemes,” stating “sales tax exemption/deferment for 4 to 9 years.” This information does not support the petitioners' allegation that this program is specific under section 771(5A) of the Act.
The petitioners based their allegations concerning this program on a SMP state profile. The SMP state profile includes one sentence on this program under “Industrial Incentive Schemes,” stating “capital investment subsidy at the rate of 5 percent to 15 percent.” This information does not support the petitioners' allegation that this program is specific under section 771(5A) of the Act.
The petitioners request that the Department initiate a critical circumstances investigation of Indian PET film because the petitioners believe that these imports are likely to “undermine seriously the remedial effect of any * * * countervailing duty order.”
Section 703(e)(1) of the Act states that the Department will find that critical circumstances exist, at any time after the date of initiation, when there is a reasonable basis to believe or suspect that (A) the alleged countervailable subsidies are inconsistent with the Subsidies Agreement and (B) there have been massive imports of the subject merchandise over a relatively short period of time. Section 351.206(h) of our regulations defines “massive imports” as imports that have increased by at least 15 percent over the imports during an immediately preceding period of comparable duration. Section 351.206(i) of the regulations states that “relatively short period” will normally be defined as the period beginning on the date the proceeding begins and ending at least three months later.
At this time, the petitioners have not supported their allegation under section 703(e)(1) of the Act and section 351.206 of the Department's regulations. Although the petitioners provided data indicating significant increases in imports over a three-year period, we do not consider this to be sufficient evidence of massive imports over a relatively short period of time within the meaning of section 703(e)(1)(B) of the Act and section 351.206 of the Department's regulations. If, at a later date, the petitioners adequately allege the elements of critical circumstances, based on reasonably available information, the Department will investigate this matter further.
The Department has examined the countervailing duty petition on PET film from India, and found that it complies with the requirements of section 702(b) of the Act. Therefore, in accordance with section 702(b) of the Act, we are initiating a countervailing duty investigation to determine whether manufacturers, producers, or exporters of PET film from India receive countervailable subsidies.
In accordance with section 702(b)(4)(A)(i) of the Act, a copy of the public version of the petition has been provided to the representatives of the GOI. We will attempt to provide a copy of the public version of the petition to each exporter named in the petition, as appropriate.
Pursuant to section 702(d) of the Act, we have notified the ITC of our initiation.
The ITC will determine, no later than July 2, 2001, whether there is a reasonable indication that imports of PET film from India are causing material injury, or threatening to cause material injury, to a U.S. industry. A negative ITC determination will result in the investigation being terminated; otherwise, this investigation will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
Notice of Application.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review. This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued.
Vanessa M. Bachman, Acting Director, Office of Export Trading Company Affairs, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or by E-mail at oetca@ita.doc.gov.
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001
Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five copies, plus two copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Office of Export Trading Company Affairs, International Trade Administration, Department of Commerce, Room 1104H, Washington, D.C. 20230, or transmit by E-mail at oetca@ita.doc.gov. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 01-00002.” A summary of the application follows.
California rice and rice products (rough rice, brown rice, milled rice, undermilled or unpolished rice, coated rice, oiled rice, rice bran, rice polish, head rice, broken rice, second head rice, brewers rice, screenings, rice flour, and rice hulls).
All services related to the export of Products.
All intellectual property rights associated with Products or Services, including, but not limited to: patents, trademarks, service marks, trade names, copyrights, neighboring (related) rights, trade secrets, know-how, and sui generis forms of protection for databases and computer programs.
Export Trade Facilitation Services, including, but not limited to: Consulting and trade strategy; sales and marketing; export brokerage; foreign marketing and analysis; foreign market development; overseas advertising and promotion; product research and design based on foreign buyer and consumer preferences; documentation and services related to compliance with customs requirements; joint ventures; inspection and quality control; transportation; shipping and export management; export licensing; insurance and financing; billing of foreign buyers; collection (letters of credit and other financial instruments); provision of overseas sales and distribution facilities and overseas sales staff; legal; accounting and tax assistance; management information systems development and application; trade show exhibitions; professional services in the area of government relations and assistance with state and federal export assistance programs, such as the Export Enhancement and Market Promotion programs.
The Export Markets include all parts of the world except the United States, (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
In connection with sales of Products for export, Sun Valley, on a transaction-by-transaction basis, may:
(a) Exchange information with suppliers or other entities individually regarding availability of and prices for Products for export, and inventories and near-term production and delivery schedules for purposes of determining the availability of Products for purchase and export and coordinating export of Products with its distributors and customers in the Export Markets;
(b) Confer with suppliers about the possibility of offers to and purchases by Sun Valley for a specific export sales opportunity;
(c) Solicit suppliers to offer/sell Products through the certified activities of Sun Valley;
(d) Solicit orders from potential foreign distributors and purchasers for sale of Products in Export Markets;
(e) Prepare and submit offers of Products to potential foreign distributors, purchasers or other entities for sale in Export Markets;
(f) Establish the price and quantity of Products for sale in Export Markets and set other terms for any other sale;
(g) Negotiate and enter into agreements for sale of Products in Export Markets;
(h) Enter into agreements to purchase Products from one or more suppliers to fulfill specific sale obligations, which may be agreements whereby suppliers agree to deal exclusively with Sun Valley for sale of the Products in a particular Export Market or Markets and/or whereby Sun Valley agrees to purchase exclusively any particular supplier's (or suppliers') Products for resale in the Export Market;
(i) Assign sales of Products to, and/or divide export orders among, suppliers or other persons based on orders, Export Market, territories, customers, or on any other basis Sun Valley deems fit;
(j) Broker and take title to the Product;
(k) Enter into agreements with one or more Export Trade Intermediaries or export trade purchasers for the purchase of Products, which may be agreements whereby Sun Valley agrees to deal exclusively with an entity or customer in a particular Export Market, and/or by which that customer or intermediary agrees to deal exclusively with Sun Valley and/or agrees not to purchase from Sun Valley's competitors in any Export Market, unless so authorized;
(l) Apply for and utilize applicable export assistance and incentive programs which are available within government and private sectors;
(m) Provide Export Trade Facilitation Services including, but not limited to, arranging and coordinating delivery of Product to port of export; arranging for inland and/or ocean transportation; allocating Products to vessel; arranging for storage space at port; arrange for warehousing, stevedoring, wharfage, handling, inspection, fumigation, quality control, freight forwarding, insurance, and documentation; invoicing foreign buyer; collecting payment for product; and arranging for
(n) Refuse to purchase Product or provide information regarding export sales of Product to any supplier(s) or other entities for any reason Sun Valley deems fit;
(o) Refuse to sell Product, to quote prices for Product, to provide information regarding Product, or to market or sell Product to any customers or distributors in the Export Markets, or in any countries or geographical areas in the Export Markets; and
(p) Meet with suppliers or other entities periodically to discuss general matters specific to exporting (not related to price and supply arrangements between Sun Valley and the individual suppliers) such as relevant facts concerning the Export Markets (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Mid-Atlantic Fishery Management Council (Council) and its Comprehensive Management Committee, Surfclam and Ocean Quahog Committee, Executive Committee, Law Enforcement Committee, and Squid, Mackerel, and Butterfish Committee will hold a public meeting.
The meetings will be held on Tuesday, June 26, 2001 through Thursday, June 28, 2001. See
This meeting will be held at the Radisson Hotel Hampton, 700 Settlers Landing Road, Hampton, VA, telephone: 757-727-9700.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone: 302-674-2331, ext. 19.
On Tuesday, June 26, 2001, the Comprehensive Management Committee will meet from 10 a.m. until noon; and the Surfclam and Ocean Quahog Committee will meet from 1 p.m. to 4 p.m. On Wednesday, June 27, the Executive Committee will meet from 8 a.m. to 9 a.m; the Law Enforcement Committee will meet from 8 a.m. to 9 a.m; the Squid, Mackerel, Butterfish Committee will meet from 9 a.m. until noon; and the Council will meet from 1 p.m. to 5 p.m. On Thursday, June 28, Council will meet from 8 a.m. until 1 p.m.
Agenda items for the committees and Council meeting(s), as appropriate, are: Finalize the Comprehensive Management Committee’s action plan to address Council priorities; review staff recommendations for 2002 quotas and management measures, and develop 2002 quota specification recommendations for surfclam and ocean quahogs; develop comments regarding proposed rule updating regulations affecting Council operations; continue development of Mid-Atlantic Council enforcement guidelines; review Monitoring Committee’s recommendations on squid, mackerel, and butterfish for 2002 quotas and management measures and address possible in-season adjustment for 2001; recognize U.S. Coast Guard Cutter Staten Island with Council’s Fishery Achievement Award; and develop recommendations for 2002 quota specifications for both squid, mackerel, butterfish and surfclam and ocean quahogs; hear organizational and committee reports including the New England Council's report where the Council may address possible actions on herring, groundfish, monkfish, red crab, scallops, skates, and whiting. The Council may also address possible actions from the South Atlantic Council on rock shrimp and dolphin/wahoo.
Although non-emergency issues not contained in this agenda may come before the Council for discussion, these issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council’s intent to take final actions to address such emergencies.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at the Council at least 5 days prior to the meeting date. Dated:
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before August 13, 2001.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision,
The Department of Education is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov, or should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW, Room 4050, Regional Office Building 3, Washington, D.C. 20202-4651. Requests may also be electronically mailed to the internet address OCIO_IMG_Issues@ed.gov or faxed to 202-708-9346. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at (202) 708-9266 or via his internet address Joe.Schubart@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before July 13, 2001.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Acting Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address Lauren_Wittenberg@omb.eop.gov.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov/owa-cgi/owa/browsecoll?psn=01711, or should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW, Room 4050, Regional Office Building 3, Washington, D.C. 20202-4651. Requests may also be electronically mailed to the internet address OCIO_RIMG@ed.gov or faxed to 202-708-9346. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be directed to Jacqueline Montague at 202-708-5359 or via her internet address Jackie.Montague@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy.
Notice of Open Meeting
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Pantex. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Tuesday, June 26, 2001, 1 p.m.-5 p.m.
The Wellington Room, Wellington Square @ Interstate 40 and Georgia Street, Amarillo, TX.
Jerry S. Johnson, Assistant Area Manager, Department of Energy, Amarillo Area Office, P.O. Box 30030, Amarillo, TX 79120; phone (806) 477-3125; fax (806) 477-5896 or e-mail
Office of Fossil Energy, DOE.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during May 2001, it issued Orders granting and amending authority to import and export natural gas, including liquefied natural gas. These Orders are summarized in the attached appendix and may be found on the FE web site at
Take notice that on May 31, 2001, Colorado Interstate Gas Company (CIG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets with an effective date of July 1, 2001:
CIG states that the filing is being made in compliance with the Commission's order issued November 9, 2000 at Docket No. RM96-1-014, et at.
CIG states that the filing revises the imbalance neeting and trading tariff provisions in response to the Commission's order in this proceeding.
CIG states that copies of this filing have been served on CIG's jurisdictional customers and public bodies.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments, protests and interventions may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on June 1, 2001, Discovery Gas Transmission LLC (Discovery) filed to comply with the terms of its FERC Gas Tariff, First Revised Sheet Nos. 34, 44, and 53 relating to lost and unaccounted for gas for the calendar year 2000.
Discovery states that it has reviewed the amount of lost and unaccounted for gas experienced by the Discovery system during the 2000 calendar year, and based on that review it proposes to retain the current retention rate of 0.5 percent for the period commencing July 1, 2001.
In the June 1, 2001 filing, Discovery filed a request for waiver of section 4 of its FT-1, FT-2, and IT Rate Schedules related to the recovery mechanism for lost and unaccounted for gas.
Discovery states that copies of this filing are being mailed to its customers, state commissions and other interested parties.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed on or before June 13, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments, protests, and interventions may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on June 1, 2001, Gas Research Institute (GRI) filed an application requesting advance approval of its 2002-2006 Five-Year Research, Development and Demonstration (RD&D) Plan, and the 2002 RD&D Program and the funding of its RD&D activities for 2002, pursuant to section 154.401 of the Commission's Regulations under the Natural Gas Act, the Commission's Rules of Practice and Procedure, and the Commission's April 29, 1998 Order Approving Settlement [83 FERC ¶ 61,093(1998)].
In its application, GRI states that all aspects of its proposed 2002 Program are consistent with the current Settlement. GRI states that proposed budgets are identical to those approved as part of the Settlement. GRI proposes to incur contract obligations of $60.0 million in 2002. Consistent with the Commission's April 29, 1998 Order Approving Settlement, GRI states that all $60.0 million of the 2002 contract obligations will be for Core Projects. GRI's application seeks to collect funds to support its RD&D program through jurisdictional rates and charges during the twelve months ending December 31, 2002. In addition GRI adds that since actual collections for 2000 of $134.0 million are $9.9 million less than projected, proposed 2002 surcharges are those set forth in the Settlement Agreement adjusted upward by 10 percent consistent with the stated intention of Settlement Agreement Article II, section 1.0 and have the potential to narrow the gap between actual collections and projected revenues by approximately $6 million.
Consistent with the Commission's April 29, 1998 Order Approving Settlement, GRI proposes to fund the 2002 RD&D program by the use of the following surcharges: (1) A demand/reservation surcharge of 6.6 cents per Dth per Month for “high load factor customers;” (2) a demand still reservation surcharge of 4.07 cents per Dth per month for “low load factor customers”; (3) a volumetric commodity/usage surcharge of 0.55 cents; and (4) a special “small customer” surcharge of .88 cents per Dth. All of the proposed 2020 surcharges represent decreases from corresponding current levels.
The Commission Staff will analyze GRI's application and prepare a Commission Staff Report. This Staff Report will be served on all parties and filed with the Commission as a public document on August 10, 2001. Comments on the Staff Report and GRI's application by all parties, except GRI, must be filed with the Commission on or before August 24, 2001. GRI's reply comments must be filled on or after August 31, 2001.
Any person desiring to be heard or to protest GRI's application, except for GRI members and state regulatory commissions, who are automatically permitted to participate in the instant proceedings as intervenors, should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with the Commission's Rules and Regulations. All such motions or protests should be filed on or before June 21, 2001. All comments and protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to this proceeding. Any person wishing to become a party, other than a GRI member or a state regulatory commission, must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the public reference room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments, protests, and interventions may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on May 30, 2001, Kern River Gas Transmission Company (Kern River), 295 Chipeta Way, Salt Lake City, Utah 84158, filed in docket No. CP01-380-000 an application pursuant to section 7(c) of the Natural Gas Act (NGA) and part 157 of the Federal Energy Regulatory Commission's (Commission) regulations for a certificate of public convenience and necessity authorizing Kern River to construct and operate: (1) A 12-inch mainline tap on Kern River's mainline north of Las Vegas; (2) approximately 3.54 miles of 16-inch diameter delivery lateral pipeline in Clark County, Nevada (Moapa Lateral); and (3) a delivery meter station at the terminus of the lateral, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may be viewed at
Specifically, Kern River requests authorization to construct the Moapa Lateral to provide up to 218.8 MMcf per day of natural gas to Duke Energy North America, LLP (Duke) to fuel its proposed 1,200 megawatt gas-fired power plant near Moapa, Nevada. Transportation service to the plant will be provided under authorized Part 284 transportation service agreements.
The estimated cost of the proposed lateral facilities is approximately $3.8 million. Duke will reimburse Kern River for all of the actual costs of the proposed
Because the pipeline will cross environmentally sensitive areas, i.e. the critical habitat of the desert tortoise, kern River states that it is seeking a case specific certificate, rather than pursuing this pipeline construction project under its Part 157, Subpart F, blanket certificate authority.
An questions regarding this application should be directed to Mr. Gary Kotter, Manager, Certificates, Kern River Gas Transmission Company, P.O. Box 58900, Salt Lake City, Utah 84158-0900 or call (801) 584-7117.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition of this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission(except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission may issue a preliminary determination on non-environmental issues prior to the completion of its review of the environmental aspects of the project. This preliminary determination typically considers such issues as the need for the project and its economic effect on existing customers of the applicant, on other pipelines in the area, and on landowners and communities. For example, the Commission considers the extent to which the applicant may need to exercise eminent domain to obtain rights-of-way for the proposed project and balances that against the non-environmental benefits to be provided by the project. Therefore, if a person has comments on community and landowner impacts from this proposal, it is important either to file comments or to intervene as early in the process as possible.
Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying a certificate will be issued.
Take notice that on June 4, 2001, National Fuel Gas Supply Corporation (National Fuel) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, revised
National Fuel states that the filing is made to revise
National Fuel states that copies of the filing were served upon its customers, interested state commissions and the parties on the official service list compiled by the Secretary in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments, protests and interventions may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on May 31, 2001, Williams Gas Pipelines Central, Inc. (Williams) tendered for filing a proposed refund plan for the distribution of Kansas ad valorem taxes pursuant to the Commission's October 11, 2000, Order Approving Settlement, and the December 13, 2000, Order Granting Clarification. Williams states that since it does not have sufficient information at a working interest owner level to determine the ad valorem taxes and related interest for each applicable year of the refund period (1984 through 1988), it is proposing to calculate the jurisdictional portion of the refunds based on the jurisdictional percentage for the entire period.
Any person desiring to be heard or to protest this filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.211 and 384.214 of the Commission's Rules of Practices and Procedures. All such motions and comments must be filed on or before June 21, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may also be viewed on the web at
Take notice that on June 4, 2001, Williston Basin Interstate Pipeline Company (Williston Basin), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the revised tariff sheets listed on Appendix A to filing, to become effective July 4, 2001.
Williston Basin states that the revised tariff sheets are being filed to make certain tariff modifications necessary to correct and/or clarify its Tariff as more fully explained in the filing.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments, protests, and interventions may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(A)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i. Deadline for filing comments, protests, and motions to intervene: 60 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Motions to intervene, protests, and comments may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Please include the project number (P-12010-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener filed comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item g above.
l. Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
m. Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment data for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Motions to intervene, protests, and comments may be fled electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Please include the projected number (P-12009-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the
j.
k. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item g above.
l. Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
m. Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i. Deadline for filing comments, protests, and motions to intervene: 60 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Motions to intervene, protests, and comments may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Please include the project number (P-11996-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an
j.
k. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item g above.
l. Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
m. Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Motions to intervene, protests, and comments may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Please include the project number (P-11989-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all
j.
k. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item g above.
l. Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
m. Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36
n. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
o. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
p. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
r. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a:
b:
c:
d:
e:
f:
g:
h:
i:
j. Deadline for filing comments, terms and conditions, motions to intervene, and protests: 14 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, protests and interventions may be filed electronically via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at: http://www.ferc.fed.us/efi/doorbell.htm.
k. Deschutes Valley Water District (DVWD) filed an application, with the concurrence of the Oregon Department's of Fish and Wildlife and Environmental Quality, to reduce flows in the bypass reach from 50 cfs to a 10 cfs leakage flow, between June 15, 2001 and September 30, 2001. In addition, DVWD proposes to add spawning gravel to the river in the vicinity of the powerhouse. DVWD states that this modification to project operations will increase generation by approximately 120 kilowatts (kW).
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room at 888 First Street NE., Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on the web at http://www.ferc.fed.us/online/rims.htm. Call (202) 208-2222 for assistance. A copy is also available for inspection and reproduction at the address in item (h) above.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Any filings must bear in all capital letters the title “COMMENTS,” “RECOMMENDATIONS FOR TERMS AND CONDITIONS,” “PROTEST,” or “MOTION TO INTERVENE,” as applicable, and the Project Number of the particular application to which the filing refers. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
On July 17, 2000, Natural Gas Pipeline Company of America (Natural) submitted its filing to comply with Order No. 637. Several parties have protested various aspects of Natural's filing.
Take notice that a technical conference to discuss the various issues raised by Natural's filing will commence on Tuesday, July 10, 2001, at 10:00 a.m.
The technical conference will be held in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Parties protesting aspects of Natural's filing should be prepared to discuss alternatives.
All interested parties and Staff are permitted to attend.
The following notice of meeting is published pursuant to section 3(a) of the Government in the Sunshine Act (Pub. L. 94-409), 5 U.S.C 552b:
Federal Energy Regulatory Commission.
June 13, 2001., 10:00 A.M.
Room 2C, 888 First Street, N.E., Washington, D.C. 20426.
Open.
Agenda.
Items listed on the agenda may be deleted without further notice.
David P. Boergers, Secretary, Telephone (202) 208-0400. For a recording listing items stricken from or added to the meeting, call (202) 208-1627.
This is a list of matters to be considered by the Commission. It does not include a listing of all papers relevant to the items on the agenda; however, all public documents may be examined in the Reference and Information Center.
Western Area Power Administration, DOE.
Request for Statements of Interest.
The National Energy Policy Report announced on May 17, 2001, recommended that the President direct the Secretary of Energy (Secretary) to authorize the Western Area Power Administration (Western) to explore relieving the “Path 15” bottleneck through transmission expansion. The Path 15 bottleneck refers to transmission system constraints which severely limit the flow of electric power over the existing north-south transmission lines located in central California. These existing lines are owned and operated by Pacific Gas and Electric Company (PG&E).
On May 28, 2001, the Secretary directed the Administrator of Western to complete its planning to relieve Path 15 constraints, and determine whether outside parties are interested in helping finance and co-own the necessary system additions, including transmission lines. The level of interest will be a factor in the decision by the Secretary whether or not to build the system additions necessary to relieve the constraints. If the system additions are built under this process, Western will be a project manager for the construction efforts.
In this notice, Western is requesting Statements of Interest from parties interested in helping finance and co-own the system additions.
To be assured of consideration, all Statements of Interest should be received at Western's Sierra Nevada Regional Office by July 13, 2001.
The Statements of Interest should be mailed to: Mr. Howard Hirahara, Acting Regional Manager, Sierra Nevada Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630-4710. Statements of Interest may also be faxed to (916) 985-1934 or e-mailed to
For further information concerning the Statements of Interest, contact: Mr. Howard Hirahara, Acting Regional Manager, Sierra Nevada Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630-4710, telephone (916) 353-4416.
It was recognized in the 1980s that, under certain power system conditions, the flow of electric power over Path 15 could be severely limited. Western, the Transmission Agency of Northern California (TANC), and PG&E studied the possibility of constructing system additions to relieve Path 15 constraints as part of the planning effort for the California-Oregon Transmission Project (COTP.) The COTP was authorized by the Energy and Water Development Appropriation Act, 1985, Public Law 98-360, 98 Stat. 403, 416, (1984). In 1988, Western released a final Federal environmental impact statement (EIS), and TANC released a final environmental impact review under California law, on the transmission facilities needed for the COTP. The plan included system additions, known as the Los Ban
Given the current energy problems in California, including the bankruptcy of the PG&E, the Secretary has now directed Western to complete its planning for the transmission project and to determine whether outside parties are interested in helping to finance and co-own the system additions. Western has general authority under the Department of Energy
Western's initial step is to identify all entities interested in participating in the financing and co-ownership of Path 15 system additions. For this initial step, interested parties should assume that the system additions would be very similar to those proposed in 1988 for the Los Ban
1. Name of requesting entity and experience in financing electric utility transmission projects.
2. Name, telephone number, facsimile number, and e-mail address of management contact.
3. Name, telephone number, facsimile number, and e-mail address of technical contact.
4. Amount of financing they are willing to contribute to the project.
5. Amount and type of ownership rights they seek.
6. Description of non-monetary contributions they are willing to offer to the project.
7. Description of the proposed participation in sufficient detail to enable Western to evaluate the proposal.
8. Amounts and types of transmission rights they wish to purchase.
Western then will analyze the Statements of Interest. The level of interest will be a factor in the decision by the Secretary whether or not to build the system additions necessary to relieve the Path 15 constraints.
In accordance with the Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520, Western has received approval from the Office of Management and Budget for the collection of this information under control number 1910-1200.
Western will prepare the necessary environmental and feasibility studies and review easement and land acquisition issues related to the project. Western will review the 1988 COTP EIS and 1991 Supplement Analysis to determine what further action must be taken to comply with National Environmental Policy Act of 1969 and other environmental laws and regulations.
Western Area Power Administration, DOE.
Notice of Proposed Allocation.
The Western Area Power Administration (Western), a Federal power marketing agency of the Department of Energy, announces its Post-2004 Resource Pool—Salt Lake City Area Integrated Projects (SLCA/IP) Proposed Allocation of Power. This allocation fulfills the requirements of Subpart C—Power Marketing Initiative of the Energy Planning and Management Program Final Rule. The Post-2004 Resource Pool Proposed Allocation of Power is Western's application of Subpart C—Power Marketing Initiative of the Energy Planning and Management Program Final Rule to the SLCA/IP.
All comments must be received by the end of the comment period, to be assured of consideration. The comment period on the Proposed Allocation of Power begins today and ends October 11, 2001.
All comments regarding the Proposed Allocation of Power should be directed to the following address: Mr. Burt Hawkes, Power Marketing and Contracts, CRSP Management Center, Western Area Power Administration, P.O. Box 11606, Salt Lake City, UT 84147-0606. Comments may also be faxed to (801) 524-5017 or e-mailed to
Mr. Burt Hawkes, Power Marketing and Contracts, (801) 524-3344, or Lyle Johnson, Public Utilities Specialist, (801) 524-5585. Written requests for information should be sent to CRSP Management Center, Western Area Power Administration, P.O. Box 11606, Salt Lake City, UT 84147-0606.
Western will also consult with the applicants and interested parties at the combined public information forums and comment forums, which are planned for Albuquerque, New Mexico; Las Vegas, Nevada; Phoenix, Arizona; and Salt Lake City, Utah. Notification of the location and times of the forums will be given in a subsequent
Western published its decision on June 25, 1999, at 64 FR 34414, to apply Subpart C—Power Marketing Initiative of the Energy Planning and Management Program Final Rule, 10 CFR part 905 to the SLCA/IP. The Energy Planning and Management Program (Program), which was developed in part to implement section 114 of the Energy Policy Act of 1992, became effective on November 20, 1995. Subpart C of the Program provides for the establishment of project-specific resource pools and the allocation of power from these pools to new preference customers. Western's power allocation criteria and call for applications for power were published in the
Western will respond to the comments received about the Proposed Allocation of Power and publish its final allocations after the public comment period ends. If any adjustments or corrections are necessary in a recipient's allocation, the fixed size of the pool will cause the change to affect the allocations of all other recipients. Western plans to enter into contracts with new customers after publication of that notice.
The SLCA/IP Post-2004 Power Pool will consist of 7 percent of the SLCA/IP firm power resources available on October 1, 2004. On this date, 7 percent of the firm power resources will be withdrawn from current customers and
Western received applications for power from 57 Native American tribes or organizations and 9 utilities. Following the established criteria of allocating first to Native American tribes with the stated target of serving 65 percent of the eligible loads, the tribes' Applicant Profile Data (APD) indicated that the electrical loads of these Native American tribes were large enough to require the entire Post-2004 Power Pool be allocated to the qualifying Native American tribes. Navopache is the only non-tribal applicant that will receive an allocation.
Since the entire Post-2004 Power Pool was used to meet the commitment to Navopache and to meet the needs of Native American applicants, there is no power available for the remaining eight new applicants. Accordingly, Western is unable to allocate SLCA/IP power to the following: Utah Transit Authority; Deseret Chemical Depot; U.S. Department of Energy, Sandia National Laboratories; U.S. Department of Energy, Waste Isolation Pilot Project; Town of Fredonia, Arizona; City of Monticello, Utah; City of Eagle Mountain, Utah; and Washington County Water Conservancy District.
Several tribes within the SLCA/IP marketing area were determined ineligible for an allocation of power from the Post-2004 Power Pool primarily because they did not meet the qualifying criteria or failed to submit proper applications. Tribes that have not been assigned a proposed allocation include the following:
Four tribes, the Moapa Band of Paiutes, the Pueblo of San Ildefonso, the Pueblo of Santo Domingo, and the Pueblo of Taos, submitted incomplete applications. No allocations are proposed for these tribes.
Western's intent is that the benefits of Federal power be made available first to Native American individuals, businesses, and tribal loads and to essential services existing on reservations that may be owned by non-Native Americans. Because the Post-2004 Power Pool is not large enough to meet the goal of serving 65 percent of the total loads of the Native American applicants, Western is able to allocate power only for those uses as initially intended. If there had been unallocated energy remaining in the Post-2004 Power Pool, Western would have considered allocating it to non-Native American loads on the reservations.
For the two tribes, the Gila River Indian Community and the Tonto Apache Tribe, that did not separate their commercial and industrial loads into Indian- and non-Indian-owned loads, Western used the amount of energy reported in the small commercial category of their APDs as estimates of their Indian-owned load on their respective reservations.
The Power Allocation Procedures published September 8, 1999, state, “For Native American Tribes currently receiving power from utilities that have allocations of Federal power resources, Western will take into account the benefit received through the existing supplier when determining their allocations.” Accordingly, the percentage of Western service that each of the tribes receives through its current power supplier(s) was used in determining the allocations for tribes served by current Western customers. The White Mountain Apache Tribe's (White Mountain) allocation was calculated using the percentage of service that its serving utility, Navopache, will receive when service to Navopache and White Mountain begins on October 1, 2004. This is consistent with the method used to determine allocations to the other applicant tribes that are served by utilities that receive Federal power.
Energy from the Post-2004 Power Pool was allocated to the applicants in a manner consistent with the intent of the criteria in that each tribe received an equal percent of its energy needs from the Post-2004 Power Pool. Energy was allocated using the following formula: Post-2004 Proposed Allocation = EL × (P − C)
Contract rates of delivery (CROD) were determined by applying Western's seasonal load factors of 49.4 percent in the Winter Season and 53.1 percent in the Summer Season to the energy allocations. The resulting allocations serve 61.2 percent of the tribal applicants' Winter Season and 59.3 percent of their Summer Season loads. The resource pool was not large enough to serve any non-Indian-owned loads.
The proposed allocations of power for new Native American customers are as follows:
The Regulatory Flexibility Act, 5 U.S.C. section 601-621 (Act), requires Federal agencies to perform a regulatory flexibility analysis if a proposed rule is likely to have a significant economic impact on a substantial number of small entities. Western has determined that this is a rulemaking of particular applicability relating to services offered by Western and, therefore, is not a rule within the purview of the Act. In addition, the requirements of this Act can be waived if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. By his execution of this
Western has completed environmental impact statements (EIS) on the Program, and on the marketing of SLCA/IP power pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
DOE has determined this is not a significant regulatory action because it does not meet the criteria of Executive Order 12866, 58 FR 51735. Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by OMB is required.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Annual Updates of Emission Data to Aerometric Information Retrieval System (AIRS), EPA ICR No. 916.11, OMB Control Number 2060-0088, Expiration Date 8/31/2001. Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection as described below.
Comments must be submitted on or before August 13, 2001.
United States Environmental Protection Agency; Office of Air Quality Planning and Standards; Emissions, Monitoring and Analysis Division (MD-14); Research Triangle Park, NC 27711. Interested persons may obtain a copy of the ICR without charge from
David Misenheimer; Telephone (919) 541-5473; Email:
The EPA would like to solicit comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 13, 2001.
Send comments, referencing EPA ICR No. 1977.01 to the following addresses: Sandy Farmer, U.S. Environmental Protection Agency, Collection Strategies Division (Mail Code 2822), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and to Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
For a copy of the ICR contact Sandy Farmer at EPA by phone at (202) 260-2740, by E-mail at farmer.sandy@epamail.epa.gov, or download off the Internet at http://www.epa.gov/icr and refer to EPA ICR No. 1977.01. For technical questions about the ICR, contact Curt Baranowski at 202-564-0636 in the U.S. EPA, Office of Wastewater Management, Municipal Assistance Branch (Mail Code 4204-M), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. The
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the addresses listed above. Please refer to EPA ICR No. 1977.01 in any correspondence.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before July 13, 2001.
Send comments referencing EPA ICR No. 1681.04 and OMB Control No. 2060-0290, to the following addressees: Sandy Farmer, U.S. Environmental Protection Agency, Collection Strategies Division (Mail code 2822), 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0001 and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA 725 17th Street, NW., Washington, DC 20503.
For a copy of the ICR, call Sandy Farmer at EPA by phone at (202) 260-2740, by E-Mail at Farmer.Sandy@epamail.epa.gov or download off the Internet at http://www.epa..gov/icr, and refer to EPA ICR
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. The
Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the following addresses. Please refer to EPA ICR No. 1681.04 and OMB Control No. 2060-0290 in any correspondence.
Environmental Protection Agency (EPA).
Notice.
There will be a 2-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Food Quality Protection Act (FQPA) Scientific Advisory Panel (SAP) to review a set of issues being considered by the Agency pertaining to an assessment of additional scientific information concerning StarLink
The meeting will be held on July 17 and July 18 from approximately 8:30 a.m. to 5 p.m.
The meeting will be held at the Sheraton Crystal City Hotel, 1800 Jefferson Davis Highway, Arlington, VA 22202. The telephone number for the Sheraton Crystal City Hotel is (703) 486-1111.
Requests to participate may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Paul Lewis, Designated Federal Official, Office of Science Coordination and Policy (7202C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-5369; fax number: (703) 605-0656; e-mail address: lewis.paul@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
You may submit a request to participate in this meeting through the mail, in person, or electronically. Do not submit any information in your request that is considered CBI. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-00724 in the subject line on the first page of your request. Interested persons are permitted to file written statements before the meeting. To the extent that time permits, and upon advance written request to the person listed under
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On November 28, 2000, the FIFRA SAP met to review the potential allergenicity, sensitization, and dietary exposure to StarLink
The SAP also recommended collecting additional information to improve the estimate of the levels of Cry9C protein in the food supply.
The SAP will be meeting to assess additional scientific information concerning StarLink
The Panel will prepare a report of its recommendations to the Agency. The report will be posted on the FIFRA SAP web site or may be obtained by contacting the PIRIB at the address or telephone number listed in Unit I. of this document.
Environmental protection.
Notice is hereby given that the National Environmental Education Advisory Council, established under section 9 of the National Environmental Education Act of 1990 (the Act), will hold a public meeting on June 28 and 29, 2001. The meeting will take place 1200 Pennsylvania Ave., NW., Washington, DC from 9:00 am to 5:00 pm on Thursday, June 28th and Friday, June 29th. The purpose of this meeting is to provide the Council with an opportunity to advise EPA's Office of Communications, Education and Media Relations (OCEMR) and the Office of Environmental Education (OEE) on its implementation of the Act. Members of the public are invited to attend and to submit written comments to EPA following the meeting.
For additional information regarding the Council's upcoming meeting, please contact Ginger Keho, Office of Environmental Education (1704), Office of Communications, Education and Media Relations, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 or call (202) 564-0453.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of applications to register pesticide products containing new active ingredients not included in any previously registered products pursuant to the provisions of section 3(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Written comments, identified by the docket control number OPP-30511, must be received on or before July 13, 2001.
Comments may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
The Product Manager (PM) listed in the table below:
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
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You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number OPP-30511 in the subject line on the first page of your response.
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Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the registration activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket control number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA received applications as follows to register pesticide products containing active ingredients not included in any previously registered products pursuant to the provisions of section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.
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Environmental protection, Pesticides and pest.
Federal Election Commission.
Tuesday, June 19, 2001 at 10:00 a.m.
999 E Street, N.W., Washington, D.C.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g.
Audits conducted pursuant to 2 U.S.C. 437g, 438(b), and Title 26, U.S.C.
Matters concerning participation in civil actions or proceedings or arbitration.
Internal personnel rules and procedures or matters affecting a particular employee.
Thursday, June 21, 2001 at 10:00 a.m.
999 E Street, N.W., Washington, D.C. (Ninth Floor).
This meeting will be open to the public.
Correction and Approval of Minutes.
Advisory Opinion 2001-08: Senator Arlen Specter.
Administrative Matters.
Mr. Ron Harris, Press Officer, Telephone: (202) 694-1220.
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, effective on the corresponding dates shown below:
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for licenses as Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 9, 2001.
In connection with this application, Applicant also has applied to acquire Landmark Bancshares, Inc., Dodge City, Kansas, and thereby indirectly acquire Landmark Federal Savings Bank, Dodge City, Kansas, and thereby engage in operating a savings association, pursuant to § 225.28(b)(4)(ii) of Regulation Y.
Board of Governors of the Federal Reserve System, June 7, 2001.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 9, 2001.
Board of Governors of the Federal Reserve System, June 8, 2001.
Administration on Aging.
Notice of revision and request for comments.
The Administration on Aging is announcing an opportunity for public comment on the proposed request for an extension and revision to the currently approved information collection, as required by the Paperwork Reduction Act of 1995. This notice solicits comments on the requirements relating to the submission, by AoA grantees, of semiannual financial reports on all Title III grants. The information contained in the OMB 269 and its supplemental forms are reports currently being collected concurrently.
AoA received 15 comments in response to its Federal Register announcement in connection with this request for OMB approval for the use of the Supplementary Statement to the SF 269. A matrix summarizing the issues addressed in these comments is available upon request, along with the actual letters and an updated version of the Supplemental Form, which eliminates the collection of Part E Statewide Expenditures for the National Family Caregiver Support Program. AoA's response to the issues raised by the respondents has been included below.
The Administration on Aging (AoA), in accordance with the Paperwork Reduction Act of 1965, requested approval from the Office of Management and Budget for an extension and revision to the currently approved AoA supplemental forms to the SF 269 to include a data collection requirement for the new Title III-E of the Older Americans Act (OAA), as amended in 2000.
The OAA, which was reauthorized on November 13, 2000, included an important new program, the National Family Caregiver Support Program (NFCSP). This program will help hundreds of thousands of family members who are struggling to care for their loved ones who are ill or have disabilities. The NFCSP is authorized at $125 million for grants to State agencies on aging in FY 2001. State agencies on aging, working with area agencies on aging and community and service provider organizations, will provide support services, including information and assistance to caregivers, counseling, support groups, respite and other home-and community-based services to families caring for frail older members. This program also recognizes the needs of grandparents who are caregivers of grandchildren, and other older individuals who are relative caregivers of children who are eighteen and under. Focusing on services for the caregiver rather than the care recipient is a shift for the OAA.
In order to get preliminary information that is necessary to collect on an interim basis that would document the need for a comprehensive caregiver delivery system, AoA proposed that states report expenditures, units of service, and people served (caregivers) for the following categories of service.
• Information
• Assistance
• Counseling, support groups and training
• Respite
• Supplemental services
This data would be sent to the AoA on a semi-annual basis.
AoA received 15 comments in response to the January 19, 2001
Specific comments included the following:
• Asked if cost sharing fees collected under the NFCSP could be used as match for the program;
• Suggested delaying the implementation barring the use of voluntary contributions as match;
• Recommended formal regulations process should be used to amend matching requirements and that states should be given ample time to make transition;
• Agreed (one respondent) with proposed changes to use of voluntary contributions as match;
• Concerned about lack of guidance on performance measures;
• Recommends collecting more useful information to meet the requirement to evaluate the effectiveness of the program;
• Concerned that service definitions have not been provided;
• Provided recommendations for some of the service definitions;
• Requested clarity on the target population—caregiver or care recipient;
• Concerned about lack of a uniform system for collecting information on people served;
• Concerned about reporting service data on SF 269;
• Recommended data be collected on a separate form until the NAPIS can be revised; and
• Indicated that using the SR 269 was administratively burdensome and duplicative of the NAPIS reporting.
Based on the comments received from the 15 respondents, the AoA proposes to amend its proposal published in the
(1) on an interim basis, have a separate collection for the NFCSP; and
(2) reiterate the rationale for the remaining changes, which relate specifically to the recommendation of the Inspector General on grantees' use of and reporting for voluntary contributions.
Relative to the NFCSP, we propose to collect expenditure data, units of service and number of people served for the five categories of service (information, assistance, counseling, support groups and training, respite and supplemental services) as a temporary separate stand-alone report that can be sent to AoA once a year instead of bi-annually as required for the Supplemental to the SF 269. To facilitate submission of this
We believe that this change addresses the concerns raised by the comments submitted in response to the
With regard to reporting for voluntary contributions, in a report entitled, States Use of Voluntary Contributions Under Title III of the Older Americans Act (A-12-00-00002), the OIG recommended that AoA “submit revised regulations to make clear that voluntary contributions cannot be used as cost sharing or matching, but must instead be used to expand services.”
In our response, AoA agreed that the current regulations at 45 CFR 1321.67(b) and 1321.73 are inconsistent with section 307(a)(13)(C)(ii) of the Older Americans Act (OAA), as amended through December 31,1992. To be more specific, 45 CFR 1321.67(b) stipulated that the “contributions from supportive services and nutrition services be used to expand supportive services and nutrition services respectively” and 45 CFR 1321.73 required that “grant related income be used either in the matching or cost sharing alternative in 45 CFR 92.25(g)(2), or the additive alternative 45 CFR 92.25(g)(3) or a combination of the two.”
With the enactment of the FY 2000 amendments to the OAA, however, section 307(a)(13)(C)(ii) was replaced with the new section 315 (b)(4)(E). The new section requires area agencies on aging to ensure that service providers “use all collected contributions to expand the services for which the contributions were given.” This change, in our view, negated the need for revising the regulations relating to the former section, as it supercedes the previous language that was interpreted in the aforementioned regulations. The new statutory language is clear on its face. Regulatory language for the new statute as a whole, however, is in the process of being developed and as such will encompass the specific changes required for section 315 (b)(4)(E), thus negating the need for a separate regulation to announce the section changes.
AoA did, however, outline the following actions taken in the interim to inform states that voluntary contributions may not be used for cost sharing or matching and that voluntary contributions and any related interest earned are program income and must be used to expand services:
a. AoA regional administrators have provided the OIG report to the State Units on Aging so that the states may begin to make changes consistent with OIG recommendations.
b. AoA has revised the instructions for completing the supplemental statement to the SF 269 Financial Status Report to clarify that voluntary contributions are not to be reported as having fulfilled the state cost sharing or match requirements. (We also informed the OIG that the revised form was in the final stages of the OMB Paperwork Reduction Clearance Process, as addressed by this process.)
c. A Program Instruction will be prepared to accompany the revised form when it is implemented.
d. Revised instructions to the AoA Regional Offices and the Division of Grants Management for the review of the revised form are being prepared.
The remainder of the changes incorporated into the form were made to bring us into compliance with the Inspector General recommendations and statutory requirements.
(1) All amounts reported should be rounded off to the nearest dollar; no cents should be reported.
(2) Leave blank items 10.c and 10.g since the Deductive and the Matching or Cost Sharing alternatives are not allowed.
(3) The amount reported in item 10.e should represent non-State, subrecipient contributions (i.e. those non-Federal resources contributed by AAA's, nutrition and service providers, etc.).
(4) The amount reported in item 10.h should represent those outlays made from State resources.
(5) Item 10.k should include the total Federal and State share of unliquidated obligations. These would include State funds awarded to AAA's, etc. which have not been earned/expended.
(6) Item 10.1, the State's share from 10.k above.
(7) Please note that program income used in accordance with the Additional Alternative (Item 10.r) is a CUMULATIVE AMOUNT and should not be included in the total outlays on line 10.a.
Since the current form does not have multiple columns for reporting more than one program function, State Agencies are required to break down the following items on the Supplemental Form to the SF 269.
ITEM 10.i Total recipient share of outlays.
Sections 304 and 308 of the Older Americans Act and Section 1321.47 of the Title III regulations require a match of 25 percent for State and Area Plan and 15 percent for all services. Breakdown Item 10.i, Column III, to
ITEM 10.o Total Federal funds authorized for this funding period.
The break down of Item 10.o should be the State's allocation of Federal funds for the following five (5) program functions:
1. State Administration/Administrative Activities.
Sections 308(a)(1) and (b)(2) provide the authority for States to expend the greatest of 5% of their total allotment or $500,000 for this function. Provide the total amount of Title III funds used for State Administration. This total must be broken down further to identify the amount of funds utilized from each program allotment.
2. Part B, Supportive Services, Part C1, Congregate Meals and Part C2, Home Delivered Meals
Sections 308(b)(4) and (5) provide the authority for States to transfer between Subparts C1 and C2 and between Parts B and C. Provide the amount utilized by the State after transfers for each of the three program allotments.
3. Long-Term Care Ombudsman.
Sections 304(d)(1)(B) and 307(a)(9) provides the authority to utilize Part B funds for Long-Term Care Ombudsman services. Provide the amount of Fiscal Year 2000, Title III-B funds utilized by the State for costs incurred by the State Agency in support of the Statewide Long-Term Care Ombudsman program. This amount should be excluded from Part B amount in item 2 above.
4. Part D, Disease Prevention and Health Promotion Services
Section 303(d) authorizes funds for grants under Part D. Provide the amount of Title III funds utilized for preventive health services.
5. Part E, National Family Caregiver Support Program
Sections 303(e)(1) and (2) authorizes funds for grants under Part E. Provide the amount of Title III funds utilized for caregiver services. Also provide statewide expenditures by service categories.
6. Area Plan Administration
Sections 304(d)(1)(A) and 308(a)(3) provide the authority for States to utilize a maximum of 10% of their total allotment for Area Plan Administration. This total must be broken down further to identify amount of funds utilized from each program allotment.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 639-7090.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
Human Exposure to Cyanobacterial (blue-green algal) Toxins in Drinking Water: Risk of Exposure to Microcystin from Public Water Systems—New—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
Cyanobacteria (blue-green algae) can be found in terrestrial, fresh, brackish, or marine water environments. Some species of cyanobacteria produce toxins that may cause acute or chronic illnesses (including neurotoxicity, hepatotoxicity, and skin irritation) in humans and animals (including other mammals, fish, and birds). A number of human health effects, including gastroenteritis, respiratory effects, skin irritations, allergic responses, and liver damage are associated with the ingestion of or contact with water containing cyanobacterial blooms. Although the balance of evidence, in conjunction with data from laboratory animal research, suggests that cyanobacterial toxins are responsible for a range of human health effects, there have been few epidemiologic studies of this association. We plan to recruit 100 people whose tap water comes from a source with a current cyanobacteria bloom (i.e.,
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2001 funds for a cooperative agreement program for “National Programs to Support Healthy Aging”. This program addresses the “Healthy People 2010” focus areas of Access to Quality Health Services, Educational and Community Based Programs, and Physical Activity and Fitness.
The purpose of the program is to establish national partnerships to enhance health and quality of life for older adults through a broad national strategy to: (1) Promote oral, physical, and mental health and healthy behaviors and practices, (2) reduce the impact of injuries and chronic diseases, and (3) maintain function and independence for older Americans.
This program consists of four parts. Furthermore, Parts I, II, and IV have additional Special Emphasis Areas. To qualify for funding under a Special Emphasis Area, the applicant must apply and be approved for funding under the respective part (i.e., Part I, II, or IV).
Part I—to strengthen and enhance collaborations between health departments at the state and local level and community organizations/networks that focus on older adults to promote behaviors and practices that lead to improved oral, physical, and mental health and more fulfilling and satisfying lives.
Part I, Special Emphasis Area One—to expand activities that promote physical activity in older adults.
Part I, Special Emphasis Area Two—to expand activities that promote immunizations for older adults.
Part II—to strengthen the capacity of national, state, and/or local agencies to conduct and evaluate culturally-appropriate programs that improve oral, physical, and mental health, reduce the impact of injuries and chronic diseases, and maintain function and independence for older Americans.
Part II, Special Emphasis Area—to identify programmatic best practices in community-based health promotion and disease prevention.
Part III—to support a planning committee and conduct a workshop/conference to assess the public health impact of the aging of America's workforce.
Part IV—to develop consumer education tools and strategies to improve oral, physical, and mental health, reduce the impact of disease and injury, and delay disability and the need for long-term care among older adults, including those in minority and other under-served communities.
Part IV, Special Emphasis Area—to assess the knowledge and beliefs specific to falls, fall risks, driving safely, and driving cessation.
Assistance will be provided only to private, not-for-profit 501(c)(3) national organizations whose mission is to serve the health and well-being of older Americans. Affiliate offices and local, state, or regional membership constituencies may not apply in lieu of, or on behalf of, their national office.
Eligible applicants will be national voluntary organizations and must have established working relationships with affiliate offices or chapters or local, state, or regional membership constituencies in states and territories in order to provide nationwide geographical coverage for the dissemination of aging information and programs.
Title 2 of the United States Code, Chapter 26, Section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, cooperative agreement, contract, loan, or any other form.
Approximately $500,000 is available in FY 2001 to fund the following categories:
Part I—Approximately $100,000 will be available to fund one award.
Part I, Special Emphasis Area One—Approximately $50,000 will be available to fund one award.
Part I, Special Emphasis Area Two—Approximately $50,000 will be available to fund one award.
Part II—Approximately $50,000 will be available to fund one award.
Part II, Special Emphasis Area—Approximately $50,000 will be available to fund one award.
Part III—Approximately $50,000 will be available to fund one award.
Part IV—Approximately $100,000 will be available to fund one award.
Part IV, Special Emphasis Area—Approximately $50,000 is available to fund one award.
It is expected that the awards will begin on or about September 30, 2001, and will be made for a 12-month budget period within a project period of up to five years. Funding estimates may change.
Continuation awards within an approved project period will be made on the basis of satisfactory progress as evidenced by required reports and the availability of funds.
In conducting activities to achieve the purposes of this program, the recipient will be responsible for the activities under 1. (Recipient Activities), and CDC will be responsible for the activities listed under 2. (CDC Activities).
The applicant should propose activities in one or more of the following four areas:
Part I—Develop mechanisms to:
a. Provide resources to health departments at the state and local level and community organizations/networks that focus on older adults to promote healthy behaviors and practices;
b. Develop communications resources for use by community organizations and older adults, including but not limited to information, materials and toolkits;
c. Develop tools to help communities inventory and publicize their resources; and
d. Integrate health plans and other health care resources into community demonstration projects.
Part I, Special Emphasis Area One:
Develop mechanisms described above that:
a. Focus on promotion of physical activity in older adults;
b. Promote active community environments that allow people in all ranges of abilities to have opportunities for safe and active travel and recreation (of particular importance is that communities be walkable and bikable);
c. Help agencies improve communications with older adults about physical activity;
d. Assist communities in improving the walkability of their built environment; and
e. Promote inter-generational programs.
Part I, Special Emphasis Area Two:
Develop mechanisms described above that:
a. Focus on promotion of immunizations in older adults;
b. Help agencies enhance awareness of the importance of immunizations for older adults; and
c. Link health care services funded under Medicare to community agencies and services.
Part II—Strengthen the capacity of national, state, and/or local agencies to conduct and evaluate the objectives of this part by:
a. Identifying innovative health and supportive programs for older adults;
b. Conducting systematic review and synthesis of quality programs including organizational capacity, resource requirements and outcomes achieved; and
c. Disseminating findings.
Part II, Special Emphasis Area—Identify and assess community-based health promotion and disease prevention programs by:
a. Assessing the quality of evaluation used for these programs; and
b. Compiling a “best practices” document suitable for use by national, state and local agencies.
Part III—Review and synthesize available information about:
a. Demographic trends of America's workforce;
b. Occupations that are expected to have the highest concentration of older workers;
c. Physiological, cognitive, and career changes that typically occur with aging;
d. Barriers encountered by older workers;
e. Occupational health and safety experience of older workers and the implications of this information for creating a healthier workplace for older workers;
f. Attempts to modify the work environment for older workers; and
g. Information gaps/needs.
Part IV—Assess consumer education tools and strategies by:
a. Conducting consumer research and marketing, e.g. focus groups, among older adults, including those from minority and other under-served communities; and
b. Developing recommendations and strategies for group-specific future interventions, educational messages, and programs according to the findings.
Part IV, Special Emphasis Area—Conduct consumer marketing that focuses on fall risks, fall injuries, prevention of falls, resources for assistance and information, e.g. medication review, home modification, exercise, vision, safe driving, decision-making about stopping driving due to age-related disability, resources for assistance and continued mobility, and self-efficacy in taking action.
a. Collaborate in planning, implementing, and evaluating strategies and programs.
b. Assist in the analysis and interpretation of the evaluation phase of projects or programs.
c. Provide programmatic consultation and guidance in support of the program.
d. Assist in the planning and implementation of linkages with local and national aging organizations or agencies.
Use the information in the Program Requirements, Other Requirements, and Evaluation Criteria sections to develop the application content. Your application will be evaluated on the criteria listed, so it is important to follow them in laying out your program plan. Applicant is required to submit an original and two copies of the application. The application, excluding appendices, should not exceed 20 pages. Pages should be clearly numbered and a complete index to the application and any appendices should be included. The original and each copy of the application should be submitted unstapled and unbound. All materials should be typewritten, double-spaced, with unreduced type on 8
Applicants may apply for support under one or more of the four parts. Only one set of application forms should be submitted. However, for each part and special emphasis area, the applicant should include a separate and complete narrative, separate budget, and budget justification that can stand alone as an application for review purposes.
Application should be organized in the following sections.
Provide a clear, concise, and objectively written statement of the major objectives and components of proposed activities, proposed time frame, and evaluation plan. Document your organization's national affiliate network including proof of your non-profit status.
Describe the organizational capacity for the proposed activities. Describe relevant experience and expertise to perform the proposed activities.
Describe collaborative relationships with other agencies and organizations that will be involved in the proposed activities. Include letters of support and commitment by collaborators where appropriate.
Describe the specific outcome and process objectives for each proposed project, the major steps required to achieve the objectives, and a projected timetable for completion that displays dates for the accomplishment of specific proposed activities. Describe how achievement of outcome and process objectives, and program effectiveness will be evaluated.
Describe how the program will be effectively managed including:
a. Management structure including the lines of authority and plans for fiscal control.
b. Staff positions responsible for implementation of the program.
c. Qualifications and experience of the designated staff.
Provide a detailed budget request and line-item justification of all proposed operating expenses.
Submit the original and two copies of PHS 5161-1 (OMB Number 0920-0428). Forms are available in the application kit and at the following Internet address: http://forms.psc.gov.
On or before July 12, 2001, submit the application to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
1. Received on or before the deadline date; or
2. Sent on or before the deadline date and received in time for orderly processing. (Applicants must request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or U.S. Postal Service. Private, metered postmarks shall not be acceptable as proof of timely mailing.)
Each application will be evaluated individually against the following
The extent to which the applicant provides evidence of experience and expertise for the proposed projects.
The extent to which the applicant provides evidence of collaborative relationships with other agencies and organizations relevant to successful completion of the proposed projects.
The extent to which the applicant:
a. Clearly identifies the specific outcome and process objectives for the proposed projects, and the major steps required to meet the objectives;
b. provides a realistic plan for collaboration with partners in the project; and
c. proposes an evaluation plan that is likely to provide meaningful information about the achievement of the project's objectives.
The extent to which the projected timetable for completion of tasks and for meeting objectives is reasonable and realistic.
The extent to which the applicant demonstrates management structure and staff positions with clear lines of authority and plans for fiscal control, and that designated staff have appropriate qualifications and experience.
The extent to which the applicant provides a detailed budget and justification consistent with the proposed program objectives and activities.
The degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in the proposed research. This includes:
a. The proposed plan for the inclusion of both sexes and racial and ethnic minority populations for appropriate representation.
b. The proposed justification when representation is limited or absent.
c. A statement as to whether the design of the study is adequate to measure differences when warranted.
d. A statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
Provide CDC with an original plus two copies of:
1. Semiannual progress reports;
2. financial status report, no more than 90 days after the end of the budget period; and
3. final financial and performance reports, no more than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements are applicable to this program. For a complete description of each, see Attachment I in the application kit.
This program is authorized under the sections 301(a) and 317(k)(2) of the Public Health Service Act, [42 U.S.C. 241(a) and 247b(k)(2)], as amended. The Catalog of Federal Domestic Assistance number is 93.283.
This and other CDC announcements can be found on the CDC home page Internet address http://www.cdc.gov Click on “Funding” then “Grants and Cooperative Agreements.”
Should you have questions after reviewing the contents of all the documents, business management assistance may be obtained from: Nealean Austin, Grants Management Specialist, Grants Management Branch, Procurement and Grants Office, Announcement 01133, Centers for Disease Control and Prevention, 2920 Brandywine Road, Room 3000, Atlanta, GA 30341-4146, Telephone (770) 488-2754, Email: neal@cdc.gov.
For program technical assistance, contact: Mike Waller, Centers for Disease Control and Prevention, Division of Adult and Community Health, National Center for Chronic Disease Prevention and Health Promotion, 4770 Buford Highway NE, Atlanta, GA, 30341-3717, Telephone: (770) 488-5264 Email: mnw1@cdc.gov.
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2001 funds for cooperative agreement programs for “National Comprehensive Cancer Control Program.” This program addresses the “Healthy People 2010” focus area of Cancer.
The purpose of the National Comprehensive Cancer Control Program is to support States, Tribes, and Territories in the planning and implementation of comprehensive cancer control activities. See Appendix A for background information.
This announcement consists of two parts. Part I supports comprehensive cancer control planning activities. Part II supports comprehensive cancer control implementation activities.
Assistance will be provided only to the health departments of States, the District of Columbia, and Territories, or their bona fide agents or instrumentalities (including the Commonwealth of Puerto Rico, The Virgin Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau) and to Federally recognized Indian Tribal governments (including Indian Tribes, Tribal
Applicants may apply for funding under Part I or Part II but not both parts.
Only one eligible application from a State, Tribe, or Territory will be funded. Applicants from each State, Tribe, or Territory are encouraged to coordinate and combine their efforts prior to submitting the application for their State/Tribe/Territory.
Title 2 of the United States Code, Chapter 26, Section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, cooperative agreement, contract, loan, or any other form.
Approximately $1,900,000 is available in FY 2001 to fund approximately eight to twelve awards. It is expected that the awards will begin on or about September 30, 2001.
Approximately $750,000 is available in FY 2001 to fund approximately five to seven awards. It is expected that the average award will be $125,000; ranging from $100,000 to $150,000. It is expected that the awards will be made for a 12-month budget period within a project period of up to two years. Funding estimates may change.
Approximately $1,150,000 is available in FY 2001 to fund approximately three to five awards. It is expected that the average award will be $250,000, ranging from $200,000 to $300,000. It is expected that the awards will be made for a 12-month budget period within a project period of up to four years. Funding estimates may change. Continuation awards within an approved project period will be made on the basis of satisfactory progress as evidenced by required reports and the availability of funds.
You may request Federal personnel as direct assistance, in lieu of a portion of financial assistance.
These funds should not be used to support other existing programs such as breast and cervical cancer, cancer registry, laboratory or clinical services, or tobacco control programs. Funds awarded under this program announcement may not be used to supplant existing program efforts. Funds may not be used to provide direct medical care or prevention case management.
In conducting activities to achieve the purpose of this program, the recipient will be responsible for the activities under 1. (Recipient Activities), and CDC will be responsible for the activities listed under 2. (CDC Activities).
a. Assess and address the State/Tribe/Territory cancer burden to determine the critical target areas for cancer prevention and control activities; assess gaps in strategies to address the cancer burden; create and prioritize measurable goals and objectives for a comprehensive cancer control plan; and identify implementing organizations for priority plan strategies.
b. Build linkages among existing State/Tribe/Territory-based surveillance systems (e.g., the statewide Central Cancer Registry), Surveillance, Epidemiology, and End Results, (SEER); vital statistics; other databases, including Behavioral Risk Factor Surveillance System (BRFSS); and other data agencies and sources to assist with assessing data/research gaps.
c. Mobilize support for comprehensive cancer control planning activities by assessing and building support among the public and private sectors.
d. Build partnerships by identifying, contacting and inviting potential key private, professional, voluntary, and nonprofit cancer control organizations, policymakers, consumers, payers, media, state and federal agencies, surveillance agencies, research and academic institutions, and others to become members of a new or existing State/Tribe/Territory-wide comprehensive cancer control coalition/partnership.
e. Enhance comprehensive cancer control infrastructure by acquiring key staff and associated resources to produce a State/Tribe/Territory-wide comprehensive cancer control plan.
f. Conduct systematic evaluation of the comprehensive cancer control planning process through identifying resources and staff for evaluation, defining planning evaluation questions, assessing the planning process, and identifying emerging challenges, solutions and outcomes of the planning process.
a. Implement priorities as established by the State/Tribe/Territory's comprehensive cancer control plan, which provides a framework for action to reduce the burden of cancer in the State/Tribe/Territory.
b. Update and modify strategies to assess and address the State/Tribe/Territory cancer burden, enabling continual identification of critical target areas for cancer prevention and control activities; assess gaps in existing strategies to address the cancer burden; and prioritize and identify implementing organizations for emerging priority plan strategies.
c. Enhance and build new linkages among existing State/Tribe/Territory-based surveillance systems (e.g., the statewide Central Cancer Registry), Surveillance, Epidemiology, and End Results (SEER); vital statistics, and other databases, including Behavioral Risk Factor Surveillance System (BRFSS) and other data agencies and sources to assist with assessing data/research gaps; and conduct additional data collection as feasible.
d. Mobilize support for cancer prevention and control activities by assessing, continuing, and building additional support (resources, political will, etc.) among the public and private sectors.
e. Build new and enhance existing partnerships by identifying, contacting and inviting potential key private, professional, voluntary, and nonprofit cancer control organizations, policymakers, consumers, payers, media, State and federal agencies, surveillance agencies, research and academic institutions, and others to become members of a new or existing State/Tribe/Territory-wide comprehensive cancer control coalition or partnership.
f. Enhance the organizational infrastructure by acquiring key staff and associated resources to coordinate and integrate cancer prevention and control efforts. This would include efforts to prioritize and support the implementation of cancer prevention and control activities.
g. Conduct systematic evaluation of the cancer control prioritization and implementation process. In addition to evaluating progress in meeting goals, process and impact objectives as stated in the implementation plan, programs should develop performance indicators to use as benchmarks for improvement and to determine the impact of a
h. Identify and secure resources to support the development and dissemination of programs that will contribute to the priority areas identified within the comprehensive cancer control plan. Support organizational and stakeholder participation in national cancer prevention, early detection, and control campaigns.
a. Assist with the exchange of information and collaboration among recipients.
b. Provide to recipients relevant, state-of-the-art, research findings and public health recommendations related to comprehensive cancer control.
c. Provide ongoing guidance, consultation, and technical assistance in conducting Recipient Activities.
d. Assist with identifying and developing national cancer prevention and control campaigns and materials that can be integrated into comprehensive cancer control programs.
Pre-application conference calls are scheduled for June 25-26, 2001, at 1:00 p.m. Eastern Standard Time on each date. The purpose of the conference calls is to communicate the logistics of the application process and to respond to any questions regarding this Program Announcement. A summary of the questions and answers will be provided to all eligible applicants.
Use the information in the Program Requirements, Other Requirements, and Evaluation Criteria sections to develop the application content. Your application will be evaluated on the criteria listed, so it is important to follow them in developing your application. Applications should not exceed 30 double-spaced pages (no smaller than 10 point type) including budget and justification. Applicants should also submit appendices (including curriculum vitae, job descriptions, organizational charts, and any other supporting documentation), which should not exceed an additional 20 pages (20 page limit excludes State/Tribe/Territory cancer plan, if applicable). All materials must be provided in an unbound, one-sided, 8
To request new direct-assistance assignees, include:
1. Number of assignees requested;
2. description of the position and proposed duties;
3. ability or inability to hire locally with financial assistance;
4. justification for request;
5. organizational chart and name of intended supervisor;
6. opportunities for training, education, and work experiences for assignees; and
7. description of assignee's access to computer equipment for communication with CDC (e.g., personal computer at home, personal computer at workstation, shared computer at workstation on site, shared computer at a central office).
Applications should contain the following:
The applicant should provide a clear, concise two-page written summary to include:
a. Need for comprehensive cancer control planning activities or implementation activities.
b. Identification of the major activities proposed to develop or implement a comprehensive cancer prevention and control plan.
c. Requested amount of federal funding.
d. Applicant's capability to conduct the comprehensive cancer control activities.
The applicant should describe:
a. The cancer disease burden for the State/Tribe/Territory, including the most recently available age-adjusted, overall cancer incidence and mortality rates by age, gender, and racial and ethnic groups. Cite the source for and time period covered by these data. Also describe the estimated State/Tribe/Territory cancer incidence and mortality rates for 2001.
b. Relevant experiences in development and implementation of cancer prevention and control programs.
c. Relevant experiences in coordination and collaboration between and among existing programs.
d. Existing initiatives, capacity, and infrastructure (e.g., coalitions/partnerships; surveillance activities and systems; evaluation activities; information, media and health communications; education and outreach strategies) within which comprehensive cancer control will occur.
e. Description of the need for comprehensive cancer control funding to enhance existing efforts.
The applicant should include:
a. A description of the proposed or existing broad-based State/Tribe/Territory-wide partnership that will advise and support the program in planning and/or implementing comprehensive cancer control activities, including a plan for identifying new/additional key members, their charge and proposed roles/responsibilities.
b. A description of evidence of a broad and diverse level of support for and commitment to comprehensive cancer control planning or implementation (e.g., legislation supporting cancer prevention and control, other sources of funding for comprehensive cancer control, dedicated comprehensive cancer control staff); letters of support (in a separate tabbed section of the application) that indicate the nature and extent of existing or planned collaborative support.
The applicant should:
a. Submit a management plan that includes a description of proposed management structure that addresses the use of qualified and diverse technical, program, administrative staff (including in-kind staff), organizational relationships (including lines of authority), internal and external communication systems, and a system for sound fiscal management. Minimal staffing should include a program coordinator. Applicant should clearly indicate who is responsible for ensuring that a comprehensive plan is developed and/or implemented.
b. Provide a description of the proposed or existing linkages within the State/Tribe/Territory health department (e.g., across risk factors, categorically funded programs, disciplines), that will support integration and coordination within the agency. The management structure description should include discussion of the integration and coordination of risk factor and cancer-related programs both within and outside of the funded organization and the integration of these programs in the planning or implementation effort. It is important that the management plan address how coordination and cooperation among existing categorical program efforts will be facilitated, while allowing each program to maintain individual integrity and identity.
c. Provide (in the appendices) a copy of the organizational chart indicating the placement of the proposed or existing program in a department or agency. The chart should clearly demonstrate internal linkages necessary for comprehensive cancer control planning or implementation and evaluation.
d. Provide a description of the proposed core planning or implementation team. The core team is traditionally made up of individuals both within and outside of the health agency that are committed to the development and implementation of the comprehensive cancer plan.
e. Provide (in the appendices) curriculum vitae and job descriptions of key staff to be partially or fully funded through this announcement, as well as any staff to be provided through in-kind support.
The applicant should provide a detailed budget request and complete line-item justification of all proposed operating expenses consistent with the Recipient Activities. If in-kind contributions are being provided by the applicant, these should be documented.
The annual budget should include funds for two staff members to make two, two-day trips to Atlanta for a reverse site visit.
Part I applicants should also provide the following: The applicant should provide a detailed workplan and time-line that describes how comprehensive cancer control planning activities will be conducted and will lead to the development of a comprehensive cancer control plan. A sample workplan template is included in Attachment I. Additional information regarding the workplan template is available at www.cdc.gov/cancer/nbccedp/training.
Part II applicants should also provide the following:
The applicant should:
a. Submit a copy of the (1) existing up-to-date State/Tribe/Territory-wide comprehensive cancer control plan, or (2) an up-to-date draft of a comprehensive cancer control plan. A comprehensive cancer control plan should include:
(1) An assessment of the cancer burden in the State/Tribe/Territory using population-based data;
(2) Short-and long-term goals and objectives to address cancer control issues based on identified needs;
(3) Proposed strategies to meet the objectives; and
(4) An assessment of existing and needed resources to implement the comprehensive cancer control plan.
b. Describe the process by which the plan was developed. If the plan is in draft format, describe the process for assuring readiness for implementation by November 1, 2001. Include a description of the participating organizations' involvement in the development of the plan. Clearly describe a mechanism to review, evaluate, and update the plan to meet changing needs.
c. Describe who will be responsible for maintaining the comprehensive cancer control plan, assuring that the partnership/coalition is involved throughout the process, and that comprehensive cancer control efforts proceed according to the State/Tribe/Territory's plan.
The applicant should include an implementation plan that:
a. Describes how the cancer control plan will be implemented, including the process for determining priorities to be addressed in implementing the comprehensive cancer control plan, the process for assuring that these decisions are data-or evidence-based and grounded in sound science, and the role of the coalition and/or collaborators in the priority setting process.
b. Includes specific, measurable, attainable, realistic and time-framed process and outcome objectives designed to achieve a coordinated and integrated approach to cancer prevention and control and address those priorities identified from the cancer plan. The implementation plan for this program announcement need not address each goal and objective in the comprehensive cancer control plan.
c. Provides a description of the strategies proposed to address the identified priority goals and objectives of the comprehensive cancer control plan. This should include discrete time frames, responsible agencies, organizations or organizational units, and activities proposed to meet the objectives or priorities within the comprehensive cancer control plan. It should also include a description of how the proposed activities will facilitate coordination and cooperation among existing categorical program efforts. The applicant should include goals for all four years, and specific objectives for year 01.
d. Describes how surveillance data will be integrated into program activities and used to assess program progress and inform program decision making. The description should include evidence that existing surveillance systems enable programs to: collect population-based information on the demographics, incidence, staging of cancer at diagnosis, morbidity and mortality from cancer; identify segments of the population who are at higher risk for incidence, morbidity, mortality; identify factors contributing to the disease burden; and, when appropriate, monitor the number and characteristics of people served by relevant programs.
e. Includes the current or proposed plan for evaluating
(1) the program's progress in meeting specific objectives outlined in the implementation plan, and
(2) overall success of the comprehensive cancer control effort, based on indicators established by the applicant. Baseline measures should be identified and assessed to allow for comparisons after implementation has begun. For each type of indicator that will be used, describe how data will be obtained, how information will be used to improve the overall program, who is responsible for each evaluation task, and a time-line for accomplishing each evaluation task.
f. Describes proposed information and education efforts. Identify the mechanisms through which information, material, and successful strategies will be consistently and systematically shared and disseminated throughout the State/Tribe/Territory. Include in this description a discussion of plans for collaborating with partners on national campaigns or education efforts.
g. Describe mechanisms for assuring that the core components of a comprehensive cancer control program, including primary cancer prevention/risk factor reduction, education/outreach, screening/diagnostic/treatment services, surveillance, and evaluation, are consistent with accepted science and prevailing standards of public health practice.
h. Describe existing programs funded by other sources that will be critical to the successful coordination and integration of the proposed comprehensive cancer control effort.
Submit the original and two copies of PHS 5161-1 (OMB Number 0937-0189). Forms are available in the application kit and at the following Internet address: http://www.cdc.gov/od/pgo/forminfo.htm.
On or before July 20, 2001, submit the application to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
1. Received on or before the deadline date; or
2. Sent on or before the deadline date and received in time for submission to the independent review group. (Applicants must request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or U.S. Postal Service. Private metered postmarks shall not be acceptable as proof of timely mailing.)
Each application will be evaluated individually against the following criteria by an independent review group appointed by CDC.
The extent of need based on disease burden by age, gender and racial/ethnic groups, mortality rates, incidence, cancer program experience, existing capacity and infrastructure.
The extent to which evidence is presented which demonstrates the breadth and appropriateness of both (a) existing linkages within and outside the State/Tribe/Territory health department to coordinate diverse cancer control activities, and (b) the current or proposed broad-based State/Tribe/Territory-wide coalition/partnership to advise and support comprehensive cancer control planning activities.
The feasibility and clarity of the proposed management plan. The extent to which this plan addresses the use of qualified and diverse technical, program and administrative staff.
The extent to which the workplan and time-line are feasible, appropriate, reasonable and provide a clear description of an evaluation component.
The extent to which the proposed budget is adequately justified, reasonable, and consistent with this program announcement and applicant's implementation plan.
The extent to which the application adequately address the requirements of Title 45 CFR Part 46 for the protection of human subjects.
The extent of need based on disease burden by age, gender and racial/ethnic groups, mortality rates, incidence, cancer program experience, existing capacity and infrastructure.
The quality of the comprehensive cancer control plan in terms of: an integrated and coordinated State/Tribe/Territory-wide approach to prevention, early detection, treatment, rehabilitation, and palliation of cancer; an assessment of State/Tribe/Territory cancer burden; short -and long-term goals, objectives, and strategies to address cancer control issues; an assessment of existing and needed resources to develop the comprehensive cancer control program; and the full range of cancer prevention and control activities (from primary prevention to palliation). The extent to which evidence is presented that indicates a broad range of partners and stakeholders were included throughout the process to develop, implement, review and update the plan as appropriate; mechanisms to review, evaluate and update the plan to meet evolving needs, and personnel who will be responsible for maintaining the plan.
The extent to which evidence is presented which demonstrates the breadth and appropriateness of (a) existing linkages within and outside the State/Tribe/Territory health department to coordinate diverse cancer control activities, and (b) the current or proposed broad-based State/Tribe/Territory-wide coalition/partnership to advise and support comprehensive cancer control implementation activities.
The extent to which the applicant's implementation plan describes the components described under Section E. Application Content, Part II, number 2, Implementation Plan, of this Program Announcement.
The feasibility and clarity of the proposed management plan. The extent to which this plan addresses the use of qualified and diverse technical, program and administrative staff.
The extent to which the proposed budget is adequately justified, reasonable, and consistent with this program announcement and applicant's implementation plan.
The extent to which the application adequately address the requirements of Title 45 CFR Part 46 for the protection of human subjects.
Provide CDC with original plus two copies of:
1. Annual progress reports submitted within 90 days after the end of each budget period that includes:
a. Activities accomplished in the current fiscal year, presented in relation to what has been proposed (may submit either in narrative or workplan/chart format);
b. Progress on accomplishing comprehensive cancer control activities; and
c. Technical assistance needs of cooperative agreement recipient.
2. Financial status report, no more than 90 days after the end of the budget period; and
3. Final financial and performance reports, no more than 90 days after the end of the project period. Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements are applicable to this program. For a complete description of each, see Attachment II in the application kit.
This program is authorized under section 317(k)(2) of the Public Health Service Act, [42 U.S.C. section 247b
This and other CDC announcements can be found on the CDC home page Internet address—http://www.cdc.gov. Click on “Funding” then “Grants and Cooperative Agreements.”
Should you have questions after reviewing the contents of all the documents, business management technical assistance may be obtained from: Jesse Robertson, Grants Management Specialist, Grants Management Branch, Procurement and Grants Office, Centers for Disease Control and Prevention, Announcement 01115, Brandywine Road, Room 3000, Atlanta, GA 30341-4146, Telephone number: (770) 488-2747, Email address: jrt4@cdc.gov.
For program technical assistance, contact: Leslie Given, MPA, Public Health Advisor, Division of Cancer Prevention and Control, National Center for Chronic Disease Prevention and Health Promotion, Centers for Disease Control and Prevention, 4770 Buford Highway, NE, Mailstop K-57, Atlanta, GA, Telephone: (770) 488-3099, Email address: llg5@cdc.gov.
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2001 funds for a cooperative agreement program for Replication and Implementation of Scientifically-Proven Asthma Interventions. This program addresses the “Healthy People 2010” focus area of Respiratory Diseases.
The purpose of the program is to implement one of the following scientifically proven asthma interventions: (1) “Open Airways” or (2) “Asthma Care Training for Kids: ACT', to improve quality of life, decrease acute care visits, decrease hospitalizations, and increase compliance with asthma care plans and asthma medication regimens. These existing interventions have been selected because they have been validated as being safe and effective.
No research may be conducted as part of this cooperative agreement.
Applications may be submitted by non-profit, public and private organizations or agencies that have affiliate/local offices in States, U.S. territories, or Indian tribes or Indian tribal organizations; local education agencies; hospitals; community-based organizations; managed care organizations; community health centers, and city or county public health agencies.
To be an eligible applicant, you must provide the following:
1. Evidence that applicant has direct access to target populations needed to implement these interventions.
2. Evidence of an established record of successful service in the community, through letters of support.
3. Evidence, through letters of support, of working relationships with other appropriate organizations within the specific community of the target populations.
4. If the applicant proposes the use of “Open Airways”, then a specific letter of support from the local chapter of American Lung Association is required.
This documentation should be placed after the face page of the application. An applicant that does not provide the above documentation will be determined non-responsive and returned without review.
Title 2 of the United States Code, Chapter 26, Section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, cooperative agreement, contract, loan, or any other form.
Approximately $1,000,000 is available in FY 2001 to fund approximately five to ten awards. It is expected that the average award will be $125,000, ranging from $100,000 to $150,000. It is expected that the awards will begin on or about September 30, 2001, and will be made for a 12-month budget period within a project period of up to three years. Funding estimates may change.
Continuation awards within an approved project period will be made on the basis of satisfactory progress as evidenced by required reports and the availability of funds.
Funding preferences may include: (1) Geographic distribution, (2) racial and ethnic populations with a disproportionate asthma burden, (3) the mix between the two interventions to be implemented under this announcement, and (4) balance of organization type (i.e. Non-profit, managed care, community-based organization, etc.).
In conducting activities to achieve the purpose of this program, the recipient will be responsible for the activities under 1. (Recipient Activities), and CDC will be responsible for the activities listed under 2. (CDC Activities).
a. Implement the selected science-based asthma intervention designed to improve the quality of life of persons with moderate to severe persistent asthma by improving overall management of the disease.
b. Develop a quality assurance plan that allows confirmation that the implementation adheres to the selected intervention protocol.
c. Develop a plan to integrate the intervention into the organization's standard practice over time assuring institutionalization of the intervention. If needed, institute activities to change organizational policies and health care provider practices to ensure institutionalization.
a. If requested, provide consultation and technical assistance regarding the implementation and evaluation of the intervention.
b. Provide liaison among grantees and potential sources of information and assistance.
c. Coordinate activities among sites, when appropriate.
d. Convene meetings among collaborators to discuss program issues, when appropriate.
A non-binding LOI is requested, and it should include:
1. Name and address of organization;
2. Contact person; and
3. Selected intervention.
The LOI will be used to ascertain the level of interest in this announcement and to assist in determining the size and composition of the independent review panel.
To develop the application content, use the information below in addition to the information listed in “Program Requirements,” “Other Requirements,” and “Evaluation Criteria” sections. Your application will be evaluated on the criteria listed, so it is important to follow them in laying out your program plan. The application, excluding appendices, should be no more than 15 double-spaced pages, printed on one side, with one-inch margins, and unreduced font. The application must be submitted unstapled and unbound.
Describe the applicant's organization type (i.e., school district, community health center, local health department, etc.) and structure. Describe the population to be served and the asthma problem that will be addressed in this population by the intervention. Provide data to demonstrate the number of persons with moderate to severe persistent asthma who will be enrolled in the intervention over the three-year period and describe the source of that data.
a. Describe in detail the plans for implementing the intervention in the described population. Provide information on how the applicant will access the intervention protocol and the materials necessary for the intervention. Provide specific objectives for the proposed activities that are realistic, time-phased, and measurable, and reflect the three-year period of this announcement. Assure that the intervention patients are receiving appropriate medical care (based on the National Asthma Education and Prevention Program (NAEPP) Guidelines) prior to enrollment in the intervention activity. For school-based projects, describe which of the American Lung Association/Kaiser Permanente Key Elements of School-based Asthma Management are already implemented (see attachment 2, part II, for reference).
b. Describe in-kind contributions of the organization to support the intervention, the plan to integrate the intervention into its standard practice over time, and document the agency's willingness to do so. Describe policy and practice changes necessary to make institutionalization possible.
Describe how progress toward effective implementation of the intervention will be evaluated. Describe proposed process evaluation measures. (Note: Because the safety and effectiveness of the interventions to be implemented has been demonstrated previously, outcome evaluation will not be funded through this announcement.)
a. Describe the qualifications, primary roles and responsibilities for each of the project staff over the three-year grant period. Include a description of intervention staff and the management plan for oversight of these staff.
b. Provide a plan to expedite filling of the staff position(s) and assure that they have been or will be approved by the applicant's personnel system.
c. Describe in detail needed training for staff and how that training will be provided.
This section must include a detailed first-year budget and narrative justification and future annual projections. The applicant should describe the program purpose for each budget item. For contracts contained within the application budget, applicants should name the contractor, if known; describe the services to be performed; justify the use of a third party; and provide a breakdown or a justification for the estimated costs of the contracts, the kinds of organizations or parties to be selected, the period of performance, and the method of selection. [Note: The funds for this intervention may not be used to supplant existing funds.]
On or before July 16, 2001, submit the LOI to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
Submit the original and two copies of PHS 5161-1 (OMB Number 0920-0428). Forms are available in the application kit and at the following Internet address: www.cdc.gov/od/pgo/forminfo.htm.
On or before August 13, 2001, submit the application to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
1. Received on or before the deadline date; or
2. Sent on or before the deadline date and received in time for submission to the independent review group. (Applicants must request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or U.S. Postal Service. Private metered postmarks shall not be acceptable as proof of timely mailing.)
Each application will be evaluated individually against the following criteria by an independent review group appointed by CDC.
The extent to which the applicant describes the understanding of the population's need. Applicant's description of and access to an adequate number of the target population. Adequate description of the source of the data provided describing the target population.
a. The extent to which the applicant describes the appropriateness of the proposed approach to implementation of the intervention. The ability to meet the objectives and the adequacy of the plan to carry out the proposed activities within the time-line provided.
b. The extent to which objectives are measurable against the stated purpose of the cooperative agreement. Applicant description of access to the information and materials necessary for the implementation of the intervention.
c. The extent that organizational support and the feasibility of the plan for institutionalization is described by the applicant.
The extent to which the applicant describes the feasibility and appropriateness of the plan to monitor progress toward meeting the objectives of the project. Appropriateness of proposed process measures.
The extent to which the applicant's overall ability to perform the proposed activities as reflected in the staff's qualifications and experience are described. The demonstration of the timely start of the intervention plan through the expedited hiring or availability of staff. Description of and access to needed training for staff.
The extent to which the budget is reasonable, adequately justified and consistent with the intended use of the cooperative agreement funds.
Provide CDC with original plus two copies of:
1. Semi-annual progress reports;
2. Financial status report, no more than 90 days after the end of the budget period; and
3. Final financial and performance reports, no more than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements may be applicable to this program. For a complete description of each, see Attachment I of the announcement.
This program is authorized under sections 301 and 317 of the Public Health Service Act, [42 U.S.C. section 241 and 247b], as amended. The Catalog of Federal Domestic Assistance number is 93.283.
This and other CDC announcements can be found on the CDC home page Internet address—http://www.cdc.gov. Click on “Funding” then “Grants and Cooperative Agreements.”
To obtain business management technical assistance, contact: Sonia Rowell, Grants Management Specialist, Grants Management Branch, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Road, Room 3000, Atlanta, GA 30341-4146, Telephone number: (770) 488-2724, Email address: Srowell@cdc.gov.
For program technical assistance, contact: Dan Burrows, Air Pollution and Respiratory Health Branch, National Center for Environmental Health, Centers for Disease Control and Prevention, 1600 Clifton Rd., NE (MS-E17), Atlanta, GA 30333, Telephone number: (404) 498-1004, Email address: DBurrows@cdc.gov.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting nominations for nonvoting consumer representatives and nonvoting industry representatives to serve on certain device panels of the Medical Devices Advisory Committee in the Center for Devices and Radiological Health (CDRH). Nominations will be accepted for current vacancies and for those that will or may occur through July 31, 2002.
FDA has a special interest in ensuring that women, minority groups, individuals with disabilities, and small businesses are adequately represented on advisory committees and, therefore, encourages nominations for appropriately qualified candidates from these groups, as well as nominations from small businesses that manufacture medical devices subject to the regulations.
Nominations should be received by July 13, 2001, for vacancies listed in this notice.
All nominations and curricula vitae (which includes nominee’s office address, telephone number, and e-mail address) for consumer representatives should be submitted in writing to Maureen A. Hess (address below). All nominations and curricula vitae (which includes nominee’s office address, telephone number, and e-mail address) for industry representatives should be submitted in writing to Kathleen L. Walker (address below).
FDA is requesting nominations for nonvoting members representing consumer and industry interests for the vacancies listed below:
The functions of the medical device panels are to: (1) Review and evaluate data on the safety and effectiveness of marketed and investigational devices and make recommendations for their regulation; (2) advise the Commissioner of Food and Drugs regarding recommended classification or
Section 520(f)(3) of the act (21 U.S.C. 360j(f)(3)), as amended by the Medical Device Amendments of 1976, provides that each medical device panel include as members one nonvoting representative of consumer interests and one nonvoting representative of interests of the medical device manufacturing industry.
Any interested person may nominate one or more qualified persons as a member of a particular advisory committee or panel to represent consumer interests as identified in this notice. Self-nominations are also accepted. To be eligible for selection, the applicant's experience and/or education will be evaluated against Federal civil service criteria for the position to which the person will be appointed.
Nominations shall include a complete curriculum vitae of each nominee and shall state that the nominee is aware of the nomination, is willing to serve as a member, and appears to have no conflict of interest that would preclude membership. FDA will ask the potential candidates to provide detailed information concerning such matters as financial holdings, employment, and research grants and/or contracts to permit evaluation of possible sources of conflict of interest. The nomination should state whether the nominee is interested only in a particular advisory committee or panel or in any advisory committee or panel. The term of office is up to 4 years, depending on the appointment date.
Any organization in the medical device manufacturing industry (industry interests) wishing to participate in the selection of an appropriate member of a particular panel may nominate one or more qualified persons to represent industry interests. Persons who nominate themselves as industry representatives for the panels will not participate in the selection process. It is, therefore, recommended that all nominations be made by someone with an organization, trade association, or firm who is willing to participate in the selection process.
Nominees shall be full-time employees of firms that manufacture products that would come before the panel, or consulting firms that represent manufacturers. Nominations shall include a complete curriculum vita of each nominee. The term of office is up to 4 years, depending on the appointment date.
Selection of members representing consumer interests is conducted through procedures which include use of a consortium of consumer organizations which has the responsibility for recommending candidates for the agency's selection. Candidates should possess appropriate qualifications to understand and contribute to the committee's work.
Regarding nominations for members representing the interests of industry, a letter will be sent to each person that has made a nomination, and to those organizations indicating an interest in participating in the selection process, together with a complete list of all such organizations and the nominees. This letter will state that it is the responsibility of each nominator or organization indicating an interest in participating in the selection process to consult with the others in selecting a single member representing industry interests for the panel within 60 days after receipt of the letter. If no individual is selected within 60 days, the agency will select the nonvoting member representing industry interests.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to advisory committees.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on proposed new Food Chemicals Codex specification monographs, proposed changes to certain Food Chemicals Codex specification monographs, a proposed revision of a general test procedure, and proposed new test solutions. Additions, revisions, and corrections to current specification monographs for certain substances used as food ingredients, as well as new monographs and test solutions, and a revised test procedure, are being prepared by the National Academies, Institute of Medicine (IOM), Committee on Food Chemicals Codex (the committee). This material is expected to be included in the next publication of the Food Chemicals Codex (the third supplement to the fourth edition), scheduled for public release in the summer of 2001.
Submit written comments by July 30, 2001. (The committee advises that comments received after this date may not be considered for the third supplement to the fourth edition. Comments received too late for consideration for the third supplement will be considered for the fifth edition of the Food Chemicals Codex.)
Submit written comments and supporting data and documentation to the Committee on Food Chemicals Codex/FO-3038, Food and Nutrition Board, Institute of Medicine, 2101 Constitution Ave. NW., Washington, DC 20418. Copies of the proposed new Food Chemicals Codex specification monographs, proposed new test solutions, proposed changes to certain monographs, and proposed revision to a
Ricardo A. Molins, Project Director/FO-3038, Committee on Food Chemicals Codex, Food and Nutrition Board, Institute of Medicine, 2101 Constitution Ave. NW., Washington, DC 20418, 202-334-2580; or Paul M. Kuznesof, Division of Product Manufacture and Use (HFS-246), Office of Premarket Approval, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 200 C St. SW., Washington, DC 20204, 202-418-3009.
By contract with IOM, FDA supports the preparation of the Food Chemicals Codex, a compendium of specification monographs for substances used as food ingredients. Before any specifications are included in a Food Chemicals Codex publication, public announcement is made in the
In the
FDA emphasizes, however, that it will not consider adopting and incorporating any of the committee’s new or revised monographs, revised test procedure, or new test solutions into FDA regulations without ample opportunity for public comment. If FDA decides to propose the adoption of new monographs and test solutions and changes that have received final approval of the committee, it will announce its intention and provide an opportunity for public comment in the
The committee invites comments and suggestions by all interested parties on specifications to be included in the 33 proposed new monographs, 22 proposed revisions of current monographs, proposed revised general test procedure, and 2 proposed new test solutions listed below:
2,6-Dimethoxyphenol
3,4-Dimethyl-1,2-cyclopentandione
5-Ethyl-3-hydroxy-4-methyl-2(5H)-furanone
3-Ethyl pyridine
Furfuryl mercaptan
Geranyl isovalerate
2,3-Heptandione
Hexyl butyrate
Hexyl hexanoate
Isoamyl isobutyrate
Isobutyl formate
Isobutyl hexanoate
Linalool oxide
Methyl hexanoate
Methyl isovalerate
Methyl thiobutyrate
Methyl valerate
5-Methyl furfural
beta-Naphthylethyl ether
Phenylethyl cinnamate
Phenylethyl propionate
Propyl mercaptan
Propyl formate
delta-Tetradecalactone
2-Tridecanone
Acetoin (structures revised)
2-Acetylpyrrole (physical form and melting range revised; water deleted)
Anisole (assay revised)
Ethylene brassylate (assay revised)
Ethyl phenylglycidate (assay revised)
Geranyl benzoate (assay revised)
alpha-Ionone (assay revised)
4-Methyl-2-pentanone (refractive index revised)
delta-Nonalactone (refractive index and specific gravity revised)
(E)-2-Nonen-1-ol (refractive index revised)
delta-Octalactone (specific gravity revised)
(E)-2-Undecenol (solubility in alcohol added)
Maltitol (Description corrected; Assay limit of D-Maltitol revised; entire Identification, Assay, and Reducing Sugars tests provided; Other Hydrogenated Saccharides specifications added)
Rapeseed oil, fully hydrogenated (Description and Functional Use in Foods modified; Heavy Metals determination deleted)
Rapeseed oil, superglycerinated (Description and Functional Use in Foods modified; Heavy Metals determination deleted)
Interested persons may submit to the Committee on Food Chemicals Codex written comments regarding the monographs, general test procedure, and test solutions identified in this notice by July 30, 2001. Timely submission will allow comments to be considered for the third supplement to the fourth edition of the Food Chemicals Codex. Comments received after this date may not be considered for the third supplement, but will be considered for the fifth edition of the Food Chemicals Codex. Those wishing to make comments are encouraged to submit supporting data and documentation with their comments. Two copies of any comments regarding the monographs, the general test procedure, or the test solutions listed in this notice are to be submitted to the Committee on Food Chemicals Codex (address above). Comments and supporting data or documentation are to be identified with the docket number found in brackets in the heading of this document and each submission should include the statement that it is in response to this
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). At least one portion of the meeting will be closed to the public.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance entitled “Guidance for Industry: Mass Spectrometry for Confirmation of the Identity of Animal Drug Residues.” This draft guidance describes the basic principles the agency recommends for development, evaluation, or application of qualitative mass spectrometric methods for confirming the identity of new animal drug residues. This draft document is intended for technical professionals familiar with mass spectrometry. A glossary at the end of the draft guidance defines key terms used throughout the document.
Submit written comments by September 11, 2001.
Submit written requests for single copies of this draft guidance to the Communications Staff (HFV-12), Center for Veterinary Medicine (CVM), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist the office in processing your requests. See the
Submit written comments to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, e-mail:
David N. Heller, Center for Veterinary Medicine (HFV-510), Food and Drug Administration, 8401 Muirkirk Rd., Laurel, MD 20708, 301-827-8156, e-mail: dheller@cvm.fda.gov.
Section 512 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360b) requires FDA to determine whether each new animal drug proposed for use in food-producing animals is safe and effective. In some cases, the new animal drugs used in food-producing animals have the potential to adversely affect the health of the humans who consume food derived from these animals. The sponsor of the new animal drug is responsible for establishing the safety of each new animal drug through appropriate tests.
To determine human food safety of new animal drugs, FDA evaluates the information/data, identifies and characterizes potential hazards, assesses exposure levels and characterizes the overall risk. Through this process, FDA establishes an allowable daily intake and tolerances (the amount of drug residue allowed in tissues) for each drug. Drug sponsors submit to FDA analytical methods that are designed to measure the concentration of the proposed drug in the edible tissues at the drug's tolerances. Analytical methods are used to monitor the tolerances set by FDA. FDA reviews the analytical methods during its review of new animal drug applications (21 CFR 514.1(b)(7)).
Analytical methods may also be used to monitor safe levels as established by the agency. Under section 512(a)(4)(B) of the act and 21 CFR 530.22, the agency may establish a safe level for extra-label use of a drug when the agency finds that there is a reasonable probability that an extra-label use may result in drug residues in edible tissue of the treated animals at a level that may present a risk to the public health if it was above the safe level. Under the same provisions, FDA may require the development of an acceptable analytical method for the quantification of residues above any safe level.
FDA issues guidance recommending methods of analysis to potential sponsors to foster timely and objective review of proposed new animal drugs, including the review of analytical methods. In the
Part V in the above-mentioned set of guidances, entitled “Guideline for Approval of a Method of Analysis for Residues,” recommended that sponsors develop rugged methods of analysis designed to exceed rather than meet the minimal standards of acceptability. This serves two purposes: (1) To lower the number of method of analysis submissions that pass desk review but fail interlaboratory studies designed to test their effectiveness, and (2) to increase the precision and specificity of safety determination by ensuring a higher quality assay. The guidance then explained the evaluation criteria and data needed for approval of a method of analysis.
The draft guidance entitled “Guidance for Industry: Mass Spectrometry for Confirmation of the Identity of Animal Drug Residues” is designed to complement part V of “General Principles for Evaluating the Safety of Compounds Used in Food-Producing Animals.” The purpose of this document is to facilitate and expedite coordination between FDA’s Center for Veterinary Medicine (CVM) and sponsors so the development, evaluation, and application of qualitative mass spectrometric methods will be completed in a consistent and timely manner.
This draft document is intended for technical professionals familiar with mass spectrometry. A glossary at the end of the draft guidance defines key terms used throughout the document.
This draft guidance should be used in the development of new methods, the review of methods submitted to CVM, and in the laboratory trial of methods submitted to CVM. The document also should help in making decisions about appropriate methodology in various regulatory situations and ensuring consistency in work done for CVM’s purposes.
The draft guidance is being issued consistent with FDA’s good guidance practices regulation (21 CFR 10.115; 65 FR 56468, September 19, 2000). This draft guidance describes the basic principles the agency recommends for development, evaluation, or application of qualitative mass spectrometric methods for confirming the identity of new animal drug residues. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Information collection provisions described in this guidance have been approved under OMB control numbers 0910-0032 and 0910-0325.
Interested persons may submit to the Dockets Management Branch (address above) written comments regarding this draft guidance by September 11, 2001. Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. A copy of the draft guidance and received comments may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Comments on the draft guidance may be electronically submitted at http://www.accessdata.fda.gov/scripts/oc/dockets/comments/commentdocket.cfm. Electronic copies of the draft guidance and other guidances discussed in this notice may be obtained at http://www.fda.gov/cvm.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Health Care Financing Administration (HCFA), Department of Health and Human Services, has submitted to the Office of Management and Budget (OMB) the following proposal for the collection of information. Interested
To obtain copies of the supporting statement for the proposed paperwork collections referenced above, access HCFA's web site address at
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to OMB under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, call the HRSA Reports Clearance Officer on (301) 443-1129.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The NHSC and NHH Scholarship Programs were established to assure an adequate supply of trained primary care health professionals to the neediest communities in the Health Professional Shortage Areas (HPSAs) of the United States. Under these programs, allopathic physicians, osteopathic physicians, dentists, nurse practitioners, nurse midwives, physician assistants, and, if needed by the NHSC or NHH program, students of other health professions are offered the opportunity to enter into a contractual agreement with the Secretary under which the Public Health Service agrees to pay the total school tuition, required fees, other reasonable costs (ORC) and a stipend for living expenses. In exchange, the scholarship recipients agrees to provide full-time clinical services at a site in a federally designated HPSA.
In order to accurately determine the amount of scholarship support that students will need during their academic training the Bureau of Primary Health Care must contact each scholars's school for an estimate of tuition, fees, and ORC. The Data Collection Worksheet collects these itemized costs for both resident and nonresident students.
Send comments to Susan G. Queen, Ph.D., HRSA Reports Clearance Officer, Room 14-33, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Health Resources and Services Administration, HHS.
Notice of Meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the following National Advisory body scheduled to meet during the month of July 2001:
The meeting is open to the public.
Anyone requiring information regarding the subject Council should contact Judy Rodgers, Migrant Health Program, staff support to the National Advisory Council on Migrant Health, Bureau of Primary Health Care, Health Resources and Services Administration, 4350 East-West Highway, Bethesda, Maryland 20814, Telephone (301) 594-4304.
Agenda items are subject to change as priorities indicate.
Office of Inspector General, HHS.
Notice of program exclusions.
During the month of May 2001, the HHS Office of Inspector General imposed exclusions in the cases set forth below. When an exclusion is imposed, no program payment is made to anyone for any items or services (other than an emergency item or service not provided in a hospital emergency room) furnished, ordered or prescribed by an excluded party under the Medicare, Medicaid, and all Federal Health Care programs. In addition, no program payment is made to any business or facility,
Fish and Wildlife Service, Interior.
Notice.
Cheeca Lodge (Applicant) proposes to enter into a Safe Harbor Agreement (SHA) with the U.S. Fish and Wildlife Service (Service) to restore habitat for the endangered Schaus swallowtail butterfly (
The proposed conservation measures, and the possible future activities that could reduce the effectiveness of these conservation measures, will occur within a golf course owned and maintained by the Applicant in section
The passage of hurricane Georges in 1998 destroyed natural and planted vegetation in the middle and lower Florida Keys. Efforts are currently underway by many landowners to restore vegetation on their properties. The Applicant intends to restore native tropical hardwood vegetation on portions of the enrolled property that currently are maintained as a golf course. With the assistance of the University of Florida Department of Entomology and using funding provided through the National Fish and Wildlife Foundation, the Applicant proposes to plant up to 600 native shrubs and trees within the enrolled property. These vegetation plantings will help create an estimated eight acres of native tropical hardwood forest on the property. Cheeca Lodge contains approximately 27 acres which will be covered under the subject SHA.
Future activities of the Applicant may result in the removal of some or all of the planted native vegetation. Removal of this vegetation could return the enrolled property to the baseline condition. Future alterations to the planted vegetation may destroy all or part of the potentially suitable butterfly habitat that will be established.
A more detailed description of the proposed conservation benefits and potential effects of returning the enrolled property to baseline conditions is provided in the
The SHA may be obtained by making a request to the Regional Office (see
Written comments on the SHA and ESP application should be sent to the Service's Regional Office (see
Persons wishing to review the SHA and ESP application may obtain a copy by writing the Service's Southeast Regional Office, Atlanta, Georgia. Documents will also be available for public inspection by appointment during normal business hours at the Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: Endangered Species Permits), or Field Supervisor, U.S. Fish and Wildlife Service, Post Office Box 2676, Vero Beach, Florida 32961-2676. Written data or comments concerning the SHA or ESP application should be submitted to the Regional Office and must be in writing to be processed. Comments must be submitted in writing to be adequately considered in the Service's decision-making process. Please reference permit number TE-022736-0 in your comments, or in requests of the documents discussed herein.
Mr. Lee Andrews, Regional Safe Harbor Program Coordinator, (see
The Schaus swallowtail butterfly is a large dark brown and yellow butterfly that inhabits tropical hardwood hammocks of extreme south Florida. Historically, the Schaus swallowtail butterfly was distributed from south Miami to Lower Matecumbe Key. More recently, Schaus swallowtail butterflies were known only from undisturbed tropical hardwood hammocks from Elliott Key in Biscayne National Park south to northern Key Largo. Reintroductions have recently occurred from southern Dade County to Lower Matecumbe Key. This species was Federally listed as endangered in 1984 due to habitat destruction, mortality associated with application of pesticides for mosquito control, and over-harvesting by collectors. These factors acting in combination with high natural mortality associated with predation of caterpillars resulted in substantial declines in the number and range of this species.
The Schaus swallowtail butterfly prefers dense, mature tropical hardwood hammocks where direct sunlight is filtered or dappled. Adults feed on a number of nectar producing plant species endemic to hardwood hammocks but have most often been observed feeding on guava (
The proposed planting of native vegetation within the two enrolled properties will provide important food resources for dispersing butterflies. Currently, butterflies traveling south from core population centers on Key Largo and Biscayne National Park do not have dependable sources of nectar producing vegetation and, as a result, many of the dispersing butterflies are thought to perish during their dispersals. Suitable unoccupied habitat exists in the lower Florida Keys, but butterflies are not currently able to travel from the core population centers in the upper Florida Keys to these locations because food supplies are limited between these areas. The proposed conservation measures will reduce the distance butterflies will have to fly in order to find nourishment, resulting in increased survival of dispersing butterflies. Increased survival of dispersing butterflies is believed to enhance the probability of natural recolonization of unoccupied, suitable habitat in the lower Florida Keys.
The Applicant recognizes the inherent benefits of implementing the conservation measures for the butterfly, however, the Applicant also wishes to retain flexibility with respect to future land use of their property. Though not anticipated in the immediate future, such alterations in land uses may require the removal of some or all of the planted vegetation which could reduce, or remove entirely, the overall conservation value of these plantings to the butterfly. Accordingly, the Service has entered into the SHA with the Applicant and proposes to issue the requested ESP to cover the potential removal of butterfly habitat by the Applicant in the future to baseline conditions. The Service has established the baseline conditions at the enrolled property as zero (0) butterflies and no currently suitable butterfly habitat.
The Service will also evaluate whether the issuance of the ESP complies with section 7 of the Act by conducting an intra-Service section 7 consultation. The results of the biological opinion, in combination with the above findings and any public comments, will be used in the final analysis to determine whether or not to issue the requested ESP.
Fish and Wildlife Service, Interior.
Notice of availability of a Final Environmental Assessment for Federal agency participation in the Virgin River Resource Management and Recovery Program.
This notice advises the public that a Finding of No Significant Impact (FONSI) and the Final Environmental Assessment (EA) for Federal agency participation in the Virgin River Resource Management and Recovery Program (Program) are available for public review. The purpose of the proposed Federal action described in the EA is to formally declare intent of the Fish and Wildlife Service, the Bureau of Land Management, and the National Park Service to participate in the multiagency program designed to implement recovery actions for two endangered fish species, the woundfin and the Virgin River chub, as well as conservation actions for the Virgin spinedace, a species being managed as sensitive by the State of Utah and subject of a conservation agreement. In addition to implementing recovery actions, the Program will facilitate resolution of conflicts between endangered species protection and water development in the Virgin River Basin in Utah. Other participants include the State of Utah Department of Natural Resources, the Washington County Water Conservancy District, and Grand Canyon Trust, a local nonprofit environmental conservation group.
The EA addresses three alternatives: (A) A no action alternative for which the Federal agencies would not participate in the Program but would continue to administer and comply with the Endangered Species Act (Act) as previously done; (B) Federal agency participation in the Program which describes a process for administration and compliance with the Act that provides for full implementation of recovery and conservation actions for the protected fish species, as well as providing a mechanism for section 7 compliance of the Act that reduces conflict in the Utah portion of the Virgin River basin; and (C) Federal agency participation in a basinwide recovery program that includes implementation of the Program in Arizona and Nevada, as well as Utah. Based on the Finding of No Significant Impact, the U.S. Fish and Wildlife Service has determined that the proposed action is not a major Federal action which would significantly affect the quality of the human environment within the meaning of section 102(2)(c) of the National Environmental Policy Act of 1969.
Copies of the Final EA and FONSI will be mailed to affected Government offices and interested parties who specifically requested them. Those interested persons not on the EA mailing list may request a copy from the Project Leader at the address below. Written comments must be received on or before July 13, 2001.
All comments received will become part of the official public record. Requests for such comments will be handled in accordance with the Freedom of Information Act and the Council on Environmental Quality's National Environmental Policy Act Regulations (40 CFR 1506.6). When requested, comment letters with the names and addresses of the individuals who wrote the comments will generally be provided in response to such requests to the extent permissible by law. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. If you wish to withhold your name and/or address, you must state this prominently at the beginning of your comments.
Written comments should be addressed to the Field Supervisor, Utah Ecological Services Field Office, Lincoln Plaza, 145 East 1300 South State Street, Suite 404, Salt Lake City, Utah 84115. All comments and material received will be available upon request for public inspection, by appointment, during normal business hours at the above address.
Mr. Henry R. Maddux, Utah Field Supervisor (see
The woundfin was listed as endangered on October 13, 1970 (35 FR 16047). The Virgin River chub was listed as endangered on August 24, 1989 (54 FR 35305). The Virgin River Fishes Recovery Plan (VRFRP), which included recovery of both woundfin and Virgin River chub, was finalized in 1995. Critical Habitat was designated for these two species on January 26, 2000 (65 FR 4140). The Virgin spinedace was proposed for listing as endangered on May 18, 1994 (59 FR 25875). The Virgin Spinedace Conservation Agreement and Strategy (VSCAS) to eliminate or reduce impacts threatening the continued existence of Virgin spinedace was finalized on April 11, 1995, and subsequently, the proposal to list was withdrawn on February 6, 1996 (61 FR 44010). All three of these fish species are endemic to the Virgin River basin through Utah, Arizona, and Nevada. The southwestern willow flycatcher is a neotropical migratory bird listed as endangered on February 27, 1995 (60 FR 10693) that seasonally occupies sites along the Virgin River and throughout the desert southwest. In addition, the Virgin River basin retains a diversity of native desert animal and plant species, many of which are declining due to impacts from human development in the area.
Despite Federal listing of two fish species, implementation of recovery actions in the Virgin River to benefit endangered fish have been minimal due to limited funding for recovery over the past 25 years. Furthermore, conflicts have arisen between water development interests and those managing for protection of native species that rely on the river environment. Specifically, contention between the local environmental community and local water developers over operations of the Quail Creek Diversion in the Virgin River near Hurricane, Utah, led to discordant relations and threats of litigation among the agencies and organizations interested in water use.
To resolve this situation, the interested entities agreed to develop the Virgin River Resource Management and Recovery Program that would provide a mechanism to prioritize, fund, and implement recovery actions while allowing water development necessary to meet human needs in the Utah portion of the Virgin River basin. It is anticipated that the Program will not only provide recovery actions that are necessary to offset impacts from proposed development actions to the native protected species, but further lead to full recovery of the endangered fish species and conservation of the Virgin spinedace, as well as provide benefits to the endangered southwestern willow flycatcher.
The Program will encompass the VRFRP and VSCAS so that actions identified in these documents can be funded, implemented, and evaluated for effectiveness. In addition, the Program will provide measures to offset proposed Federal project impacts during section 7 consultations in order to prevent future conflict over water development and minimize impacts of Federal projects on protected aquatic species. Goals and objectives of the Program are based on recovery of the endangered fish and conservation of Virgin spinedace in an environment of continuing water development. Although some impacts to native species are expected through future water development projects, recovery actions have been and will continue to be implemented in advance of project impacts such that the status of species and/or its habitat is expected to improve and remain greater than that necessary to offset anticipated impacts. A crediting system has been developed to assess, measure, and track benefits and impacts of projects and is designed to maintain measured benefits at a higher level than impacts so that the Program is always moving toward recovery and conservation of protected species.
Although participation is limited to Utah portions of the Virgin River basin at this time, it is expected that the remaining portions of the Virgin River basin in Arizona and Nevada will be invited to participate in the Program in future years, as it becomes better established and demonstrates effectiveness.
It is important to note that participation in this Program does not represent or guarantee legal authority for any water development project. Such projects must be evaluated individually as they are proposed and continue to be subject to all applicable Federal and State laws, including the National Environmental Policy Act and the Endangered Species Act. This EA is not intended to provide analysis for specific project impacts but rather analyzes only effects of Federal participation in the Program.
The primary author of this notice is Yvette K. Converse, U.S. Fish and Wildlife Service, 145 East 1300 South State Street, Suite 404, Salt Lake City, Utah 84115, 801-524-5001 extension 135.
The authorities for this action are the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The U.S. Fish and Wildlife Service, as lead agency, with the Bureau of Land Management and National Park Service as cooperating agencies, propose to participate in the Virgin River Resource Management and Recovery Program (Program). The Program will be a multiagency program designed to implement recovery actions for two endangered fish species, the woundfin and the Virgin River chub. It also will implement conservation actions for the Virgin spinedace, a species being managed as sensitive by the State of Utah and subject of a conservation agreement. In addition to implementing recovery actions, the Program will facilitate resolution of conflicts between endangered species protection and water development in the Virgin River Basin in Utah by providing actions to improve the status of these species so that proposed water development will not jeopardize these species existence or adversely modify their critical habitat. Other Program participants will be the State of Utah Department of Natural Resources, the Washington County Water Conservancy District, and Grand Canyon Trust, a local nonprofit environmental conservation group.
An Environmental Assessment was prepared which addressed three alternatives: (A) a no action alternative whereby the Federal agencies would not participate in the Program but would continue to administer and comply with the Endangered Species Act (Act) as previously done; (B) Federal agency participation in the Program which describes a process for administration and compliance with the Act that provides for full implementation of recovery and conservation actions for the protected fish species, as well as providing a mechanism for section 7 compliance of the Act that reduces conflict in the Utah portion of the Virgin River basin; and (C) Federal agency participation in a basinwide recovery program that includes implementation of the Program in Arizona and Nevada, as well as Utah.
Alternative B, the Preferred Alternative, will result in the most effective participation by Department of the Interior agencies, State and local agencies, and organizations to coordinate, direct, and fund recovery actions for imperiled aquatic fish species in the Basin in Utah. It also will facilitate implementation of the Virgin River Resource Management and Recovery Program that was developed by resource agencies in Utah.
Based on my review and evaluation of the Environmental Assessment and supporting documentation, I have determined that Federal agency participation in the Virgin River Resource and Management Program is not a major Federal action which would significantly affect the quality of the human environment within the meaning of section 102(2)(c) of the National Environmental Policy Act of 1969. Accordingly, preparation of an environmental impact statement is not required.
Dated: May 30, 2001.
Bureau of Land Management, Interior.
Public Land Order.
This order extends Public Land Order No. 5979 for an additional 20-year period. This extension is necessary to continue the protection of two Bureau of Land Management administrative sites. The lands have been and will remain open to mineral leasing.
September 3, 2001.
Doris E. Chelius, BLM Colorado State Office, 2850 Youngfield Street, Lakewood, Colorado 80215-7093, 303-239-3706.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), it is ordered as follows:
1. Public Land Order No. 5979, which withdrew public lands to protect two Bureau of Land Management administrative sites, is hereby extended for an additional 20-year period following its date of expiration.
2. This withdrawal will expire 20 years from the effective date of this order unless, as a result of a review conducted prior to the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f) (1994), the Secretary determines that the withdrawal shall be extended.
Bureau of Land Management, Interior.
Public Land Order.
This order partially revokes six Secretarial Orders insofar as they affect 9,560.53 acres of public lands withdrawn for stock driveway purposes. The lands are no longer needed for the purpose for which they were withdrawn. Of the lands being revoked, 318.72 acres have been conveyed out of Federal ownership and the revocation of these lands is a record clearing action only. This action will open the remaining 9,241.81 acres to surface entry unless closed by overlapping withdrawals or temporary segregations of record. The lands have been and will remain open to mining location and mineral leasing.
July 13, 2001.
Janet Booth, BLM Wyoming State Office, P.O. Box 1828, Cheyenne, Wyoming 82003, 307-775-6124.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), it is ordered as follows:
1. The Secretarial Orders dated October 20, 1917, April 24, 1918, February 5, 1924, August 7, 1929, December 12, 1938, and May 13, 1944, which withdrew public lands for Stock Driveway Nos. 3, 14, and 128, are hereby revoked insofar as they affect the following described lands:
T. 51 N., R. 80 W.,
T. 42 N., R. 81 W.,
The areas described aggregate 9,241.81 acres in Johnson and Sheridan Counties.
2. The Secretarial Order dated October 20, 1917, which withdrew public lands for Stock Driveway No. 3, is hereby revoked insofar as it affects the following described lands:
The areas described aggregate 318.72 acres in Johnson and Sheridan Counties.
The total areas described in paragraphs 1 and 2 aggregate 9,560.53 acres in Johnson and Sheridan Counties.
3. At 9 a.m. on July 13, 2001, the lands described in paragraph 1 shall be opened to the operation of the public land laws generally, subject to valid existing rights, the provisions of existing withdrawals, other segregations of record and the requirements of applicable law. All valid applications received at or prior to 9 a.m. on July 13, 2001, shall be considered as simultaneously filed at that time. Those received thereafter shall be considered in the order of filing.
4. The lands described in paragraph 2 has been conveyed out of Federal ownership. This is a record clearing action only.
National Park Service, Department of Interior.
United States International Trade Commission.
Scheduling of the final phase of countervailing duty and antidumping investigations.
The Commission hereby gives notice of the scheduling of the final phase of countervailing duty investigation No. 701-TA-402 (Final) under section 705(b) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)) (the Act) and the final phase of antidumping investigations Nos. 731-TA-892-893 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of subsidized imports from Argentina and less-than-fair-value imports from Argentina and China of honey, provided for in subheadings 0409.00.00, 1702.90, and 2106.90.99 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
May 11, 2001.
Jeffrey Clark (202-205-3205), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
The deadline for filing posthearing briefs is October 4, 2001; witness testimony must be filed no later than three days before the hearing. In addition, any person who has not entered an appearance as a party to the investigations may submit a written statement of information pertinent to the subject of the investigations on or before October 4, 2001. On October 23, 2001, the Commission will make available to parties all information on which they have not had an opportunity to comment. Parties may submit final comments on this information on or before October 25, 2001, but such final comments must not contain new factual information and must otherwise comply with § 207.30 of the Commission's rules. All written submissions must conform with the provisions of § 201.8 of the Commission's rules; any submissions that contain BPI must also conform with the requirements of §§ 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's rules do not authorize
In accordance with §§ 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.21 of the Commission's rules.
By order of the Commission.
National Council on Disability.
This notice sets forth the schedule and proposed agenda of the forthcoming quarterly meeting of the National Council on Disability (NCD). Notice of this meeting is required under Section 522b(e)(1) of the Government in the Sunshine Act, (Pub. L. 94-409).
August 6-7, 2001, 8:30 a.m. to 5:00 p.m.
Marriott Hotel at Metro Center, 775 12th Street, NW, Washington, DC; 202-737-2200.
Mark S. Quigley, Public Affairs Specialist, National Council on Disability, 1331 F Street NW, Suite 1050, Washington, DC 20004-1107; 202-272-2004 (Voice), 202-272-2074 (TTY), 202-272-2022 (Fax).
NCD is an independent federal agency composed of 15 members appointed by the President and confirmed by the U.S. Senate. Its overall purpose is to promote policies, programs, practices, and procedures that guarantee equal opportunity for all people with disabilities, including people from culturally diverse backgrounds, regardless of the nature or significance of the disability; and to empower people with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.
Those needing sign language interpreters or other disability accommodations should notify NCD at least one week prior to this meeting.
In accordance with Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, those people with disabilities who are limited English proficient and seek translation services for this meeting should notify NCD at least one week prior to this meeting.
People with multiple chemical sensitivity/environmental illness must reduce their exposure to volatile chemical substances to attend this meeting. To reduce such exposure, NCD requests that attendees not wear perfumes or scented products at the meeting. Smoking is prohibited in the meeting room and surrounding area.
In accordance with the Government in the Sunshine Act and NCD's bylaws, this quarterly meeting will be open to the public for observation, except where NCD determines that a meeting or portion thereof should be closed in accordance with NCD's regulations pursuant to the Government in the Sunshine Act. A majority of NCD members present shall determine when a meeting or portion thereof is closed to the public, in accordance with the Government in the Sunshine Act. At meetings open to the public, NCD may determine when non-members may participate in its discussions. Observers are not expected to participate in NCD meetings unless requested to do so by an NCD member and recognized by the NCD chairperson.
The proposed agenda includes:
Records will be kept of all National Council on Disability proceedings and will be available after the meeting for public inspection at the National Council on Disability.
Peace Corps.
Notice of public use form review to the Office of Management and Budget (Reinstatement of OMB Control Number 0420-0525).
Pursuant to the Paperwork Reduction Act of 1981 (44 U.S.C., chapter 35), the Peace Corps has submitted to the Office of Management and Budget a request for approval of information collection, OMB Control Number 0420-0525, the Peace Corps Fellows/USA Program Alumni Questionnaire form to be used by the Peace Corps Fellows/USA Program. This is a reinstatement, with change, of a previously approved collection for which approval has expired. The purpose of this notice is to allow for public comments on whether the proposed collection of information is necessary for the proper performance of the functions of the Peace Corps, including whether the information will have practical use; the accuracy of the agency's estimate of the burden of the proposed collections information, including the validity of the methodology and assumptions used; ways to enhance the quality, utility and the clarity of the information to be collected; and, ways to minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
A copy of the proposed information collection form may be obtained from Dr. Cathryn Ballou, Office of Domestic Programs, Peace Corps, 1111 20th Street, NW, Room 2101, Washington, DC 20526. Dr. Ballou can be contacted by telephone at 202-692-1432 or 800-424-8580 ext 1432. Comments on the form should also be addressed to the attention of Dr. Ballou and should be received on or before August 13, 2001.
a. Annual reporting burden: 250 hours.
b. Annual record keeping burden: 0 hours.
c. Estimated average burden per response: 30 minutes.
d. Frequency of response: one time.
e. Estimated number of likely respondents: 500.
f. Estimated cost to respondents: $7.24.
At this time, responses will be returned by mail.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Railroad Retirement Board (RRB) has submitted the following proposal(s) for the collection of information to the Office of Management and Budget for review and approval.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Copies of the forms and supporting documents can be obtained from Chuck Mierzwa, the agency clearance officer (312-751-3363). Comments regarding the information collection should be addressed to Ronald J. Hodapp, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611-2092 and the OMB review, Joe Lackey (202-395-7316), Office of Management and Budget, Room 10230, New Executive Office Building, Washington, DC 20503.
Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549.
Extension: Rule 17a-5 and Form X-17A-5, SEC File No. 270-155, OMB Control No. 3235-0123
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17a-5 under the Securities Exchange Act of 1934 is the basic reporting rule for brokers and dealers, and Form X-17A-5, the Financial and Operational Combined Uniform Single Report, is the basic document for reporting the financial and operational condition of securities brokers and dealers.
The staff estimates that approximately 7,230 respondents respond to this collection of information 33,870 times annually, with a total burden of 12 hours for each response, based upon past submissions. The staff estimates that the average number of hours necessary to comply with the requirements of Rule 17a-5 is 406,440 hours. The average cost per hour is $113. Therefore, the total cost of compliance for the respondents is $45,927,720.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Direct your written comments to Michael E. Bartell, Associate Executive Director, Office of Information Technology, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549.
Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549.
Extension: Rule 11Ac1-4, SEC File No. 270-405, OMB Control No. 3235-0462
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 11Ac1-4 [17 C.F.R. 240.11Ac1-4] under the Securities Exchange Act of 1934 requires specialists and market makers to publicly display a customer
Rule 11Ac1-4 does not contain record retention requirements. Compliance with the rule is mandatory. Responses are not confidential. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Direct your written comments to Michael E. Bartell, Associate Executive Director, Office of Information Technology, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549.
Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549.
Extension: Rule 15a-6, SEC File No. 270-329, OMB Control No. 3235-0371
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15a-6 under the Securities Exchange Act of 1934 provides, among other things, an exemption from broker-dealer registration for foreign broker-dealers that effect trades with or for U.S. institutional investors through a U.S. registered broker-dealer, provided that the U.S. broker-dealer obtains certain information about, and consents to service of process from, the personnel of the foreign broker-dealer involved in such transactions, and maintains certain records in connection therewith.
These requirements are intended to ensure (a) that the U.S. broker-dealer will receive notice of the identity of, and has reviewed the background of, foreign personnel who will contact U.S. institutional investors, (b) that the foreign broker-dealer and its personnel effectively may be served with process in the event enforcement action is necessary, and (c) that the Commission has ready access to information concerning these persons and their U.S. securities activities.
In general, the records to be maintained under Rule 15a-6 must be kept for the applicable time periods as set forth in Rule 17a-4 under the Exchange Act or, with respect to the consents to service of process, for a period of not less than six years after the applicable person ceases engaging in U.S. securities activities. Reliance on the exemption set forth in Rule 15a-6 is voluntary, but if a foreign broker-dealer elects to rely on such exemption, the collection of information described therein is mandatory. The collection does not involve confidential information. It is estimated that approximately 2,000 respondents will incur an average burden of three hours per year to comply with this rule, for a total burden of 6,000 hours. At an average cost per hour of approximately $100, the resultant total cost of compliance for the respondents is $600,000 per year (2,000 entities × 3 hours/entity × $100/hour = $600,000).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments regarding the above information should be directed to the following persons: (a) Desk Office of the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, D.C. 20503; and (b) Michael E. Bartell, Associate Executive Director, Office of Information Technology, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Comments must be submitted to the Office of Management and Budget within 30 days of this notice.
The Nasdaq Stock Market, Inc. (“Nasdaq”) completed its application for registration as a national securities exchange (“Form 1”) under section 6
Until recently, Nasdaq was a wholly-owned subsidiary of the National Association of Securities Dealers, Inc. (“NASD”). On April 14, 2000, NASD members voted in favor of a restructuring plan that broadens the ownership of Nasdaq through a two-phase, private placement of common stock and warrants to include not only NASD members, but also Nasdaq issuers, institutional investors and strategic partners. In the first phase of the private placement, which was completed in June 2000, the NASD sold shares and issued warrants overlaying
Nasdaq currently is operated by the NASD pursuant to a Plan of Allocation and Delegation of Functions by the NASD to Subsidiaries as approved by the Commission.
Nasdaq currently is exempt from the definition of “exchange” under Rule 3a1-1 because it is operated by the NASD.
The Form 1 provides detailed information about Nasdaq and how it proposes to satisfy the requirements of the Exchange Act. The Commission shall grant such registration if it finds that the requirements of the Exchange Act and the rules and regulations thereunder with respect to Nasdaq are satisfied.
A complete copy of Nasdaq's Form 1 is available in the Commission's Public Reference Room, File No. 10-131. Portions of Nasdaq's Form 1, including Nasdaq's rules, also are available on the Commission's website at
For questions regarding this release, contact Rebekah Liu, Special Counsel, at (202) 942-0133; Geoffrey Pemble, Attorney, at (202) 942-0757, Division of Market Regulation, Securities and Exchange Commission, 450 Fifth Street, Washington, DC 20549-1001.
Securities and Exchange Commission (“Commission”).
Notice of application under: (a) Section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) requesting an exemption from section 12(d)(1) of the Act; sections 6(c) and 17(b) of the Act requesting an exemption from section 17(a) of the Act; and section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions; (b) section 12(d)(1)(J) of the Act requesting an exemption from section 12(d)(1)(G)(i)(II) of the Act; (c) sections 6(c), 10(f) and 17(b) of the Act requesting an exemption from sections 17(a), 17(e), 10(f) and 12(d)(3) of the Act and rule 17e-1 under the Act; and (d) section 17(b) of the Act requesting an exemption from section 17(a) of the Act.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, Rodney R. Miller, Esq., Annuity Board of the Southern Baptist Convention, 2401 Cedar Springs Road, Dallas, Texas 75201-1407.
Karen L. Goldstein, Senior Counsel, at (202) 942-0646 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102, (tel. (202) 942-8090).
1. The Annuity Board is a Texas non-profit corporation that sponsors and maintains retirement and welfare benefit plans (“plans”) for the employees of churches and organizations controlled by, or associated with, the Southern Baptist Convention (“SBC”). The plans invest primarily in four Southern Baptist investment funds (“BIFs”) and nine Southern Baptist investment pools (“BIPs”), all of which are maintained by the Annuity Board. The BIFs allocate investments among the BIPs to achieve an asset allocation that is appropriate to each BIF's investment strategy, generally balancing fixed income and equity exposure in proportion to a BIF's risk level. The BIFs and the BIPs are managed in accordance with the moral and ethical principles of the SBC and are exempt from registration as investment companies pursuant to section 3(c)(14) of the Act.
2. The Annuity Board has been charged with providing an expanded range of investment opportunities to Southern Baptist organizations and to persons eligible to participate in the plans provided by the Annuity Board. These expanded services, which would not be consistent with maintenance of the BIPs' and BIFs' exemption from registration under the Act, will be provided by the Trust.
3. The Trust, established as a Delaware business trust, will register under the Act as an open-end management investment company. The Trust will have thirteen series (collectively, the “Funds”). Four of the Funds will operate as funds of funds pursuant to Section 12(d)(1)(G) under the Act (the “Blended Funds”). The Blended Funds will allocate their investments among the nine other Funds (the “Select Funds”). Investors may also purchase shares of the Select Funds directly.
4. The Adviser, a controlled affiliate of the Annuity Board, will act as investment adviser to the Trust, and will register as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”), prior to serving as investment adviser to the Trust. With the exception of two Funds, at least two subadvisers will exercise discretion over each Select Fund's assets (“Subadvisers”). Each Subadviser will be registered, or exempt from registration, under the Advisers Act. The Board of Trustees of the Trust (“Board”) will have overall responsibility for the management of the Funds.
5. The Annuity Board proposes to transfer the assets of the BIPs and the BIFs to the corresponding Select Funds and the Blended Funds, in exchange for shares of those Funds (the “Transfer”). Following the Transfer, the BIPs and BIFs will terminate. Applicants request an order under the Act to permit the Transfer and exemptions from certain provisions of the Act relating to the operation of the Trust. Applicants request that the relief (except the relief relating to the Transfer) apply to any future series of the Trust and to any future registered open-end management investment company advised by the Adviser or any entity controlling, controlled by, or under common control with the Adviser.
1. Other than the Select Fund that is a money market Fund that complies with rule 2a-7 under the Act (“Money Market Fund”), each Select Fund (an “Investing Select Fund”) has, or may be expected to have, cash balances that have not been invested in portfolio securities (“Cash Reserves”). The Cash Reserves may result from a variety of sources, including dividends or interest received from portfolio securities, unsettled securities transactions, reserves held for investment strategy purposes, scheduled maturity of investments, liquidation of investment securities to meet anticipated redemptions or dividend payments, and new cash received from investors.
2. Applicants request an order to permit the Investing Select Funds to invest their Cash Reserves in shares of the Money Market Fund and to permit the Money Market Fund to sell its
Each Blended Fund proposes to invest in shares of the Select Funds while also investing a portion of its assets directly in exchange listed equity futures contracts and exchange listed U.S. Treasury futures contracts. Applicants request an exemption pursuant to Section 12(d)(1)(J) of the Act from Section 12(d)(1)(G)(i)(II) of the Act to the extent necessary to permit each of the Blended Funds, which will otherwise operate pursuant to Section 12(d)(1)(G) of the Act, to make such direct investments. These direct investments will not include shares of any investment companies.
1. With the exception of two Select Funds, each of the Select Funds will have more than one Subadviser. Each Subadviser will exercise discretion to purchase and sell securities for a discrete portion of a Select Fund's assets (each portion, a “Segment”) in accordance with the Select Fund's objectives, policies and restrictions. Each Subadviser is paid directly by the Select Fund it advises, based on a percentage of the value of the Select Fund's assets allocated to its management. The Adviser also may directly advise a Segment of a Select Fund.
2. Applicants request an exemption to permit: (a) Any broker-dealer registered under the Securities Exchange Act of 1934 (the “1934 Act”) that itself serves as Subadviser (either directly or through a separate operation division) (“Affiliated Subadviser”) or is an affiliated person of a Subadviser to a Segment of a Select Fund (“Affiliated Broker-Dealer”) to engage in principal transactions with a Segment of the Select Fund that is advised by another Subadviser that is not an affiliated person of the Affiliated Broker-Dealer or the Affiliated Subadviser (an “Unaffiliated Subadviser”) (each such Segment, an “Unaffiliated Segment”);
Applicants request an exemption, pursuant to section 17(b) of the Act, from section 17(a) to permit the following proposed transactions constituting the Transfer: (a) Each BIP will transfer its assets to a corresponding Select Fund in exchange for shares of the Select Fund and then distribute the Select Fund shares, pro rata, to its shareholders; and (b) each BIF will transfer its assets to a corresponding Blended Fund in exchange for shares of the Blended Funds and then distribute shares of the Blended Funds pro rata to its shareholders.
a. Section 12(d)(1)(A) of the Act provides that a registered investment company may not acquire securities of another investment company if such securities represent more than 3% of the acquired company's outstanding voting stock, more than 5% of the acquiring company's total assets, or if such securities, together with the securities of other acquired investment companies, represent more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's outstanding voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies.
b. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any persons or transactions from any provision of section 12(d)(1) to the extent that the exemption is consistent with the public interest and the protection of investors. Applicants request an order under section 12(d)(1)(J) of the Act to permit the Investing Select Funds to purchase shares of the Money Market Fund in excess of the limits of section 12(d)(1)(A) and the Money Market Fund to sell its shares to the Investing Select Funds in excess of the limits of section 12(d)(1)(B).
c. Applicants maintain that the proposed transactions will not result in the abuses that sections 12(d)(1)(A) and (B) were intended to address. Applicants state that the Money Market Fund will be managed specifically to maintain a highly liquid portfolio, and access to it will enhance each Investing Select Fund's ability to manage Cash Reserves. Applicants state that there will not be an inappropriate layering of fees because shares of the Money Market Fund sold to or redeemed by the Investing Select Funds will not be subject to a sales load, redemption fee, distribution fee adopted in accordance with rule 12b-1 under the Act, or a service fee. Applicants state that if the Money Market Fund shares were subject to such fees, the Adviser will waive its advisory fee for each Investing Select Fund in an amount that offsets the amount of the fees. In addition, in connection with approving an investment advisory contract under section 15 of the Act, the Board of the Investing Select Fund will consider to what extent the advisory fee paid by the Investing Select Fund to the Adviser should be reduced as a result of the Cash Reserves being invested in the Money Market Fund. Each Investing Select Fund also will invest Cash Reserves in the Money Market Fund only to the extent that the Investing Select Fund's aggregate investment of Cash Reserves in the Money Market Fund does not exceed 25% of the Investing Select Fund's total assets. Applicants also state that the Money
a. Sections 17(a)(1) and (2) of the Act make it unlawful for any affiliated person of a registered investment company, or an affiliated person of the affiliated person, acting as principal, to sell or purchase any security to or from the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person; any person directly or indirectly controlling, controlled by, or under common control with the other person; and, in the case of an investment company, its investment adviser.
b. Because the Adviser will serve as each Select Fund's investment adviser, the Funds may be deemed to be under common control and therefore affiliated persons, or affiliated persons of an affiliated person, of each other. In addition, the Funds could be deemed to be under common control by virtue of the fact that they share a common Board. In addition, if an Investing Select Fund purchases more than 5% of the outstanding voting securities of the Money Market Fund, the Investing Select Fund and Money Market Fund would be affiliated persons of each other. Accordingly, applicants state that the sale and redemption of shares of the Money Market Fund by the Investing Select Fund may be prohibited by section 17(a).
c. Section 17(b) of the Act authorizes the Commission to exempt a transaction from section 17(a) of the Act if the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each investment company concerned and the general purposes of the Act. Section 6(c) of the Act authorizes the Commission to exempt persons or transactions, from the provisions of the Act to the extent that such exemptions are necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act.
d. Applicants request an order under sections 6(c) and 17(b) of the Act to permit the Investing Select Funds to purchase and redeem shares of the Money Market Fund. Applicants state that the proposed transactions satisfy the standards of sections 6(c) and 17(b) of the Act. Applicants state that the consideration paid and received on the sale and redemption of shares of the Money Market Fund will be based on the current net asset value per share of the Money Market Fund. Applicants also state that the Investing Select Funds will retain their ability to invest their Cash Reserves directly in money market instruments and other short-term instruments if they can obtain a higher rate of return or for any other reason. The Money Market Fund also reserves the right to discontinue selling shares to any of the Investing Select Funds if the Board determines that the sales would adversely affect the Money Market Fund's management and operations. In addition, applicants state that the investment of Cash Reserves of the Investing Select Funds in shares of the Money Market Fund will be effected in accordance with each Investing Select Fund's investment restrictions and will be consistent with each Investing Select Fund's policies as set forth in its registration statement.
a. Section 17(d) of the Act and rule 17d-1 under the Act generally prohibit an affiliated person of a registered investment company, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates unless the Commission has approved the joint arrangement by an order. Applicants state that each Investing Select Fund and the Money Market Fund, by participating in the proposed transactions, and the Adviser, by effecting the proposed transactions, could be deemed to be participants in a joint enterprise for the purposes of section 17(d) of the Act and rule 17d-1 under the Act.
b. In passing on applications for orders under section 17(d), rule 17d-1 requires that the Commission consider whether an investment company's participation in a joint enterprise or joint arrangement is consistent with the provisions, policies, and purposes of the Act, and the extent to which such participation is on a basis different from or less advantageous than that of other participants. Applicants state that the proposed transactions meet the standards for an order under rule 17d-1. Applicants state that the investment by the Investing Select Funds of Cash Reserves in shares of the Money Market Fund would be on the same basis and would be indistinguishable from any other shareholder account maintained by the Money Market Fund. The proposed transactions will provide the potential for increased returns and reduced costs and reduced risks for the Investing Select Funds and their shareholders and are consistent with the policies and purposes of the Act.
1. Section 12(d)(1)(G) of the Act provides, in relevant part, that section 12(d)(1) will not apply to securities of a registered open-end investment company acquired by a registered open-end investment company if: (i) The acquiring company and the acquired company are part of the same group of investment companies, (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the 1934 Act or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end management investment companies in reliance on section 12(d)(1)(F) or (G). Applicants state that the proposed investment by the Blended Funds in the Select Funds would comply with the provisions of section 12(d)(1)(G), but for the fact that each Blended Fund's policies contemplate that it may invest a portion of its assets directly in securities other than those specified in section 12(d)(1)(G)(i)(II).
2. Applicants request an exemption under section 12(d)(1)(J) of the Act from section 12(d)(1)(G)(i)(II). Applicants assert that permitting the Blended Funds to invest directly in securities as described in the application would not raise any of the concerns that the requirements of section 12(d)(1)(G)(i)(II) were designed to address.
a. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and an affiliated person of, promoter of, or principal underwriter for such company, or any affiliated
b. Applicants seek relief under sections 6(c) and 17(b) to exempt principal transactions prohibited by section 17(a) because an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Segment of a Select Fund solely because an Affiliated Subadviser is the Subadviser to another Segment of the Select Fund. The requested relief would not be available if the Affiliated Broker-Dealer (except by virtue of serving as a Subadviser) is an affiliated person or a second-tier affiliate of the Adviser, principal underwriter or promoter of the Trust, the Unaffiliated Subadviser making the investment decision or any officer, director or employee of the Select Fund.
c. Applicants contend that section 17(a) is intended to prevent persons who have the power to control an investment company from using that power to the person's own pecuniary advantage. Applicants assert that when the person acting on behalf of an investment company has no direct or indirect pecuniary interest in a party to a principal transaction, the abuses that section 17(a) is designed to prevent are not present. Applicants state that if an Unaffiliated Subadviser purchases securities on behalf of an Unaffiliated Segment in principal transaction with an Affiliated Broker-Dealer, any benefit that might inure to the Affiliated Broker-Dealer would not be shared by the Unaffiliated Subadviser. In addition, applicants state that Subadvisers are paid on the basis of a percentage of the value of the assets of the Segment allocated to their management. The execution of a transaction to the disadvantage of the Unaffiliated Segment would disadvantage the Unaffiliated Subadviser to the extent that it diminishes the value of the Unaffiliated segment.
d. Applicants state that each Subadviser's contract assigns it responsibility to manage a Segment of the Select Fund and that each Subadviser is responsible for making independent investment and brokerage allocation decisions based on its own research and credit evaluations. Applicants represent that the Adviser does not dictate brokerage allocation or investment decisions to any Select Fund advised by a Subadviser, or have the contractual right to do so, except with respect to a Segment advised directly by the Adviser. Applicants contend that, in managing a discrete Segment of a Select Fund, each Subadviser acts for all practical purposes as though it is managing a separate investment company.
e. Applicants state that the proposed transactions will be consistent with the policies of the Select Fund involved, since each Unaffiliated Subadviser is required to manage the Unaffiliated Segment in accordance with the investment objectives and related investment policies of the Select Fund as described in its registration statement. Applicants also assert that permitting the transactions will be consistent with the general purposes of the Act and in the public interest because the ability to engage in the transactions increases the likelihood of a Select fund achieving best price and execution on its principal transactions, while giving rise to none of the abuses that the Act was designed to prevent.
a. Section 17(e)(2) of the Act prohibits an affiliated person or a second-tier affiliate of a registered investment company from receiving compensation for acting as broker in connection with the sale of securities to or by the investment company if the compensation exceeds the limits prescribed by the section unless otherwise permitted by rule 17e-1 under the Act. Rule 17-1 sets forth the conditions under which an affiliated person or a second-tier affiliate of an investment company may receive a commission which would not exceed the “usual and customary broker's commission” for purposes of section 17(e)(2). Rule 17e-1(b) requires the investment company's board of directors, including a majority of the directors who are not interested persons under section 2(a)(19) of the Act, to adopt certain procedures and to determine at least quarterly that all transactions effected in reliance on the rule complied with the procedures. Rule 17e-1(c) specifies the records that must be maintained by each investment company with respect to any transaction effected pursuant to rule 17e-1.
b. As discussed above, applicants state that an Affiliated Broker-Dealer is either an affiliated person (as Subadviser to another segment of a Select Fund) or a second-tier affiliate of an Unaffiliated Segment and thus subject to section 17(e). Applicants request an exemption under section 6(c) from section 17(e) and rule 17e-1 to the extent necessary to permit an Unaffiliated Segment to pay brokerage compensation to an Affiliated Broker-Dealer acting as broker in the ordinary course of business in connection with the sale of securities to or by such Unaffiliated Segment, without complying with the requirements of rule 17e-1 (b) and (c). The requested exemption would apply only where an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Segment solely because an Affiliated Subadviser is the Subadviser to another Segment of the same Select Fund. The relief would not apply if the Affiliated Broker-Dealer (except by virtue of serving as Subadviser) is an affiliated person or a second-tier affiliate of the Adviser, principal underwriter or promoter of the Trust, the Unaffiliated Subadviser to the Unaffiliated Segment of the Select Fund, or any officer, director or employee of the Select Fund.
c. Applicants believe that the proposed brokerage transactions involve no conflicts of interest or possibility of self-dealing and will meet the standards of section 6(c). Applicants state that the interests of an Unaffiliated Subadviser are directly aligned with the interests of the Unaffiliated Segment it advises, and an Unaffiliated Subadviser will enter into brokerage transactions with Affiliated Broker-Dealers only if the fees charged are reasonable and fair, as required by rule 17e-1(a) under the Act. Applicants also note that an Unaffiliated Subadviser has a fiduciary duty to obtain best price and execution for the Unaffiliated Segment.
a. Section 10(f) of the Act, in relevant part, prohibits a registered investment company from knowingly purchasing or otherwise acquiring, during the existence of any underwriting or selling syndicate, any security (except a
b. Applicants state that each Subadviser to a Select Fund, although under contract to manage only a distinct Segment of the Select Fund, is considered an investment adviser to the entire Select Fund. As a result, applicants, state that all purchases of securities by an Unaffiliated Segment from an underwriting syndicate a principal underwriter of which is an Affiliated Underwriter would be subject to section 10(f).
c. Applicants request relief under section 10(f) from section 10(f) to permit an Unaffiliated Segment to purchase securities during the existence of an underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter. Applicants request relief from section 10(f) only to the extent those provisions apply solely because an Affiliated Subadviser is an investment adviser to the Select Fund. The requested relief would not be available if the Affiliated Underwriter (except by virtue of serving as Subadviser) is an affiliated person or a second-tier affiliate of the Adviser, principal underwriter or promoter of the Trust, the Unaffiliated Subadviser making the investment decision with respect to the Unaffiliated Segment of the Select Fund, or any officer, director, or employee of the Select Fund. Applicants also seek relief from section 10(f) to permit an Affiliated Segment to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, provided that the purchase will be in accordance with the conditions of rule 10f-3, except that paragraph (b)(7) of the rule will not require the aggregation of purchases by the Affiliated Segment with purchases by an Unaffiliated Segment.
d. Applicants state that section 10(f) was adopted in response to concerns about the “dumping” of otherwise unmarketable securities on investment companies, either by forcing the investment company to purchase unmarketable securities from its underwriting affiliate, or by forcing or encouraging the investment company to purchase the securities from another member of the syndicate. Applicants submit that these abuses are not present in the context of the Select Funds because a decision by an Unaffiliated Subadviser to purchase securities from an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, involves no potential for “dumping.” In addition, applicants assert that aggregating purchases would serve no purpose because there is no collaboration among Subadvisers to the same Select Fund, and any common purchases by an Affiliated Subadviser and an Unaffiliated Subadviser would be coincidence.
a. Section 12(d)(3) of the Act generally prohibits a registered investment company from acquiring any security issued by any person who is a broker, dealer, investment adviser, or engaged in the business of underwriting (collectively, “securities-related activities”). Applicants assert that because a Securities Affiliate is engaged in securities-related activities, an Unaffiliated Segment of a Select Fund advised by an Unaffiliated Subadviser would be prohibited by section 12(d)(3) from purchasing the securities issued by the Securities Affiliate.
b. Rule 12d3-1 under the Act exempts from the prohibition of section 12(d)(3) purchases of securities of an issuer engaged in securities-related activities if certain conditions are met. One of these conditions, set forth in rule 12d3-1(c), prohibits the acquisition of a security issued by the investment company's investment adviser, promoter, or principal underwriter, or any affiliated person of the investment adviser, promoter, or principal underwriter.
c. Applicants state that each Subadviser to a Segment is considered to be an investment adviser to the entire Select Fund. Thus, applicants state that a purchase by an Unaffiliated Segment of securities issued by a Securities Affiliate would not meet rule 12d3-1(c) and that applicants are therefore unable to rely on the rule.
d. Applicants request an exemption under section 6(c) from section 12(d)(3) to permit an Unaffiliated Segment to purchase securities issued by a Securities Affiliate, provided that all of the requirements of rule 12d3-1, except rule 12d3-1(c), are met. Applicants state that their proposal does not raise the conflicts of interest that rule 12d3-1(c) was designed to address because of the nature of the affiliation between a Securities Affiliate and the Unaffiliated Segment. Applicants submit that each Subadviser acts independently of the other Subadvisers in making investment and brokerage allocation decisions for the assets allocated to its Segment and that Unaffiliated Subadvisers have no economic incentive to purchase shares of a Securities Affiliate other than to increase the value of the Unaffiliated Segment or Select Fund for the benefit its shareholders. Applicants state that the requested relief would not extend to securities issued by the Subadviser making the purchase, the Adviser, a principal underwriter or promoter of the Trust or to any affiliated person of these entities. Applicants assert that prohibiting an Unaffiliated Segment of a Select Fund from purchasing securities issued by a Securities Affiliate may cause Unaffiliated Subadvisers to forego investment opportunities that would be in the best interests of the Funds' shareholders.
1. Section 17(a) of the Act provides that it is unlawful for any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, knowingly (a) to sell any security or other property to such registered investment company, or (b) to purchase from such registered investment company any security or other property. Section 2(a)(3) of the Act defines the term “affiliated person” of another person to include (a) any person owing, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of such other person; (b) any person controlling, controlled by, or under common control with, any investment adviser thereof.
2. Because the BIPs might be viewed as acting as principal in the Transfer, and because the BIPs and the Funds might be viewed as being under common control of the Annuity Board within the meaning of section 2(a)(3) of the Act, the Transfer may be subject to the prohibitions of section 17(a).
3. Rule 17a-7 exempts certain purchase and sale transactions otherwise prohibited by section 17(a) if an affiliation exists solely by reason of having a common investment adviser, common directors, and/or common officers, provided, among other requirement, that the transaction
4. Rule 17a-8 exempts mergers, consolidations, and assets sales of registered investment companies from the provisions of section 17(a) of the Act if an affiliation exists solely by reason of having a common investment adviser, common directors, and/or common officers, provided, among other requirements, that the board of directors of each affiliated investment company make certain determinations that the transactions are fair. The relief provided by rule 17a-8 may not be available for the Transfer because the BIPs are not registered investment companies. In addition, the relief provided by rule 17a-8 may not be available for the Transfer because the ownership of 5% or more of the outstanding voting shares of the Funds by the Annuity Board may create an affiliation “not solely by reason of” having a common investment adviser, common directors, and/or common officers.
5. Applicants seek an order under section 17(b) to allow the Transfer. Applicants submit that the Transfer satisfies the standard for relief under section 17(b). Applicants state that the Transfer will comply with rule 17a-7(b) through (f) and any applicable no-action letters.
6. The Transfer is designed to provide the current BIP and BIF participants substantially the same assets and investment vehicles currently available to them, but in a registered investment company structure. Applicants state that the assets of the BIPs to be transferred to the Select Funds will be valued in accordance with the provisions of rule 17a-7(b) under the Act. The BIP corresponding to the Money Market Fund will value its assets in accordance with rule 2a-7 under the Act. The transfer of Select Fund shares by the BIFs to the Blended Funds in exchange for Blended Funds' shares will be made at the net asset value of the Select Funds' and Blended Funds' shares determined in accordance with the Act. The transactions will occur simultaneously and will involve no brokerage commissions, fees or other expenses, other than customary transfer fees.
7. Applicants state that the Transfer will not occur unless the Board, including a majority of the Trustees who will not be “interested trustees” as defined in section 2(a)(19) of the Act (the “Disinterested Trustees”), has determined that participation by the Funds in the Transfer is in the best interests of each Fund and its shareholders and that the interests of existing shareholders of the Funds will not be diluted as a result of the Transfer.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Investment in shares of the Money Market Fund will be in accordance with each Investing Select Fund's policies as set forth in its prospectus and statement of additional information.
2. The shares of the Money Market Fund sold to and redeemed from the Investing Select Funds will not be subject to a sales load, redemption fee, distribution fee under a plan adopted in accordance with rule 12b-1 under the Act or service fee as defined in rule 2830(b)(9) of the Conduct Rules of the National Association of Securities Dealers, Inc. or if such shares are subject to any such fee, the Adviser will waive its advisory fee for each Investing Select Fund in an amount that offsets the amount of such fees incurred by the Investing Select Fund.
3. Prior to reliance on the requested order by any Investing Select Fund, the Board will hold a meeting for the purpose of voting on the Advisory Agreement. Before approving the advisory contract, the Board, including a majority of the Disinterested Trustees, will consider to what extent, if any, the advisory fees charged to an Investing Select Fund by the Adviser should be reduced to account for the reduced services provided to the Investing Select Fund by the Adviser as a result of Cash Reserves being invested in the Money Market Fund. The Adviser will provide the Board with specific information regarding the approximate cost to the Adviser for, or portion of the advisory fee under the existing advisory fee attributable to, managing the Cash Reserves of the Investing Select Fund that can be expected to be invested in the Money Market Fund. The minute books of the Investing Select Fund will fully record the Board's consideration in approving the advisory contract, including the fees referred to above.
4. Each Investing Select Fund will invest Cash Reserves in, and hold shares of, the Money Market Fund only to the extent that the Investing Select Fund's aggregate investment of Cash Reserves in the Money Market Fund does not exceed 25% of the Investing Select Fund's total assets. For purposes of this limitation, each Investing Select Fund will be treated as a separate investment company.
5. Each Investing Select Fund, the Money Market Fund, and any future registered open-end investment company that may rely on the order, will be part of the same group of investment companies as defined in section 12(d)(1)(G)(ii) of the Act and will be advised by the Adviser, or a person controlling, controlled by, or under common control with the Adviser.
6. The Money Market Fund will not acquire securities of any other investment company in excess of the limits contained in section 12(d)(1)(A) of the Act.
1. Before approving any advisory contract under section 15 of the Act, the Board, including a majority of the Disinterested Trustees, will find that advisory fees, if any, charged under the contract with a Blended Fund are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to any underlying Select Fund's advisory contract. This finding, and the basis upon which it was made, will be recorded fully in the minute books of the Blended Funds.
2. Applicants will comply with all provisions of section 12(d)(1)(G), except for section 12(d)(1)(G)(i)(II) to the extent that it restricts a Blended Fund from investing directly in securities as described in the application.
1. Each Fund relying on the requested order will be advised by an Affiliated Subadviser and at least one Unaffiliated Subadviser will be operated in the manner described in the application.
2. No Affiliated Subadviser, Affiliated Broker-Dealer, Affiliated Underwriter of Securities Affiliate (except by virtue of serving as Subadviser to a Segment of a Fund) will be an affiliated person or a second-tier affiliate of the Adviser, any Unaffiliated Subadviser, any principal underwriter or promoter of a Select Fund, or any officer, director, or employee of a Select Fund.
3. No Affiliated Subadviser will directly or indirectly consult with any Unaffiliated Subadvisers concerning allocation of principal or brokerage transactions or concerning the purchase
4. No Affiliated Subadviser will participate in any arrangement whereby the amount of its subadvisory fees will be affected by the investment performance of an Unaffiliated Subadviser.
5. With respect to purchases of securities by an Affiliated Segment of a Select Fund during the existence of any underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter, the conditions of rule 10f-3 under the Act will be satisfied except that paragraph (b)(7) will not require the aggregation of purchases by the Affiliated Segment of the Select Fund with purchases by an Unaffiliated Segment.
6. Each Select Fund will comply with rule 12d3-1, except paragraph (c) of that rule solely with respect to purchases by an Unaffiliated Segment of a Select Fund of securities issued by a Securities Affiliate that would be prohibited by rule 12d3-1 solely because the Securities Affiliates is an Affiliated Subadviser, or an affiliated person of an Affiliated Subadviser to an Affiliated Segment of the Select Fund.
1. The Transfer will comply with rule 17a-7(b) through (f) and any relevant Commission staff no-action positions.
2. The Transfer will not occur unless and until the Board, including a majority of the Disinterested Trustees, finds that participation by each Select Fund and each Blended Fund in the Transfer is in the best interest of each Select Fund and each Blended Fund and their shareholders and that the interests of any existing shareholders of each Select Fund and each Blended Fund will not be diluted as a result of the Transfer. These findings, and the basis upon which they are made, will be recorded in the minute books of the Trust.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CHX proposes to amend its membership dues and fees schedule (the “Schedule”), effective June 1, 2001, to begin rebilling member firms for execution quality reports prepared by third parties pursuant to Rule 11 Ac1-5
Rebilled at cost.
Total monthly fees owed by a specialist to the Exchange will be reduced (
In its filing with the Commission, the CHX included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change amends the Schedule in two ways. First, the proposal would assess a new fee that reimburses the Exchange for its cost in procuring execution quality reports pursuant to the Rule
Second, the proposed rule change would revise the specialist credit program to provide that the Exchange will pay specialists for any unused credits that they earn each month. The CHX represents that this credit program is designed to stimulate growth on the Exchange, exchange the competitive capability of specialist firms, and foster cooperation on the Exchange's trading floor by rewarding specialists for their work to increase Exchange revenue.
The CHX believes that the proposed rule change is consistent with Section 6(b)(4) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act.
The Exchange did not solicit or receive written comments on the proposed rule change.
The proposed rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning for foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CHX. All submissions should refer to File No. SR-CHX-2001-12 and should be submitted by July 5, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
The U.S. Small Business Administration, Office of the National Ombudsman, National Regulatory Fairness Board will hold a public meeting on Monday, June 18, 2001, from 9 a.m. to 5 p.m. EST and Tuesday June 19, 2001, from 9 a.m. to 11 a.m. at the Crystal City Marriott (1999 Jefferson Davis Highway, Arlington, VA 22202) to discuss such matters as may be presented by Acting National Ombudsman, Dr. James Van Wert, Members of the Regulatory Fairness Board, staff of the Small Business Administration or others present. Anyone wishing to make an oral presentation to the Board must contact Dr. Van Wert, in writing by letter or fax no later than June 15, 2001, in order to be put on the agenda. For further information, please write or call James Van Wert, Designated Federal Official, U.S. Small Business Administration, 409 3rd Street, SW, Seventh Floor, Washington, DC 20416. Telephone number (202) 205-7024, Fax (202) 205-6066.
Coast Guard, DOT.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, this request for comments announces that the Coast Guard has forwarded one Information Collection Report (ICR) abstracted below to OMB for review and comment. Our ICR describes the information we seek to collect from the public. Review and comment by OMB ensure that we impose only paperwork burdens commensurate with our performance of duties.
Please submit comments on or before July 13, 2001.
Please send comments to (1) the Docket Management System (DMS), U.S. Department of Transportation (DOT), room PL-401, 400 Seventh Street S.W., Washington, DC 20590-0001; and (2) the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), 725 17th Street N.W., Washington, DC 20503, to the attention of the Desk Officer for the USCG.
Copies of the complete ICR is available for inspection and copying in public docket USCG 2001-9009 of the Docket Management Facility between 10 a.m. and 5 p.m., Monday through Friday, except Federal holidays; for inspection and printing on the internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on this document; Dorothy Beard, Chief, Documentary Services Division, U.S. Department of Transportation, 202-366-5149, for questions on the docket.
This request constitutes the 30-day notice required by OMB. The Coast Guard has already published [66 FR 15519 (March 19, 2001)] the 60-day notice required by OMB. That notice elicited no comments.
The Coast Guard invites comments on the proposed collection of information to determine whether the collection is necessary for the proper performance of the functions of the Department. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the collections; (2) the accuracy of the Department's
Comments, to DMS or OIRA, must contain the OMB Control Number of the ICR addressed. Comments to DMS must contain the docket number of this request, USCG 2001-9009. Comments to OIRA are best assured of having their full effect if OIRA receives them 30 or fewer days after the publication of this request.
1.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before July 4, 2001.
Send comments on any petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2000-XXXX at the beginning of your comments. If you wish to receive confirmation that FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to
Forest Rawls (202) 267-8033, Sandy Buchanan-Sumter (202) 267-7271, or Vanessa Wilkins (202) 267-8029, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of Dispositions of prior petitions.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of dispositions of certain petitions previously received. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Forest Rawls (202) 267-8033, Sandy Buchanan-Sumter (202) 267-7271, or Vanessa Wilkins (202) 267-8029, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
To permit EKA to conduct local sightseeing flights at the Sydney, Ohio, airport air fair on June 30, 2001, and at the Urbana, Ohio, airport air fair on July 4, 2001, for compensation or hire, without complying with certain anti-drug and alcohol misuse prevention requirements of part 135.
Federal Aviation Administration (FAA), DOT.
Notice of public conference.
This notice announces the International Conference on Fire and Cabin Safety Research, which is being held by the Federal Aviation Administration and is similar to conferences held in 1995 and 1998 to discuss the current state of cabin and fire safety research. The Joint Aviation Authorities of Europe, Transport Canada Civil Aviation, the Civil Aviation Bureau of Japan, and the Civil Aviation Safety Authority of Australia are jointly sponsoring the Cabin Safety Research Program and the conference.
The conference is scheduled for Monday through Thursday, October 22-25, 2001. The conference registration desk will be open from 6 p.m. until 8 p.m., October 21, and from 9 a.m. to 5 p.m., October 22. The conference will begin at 1:30 p.m., October 22.
Registration: Persons planning to attend the conference are encouraged to pre-register by contacting the person identified later in this notice as the contact for further information. The deadline for pre-registration is September 21, 2001. Attendance is open to the interested public, but will be limited to the space available. There is a $240 fee to attend the conference, which will include lunch and refreshments each day, as well as one dinner. Payment can be in the form of checks, VISA, or MasterCard.
The conference will be held at the Trump Taj Mahal Casino-Resort, 1000 Boardwalk at Virginia Ave., Atlantic City New Jersey, telephone 1-800-825-8888 (outside the United States: 609-449-1000).
April Horner, Galaxy Scientific Corporation, c/o FAA Technical Center, Fire Safety Branch, AAR-422, Bldg. 287, Atlantic City International Airport, New Jersey 08405; telephone 609-485-4471, fax 609-646-5229, or on the Internet at:
Notice is given of a public conference to be held October 22-25, 2001, at the Trump Taj Mahal Casino-Resort, 1000 Boardwalk at Virginia Ave., Atlantic City New Jersey. This conference is a follow-up to similar conferences held in 1995 and 1998, and is intended to summarize the current state of cabin and fire safety research, as well as explore the directions of future research.
In order to more systematically address the subject of cabin safety research, the FAA, in conjunction with the Joint Aviation Authorities (JAA) of Europe and Transport Canada Civil Aviation (TCCA), developed a Cabin Safety Research Program (CSRP) plan. The CSRP describes a procedure whereby the various aviation authorities can identify, and assess the potential benefit of, research in different areas and later determine the appropriateness of specific cabin safety research. This plan was introduced at the 1995 conference, and the authorities have been working under its provisions since then.
While research has been very productive and has resulted in improved safety standards, it has been largely carried out in piecemeal fashion, outside of a systematic framework. There was no formal vehicle to integrate all cabin safety research so that the benefits are maximized, and the available funds are spent efficiently. The FAA has developed such a vehicle to improve both the efficiency and quality of future cabin safety research. Because research will often result in new guidance or regulation, and because the aviation industry is largely an international entity, this potential regulatory impact must be harmonized between regulatory authorities. Therefore, the development of the revised CSRP was coordinated with the JAA, TCCA, the Civil Aviation Bureau of Japan (JCAB), and the Civil Aviation Safety Authority of Australia (CASA).
Based on the success of both previous conferences, the FAA has determined that a follow-up is appropriate and timely, and that issues relating to fire safety in general (that is, fire safety not limited to the cabin) should be included. This conference will afford the interested public an opportunity to comment on the research programs currently underway, as well suggest the course of future research.
Additional information regarding the conference can be found on the World Wide Web, at:
This agenda involves simultaneous presentation of different topic areas. However, to the extent possible, subjects that might have broader applicability have been scheduled so as not to overlap.
Hotel room reservations should be made in advance. A block of rooms has been reserved at the Trump Casino-Resort at a special conference rate. Persons wishing to attend the conference are encouraged to make room reservations by September 21, 2001, by contacting the hotel direct at 1-800-825-8888 (outside the United States: 609-449-1000). Use the reservation code “AFAA01” to receive the special rate.
Persons outside the United States who have questions of a technical nature, or would like to find out more regarding the local Airworthiness Authority's involvement, may contact:
The following procedures are established to facilitate the workings of the conference.
• The conference will be open on a space available basis to all persons registered.
• A $240 fee will be charged for attending the conference. This fee will include lunch, as well as refreshments during breaks each day, and one dinner.
• Following each presentation, or series of presentations on a similar topic, a brief question and answer period may be allowed, and participants will be given the opportunity for open discussions, within the time available. In addition, there will be separate workshop sessions following some of the technical sessions for more in depth discussion.
• This conference is intended to address fire and cabin safety research, rather than regulatory, issues. As such, statements made by Airworthiness Authority participants at the conference will not be taken as expressing final Authority positions.
Federal Aviation Administration (FAA), DOT.
Monthly Notice of PFC Approvals and Disapprovals. In April 2001, there were eight applications approved. This notice also includes information on one application, approved in March 2001, inadvertently left off the March 2001 notice. Additionally, 29 approved amendments to previously approved applications are listed.
The FAA publishes a monthly notice, as appropriate, of PFC approvals and disapprovals under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158). This notice is published pursuant to paragraph d of § 158.29.
Upgrade airport directional signage.
Brief Description of Disapproved Projects:
Americans with Disabilities Act (ADA) access.
(1) Operations by air taxi/commercial operators utilizing aircraft having a maximum seating capacity of less than 20 passengers when enplaning revenue passengers in a limited, irregular/non-scheduled, or special service manner; (2) operations by air taxi/commercial operators, without regard to seating capacity, for revenue passengers transported for student instruction, non-stop sightseeing flights that begin and end at Eugene Airport, Mahlon Sweet Field and are conducted within a 25-mile radius of the same airport, firefighting charters, ferry or training flights, air ambulance/medivac flights, and aerial photography or survey flights.
Wetlands relocation.
Oil separators 1, 2, and 3 rehabilitation.
Concession area public space buildout.
Airport maintenance complex addition.
Landside formulation.
High temperature water piping: elimination of ball joints.
Concourse B upgrade.
Concourse L upgrade.
Concourse K upgrade.
Concourse H upgrade.
New police facility.
Perimeter intrusion detection system—phase II.
360 degree Silicon Graphics Incorporated based tower simulator.
Zemke road extension.
Brief Description of Project Approved in Part for Collection at SLC and Use at SLC at a $3.00 PFC Level:
Brief Description of Project Approved for Collection at SLC and Use at Tooele Valley Airport at a $3.00 PFC Level:
Federal Aviation Administration (FAA), DOT.
Notice of Intent to Rule on Application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Houghton County Memorial Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before July 13, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Federal Aviation Administration, Detroit Airports District Office, Willow Run Airport, East, 8820 Beck Road, Belleville, Michigan 48111.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Sandra D. La Mothe, Airport Manager, Houghton County Memorial Airport at the following address: Houghton County Memorial Airport, 23810 Airpark Boulevard, Suite 113, Calumet, Michigan 49913. Air carriers and foreign air carriers may submit copies of written comments previously provided to the Houghton County Memorial Airport under section 158.23 of part 158.
Arlene Draper, Program Manager, Federal Aviation Administration, Detroit Airports District Office, Willow Run Airport, East, 8820 Beck Road, Belleville, Michigan 48111 (734-487-7282). The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Houghton County Memorial Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158).
On May 7, 2001, the FAA determined that the application to impose and use the revenue from a PFC submitted by Houghton County Memorial Airport was substantially complete within the requirements of § 158.25 of part 158. The FAA will approve or disapprove the application, in whole or in part, no later than August 14, 2001.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice, and other documents germane to the application in person at the Houghton County Memorial Airport.
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Juneau International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before July 13, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: David S. Stelling, Acting Manager, Alaskan Region Airports Division, 222 West 7th, Box 14, Anchorage, AK 99513.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Allan A. Heese, Airport Manager, of the Juneau International Airport at the following address:
Juneau International Airport, 1873 Shell Simmons Drive, Juneau, AK 99801.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the Juneau International Airport under section 158.23 of Part 158.
Debbie Roth, Program Specialist, Alaskan Region Airports Division, Planning and Programming Branch, AAL-611A, 222 W 7th, Box 14, Anchorage, AK 99513, (907) 271-5443. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application (#01-05-C-00-JNU) to impose and use the revenue from a PFC at Juneau International Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
On May 25, 2001, the FAA determined that the application to impose and use the revenue from a PFC submitted by City and Borough of Juneau, Juneau International Airport, Juneau, Alaska, was substantially complete within the requirements of section 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than August 25, 2001.
The following is a brief overview of the application.
Class or classes of air carriers which the public agency has requested not be required to collect PFCs: None.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Juneau International Airport.
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Tri-State Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before July 13, 2001.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Beckley Airport Field Office, 176 Airport Circle, Rm. 101, Beaver, West Virginia, 25813-9350.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Larry Salyers, Airport Manager, Tri-State Airport Authority at the following address: 1449 Airport Road, Unit 1, Box 12, Hunting, WV 25704-9043.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the Tri-State Airport Authority under § 158.23 of part 158.
Larry Clark, Manager, Airport Field Office, 176 Airport Circle, Rm. 101, Beaver, WV 25813-9350, at (304) 252-6216. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Tri-State Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158).
On May 29, 2001, the FAA determined that the application to impose and use the revenue from a PFC submitted by Tri-State Airport Authority was substantially complete within the requirements of § 158.25 of part 158. The FAA will approve or disapproved the application, in whole or in part, no latter than September 4, 2001.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Tri-State Airport Authority Office.
Federal Highway Administration (FHWA), DOT.
Cancellation of notice of intent [FR document 97-13308; Filed 5-20-97].
The FHWA is issuing this notice to rescind the previous Notice of Intent issued on May 9, 1997 [appeared in the
Dan Mathis, Federal Highway Administration, Evergreen Plaza Building, Suite 501, 711 South Capitol Way, Olympia, Washington, 98501-1284, Telephone: (360) 753-9413; John Okamoto, WSDOT Northwest Region Administrator, 15700 Dayton Avenue North, P.O. Box 330310, Seattle, Washington, 98133-9710, Telephone: (206) 440-4691 or Len Pavelka, City of Bellevue Senior Transportation Planner, PO Box 90012, Bellevue, Washington 98009-9012, Telephone: (425) 452-2035.
The FHWA, with the co-lead agencies of the Washington State Department of Transportation (WSDOT) and the city of Bellevue, issued a Notice of Intent on May 9, 1997 to prepared an EIS on a proposal to provide additional eastbound and westbound access to SR 520 between Interstate 405 and 148th Avenue NE in Bellevue, Washington.
Following the alternative screening process, the Bellevue City Council acted on October 23, 2000, upon a recommendation by the project Interdisciplinary team and confirmed the selection of the “No Action” alternative as the preferred alternative for this project. Further work on the EIS was terminated.
The decision was based on three primary factors: (1) Controversial input from the adjacent community, (2) a review of the technical analysis summarized in the Transportation Technical Report which revealed a very low benefit to cost relationship, and (3) the analysis showed that the interchange alternatives at 124th Avenue NE and 130th Avenue NE would have a negligible affect on reducing congestion to meet the project purpose.
Estimated costs for the build alternatives ranged from $35 million to $80 million. These latest cost estimates were substantially higher than previous estimates and exceeded available funds to construct any type of added access improvement to/from SR 520.
In further response to the Council action, the City removed the project from its short-range (6 year) Capital Investment Program. The City is also removing the project from its mid-range (12 year) transportations programming document, the Transportation Facilities Plan.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Research, Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation of federal programs and activities apply to this program.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement will be prepared for the proposed highway project, the Long Island Travel and Information Center between Exits 51 and 52 adjacent to the eastbound roadway of the Long Island Expressway (I-495) in Suffolk County, New York.
Craig Siracusa, Regional Director, New York State Department of Transportation, Region 10, State Office Building, 250 Veterans Memorial Highway, Hauppauge, NY 11788, Telephone: 631-952-6632
The FHWA, in cooperation with the New York State Department of Transportation (NYSDOT) will prepare an Environmental Impact Statement (EIS) on a proposal to develop the Long Island Travel and Information Center (LITIC) in Suffolk County, New York. The LITIC is proposed for development between Exits 51 and 52 of the eastbound Long Island Expressway (LIE-I-495). The proposed facility would be constructed on an 11.8-acre parcel along the south side of the LIE, within State Row-of-Way, on which an existing parking area and recharge basin are presently located. The facility is needed to improve driver performance and safety, and to provide information to drivers about roadway conditions, overnight accommodations, and recreational attractions on Long Island. The facility, accessible only from the eastbound LIE, would have a traveler information center, rest rooms, parking for cars, trucks, buses and recreational vehicles, and related facilities. The existing 2-lane Carll's Straight Path bridge over the LIE at the western end of the project site would be replaced by a new 3-lane bridge. The proposed project site is in the Town of Huntington.
Alternatives under consideration include: (1) Taking no action; (2) replacing the existing seasonal parking area with a year-round travel and information center, and replacing the existing Carll's Straight Path bridge; and (3) replacing the existing seasonal parking area with a year-round travel and information center, and retaining the existing Carll's Straight Path bridge.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies, and to private organizations and citizens who have previously expressed interest in this proposal. The draft EIS will be available for public and agency review and comment. A formal NEPA scoping meeting will be held at the State Office Building Cafeteria at 250 Veterans Memorial Highway, in Hauppauge, New York. The scoping meeting will be held on June 25, 2001 from 4:30 P.M. to 8:00 P.M.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments and questions concerning this proposed action and the EIS should be directed to the NYSDOT or FHWA at the addresses provided above.
23 U.S.C. 315; 23 CFR 771.123.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for public comment on proposed collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
This document describes one collection of information for which NHTSA intends to seek OMB approval.
Comments must be received on or before August 13, 2001.
Comments must refer to the docket notice numbers cited at the beginning of this notice and be submitted to Docket Management, Room PL-401, 400 Seventh Street, S.W., Washington, DC 20590. Please identify the proposed collection of information for which a comment is provided, by referencing its OMB clearance Number. It is requested, but not required, that 2 copies of the comment be provided. The Docket Section is open on weekdays from 10 a.m. to 5 p.m.
Complete copies of each request for collection of information may be obtained at no charge from Walter Culbreath, NHTSA 400 Seventh Street, S.W., Room 5238, NSC-01,Washington, D.C. 20590. Mr. Culbreath's telephone number is (202) 366-1566. Please identify the relevant collection of information by referring to its OMB Control Number.
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) How to enhance the quality, utility, and clarity of the information to be collected;
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses.
In compliance with these requirements, NHTSA asks for public comments on the following proposed collections of information:
(1)
National Highway Traffic Safety Administration, DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collections and their expected burden. The
Comments must be submitted on or before July 13, 2001.
Steven Cohen at the National Highway Traffic Safety Administration, Office of Chief Counsel (NCC-30), 202-366-5263. 400 Seventh Street, SW, Room 5219, Washington, DC 20590.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW, Washington, DC 20503, Attention NHTSA Desk Officer.
The Kansas City Southern Railway Company (KCS) has agreed to grant limited overhead trackage rights to The Burlington Northern and Santa Fe Railway Company (BNSF) over KCS's rail line (1) between KCS milepost 220.28 in Tennison, TX, and KCS milepost 201.89 in Wylie, TX, and (2) between KCS Engineering Station HB 43+59′ in Wylie and KCS Engineering Station 1097+80′ in Wylie, a total distance of approximately 21.14 miles.
The transaction is scheduled to be consummated on or after June 5, 2001, the effective date of the exemption.
The purpose of the trackage rights is to allow BNSF to move Norfolk Southern Railway Company haulage trains over the subject trackage to and from KCS's Wylie Yard.
Any employees affected by the subject transaction will be protected by the labor conditions prescribed in
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34049 must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Michael E. Roper, The Burlington Northern and Santa Fe Railway Company, P.O. Box 961039, Fort Worth, TX 76161-0039.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Rule document 01-9382 was inadvertently published in the Proposed Rules section in the issue of Monday, April 16, 2001, appearing on page 19403. It should have appeared in the Rules and Regulations section.
In rule document 01-14681 appearing on page 31177, in the issue of Monday, June 11, 2001, make the following correction:
On page 31177, in the first column, under the heading
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing rule revisions that would modify the existing requirements for sources affected by the Federal NO
Comments. All public comments must be received on or before July 30, 2001.
Gabrielle Stevens, Clean Air Markets Division (6204N), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone number (202) 564-2681 or the Acid Rain Hotline at (202) 564-9620. Electronic copies of this document and technical support documents can be accessed through the EPA Web site at: http://www.epa.gov/airmarkets.
In accordance with titles I and IV of the Clean Air Act (CAA or the Act), EPA is proposing rule revisions to support previous actions the Agency has taken to mitigate interstate transport of nitrogen oxides as well as to reduce the acidic deposition precursor emissions of sulfur dioxide and nitrogen oxides (NO
The provisions of 40 CFR parts 72, 75, 78, and 97 will be revised to modify the existing requirements for sources affected by the Acid Rain Program, the Federal NO
A redline/strikeout version of 40 CFR parts 72 and 75 as amended by this proposed rule is available in the Docket and on the EPA Web site referenced above. The contents of the preamble are listed in the following outline:
Entities regulated by this action are fossil fuel-fired boilers, turbines, and combined cycle units that serve generators which produce electricity, generate steam, or cogenerate electricity and steam. While part 75 primarily regulates the electric utility industry, certain State and Federal NO
This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities which EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability provisions in §§ 72.6, 72.7, and 72.8 of title 40 of the Code of Federal Regulations and in 40 CFR parts 96 and 97. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Today's proposed action modifies existing monitoring and reporting requirements in 40 CFR parts 72 and 75 that support emission control programs that use the monitoring and reporting provisions of part 75 such as the Acid Rain Program and State NO
EPA policy guidance and the instructions EPA has developed for monitoring and electronic reporting under part 75 rely on many terms that are used in part 75 but that are not defined in § 72.2 (the definitions section for all Acid Rain Program regulations). Also, some of the existing definitions in § 72.2 are incorrect or incomplete. To address these concerns, the proposed revisions would add or modify several definitions.
In addition, appendix D, sections 2.3.1.4 and 2.3.2.4 would be revised to require initial and periodic sampling to document the total sulfur content of the fuel. The revised rule would require periodic sampling on a semiannual basis, as well as whenever it is reasonable to believe that the composition of the fuel supply has changed. For fuels that qualify as pipeline natural gas, the 0.0006 lb/mmBtu default SO
Finally, the definitions of “continuous emission monitoring system or CEMS,” “emergency fuel,” “heat input,” “hour before and after,” “maximum potential NO
Today's proposed rule also includes provisions in §§ 75.19(b)(2), 75.12(d)(2), 75.71(d), and appendix E, section 1.1 that would specify the emission reporting requirements when LME status or peaking unit status is lost and the monitor certification deadline is not met. For loss of peaking unit status, the maximum potential NO
The part 75 missing data procedures do not take into consideration the type of fuel combusted. Rather, a single database of quality-assured monitor operating hours is maintained for each monitored parameter (SO
For units with add-on SO
Option (1) requires parametric data to be recorded during missing data periods to document proper operation of the add-on emission controls, in order to justify using the standard missing data procedures. The parameters selected and the acceptable ranges for the parameters must be documented in the QA plan for the unit. The designated representative must submit a certification statement in the electronic quarterly report, affirming that the emission controls operated within the acceptable parametric ranges during each missing data period and that use of the standard missing data procedures is appropriate. This approach to missing data substitution is problematic because currently there are no clear guidelines, either in the rule or in EPA policy guidance, for selecting the appropriate parameters or the acceptable parametric ranges. Therefore, it is difficult to establish whether the emission controls are actually working properly during a missing data period, even if parametric data have been recorded and are available for auditing purposes. Further, when the standard missing data procedures are used, the substitute data values derived from historical lookbacks may not be representative of the actual emissions during the missing data period, because the historical databases used for the lookbacks include all quality-assured CEMS data, for both controlled and uncontrolled operation.
Option (2), above, is difficult to implement administratively, because it requires a petition every time the owner or operator wants to use a missing data value based solely on data recorded during hours when the emission controls were working, instead of using the standard missing data routines. Use of this missing data option could therefore require a petition to be submitted to and answered by EPA every quarter.
To date, no units in the Acid Rain Program have petitioned to use Option (3), above.
Today's proposed rule would add fuel-specific missing data provisions to § 75.33, in five new paragraphs, (b)(5), (b)(6), (c)(7), (c)(8), and (c)(9). These provisions would allow the owner or operator to create and maintain separate databases for each type of fuel combusted in the unit, for missing data purposes. Substitute data values would be derived from the appropriate database, depending on the type of fuel being burned during the missing data period. To use these new provisions, the owner or operator would be required to determine fuel-specific maximum potential values for concentration, emission rate, or flow rate (as applicable).
The owner or operator would be allowed to switch to the new fuel-specific missing data procedures at any time. Until the requisite number of hours of quality-assured fuel-specific data were recorded for the lookback periods (either 720 or 2,160 hours), the owner or operator would use all available data in the databases for the lookbacks.
For units with add-on controls, the proposed rule would retain the missing data option in § 75.34(a)(3), allowing the owner or operator to petition to use a site-specific parametric missing data substitution procedure. The owner or operator could also continue using the missing data option in § 75.34(a)(1), which allows the standard missing data procedures to be used for hours in which proper operation of the emission controls is documented by means of parametric data, and requires maximum potential values to be reported for all other missing data hours. Note, however, that the proposed rule would expand and clarify the way in which parametric data are used to document proper operation of the add-on emission controls, as explained below in the discussion of the changes to § 75.34(a)(2).
Today's proposed rule would significantly revise § 75.34(a)(2), to allow the owner or operator of a unit with add-on SO
If the proposed missing data option in § 75.34(a)(2) were selected, then, whenever a historical lookback was required, the substitute data value for each hour of the missing data period would be taken from the appropriate database (controlled or uncontrolled), depending on whether the emission controls are documented (by means of parametric data) to be operating properly during the hour. For the SO
The owner or operator of a unit with add-on emission controls would be allowed to switch to the missing data
Section 75.34(d) of the proposed rule would expand and clarify the way in which parametric data are used to document proper operation of add-on emission controls during periods of missing SO
EPA therefore proposes to revise § 75.34(d), as follows. The owner or operator of a unit with add-on controls would, for missing data purposes, still be required (as in the current rule) to document in the QA/QC program for the unit the parameter(s) monitored and the acceptable parametric ranges and combinations of parameters which indicate proper operation of the emission controls. However, for units that use a control method involving injection of water, steam, or chemical reagents into the combustion chamber or flue gas stream (e.g., limestone injection, limestone scrubbing, water injection, steam injection, SCR, or SNCR) today's proposed rule would require at least one key parameter to be monitored during missing data periods, to document proper emission control operation. A key parameter would be one that has a direct relationship to control device removal efficiency, such as the water-to-fuel ratio, the ammonia injection rate, or the slurry flow rate.
Further, proposed § 75.34(d) would require the owner or operator to establish a demonstrable correlation between the parametric data and control device removal efficiency, as part of the QA/QC program for the unit. The correlation would be based on parametric data recorded during unit operation, when the add-on controls are in-service and the SO
EPA believes that the new proposed missing data option in § 75.34(a)(2), which conditionally allows the use of substitute data values taken from a controlled database, would be sufficiently protective of the environment, for two reasons. First, if the add-on controls were not working properly when flagged as being on, emissions would be higher than normal. These high emission values would be recorded by the CEMS and would become part of the controlled database. This would result in conservatively high substitute data values being obtained from the historical lookbacks and applied to controlled missing data hours. Second, the proposed revisions to § 75.34(d), requiring the owner or operator to monitor key parameters for certain types of controls and to develop an actual correlation between the parametric data and the removal efficiency of the control device, would provide reasonable assurance that the emission controls are operating properly during missing data periods.
Today's proposed rule would also revise § 75.74(c)(7), the section which provides the missing data procedures for subpart H sources that report emission data only during the ozone season, rather than on a year-round basis. EPA proposes to make three substantive revisions to that section.
First, § 75.74(c)(7)(ii) would be revised to require reporting of the MER only when sufficient, prior quality-assured NO
Second, EPA proposes to remove from § 75.74(c)(7)(ii) the requirement to report the MER when the NO
Third, today's proposed rule would add a new paragraph (iii), with subparagraphs (A) through (M), to § 75.74(c)(7), explaining how to apply the initial and standard part 75 missing data procedures in §§ 75.31 through 75.37 on an ozone season-only basis. EPA is adding these provisions to subpart H because the part 75 missing data routines are designed for sources that report emission data on a year-round basis. For example, for all of the part 75 standard missing data routines that use 720 or 2,160 hour historical lookbacks to determine the appropriate substitute data values, the databases for the lookbacks consist of quality-assured CEMS data that have been recorded throughout the year. Also, the percent monitor data availability (PMA) calculations described in § 75.32 are always based on a particular number of unit operating hours, either the number of unit operating hours since initial certification, or the number of unit operating hours in the past three years, or the previous 8,760 unit operating hours. The number of unit operating hours used in the PMA calculations includes operating hours from all four calendar quarters of the year.
Section 75.74, paragraph (c)(7)(i) clearly states that for subpart H sources that report data on an ozone season-only basis, only data from within the ozone season are to be included in the missing data routines. Thus, as written, the missing data procedures in subpart D of part 75, which use data from all twelve months of the year, are incompatible with the requirements of § 75.74(c)(7)(i). Despite this, EPA believes that there is a relatively simple way to resolve this inconsistency in the rule, as discussed in the following paragraphs.
Section 75.74, paragraph (c)(7)(iii) in today's proposed rule would modify the initial and standard part 75 missing data procedures in §§ 75.31 through 75.37 to adapt them to sources that report emission data only during the ozone season. This adaptation is possible because there is a commonality between year-round reporting and ozone season-only reporting—in both cases there is a discrete time period used for compliance determination. For year-round reporters, that time period is the calendar year, and for ozone season-only reporters, the compliance time period is the ozone season. This commonality allows the missing data instructions for ozone season-only reporters to be written in a parallel manner to the missing data procedures for year-round reporters.
Paragraphs (A) through (M) in proposed § 75.74(c)(7)(iii) provide the necessary parallel rule language to adapt the missing data provisions in §§ 75.31 through 75.37 to ozone season-only reporters. The following is a summary of the essential elements of these proposed rule provisions:
• Use of the initial missing data procedures in § 75.31 would commence with the first operating hour in the first ozone season for which emission reporting is required.
• For initial missing data purposes and for the historical data lookbacks required under § 75.33, phrases such as “720 quality-assured monitor operating hours” would be replaced with phrases such as “720 quality-assured monitor operating hours within the ozone season.”
• For PMA calculations, phrases such as “total unit operating hours” would be replaced with “total unit operating hours within the ozone season.” Also, “8,760 unit operating hours” (the number of hours in a calendar year) would be replaced with “3,672 unit operating hours” (the number of hours in an ozone season).
• For both PMA calculations and historical lookbacks, the phrase “three years (26,280 clock hours)” would be replaced with “three ozone seasons.”
As stated in Section II of this preamble, one of the main objectives of today's proposed rule is to modify the existing monitoring and reporting sections of parts 72 and 75 which support emission control programs that use the monitoring and reporting provisions of part 75, such as State NO
At the request of the New York State Department of Environmental Conservation, EPA examined the part 75 monitoring provisions to assess whether these provisions are adequate for determining NO
• Determination of the maximum potential concentration (MPC) for NO
• The missing data routines for NO
• RATA load level requirements.
The missing data procedures in part 75 for NO
The missing data procedures for non-load-based units in today's proposed rule are the result of discussions between EPA and representatives of the cement industry. The Agency had received a letter on August 20, 1999, from the American Portland Cement Alliance (APCA) (
The proposed non-load-based missing data routines are modeled after, and are much the same as, the existing routines for load-based units. However, there are two important differences:
• The owner or operator of a non-load-based unit would have the choice of either not using bins at all or using “operational bins” to segregate the quality-assured NO
• For a non-load-based unit, the arithmetic average of the previous 2,160 quality-assured hours of NO
The reason for allowing the use of operational bins is to give affected facilities the flexibility to customize their missing data routines, based on plant operational parameters and conditions that affect NO
In response to a recommendation by the cement industry, EPA proposes to use the average of the previous 2,160 quality-assured hours of NO
In addition, EPA proposes to remove the references to January 1, 1997, in §§ 75.19(a)(2)(ii), 75.19(b)(4), and 75.20(h)(3), as this date has no regulatory or statutory significance. Instead, the use of these provisions would depend upon whether a unit is a new or newly affected unit and to what extent the LME applicability demonstration relies on the use of projected data, instead of actual, historical data. The proposal would also clarify the period of provisional certification for LME units in § 75.20(h)(3), the date on which a qualifying unit begins using the methodology in § 75.19(a)(1)(ii), and the certification application submittal process in § 75.63(a)(1).
EPA anticipates that the majority of the simple peaking turbine units described above will be required to begin monitoring and reporting data according to the LME provisions under § 75.19 in the future as part of a larger NO
EPA investigated the claims of the industry representatives. EPA reviewed data from CEMS installed at turbines with water and steam injection and water/fuel emulsion. Based on results of the investigation, EPA believes that if the water-to-fuel ratio is monitored, then effective and constant control of NO
EPA considers option 2 to be preferable. It allows single load testing to be performed as of the first test and can save time and effort, consistent with the intent of the LME provisions to be cost effective and simple to use. EPA solicits comment on these methods or other methods suitable for allowing single load testing to be used for determining fuel- and unit-specific NO
For four load testing of an individual LME unit, the appropriate NO
With the increased emphasis in recent years on reducing NO
To address the second issue described above, the proposed rule would require units that operate their emission controls seasonally to meet the 20 to 80 percent guideline on the high measurement range. The Agency believes it is appropriate for units using their emission controls seasonally (such as a unit that uses SCR during the summer only) to meet the 20 to 80 percent guideline on the high range because emissions data will be recorded on that range for extended periods of time during the year. This is unlike the case in which controls are used year-round, where the source is likely to operate without the controls only on occasion and relatively few readings are recorded on the high scale.
The 50 ppm default MPC value for new turbines in Table 2-2 would be removed and replaced with two new values: (a) 150 ppm for units that are permitted to fire only natural gas; and (b) 200 ppm for units permitted to fire both gas and oil. These values are much more representative of actual NO
Finally, default MPC values would be added to the rule for two categories of non-load-based units: cement kilns and process heaters. As discussed in more detail under section III.C of this preamble, certain States are likely to require these two source categories to report NO
With respect to the daily calibrations of SO
The proposal would change the method of data validation following a flow-to-load ratio test failure. Section 2.2.5(c)(8) of appendix B would allow the flow rate data to be declared conditionally valid, rather than invalid, when a flow-to-load test is failed, pending the results of a follow-up investigation and/or a RATA. This would allow data validation in case a false positive is obtained with the flow-to-load test. If the investigation fails to reveal a problem and a confirming RATA is passed hands-off, no data loss would be incurred. The timeline for investigating a flow-to-load test failure would also be changed from “within 2
The proposal would clarify the instructions for multiple stack configurations and allow you to do the data analysis in one of two ways: (1) Using combined flow and average unit load; or (2) using the flow in each stack and the corresponding unit load.
Finally, section 7.8 in appendix A of part 75 would be revised to exempt non-load-based units (i.e., units that do not produce electrical output or steam load) from the flow-to-load ratio test.
Units subject to the monitoring and reporting requirements of part 75 must account for their emissions on a continuous basis. Most units use continuous emission monitoring systems (CEMS) for this purpose. Part 75 requires periodic RATAs of all CEMS to demonstrate that the data recorded by the monitoring systems accurately represent the SO
Section 6.5.1 of appendix A to part 75 requires that RATAs of gas monitors be done at the “normal” load level. Section 6.5.2 of appendix A and section 2.3.1.3 of appendix B specify the load levels for flow RATAs. In general, flow monitor RATAs are performed at multiple load levels (either two or three), with a few exceptions (e.g., for flow monitors installed on peaking units, only single-load RATAs are required). For multiple-load flow RATAs, at least one of the tested load levels must be the “normal” load level.
The method of establishing the normal load level is found in section 6.5.2.1 of appendix A. First, the owner or operator must determine the “range of operation” for the unit or stack. The range of operation extends from the minimum safe, stable load to the maximum sustainable load. Next, the range of operation is divided into three load levels. The first 30 percent of the range of operation is considered to be the “low” load level, the next 30 percent of the range is the “mid” load level, and the remaining 40 percent of the range is the “high” load level. The “normal” load level is determined by performing an analysis of at least four quarters of representative historical load data. From these data a distribution graph, such as a histogram, is constructed showing the percentage of the time that each load level has been used historically. The most frequently-used load level (low, mid, or high) is automatically designated as the normal load level. The owner or operator may opt to designate the next most frequently used load level as a second normal load. Thus, the appropriate load levels for the required RATAs of the gas and flow monitors are established.
The proposed RATA approach for units that do not produce electrical or steam load would be based on an “operating level” concept, rather than a “load level” concept. The method of determining the normal operating level for a non-load-based unit would be much the same as the previously-described method for determining the normal load level for a load-based unit. The owner or operator would determine the range of operation, divide it into three operating levels, and perform a data analysis to establish the “normal” (i.e., most frequently-used) operating level. The only significant difference between the load-based and non-load-based methodologies is that instead of defining the range of operation in units of electrical or steam load (i.e., in megawatts or klb/hr of steam), the range of operation of the non-load-based unit would be defined in units of stack gas velocity, in ft/sec. The range of operation would extend from the minimum expected velocity to the maximum potential velocity. These minimum and maximum gas velocities could either be determined from reference method test data or by using Equation A-3a or A-3b (as applicable) in section 2.1.4.1 of appendix A to part 75.
EPA is aware that for new or newly-affected units, four quarters of historical load data (for load-based units) or flow rate data (for non-load-based units) may not be initially available to establish the two most frequently-used operating loads (or levels) and the normal operating load (or level). Also, for a non-load-based unit which is not required to install a flow monitor, the necessary flow rate data for the determinations will neither be available initially nor at some point in the future. Therefore, a revision to section 6.5.2.1 (c) of appendix A is proposed, which would allow the initial determinations to be made as follows: (1) For load-based units or for non-load-based units with installed flow monitors, the determinations could be based on less than four quarters of data, or, if no representative historical data are available, projections of how the unit will be operated could be used. Note, however, that as soon as four representative quarters of load or flow rate data are obtained, the determination of the two most frequently-used operating loads (or levels) and the normal operating load(s) (or level(s)) would have to be repeated; or (2) for non-load-based units without installed flow monitors, sound engineering judgment (based on a combination of knowledge of the unit, operating experience, and actual stack gas velocity measurements using EPA Method 2) would be used to make the operating level determinations.
Once the boundaries of the range of operation are established and the normal operating level(s) has been identified, the owner or operator of a non-load-based unit would perform the required gas and flow RATAs in essentially the same manner as for a load-based unit. The only difference is that in many sections of part 75 the term “operating level” would replace the term “load” or “load level.” Today's proposed rule would modify the text in several sections of part 75 (e.g., by adding a parenthetical expression such as “(or normal operating level)” after the term “normal load”), to indicate that the provisions apply to both load-based and non-load-based units. The affected rule sections are: § 75.20(c)(2), sections 6.5.1, 6.5.2, 6.5.6.1(a), and 6.5.6.2(a) of appendix A, and sections 2.3.1.3, 2.3.2(d), 2.3.2(f), 2.4(b), and Figure 1 of appendix B.
EPA notes that the removal of expired provisions will not change the fact that those provisions were in effect up to their respective expiration dates. EPA intends to take appropriate enforcement action against violations of those provisions that occurred before the time of expiration.
The May 26, 1999 revisions to part 75 became effective on June 25, 1999. However, the regulatory language in certain sections of the rule specified that compliance with those sections would not be required until a later date, April 1, 2000. The reason for the later effective date of certain provisions was to allow adequate time for development of the necessary reporting software associated with the rule changes. For instance, on May 26, 1999, revised recordkeeping and reporting sections were added to the rule as new §§ 75.57, 75.58, and 75.59, to replace the previous recordkeeping and reporting §§ 75.54, 75.55, and 75.56, as of April 1, 2000. However, due to the April 1, 2000 effective date of the new sections, the old sections could not be deleted from part 75, because this would have left a regulatory gap extending from June 25, 1999 (the effective date of the May 26, 1999 revisions) until April 1, 2000, during which there would have been no part 75 recordkeeping and reporting requirements in effect. So, the old sections were left in the rule and language was added to them to indicate that they were in effect only until April 1, 2000, and could no longer be used on and after that date.
Other rule sections with April 1, 2000 expiration dates and effective dates include the monitoring plan provisions (§ 75.53, paragraphs (e) and (f) replaced § 75.53, paragraphs (c) and (d) on April 1, 2000) and the CO
Rule sections that only applied to Phase I units and are now inapplicable and textual references to those sections would also be removed by today's proposal. For example, the 15 percent relative accuracy specification for flow monitors expired at the end of Phase I (on December 31, 1999) and was replaced on January 1, 2000, by the current 10 percent standard. Today's proposed rule would revise appendix A, section 3.3.4; appendix B, sections 2.3.1.2(b) and (c), and Figure 2 of appendix B, to reflect this.
EPA has prepared a technical support document (
The proposed rule would revise section 2.1.4.1 of appendix D to exempt oil-fired units that use a different grade of oil only for unit startup from using a certified fuel flowmeter. This exemption parallels the existing exemption for oil-fired units that use gas fuel only for unit startup.
The proposed rule would also revise section 2.1.4.3 of appendix D to clarify the reporting requirements when emergency fuel is burned. The owner or operator would have the option during emergency fuel combustion to either: (1) Use and report maximum potential values for heat input rate, fuel sulfur content, GCV, and density; or (2) to use measured values if a certified fuel flowmeter is installed for the emergency fuel and/or if fuel sampling and analysis of the fuel is performed.
For temperature transmitter calibrations, EPA would revise section 2.1.6.1(a) of appendix D to allow fixed reference points (such as the freezing point or boiling point of water) to be used for the zero and upscale calibrations.
For a subpart H unit for which you report data only during the ozone season and for which you use an orifice, nozzle, or venturi-type appendix D fuel flowmeter to determine heat input rate, the proposal would clarify that the owner or operator still would have to use all calendar quarters in the year to determine the deadline for the next visual inspection of the primary element (see § 75.74(c)(4)). This clarification is appropriate because the 12 calendar quarter time interval for conducting these visual inspections is not dependent on the reporting schedule.
For the optional fuel flow-to-load ratio test in section 2.1.7, minor errors in the instructions for common pipe and multiple pipe configurations would be corrected. Also, for the optional fuel flow-to-load ratio test, the proposal would allow data exclusions to be taken before analyzing the data. The current rule appears to require an initial data analysis with no exclusions, and allows the data exclusions to be claimed only when the first analysis results in a failed test. This was not the original intent when EPA adopted this provision.
For units using the fuel flow-to-load ratio test to extend the fuel flowmeter accuracy test deadline, the proposal would clarify the various reasons for which owners or operators could claim a one-quarter extension of the fuel flowmeter accuracy test deadline.
Today's proposal would clarify in Tables D-4, D-5, and elsewhere in the text that owners and operators could not continue to use an assumed sulfur content or GCV value, such as a contract specification or the maximum value from the previous year, if a sampled value exceeded the assumed value. In these circumstances the sampled value would become the new assumed value.
Guidelines would be added to section 2.3.2.1.2, explaining how to apply the results of periodic sulfur and GCV samples. Owners and operators would have to begin using the new values as of the date when the sample results were received (not retroactively to the date the sample was taken).
A clarification would be added that the demonstrations of sulfur content and GCV variability described in sections 2.3.5 and 2.3.6 are options, not requirements, for units that combust other gaseous fuels (fuels that do not qualify as either pipeline natural gas or natural gas) and choose not to perform daily GCV sampling and hourly fuel sulfur content sampling, respectively. Also, these sections would be revised to make clear that, as stated in sections 2.3.1.4 and 2.3.2.4, the 720-hour demonstration methodology may be used to demonstrate that a particular fuel meets the appropriate GCV and/or sulfur content requirements to qualify as pipeline natural gas or natural gas.
The missing data requirements for the sulfur content of gaseous fuels in Table D-6 would be changed. All of the missing data values would be based on the total sulfur content of the gas. For pipeline natural gas, a missing data value of 0.002 lb/mmBtu is proposed. For natural gas, the missing data value would be an emission rate (in lb/mmBtu) calculated from Equation D-1h, using the lesser of: (a) The maximum total sulfur content specified in the fuel contract; or (b) 1.5 times the highest total sulfur value from the previous year's samples. For gaseous fuels sampled daily, the substitute data value would be 1.5 times the highest total sulfur content obtained in the previous 30 daily samples. For gaseous fuels sampled hourly, the missing data value would be the highest total sulfur content from the previous 720 hourly samples. The reason for selecting the 0.002 lb/mmBtu value for pipeline natural gas (which exceeds the lb/mmBtu equivalent of the 0.5 gr/100 scf total
Equations D-10 and D-11 would be removed from section 3.4.3(b). These equations are not needed because they are redundant with equations F-21a and F-21b in appendix F. A new equation, D-15a, which gives the unit heat input rate when multiple fuels are burned during the hour, would be added to section 3.5.4.
Sections 2.3.1.4(b) and 2.3.2.4(b) of appendix D would be revised to require initial and periodic sampling of pipeline natural gas and natural gas for documenting the total sulfur content of fuel. The proposed sampling frequency is semiannual and whenever “it is reasonable to believe that the fuel composition has changed significantly.” EPA solicits comment on the acceptability of this rather subjective “reasonability” criterion for determining when an additional sample is required. For compliance purposes, more precise language such as, “Take an additional sample whenever there is any change to the contract or fuel supply to the unit, such that the latest sample is no longer representative of the fuel currently being combusted,” may be more appropriate.
For fuels that qualify as pipeline natural gas, the 0.0006 lb/mmBtu default SO
Two new sections, 2.3.1.4(c) and 2.3.2.4(c), would be added to appendix D, to state that if the results of periodic sampling show exceedances of the applicable total sulfur limits, the fuel would have to be reclassified.
Finally, as previously noted under section III.C.3 of this preamble, fuel flow rate missing data provisions for non-load-based units (such as cement kilns and process heaters) would be added to section 2.4 of appendix D. Guidelines for creating and using optional “operational bins” for determining appropriate fuel flow rate missing data values for non-load-based units would be added to appendix C of part 75, as new section 4.
Today's proposed rule would revise the language in § 75.16(c)(3) which
For case (1) described above, two reporting options would be allowed. Whenever the heat input rate for a given unit operating hour exceeds the highest heat input rate from the baseline correlation tests, the owner or operator could either: (a) Report the hourly NO
Today's proposal would also revise section 6.5.7 of appendix A to allow, for purposes of determining stack gas molecular weight during part 75 flow RATAs, moisture measurements to be made before and after a series of RATA runs at a particular load level (low, mid, or high), in lieu of measuring moisture every three runs or once every clock hour, as required by the current rule. The results of the before and after moisture measurements would be averaged arithmetically, and the average value would be applied to all RATA runs in the series. Note, however, that this moisture measurement option could only be used if the before and after runs were performed no more than three hours apart. Section 6.5.7 would be further revised by clarifying that sufficient measurement time must be allowed at each traverse point of a flow RATA to ensure that stable temperature readings are obtained, particularly for the first point at which data are taken after a probe is moved from one port to the next.
Finally, today's proposed rule would revise § 75.22 and section 6.5.10 of appendix A, to allow the use of EPA Method 20, as an alternative to Method 7E, for relative accuracy test audits (RATAs) of NO
Many utilities are constructing new gas turbines. Almost invariably, NO
EPA believes that for a Method 7E RATA of a NO
The technical changes and corrections fall into several categories. In the first category are efforts to rewrite rule provisions to increase clarity and to accord with other provisions of part 75. In the second category are corrections and clarifications of equations, including the definitions of certain variables. The final category of technical changes consists of corrections of printing, typographical, and grammatical errors. Included in this category are repetitive words and phrases, misspelled words, and misplaced punctuation.
As a further example of changes to part 97, the definition of “ NO
Finally, EPA is proposing a number of other minor changes to part 78 to make existing administrative appeal procedures applicable to decisions of the Administrator under part 97. The changes to part 78 are addressed in a technical support document (Technical Support Document, Docket A-2000-33, Item II-A-2).
If requested as specified in the
A verbatim transcript of the public hearing, if held, and all written statements will be available for public inspection and copying during normal working hours at EPA's Air Docket in Washington, DC (see the
The Docket for this regulatory action is A-2000-33. The docket is an organized and complete file of all the information submitted to or otherwise considered by EPA in the development of this proposed rulemaking. The principal purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the rulemaking process, and (2) to serve as the record in case of judicial review. The docket is available for public inspection at EPA's Air Docket, which is listed under the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Administrator must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This proposed rule is not expected to have an annual effect on the economy of $100 million or more. However, pursuant to the terms of Executive Order 12866, it has been determined that this proposed rule is a significant action because it raises novel policy issues. As such, the proposed rule has been submitted for OMB review. Any written comments from OMB and any EPA response to OMB comments are in the public docket for this proposal.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section
This proposed rule is not expected to result in expenditures of more than $100 million in any one year and, as such, is not subject to section 202 of the UMRA. EPA will continue to use its outreach efforts related to part 75 implementation, including a policy manual that is updated regularly, to inform, educate, and advise all potentially impacted small governments about compliance with part 75.
The information collection requirements in 40 CFR parts 72, 75, 78 and 97 affect two EPA programs, the Acid Rain Program and the Federal NO
Most of the changes associated with this rulemaking are aimed at fine tuning the regulations in response to issues raised during the ongoing implementation of part 75. Thus, they do not significantly affect the burden estimates included in the two existing ICRs. Table 1, below, categorizes the proposed changes to parts 72 and 75, and proposed associated changes to part 97, as recordkeeping and reporting burden/cost neutral or as burden/cost reducing; none of the changes is expected to significantly increase burdens or costs. (The remaining changes to parts 72, 78, and 97 do not affect recordkeeping and reporting requirements.)
Further, the Agency expects the changes to have minimal impact on existing program ICRs because many of the changes merely serve to make additional flexibilities feasible. For example, many of the proposed rule revisions to the LME section will clarify how the rule applies to non-ARP SIP Call units that use part 75 for NO
The SIP Call ICR assumed none of the non-ARP units would take advantage of the reduced burdens and costs associated with the LME provisions because those estimates only related to burden incurred through the year 2002. In future years, as LMEs avail themselves of the proposed provisions, it is estimated that there will be burden reductions. These reductions will be reflected in the next revisions to the SIP Call ICR.
A. Rule Revisions Assumed To Be Cost/Burden Neutral
B. Rule Revisions Assumed To Decrease Costs/Burdens
Although not indicated in Table 1, there are two primary ways in which the proposed parts 72, 75 and 97 revisions could result in some increased burden or cost. First, the regulated industry and State and local agencies involved with part 75 monitoring will have to review the revised regulation to understand the changes. The existing ARP and SIP Call ICRs have accounted for this increase in a line item for ongoing rule review. Nevertheless, it is important to note that new units just initiating part 75 monitoring in response to the NO
The second type of burden or cost increase would be associated with any required data acquisition and handling system (DAHS) software changes that may be necessary to the extent the rule revisions affect recording and reporting data in the required electronic data formats. Generally, EPA has attempted to minimize any DAHS impacts associated with these revisions. There are some optional elements of the proposed revisions that would require DAHS software changes, but only if the owner or operator decides to take advantage of the option for its circumstances. EPA believes many sources will only avail themselves of these types of changes as part of other routine monitoring system component upgrades. Consequently, the expected impact in this area is also expected to be minimal. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
The Agency requests comment on its assessment of information burden imposed by these requirements. An ICR amendment was not prepared because the changes were anticipated to be minimal in the context of the two existing ICRs. Send comments on the ICRs to the Director, Collection Strategies Division; U.S. Environmental Protection Agency (2822); 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW, Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR in any correspondence. Additional information in support of the Agency's estimate is contained in the docket for this proposed rulemaking.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601,
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this proposed action. For the Acid Rain Program, these proposed revisions would not result in increased impacts to small entities.
For these reasons, I certify that today's proposed rule would not have a significant, economic impact on a substantial number of small entities.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 15 U.S.C. 272 note, directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices, etc.) that are developed or adopted by voluntary consensus standards bodies. The NTTAA requires EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
EPA invites public comment on the voluntary consensus standards which are proposed to be incorporated by reference for use in part 75. EPA has not identified any additional voluntary consensus standards which might be applicable to this rulemaking. This does not indicate that other applicable standards do not exist or that any other standards should not be allowed. Therefore, EPA also invites public comment on any other voluntary consensus standards which may be appropriate for the proposed regulatory action. Further, if additional applicable voluntary consensus standards are identified in the future, the designated representative may petition under § 75.66(c) to use an alternative to any standard incorporated by reference and prescribed in this part.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.
In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits additional comment on this proposed rule from tribal officials.
Executive Order 12898 requires that each federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The technical revisions in this proposed rule to various monitoring and other requirements would have no impact on emission levels or the location of emission reductions. Thus, the proposed rule revisions would not have a disproportionately high and adverse impact on minorities or low-income populations.
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that the Agency determines (1) is “economically significant” as defined under Executive Order 12866 and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children.
Today's proposed rule is not subject to Executive Order 13045 because it is not expected to have an annual effect on the economy of $100 million or more. Further, EPA does not have reason to believe that the environmental health risks or safety risks addressed by this action present a disproportionate risk to children.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
The rule revisions in this proposed action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed action does not create a mandate upon State, local, or tribal governments, except to the extent such governments own or operate an affected source. Even in those cases, the proposed rule revisions do not have federalism implications and do not impose significant compliance costs beyond the costs already incurred under part 75.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Continuous emission monitoring, Electric utilities, Nitrogen oxides, Reporting and
Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Carbon dioxide, Continuous emission monitoring, Electric utilities, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Continuous emission monitoring, Electric utilities, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental protection, Administrative practice and procedure, Air pollution control, Continuous emission monitoring, Electric utilities, NO
For the reasons set out in the preamble, title 40 chapter I of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 72 continues to read as follows:
42 U.S.C. 7601 and 7651,
2. Section 72.2 is amended by:
a. Revising the definitions of “Cogeneration unit”, “Continuous emission monitoring system or CEMS”, “Hour before and after”, “Maximum potential NO
b. In the definition of “Automated data acquisition and handling system” by adding the words “moisture monitors,” before the word “opacity”;
c. In the definition of “By-pass stack” by removing the hyphen from the word “bypass”;
d. In paragraph (1) of the definition of “Calibration error” by adding the word “a” before the words “gaseous monitor”;
e. In the definition of “Compliance plan” by adding a closing parenthesis after the second instance of the words “part 76 of this chapter”;
f. In the definition of “Continuous opacity monitoring system or COMS” by revising the words “systems are component parts” in the second sentence to read “components are”, and in paragraph (2) by revising the word “A” to read “An automated”;
g. Revising paragraph (2) of the definition of “Emergency fuel”;
h. In the definition of “Fuel flowmeter QA operating quarter” by adding the word “cumulative” after the words “at least 168” and removing the words “or more” at the end of the definition;
i. Remove the definition of “Heat input” and add in its place a new definition “
j. Remove the definition of “Maximum rated hourly heat input” and add in its place the definition for “
k. In the definition of “Natural gas” by revising the second sentence and by removing the word “meet”, and replacing the “%” symbol with the word “percent” in the third sentence;
l. In the definition of “QA operating quarter” by adding the word “cumulative” after each occurrence of the words “at least 168”;
m. In the definition of “Relative accuracy” by adding the words “or moisture” after the words “between the pollutant” and by adding the words “or moisture monitor” after the words “flow monitor”;
n. Adding in alphabetical order new definitions for “Common pipe”, “Common pipe operating time”, “Cumulative stack operating hours”, “Cumulative unit operating hours”, “Diluent cap value”, “Fuel flowmeter system”, “Fuel usage time”, “Multiple stack configuration”, “Stack operating time”, and “Unit operating time”.
The revisions and additions read as follows:
(1) A sulfur dioxide monitoring system, consisting of an SO
(2) A flow monitoring system, consisting of a stack flow rate monitor and an automated DAHS. A flow monitoring system provides a permanent, continuous record of stack gas volumetric flow rate, in units of standard cubic feet per hour (scfh);
(3) A nitrogen oxides ( NO
(4) A nitrogen oxides concentration monitoring system, consisting of a NO
(5) A carbon dioxide monitoring system, consisting of a CO
(6) A moisture monitoring system, as defined in § 75.11(b)(2) of this chapter. A moisture monitoring system provides
(2) For purposes of the requirement for stack testing for an excepted monitoring system under appendix E of part 75 of this chapter, the fuel identified in a federally-enforceable permit for a plant and identified by the designated representative in the unit's monitoring plan as the fuel which is combusted only during emergencies where the primary fuel is not available.
3. The authority citation for part 75 continues to read as follows:
42 U.S.C. 7601 and 7651k.
4. Section 75.1 is amended by adding the words “(the Act)” at the end of the first sentence of paragraph (a).
5. Section 75.4 is amended by:
a. In paragraph (b) introductory text by adding the word “moisture,” after the word “opacity,”;
b. In paragraphs (b)(2) and (c)(2) by revising the words “Not later than 90”
c. Remove “or” at the end of paragraphs (b)(1) and (c)(1) and remove the period at the end of paragraphs (b)(2) and (c)(2) and add “; or” in its place;
d. Adding paragraphs (b)(3) and (c)(3);
e. In the first sentence of paragraph (d) by revising the words “the earlier of 45” to read “90”, adding the words “(whichever occurs first)” following the words “180 calendar days”, and removing the words “of the affected unit” after the words “recommences commercial operation”;
f. In the first sentence of paragraph (e) introductory text by revising the words “90 calendar days” to read “90 unit operating days or 180 calendar days (whichever occurs first)”;
g. Revising paragraphs (f) introductory text and (f)(1);
h. Removing and reserving paragraphs (g) and (h); and
i. In paragraph (i) by removing the word “or” in paragraph (i)(1) and by revising paragraphs (i)(2) and (i)(3).
The revisions and additions read as follows:
(b) * * *
(3) The owner or operator shall determine and report SO
(i) The maximum potential concentration of SO
(ii) Reference methods under § 75.22(b); or
(iii) Another procedure approved by the Administrator pursuant to a petition under § 75.66.
(c) * * *
(3) The owner or operator shall determine and report SO
(i) The maximum potential concentration of SO
(ii) Reference methods under § 75.22(b); or
(iii) Another procedure approved by the Administrator pursuant to a petition under § 75.66.
(f) In accordance with § 75.20, the owner or operator of an affected gas-fired or oil-fired peaking unit, if planning to use appendix E of this part, shall ensure that the required certification tests for excepted monitoring systems under appendix E are completed for backup fuel, as defined in § 72.2 of this chapter, no later than 90 unit operating days or 180 calendar days (whichever occurs first) after the date that the unit first combusts the backup fuel following the certification testing with the primary fuel. Until all required certification tests are successfully completed, the owner or operator shall report NO
(1) The fuel-specific maximum potential NO
(i) * * *
(2) For a new affected unit which has not commenced commercial operation by January 2, 2000, 90 unit operating days or 180 calendar days (whichever occurs first) after the date the unit commences commercial operation; or
(3) For an existing unit that is shutdown and is not yet operating by April 1, 2000, 90 unit operating days or 180 calendar days (whichever occurs first) after the date that the unit recommences commercial operation.
6. In § 75.6 amend paragraphs (a)(19), (a)(26), and (a)(35) by removing the words “§ 75.15 and”.
7. Section 75.10 is amended by:
a. In paragraph (a)(1) by revising the word “The” in the first sentence to read “To determine SO
b. In paragraph (a)(2) by revising the word “The” in the first sentence to read “To determine NO
c. In paragraph (a)(3)(i) by revising the words “the automated” to read “an automated”;
d. In paragraph (a)(3)(iii) by revising the words “using an O
e. Removing “and” at the end of paragraph (a)(3) and removing the period at the end of paragraph (a)(4) and adding “; and” in its place;
f. Adding new paragraph (a)(5);
g. In paragraph (c) by adding the word “Rate” after the words “Heat Input” in the heading and by adding the words “rate, in units of mmBtu/hr,” after the words “record the heat input”;
h. In paragraph (d)(1) by removing the words “and component thereof” from the first sentence, removing the words “SO
i. In paragraph (d)(3) by revising the words “flow monitor, or NO
j. In paragraph (f) by removing the words “and component thereof”; and
k. Revising the capitalization in the title of paragraph (g) from “Minimum Recording and Recordkeeping Requirements” to “Minimum recording and recordkeeping requirements”.
The revisions and additions read as follows:
(a) * * *
(5) A single, certified flow monitoring system may be used to meet the requirements of paragraphs (a)(1) and (a)(3) of this section. A single certified diluent monitor may be used to meet the requirements of paragraphs (a)(2) and (a)(3) of this section. A single automated data acquisition and handling system may be used to meet the requirements of paragraphs (a)(1) through (a)(4) of this section.
8. Section 75.11 is amended by:
a. Revising the word “psychometric” in paragraph (b)(2) to read “psychrometric”;
b. In the second sentence of paragraph (e)(1) by adding the words “(according to the applicable equation in section 5.2 of appendix F to this part)” after the word “monitor”, and removing the words “and equation D-5 in appendix D to this part”;
c. In paragraph (e)(2) by revising in the first sentence the words “§ 75.55 or § 75.58, as applicable,” to read “§ 75.58,”, and by, in the second sentence, adding the word “rate” after “heat input” and revising the words “§ 75.54(b)(5) or § 75.57(b)(5), as applicable,” to read “§ 75.57(b)(5)”;
d. In paragraph (e)(3) by removing the third sentence, removing the period at the end of the second sentence and adding a semicolon, removing the words “then on and after April 1, 2000,” in the second sentence, and by revising the words “be subject to” to read “meet” in the second sentence; and
e. In the first sentence of paragraph (e)(3)(iii) by adding the words “bias-adjusted” before the words “hourly average”.
9. Section 75.12 is amended by:
a. Revising the section heading;
b. In paragraph (a) by adding the word “(CEMS)” after the words “continuous emission monitoring system” in the first sentence and by revising the words “ NO
c. In paragraph (d)(2) by revising the word “ NO
d. In paragraph (e) by revising the reference to “(c)” to read “(d)”.
The revisions and additions read as follows:
(d) * * *
(2) * * * If the required CEMS has not been installed and certified by that date, the owner or operator shall report the maximum potential NO
10. Section 75.13 is amended by:
a. Revising the heading and first sentence of paragraph (b); and
b. Revising the first sentence of paragraph (c).
The revisions and additions read as follows:
(b)
(c)
11. Section 75.15 is removed and reserved.
12. Section 75.16 is amended by:
a. Removing and reserving all of paragraph (a);
b. Revising paragraph (b) heading and introductory text and paragraph (c);
c. Amending paragraphs (e) heading and introductory text, (e)(1), (e)(2), (e)(3), and (e)(4) by adding the word “rate” after each occurrence of the words “heat input” except for the last occurrence in paragraph (e)(1);
d. In paragraph (e)(1) by revising the reference to “(a)” to read “(b)” in the first sentence, and by removing “(a)(1)(ii), (a)(2)(ii),” and the comma after “(b)(1)(ii)” in the third sentence;
e. In paragraph (e)(2) by revising the words “appendix F of this part” to read “appendix F to this part”; and
f. In paragraph (e)(3) by adding the words “, in conjunction with the appropriate unit and stack operating times” after the words “utilizing the common stack”.
The revisions and additions read as follows:
(b)
(c)
(1) Install, certify, operate, and maintain separate SO
(2) Monitor SO
(3) Install, certify, operate, and maintain SO
13. Section 75.17 is amended by:
a. Removing the hyphen from the word “by-pass” in the section heading;
b. In the introductory text by revising the words “and (c)” to read “(c), and (d)”;
c. In paragraph (b)(1) by revising the word “NO
d. Revising the paragraph heading and first sentence of paragraph (c) introductory text;
e. Revising paragraphs (c)(1) and (c)(2); and
f. Adding new paragraph (d).
The revisions and additions read as follows:
(c)
(1) Install, certify, operate, and maintain a NO
(2) Provided that the products of combustion are well-mixed, install, certify, operate, and maintain a NO
(d)
(1) Follow the procedures in paragraph (c)(1) of this section; or
(2) Install, certify, operate, and maintain a NO
14. Section 75.19 is amended by:
a. Revising paragraphs (a)(1)(i), (a)(1)(ii), (a)(2)(i), (a)(2)(ii), (b)(1), (b)(2), (b)(3), (c)(1)(iv)(A), (c)(1)(iv)(C), and (c)(3)(ii)(H);
b. In paragraph (b)(4) introductory text by revising the words “unit commencing operation after January 1, 1997” to read “new or newly-affected unit”;
c. In paragraph (b)(4)(ii) by revising the words “ NO
d. In paragraph (b)(4)(iii) by revising the words “and NO
e. Removing and reserving paragraph (c)(1)(iv)(B)(
f. In paragraph (c)(1)(iv)(B)(
g. In the first sentence of paragraph (c)(1)(iv)(D) by revising the words “, each unit in a group of units sharing a common fuel supply, or” to read “or group of”;
h. In paragraph (c)(1)(iv)(E) by removing the words “, each low mass emission unit in a group of units combusting a common fuel,”;
i. Revising the first and last sentences of (c)(1)(iv)(G);
j. In the first sentence of (c)(1)(iv)(H) by adding the words “(including units that use dry low-NO
k. In the last sentence of (c)(1)(iv)(H)(
l. Adding new paragraph (c)(1)(iv)(I);
m. In paragraph (c)(2)(iii) by revising the word “output” to read “load” and adding the words “per hour” after the words “pounds of steam”;
n. In paragraph (c)(2)(iv) by adding the words “add-on” after the words “unit with” and adding the words “(including dry low-NO
o. In paragraph (c)(3)(i) by adding “HI
p. Removing the word “use” in the second sentence of paragraph (c)(3)(ii)(D)(
q. Adding a sentence following the first sentence of paragraphs (c)(3)(ii)(E), (c)(3)(ii)(G), and (c)(4)(ii)(C);
r. In the definition of M
s. In the definition of Q
t. In paragraph (c)(3)(ii)(F) by adding the words “, using Equation LM-4” after the reference to “LM-3”;
u. Revising the definition of variables following Equations LM-7 and LM-8 in paragraph (c)(3)(ii)(I), the definition of variables following Equations LM-7a and LM-8a in paragraph (c)(3)(ii)(J), and the definitions of the first two variables following Equation LM-10 in paragraph (c)(4)(ii)(A);
v. In the definition of variable “EF
w. In paragraph (e)(5) by revising the words “which have NO
x. In Table LM-5 that follows paragraph (e) by adding the word “Other” before “Natural Gas” in the first column of the second entry of the table.
The revisions and additions read as follows:
(a) * * *
(1) * * *
(i) A low mass emissions unit is an affected unit that burns only natural gas or fuel oil (i.e., diesel fuel or residual oil) and for which:
(A) An initial demonstration is provided, in accordance with paragraph (a)(2) of this section, which shows that the unit emits no more than:
(
(
(
(B) An annual demonstration is provided thereafter, using one of the allowable methodologies in paragraph (c) of this section, showing that the low mass emission unit continues to emit no more than the applicable number of tons of SO
(ii) Any qualifying unit must start using the low mass emissions excepted methodology as follows:
(A) For a unit that reports emission data on a year-round basis, begin using the methodology in the first unit operating hour in the calendar year in which the unit (as indicated in the certification application) will first qualify as a low mass emissions unit; or
(B) For a unit that is subject to subpart H of this part and that reports only during the ozone season according to § 75.74(c), begin using the methodology in the first unit operating hour in the ozone season in which the unit (as indicated in the certification application) will first qualify as a low mass emissions unit.
(2) * * *
(i) If the designated representative submits a certification application to use the low mass emissions excepted methodology and the Administrator (or permitting authority) certifies the use of such methodology. The certification application shall be submitted no later than 45 days prior to the date on which use of the low mass emissions excepted methodology will commence. The certification application must contain, as applicable, the information in paragraph (a)(2)(i)(A), (a)(2)(i)(B), or (a)(2)(i)(C) of this section.
(A)
(
(
(B)
(
(
(C)
(
(
(ii) When the three full years (or, if applicable, three full ozone seasons) of actual, historical SO
(b) * * *
(1) Once a low mass emission unit has qualified for and has started using the low mass emissions excepted methodology, an annual demonstration is required, showing that the unit continues to emit no more than the applicable number of tons of SO
(2) If any low mass emission unit fails to provide the required annual demonstration under paragraph (b)(1) of this section, such that the calculated cumulative emissions for the unit exceed the applicable number of tons of SO
(i) The low mass emission unit shall be disqualified from using the low mass emissions excepted methodology as of December 31 of the following calendar year (for sources that report emission data on a year-round basis) or as of December 31 of the calendar year in which the unit exceeds the number of tons of NO
(ii) The owner or operator of the low mass emission unit shall install, certify, and report SO
(3) If a low mass emission unit that initially qualifies to use the low mass emissions excepted methodology under this section changes fuels, such that a fuel other than those allowed for use in the low mass emissions methodology (i.e., natural gas, diesel fuel, or residual oil) is combusted in the unit, the unit shall be disqualified from using the low mass emissions excepted methodology as of the first hour that the new fuel is combusted in the unit. The owner or operator shall install, certify, and report SO
(c) * * *
(1) * * *
(iv) * * *
(A) Except as otherwise provided in this paragraph or in paragraphs (c)(1)(iv)(F) and (G) of this section, determine a fuel-and-unit-specific NO
(
(
(
(
Where:
(B) * * *
(C) Based on the results of the part 75 appendix E testing, determine the fuel-and-unit-specific NO
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(G) Low mass emission units for which at least 3 years of quality-assured NO
(I) Notwithstanding the requirements in paragraph (c)(1)(iv)(A) of this section, for a unit (or group of identical units) with no NO
(3) * * *
(i) * * *
(B) * * *
(D) For a unit subject to the provisions of subpart H of this part, which is not required to report emission data on a year-round basis and elects to report only during the ozone season, the quarterly heat input for the second calendar quarter of the year shall include only the heat input for the months of May and June, and the cumulative ozone season heat input shall be the sum of the quarterly heat input values for the second and third calendar quarters of the year.
(ii) * * *
(E) * * * For a unit subject to the provisions of subpart H of this part, which is not required to report emission data on a year-round basis and elects to report only during the ozone season, the quarterly heat input for the second calendar quarter of the year shall include only the heat input for the months of May and June. * * *
(G) * * * For a unit subject to the provisions of subpart H of this part, which is not required to report emission data on a year-round basis and elects to report only during the ozone season, the cumulative ozone season heat input shall be the sum of the quarterly heat input values for the second and third calendar quarters of the year.
(H) For each low mass emission unit or each low mass emission unit in an identical group of units, the owner or operator shall determine the cumulative quarterly unit load in megawatts or thousands of pounds of steam per hour. The quarterly cumulative unit load shall be the sum of the hourly unit load values recorded under paragraph (c)(2) of this section and shall be determined using Equation LM-5 or LM-6. For a unit subject to the provisions of subpart H of this part, which is not required to report emission data on a year-round basis and elects to report only during the ozone season, the quarterly cumulative load for the second calendar quarter of the year shall include only the unit loads for the months of May and June.
(I) * * *
(J) * * *
(4) * * *
(ii) * * *
(A) * * *
(C) * * * For a unit subject to the provisions of subpart H of this part, which is not required to report emission data on a year-round basis and elects to report only during the ozone season, the ozone season NO
15. Section 75.20 is amended by:
a. Revising paragraphs (b)(2), (b)(3)(i), (c)(2)(ii), (c)(2)(iii), (c)(4) introductory text, (c)(4)(i) through (iii), (g)(2), (h)(3), (h)(4) introductory text, (h)(4)(i) and (h)(4)(ii);
b. In the first sentence of paragraph (a) by removing the words “, which includes the automated data acquisition and handling system, and, where applicable, the CO
c. In the first sentence of paragraph (a)(3) by revising the words “section for each continuous emission or opacity monitoring system or component thereof,” to read “section, each”, removing the words “or component thereof” after each of the two additional occurrences of the words “opacity monitoring system” in paragraph (a)(3), and adding the word “conditional” before the words “data validation” in the last sentence;
d. In paragraph (a)(4)(iii) by removing each occurrence of the words “or component thereof”, by adding the word “conditional” immediately before each occurrence of “data validation”, and by removing the words “, until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests” that appear at the end of the second sentence;
e. In paragraph (a)(4)(iv) by removing the words “or component thereof,”;
f. In the first sentence of paragraph (a)(5)(i) by removing the words “or component thereof” and by adding the words “(or, if the conditional data validation procedures in paragraphs (b)(3)(ii) through (b)(3)(ix) of this section are used, until a probationary calibration error test is passed following corrective actions in accordance with paragraph (b)(3)(ii) of this section)” after the words “successfully completed”;
g. In paragraphs (b)(3)(iv)(A), (b)(3)(iv)(B), and (b)(3)(vii)(A) by revising each occurrence of the word “consecutive” to read “cumulative”;
h. Revising the third and fourth sentences of paragraph (b)(5);
i. Removing the second paragraph labeled (c)(1)(v) and paragraph (h)(4)(iii);
j. Adding new paragraphs (c)(2)(iv) and (h)(5);
k. In paragraph (d)(2)(iii) by removing the words “or SO
l. In paragraph (d)(2)(v) by adding the words “(or 720 hours in any ozone season, for sources that report emission data only during the ozone season, in accordance with § 75.74(c))” after the words “one calendar year” in the first sentence and by adding the words “(or ozone season, as applicable)” after the words “per calendar year” in the second sentence;
m. In the third sentence of (d)(2)(vii) by adding the words “, beginning with the letters “LK” (e.g., “LK1,” “LK2,” etc.)” after the words “replacement analyzer” and by adding the word “shall” before the word “specify”;
n. Adding a sentence to the end of paragraph (g)(1)(i);
o. In paragraph (g)(5) by adding the words “(or recertified)” after the word “certified” in the first sentence, adding the words “or for disapproval of a recertification request” and “or denial of a recertification request” after, respectively, the first and second occurrence of the words “loss of certification” in the second sentence, removing the word “either” from the second sentence, adding the words “(or recertified)” after the word “certified” in the final sentence; and
p. In the last sentence of paragraph (h)(1) by adding the word “acceptable” before the word “water-to-fuel”.
The revisions and additions read as follows:
(b) * * *
(2)
(3) * * *
(i) The owner or operator shall either use substitute data, according to the
(5)
(c) * * *
(2) * * *
(ii) Relative accuracy test audits, as follows:
(A) For a flow monitor installed on a peaking unit or bypass stack, a single-load RATA at the normal load level, as defined in section 6.5.2.1(d) of appendix A to this part; or
(B) For all other flow monitors, a RATA at each of the three load levels (or operational levels) corresponding to the three flue gas velocities described in section 6.5.2(a) of appendix A to this part;
(iii) A bias test for the single-load flow RATA described in paragraph (c)(2)(ii)(A) of this section; and
(iv) A bias test (or bias tests) for the 3-level flow RATA described in paragraph (c)(2)(ii)(B) of this section, at the following load or operational level(s):
(A) At each load level designated as normal under section 6.5.2.1(d) of appendix A to this part, for units that produce electrical or thermal output; or
(B) At the operational level identified as normal in section 6.5.2.1(d) of appendix A to this part, for units that do not produce electrical or thermal output.
(4) For each CO
(i) A 7-day calibration error test;
(ii) A linearity check;
(iii) A relative accuracy test audit, where, for an O
(g) * * *
(1) * * *
(i) * * * For orifice, nozzle, and venturi-type flowmeters, the results of primary element visual inspections and/or calibrations of the transmitters or transducers shall also be provided.
(2)
(h) * * *
(3)
(4)
(i) The owner or operator shall substitute the following values, as applicable, for each hour of unit operation in which data were reported using the low mass emissions methodology until such time, date, and hour as continuous emission monitoring systems or excepted monitoring systems, where applicable, are installed and provisionally certified: the maximum potential concentration of SO
(ii) The designated representative shall submit a notification of certification test dates for the required monitoring systems, as specified in § 75.61(a)(1)(ii), and shall submit a certification application according to the procedures in paragraph (a)(2) of this section.
(5)
16. Section 75.21 is amended by:
a. In paragraph (a)(7) by adding the words “only for infrequent, non-routine operation (e.g.,” after the words “higher sulfur fuel(s)” in the first sentence, by adding a closing parenthesis after the words “short-term testing” in the first sentence, and by revising in the last sentence the words “720 unit (or stack) operating hour grace period” to read “grace period of 720 cumulative unit or stack operating hours”;
b. In paragraph (a)(8) by removing the words “On and after April 1, 2000” and by capitalizing the initial occurrence of the word “the”;
c. In paragraph (a)(9) by revising in the first sentence the words “exempted under paragraphs (a)(6) or (a)(7) of this section from the SO
d. In paragraph (e)(2) by removing the word “another”.
17. Section 75.22 is amended by:
a. Removing the last sentence of paragraph (a) introductory text;
b. In the last sentence of paragraph (a)(4) by revising the word “techniques” to read “wet bulb-dry bulb technique”; and
c. Adding a sentence to the end of paragraph (a)(5).
The revisions and additions read as follows:
(a) * * *
(5) * * * Alternatively, Method 20 may be used as the reference method for relative accuracy test audits of NO
18. Section 75.24 is amended by:
a. Revising paragraph (a)(1); and
b. In paragraph (c)(2) by removing the words “or certified portable monitor or”.
The revisions read as follows:
(a) * * *
(1) For daily calibration error tests, an out-of-control period occurs when the calibration error of a pollutant concentration monitor exceeds the applicable specification in section 2.1.4 of appendix B to this part.
19. Section 75.30 is amended by:
a. In paragraph (a)(6) by removing the period at the end of the paragraph and replacing it with “; or”;
b. Adding new paragraphs (a)(7) and (a)(8);
c. In the first sentence of paragraph (b) by adding the words “percent moisture,” after the words “flow rate,”; and
d. In paragraphs (d)(1) and (d)(2) by removing the words “§ 75.54(b)(5) or” and the words “as applicable,”.
The revisions and additions read as follows:
(a) * * *
(7) A valid, quality-assured hour of moisture data (in percent H
(8) A valid, quality-assured hour of heat input rate data (in mmBtu/hr) has not been measured and recorded for a unit from a certified flow monitor and a certified diluent (CO
20. Section 75.31 is amended by:
a. Revising the first sentence of paragraph (a);
b. Revising paragraphs (c) introductory text and (c)(1);
c. Adding a new sentence to the beginning of paragraph (c)(2);
d. In paragraph (c)(3) by adding the words “(or for non-load-based units using operational bins, when no prior quality-assured data exist in the corresponding operational bin)” after the words “higher load range”; and
e. Adding a new paragraph (d).
The revisions and additions read as follows:
(a) During the first 720 quality-assured monitor operating hours following initial certification of the required SO
(c)
(1) Whenever prior quality-assured data exist in the load range (or operational bin) corresponding to the operating load (or operating conditions) at the time of the missing data period, the owner or operator shall substitute, by means of the automated data acquisition and handling system, for each hour of missing data, the arithmetic average of all of the prior quality-assured hourly flow rates, NO
(2) This paragraph (c)(2) does not apply to non-load-based units using operational bins. * * *
(d)
(1) Whenever prior quality-assured data exist at the time of the missing data period, the owner or operator shall substitute, by means of the automated data acquisition and handling system, for each hour of missing data, the arithmetic average of all of the prior quality-assured hourly average flow rates or NO
(2) Whenever no prior quality-assured flow rate, NO
21. Section 75.32 is amended by:
a. Revising paragraph (a) introductory text;
b. In paragraph (a)(1) by adding the words “or stack” after the word “unit” and revising the word “equation” to read “Equation”; and
c. Revising paragraph (a)(2) and the first three sentences of paragraph (a)(3).
The revisions and additions read as follows:
(a) Following initial certification of the required SO
(2) Upon completion of 8,760 unit or stack operating hours following initial certification and thereafter, the owner or operator shall, for the purpose of applying the standard missing data procedures of § 75.33, use Equation 9 to calculate, hourly, percent monitor data availability. Notwithstanding this requirement, if three years (26,280 clock hours) have elapsed since initial certification and fewer than 8,760 unit or stack operating hours have been accumulated, the owner or operator shall begin using a modified version of Equation 9, as described in paragraph (a)(3) of this section.
(3) When calculating percent monitor data availability using Equation 8 or 9, the owner or operator shall include all unit operating hours, and all monitor operating hours for which quality-assured data were recorded by a certified primary monitor; a certified redundant or non-redundant backup monitor or a reference method for that unit; or by an approved alternative monitoring system under subpart E of this part. No hours from more than three years (26,280 clock hours) earlier shall be used in Equation 9. For a unit that has accumulated fewer than 8,760 unit or stack operating hours in the previous three years (26,280 clock hours), use the words “in the previous three years” instead of “during previous 8,760 unit or stack operating hours” in Equation 9, and use “total unit or stack operating
22. Section 75.33 is amended by:
a. Revising paragraphs (a) and (c) introductory text;
b. Adding paragraphs (b)(5), (b)(6), (b)(7), (c)(7), (c)(8), (c)(9), (c)(10), (d), and (e);
c. In paragraphs (c)(1) introductory text and (c)(2) introductory text by removing the words “or continuous emission monitoring system”;
d. In paragraphs (c)(1)(i), (c)(1)(ii)(A), (c)(2)(i), (c)(2)(ii)(A), and (c)(3) by adding the words “or operational bin” after each occurrence of the words “unit load range”;
e. In paragraph (c)(3) by removing the words “section 2 of”;
f. In paragraph (c)(4) by adding a sentence to the end of the paragraph;
g. In paragraph (c)(5) by adding a new first sentence and by adding the words “recording during the previous 2,160 quality-assured monitor operating hours” before the words “at the next”;
h. In paragraph (c)(6) by revising the words “or a higher load range” to read “(or a higher load range) or for the corresponding operational bin”; and
i. Redesignating Tables 1 and 2 from paragraph to follow paragraph (c)(9) and revising them.
The revisions and additions read as follows:
(a) Following initial certification of the required SO
(b) * * *
(5) The owner or operator may, for units that combust more than one type of fuel, elect to implement the missing data routines in paragraphs (b)(1) through (b)(4) of this section on a fuel-specific basis. If this option is selected, the owner or operator shall document this in the monitoring plan required under § 75.53. To implement this option, the owner or operator shall create and maintain a separate SO
(6) If the owner or operator elects to switch from non-fuel-specific missing data routines to fuel-specific routines (as described in paragraph (b)(5) of this section) and if, at the time of the change, the initial missing data procedures of § 75.31 have previously been completed on a non-fuel-specific basis and the calculation of percent monitor data availability and use of the standard missing data procedures has begun in accordance with §§ 75.32 and 75.33, the owner or operator need not repeat the initial missing data procedures on a fuel-specific basis. Rather, the calculation of percent monitor data availability may continue uninterrupted, and the fuel-specific SO
(7) Table 1 of this section summarizes the provisions of paragraphs (b)(1) through (b)(6) of this section.
(c)
(4) * * * In addition, when non-load-based operational bins are used, the owner or operator shall substitute (as applicable) the maximum potential flow rate for any hour in the missing data period in which essential operating or parametric data are unavailable and the operational bin cannot be determined.
(5) This paragraph does not apply to non-load-based affected units using operational bins. * * *
(7) If there are fewer than 2,160 quality-assured monitor operating hours in a load range or operational bin, use whatever data are in the load range or bin for purposes of the lookback periods described in paragraphs (c)(1)(i), (c)(1)(ii)(A), (c)(2)(i), (c)(2)(ii)(A), (c)(3), and (c)(5) of this section.
(8) This paragraph (c) (8) does not apply to affected units using non-load-based operational bins. The owner or operator may, for units that combust more than one type of fuel, elect to implement the missing data routines in paragraphs (c)(1) through (c)(7) of this section on a fuel-specific basis. If this option is selected, the owner or operator
(9) This paragraph (c)(9) does not apply to affected units using non-load-based operational bins. If the owner or operator elects to switch from non-fuel-specific missing data routines to fuel-specific routines (as described in paragraph (b)(8) of this section) and if, at the time of the change, the initial missing data procedures of § 75.31 have previously been completed on a non-fuel-specific basis and the calculation of percent monitor data availability and use of the standard missing data procedures has begun in accordance with §§ 75.32 and 75.33, the owner or operator need not repeat the initial missing data procedures on a fuel-specific basis. Rather, the calculation of percent monitor data availability may continue uninterrupted, and the fuel-specific NO
(10) The load-based provisions of paragraphs (c)(1) through (c)(9) of this section are summarized in Table 2 of this section. The non-load-based provisions for volumetric flow rate, found in paragraphs (c)(1) through (c)(4), (c)(6), and (c)(7) of this section, are presented in Table 4 of this section.
(d)
(1) Whenever the monitor data availability is equal to or greater than 95.0 percent, the owner or operator shall calculate substitute data by means of the automated data acquisition and handling system for each hour of each missing data period according to the following procedures:
(i) For a missing data period less than or equal to 24 hours, substitute, as applicable, for each missing hour, the arithmetic average of the NO
(A) The previous 2,160 quality assured monitor operating hours, or
(B) The previous 2,160 quality-assured monitor operating hours at the corresponding operational bin, if operational bins, as defined in section 3 of appendix C to this part, are used.
(ii) For a missing data period greater than 24 hours, substitute, as applicable, for each missing hour, the greater of:
(A) The 90th percentile NO
(B) The arithmetic average of the hourly NO
(2) Whenever the monitor data availability is at least 90.0 percent but less than 95.0 percent, the owner or operator shall calculate substitute data by means of the automated data acquisition and handling system for each hour of each missing data period according to the following procedures:
(i) For a missing data period of less than or equal to eight hours, substitute, as applicable, the arithmetic average of the hourly NO
(ii) For a missing data period greater than eight hours, substitute, as applicable, for each missing hour, the greater of:
(A) The 95th percentile hourly flow rate or the 95th percentile NO
(B) The arithmetic average of the hourly NO
(3) Whenever the monitor data availability is at least 80.0 percent but less than 90.0 percent, the owner or operator shall, by means of the automated data acquisition and handling system, substitute, as applicable, for each hour of each missing data period, the maximum hourly NO
(4) Whenever the monitor data availability is less than 80.0 percent, the owner or operator shall substitute, as applicable, for each hour of each missing data period, the maximum NO
(5) If operational bins are used and no prior quality-assured NO
(6) If operational bins are used and there is at least one, but fewer than 2,160 quality-assured monitor operating hours of NO
(7) Table 3 of this section summarizes the provisions of paragraphs (d)(1) through (d)(6) of this section.
(e)
(2) If operational bins are not used for a non-load-based unit, modify the procedures in paragraph (c) of this section as follows:
(i) In paragraphs (c)(1) through (c)(3), the words “previous 2,160 quality-assured monitor operating hours” shall apply rather than “previous 2,160 quality-assured monitor operating hours at the corresponding unit load range or operational bin, as determined using the procedure in appendix C to this part;”
(ii) The last sentence in paragraph (c)(4) does not apply;
(iii) Paragraphs (c)(5), (c)(7), (c)(8), and (c)(9) are not applicable; and
(iv) In paragraph (c)(6), the words, “for either the corresponding load range (or a higher load range) or for the corresponding operational bin” do not apply.
(3) Table 4 of this section summarizes the provisions of paragraphs (e)(1) and (e)(2) of this section. Tables 3 and 4 follow:
23. Section 75.34 is amended by:
a. Revising paragraphs (a) introductory text, (a)(1), (a)(2), and (d);
b. Redesignating paragraph (a)(3) as (a)(4) and adding new paragraph (a)(3);
c. In the second sentence of newly redesignated paragraph (a)(4) by removing the words “§ 75.55(b) or” and “, as applicable”; and
d. In paragraph (c) by revising the word “ NO
The revisions and additions read as follows:
(a) The owner or operator of an affected unit equipped with add-on SO
*(1) The owner or operator may use the missing data substitution procedures specified in §§ 75.31 through 75.33 to provide substitute data for any missing data hour(s) in which the add-on emission controls are documented to be operating properly, as described in the quality assurance/quality control program for the unit, required by section 1 in appendix B of this part. To provide the necessary documentation, the owner or operator shall, for each missing data period, record parametric data to verify the proper operation of the SO
(2) The owner or operator may use the missing data procedures in §§ 75.31 through 75.33 for all missing data hours if:
(i) For purposes of the data lookback periods described in § 75.33, two separate historical databases are created and maintained. The first (controlled) database shall consist of quality-assured monitor operating hours of SO
(ii) For each hour of each missing data period, when the appropriate mathematical algorithm from Table 1 or Table 2 in § 75.33 requires a lookback for the 90th percentile value, or the 95th percentile value, or the maximum value from the previous 720 (or 2,160) quality-assured monitor operating hours, the value is obtained from the appropriate database (i.e., from the controlled database if the add-on controls are documented to be operating properly during the hour or from the uncontrolled database if the add-on controls are either not in operation or not documented to be operating properly during the hour). To provide the necessary documentation, the owner or operator shall, for each missing data period, record parametric data, as described in paragraph (d) of this section;
(iii) For SO
(iv) When the percent monitor data availability (calculated according to § 75.32) is <80 percent, the maximum potential SO
(v) The designated representative, in accordance with § 75.64(c), submits as part of each electronic quarterly report a certification statement verifying the proper operation of the SO
(3) If the owner or operator elects to switch from the missing data option in paragraph (a)(1) of this section to the option in paragraph (a)(2) of this section, and if, at the time of the change, the initial missing data procedures in § 75.31 have been previously completed and use of the standard missing data procedures of § 75.33 has begun, the owner or operator need not repeat the initial missing data procedures. Rather, calculation of the percent monitor data availability may continue uninterrupted and the two databases (controlled and uncontrolled) may be created prospectively, beginning at the time of the change. Alternatively, the databases may be created from historical CEM data, if records are available documenting the operational status (i.e., on or off) of the emission controls during each quality-assured monitor operating hour. If, at the time of the missing data period, there are no quality-assured monitor operating hours of SO
(d) In order to implement the option in paragraphs (a)(1) and (a)(2) of this section, the owner or operator shall keep records of information as described in § 75.58(b)(3)(i) to verify the proper operation of all add-on SO
24. Section 75.35 is revised to read as follows:
(a) The owner or operator of a unit with a CO
(b) During the first 720 quality assured monitor operating hours following initial certification at a particular unit or stack location (i.e., the date and time at which quality assured data begins to be recorded by a CEMS at that location), or (when implementing these procedures for a previously certified CO
(c) [Reserved]
(d) Upon completion of 720 quality assured monitor operating hours using the initial missing data procedures of § 75.31(b), the owner or operator shall provide substitute data for CO
25. Section 75.36 is amended by:
a. Revising the section heading;
b. In paragraph (a) by adding the word “rate” after the words “hourly heat input” in the first sentence, by adding the word “rate” after the words “heat input” in the second and third sentences, removing the words “On and after April 1, 2000,” in the third sentence and capitalizing “When” to begin that sentence, and by removing the last sentence;
c. Revising paragraph (b);
d. Removing and reserving paragraph (c); and
e. In paragraph (d) by adding the word “rate” after each occurrence of the word “input”.
The revisions and additions read as follows:
(b) During the first 720 quality assured monitor operating hours following initial certification at a particular unit or stack location (i.e., the date and time at which quality assured data begins to be recorded by a CEMS at that location), or (when implementing these procedures for a previously certified CO
26. Section 75.37 is amended by:
a. In paragraph (a) by revising the words “On and after April 1, 2000, the” to read “The” in the first sentence and by removing the second sentence;
b. Revising paragraphs (c) and (d)(2)(i); and
c. In paragraph (d) introductory text by removing the words “of the moisture monitoring system”.
The revisions and additions read as follows:
(c) During the first 720 quality assured monitor operating hours following initial certification at a particular unit or stack location (i.e., the date and time at which quality assured data begins to be recorded by a moisture monitoring system at that location), the owner or operator shall provide substitute data for moisture according to § 75.31(b).
(d) * * *
(2) * * *
(i) Provided that none of the following equations is used to determine SO
27. Section 75.41 is amended by adding the words “(Eq. 22)” immediately before “where,” in paragraph (b)(2)(v)(B) and by revising Equation 27 in paragraph (c)(2)(ii) to read as follows:
(c) * * *
(2) * * *
(ii) * * *
28. Section 75.53 is amended by:
a. Removing and reserving paragraphs (c) and (d);
b. Revising paragraphs (a)(1), (e)(1)(viii), (f)(1)(i)(F), and (f)(2)(i)(H);
c. In paragraph (b) by adding the words “, by the applicable deadline specified in § 75.62 or elsewhere in this part” prior to the period at the end of the paragraph;
d. In paragraph (e)(1)(i)(D) by adding the words “emergency/startup” after the words “primary/secondary”;
e. In paragraph (e)(1)(i)(E) by adding the words “primary/secondary controls indicator;” after the words “(if applicable);”;
f. In paragraph (e)(1)(ix) by revising the words “Part 75 monitoring” to read “Monitoring”, adding the words “ARP/Subpart H facility ORISPL number,” after the words “boiler identification number,”, and adding the words “(or equivalent)” after the words “reporting indicator”;
g. In paragraph (f)(2)(i)(F) by adding the word “rate” after the word “input” and the word “emission” after the word “ NO
h. Adding a sentence to the end of paragraph (f)(5)(i); and
i. Adding paragraphs (f)(5)(i)(A) through (H).
The revisions and additions read as follows:
(a) * * *
(1) The owner or operator shall meet the requirements of paragraphs (a), (b), (e), and (f) of this section.
(e) * * *
(1) * * *
(viii) Stack exit height (ft) above ground level and ground level elevation above sea level.
(f) * * *
(1) * * *
(i) * * *
(F) The method used to demonstrate that the unit qualifies for monthly GCV sampling or daily fuel sampling for sulfur content, if applicable.
(2) * * *
(i) * * *
(H) To document the unit qualifies as a peaking unit, current calendar year or ozone season, capacity factor data as specified in the definition of peaking unit in § 72.2 of this chapter, and an indication of whether the data are actual, projected, or operating data.
(5) * * *
(i) * * * The following items should be included:
(A) Current calendar year of application;
(B) Type of qualification;
(C) Years one, two, and three;
(D) Annual or ozone season measured or projected NO
(E) Annual or ozone season NO
(F) Annual measured or projected SO
(G) Annual SO
(H) Annual or ozone season operating hours for years one, two, and three.
29. Section 75.54 is removed and reserved.
30. Section 75.55 is removed and reserved.
31. Section 75.56 is removed and reserved.
32. Section 75.57 is amended by:
a. Revising the introductory paragraph;
b. In paragraph (a)(3) by removing the words “§ 75.55 or” and “as applicable,”;
c. In paragraph (a)(4) by removing both occurrences of the words “§ 75.56 or”;
d. Revising Table 4a at the end of paragraph (c)(4);
e. Revising paragraph (d)(6); and
f. Revising the first sentence of paragraph (d)(7).
The revisions read as follows:
The owner or operator shall meet all of the applicable recordkeeping requirements of this section.
(c) * * *
(4) * * *
(d) * * *
(6) Hourly average NO
(7) Hourly average NO
33. Section 75.58 is amended by:
a. Revising the introductory paragraph;
b. In paragraphs (b)(1)(i) and (c) by removing the words “§ 75.54(c) or”;
c. In paragraph (b)(1)(xi) and (b)(2)(vii) by removing the words “Codes 1-15 in Table 4 of § 75.54 or”;
d. Revising paragraph (b)(3);
e. Adding a period to the end of paragraph (c)(7)(ii);
f. In paragraph (d) by removing the words “paragraph 75.54(d) or”;
g. In paragraph (e)(1) by removing the words “§§ 75.54(c)(1) and (c)(3) or”; and
h. In paragraph (f) by removing the words “§§ 75.54(b) through (e) or”.
The revisions read as follows:
The owner or operator shall meet all of the applicable recordkeeping requirements of this section.
(b) * * *
(3) For units with add-on SO
(i) Parametric data which demonstrate, for each hour of missing SO
(ii) A flag indicating, for each hour of missing SO
(iii) For the purposes of creating the controlled and uncontrolled databases described under § 75.34(a)(2), a flag indicating whether the add-on emission controls are operating (on) or not operating (off) during each unit operating hour.
34. Section 75.59 is amended by:
a. Revising the introductory paragraph;
b. Revising paragraphs (a)(1)(vii), (a)(7)(ii)(P) and (a)(7)(iii)(F);
c. In the second sentence of paragraph (a)(7) by adding the words “of this section” after the words “through (a)(7)(vi)”;
d. In paragraph (a)(10)(i)(E) by revising the reference to “(a)(7)(iii)(A)” to read “(a)(7)(iii)”;
e. In paragraph (b)(2)(v) by adding the word “level” after the word “high”;
f. In paragraphs (b)(4)(ii)(K) and (b)(5)(i)(N) by removing the word “and” after the semicolon;
g. In paragraph (b)(4)(ii)(L) by removing the period and adding in its place “; and”;
h. In paragraph (b)(5)(i)(O) by removing the period and adding in its place a semicolon;
i. Adding paragraphs (b)(4)(ii)(M), (b)(5)(i)(P), and (b)(5)(i)(Q);
j. In paragraph (c)(1) by removing the words “§ 75.55(b) or”;
k. In paragraph (d)(1) by revising the word “under” to read “using the procedures of”;
l. Adding the word “and” at the end of paragraph (d)(1)(xi);
m. Removing paragraphs (d)(1)(xiii) through (d)(1)(xvi);
n. Redesignating existing paragraph (d)(2) as (d)(3) and adding a new paragraph (d)(2); and
o. In newly designated paragraph (d)(3)(x) by removing the words “and (
The revisions and additions read as follows:
The owner or operator shall meet all of the applicable recordkeeping requirements of this section.
(a) * * *
(1) * * *
(vii) Reference signal or calibration gas level;
(7) * * *
(ii) * * *
(P) Average stack flow rate, adjusted, if applicable, for wall effects (scfh, wet basis);
(iii) * * *
(F) Average velocity differential pressure at traverse point (inches of H
(b) * * *
(4) * * *
(ii) * * *
(M) Number of hours excluded due to co-firing.
(5) * * *
(i) * * *
(P) Flag to indicate highest NO
(Q) Adjusted NO
(d) * * *
(2) For each single-load or four-load appendix E test, record the following:
(i) The three-run average NO
(ii) An indicator that the average NO
(iii) The default NO
(iv) An indicator that the add-on NO
(v) Parameter data indicating the use and efficacy of control equipment during the test.
35. Section 75.60 is amended by adding paragraph (b)(7) to read as follows:
(b) * * *
(7)
36. Section 75.61 is amended by:
a. In paragraph (a)(1) by removing the words “and except for testing only of the data acquisition and handling system” from the end of that paragraph, by adding a period to the end of the first sentence, and by adding two new sentences to the end of the paragraph;
b. In paragraph (a)(1)(i) by revising the number “45” to read “21”;
c. Revising paragraphs (a)(1)(ii) and (a)(1)(iii);
d. In paragraph (a)(1)(iv) by revising both references to “(a)(1)” to read “(a)(1)(ii)”, by adding the words “or other retests” to the end of the first sentence, and by adding the words “(or other retests)” after the words “recertification tests” in the second sentence;
e. In the first sentence of paragraph (a)(2) introductory text by adding the words “, or will become affected,” after the words “commercial operation”;
f. In paragraph (a)(4) by removing “(a)” after the second and third occurrences of “§ 75.4”;
g. Revising the first sentence of paragraph (a)(5) introductory text;
h. In paragraph (a)(5)(ii) by adding the words “, appendix E retest, or low mass
i. Revising paragraph (a)(6).
The revisions and additions read as follows:
(a) * * *
(1) * * * The owner or operator shall also provide written notification of testing performed under § 75.19(c)(1)(iv)(A) to establish fuel and unit-specific NO
(ii)
(iii)
(5)
(6)
37. Section 75.62 is amended by:
a. Revising paragraph (a)(1); and
b. In the third sentence of paragraph (a)(2) by adding the words “certification and” after the words “with any” and the words “certification or” after the words “associated with the”.
The revisions and additions read as follows:
(a) * * *
(1)
38. Section 75.63 is amended by:
a. Revising paragraphs (a)(1)(i) and (ii), and removing paragraph (a)(1)(iii);
b. In paragraph (a)(2)(i) by adding the words “under § 75.20(b)” after the words “recertification tests” and the words “of this section” after the words “paragraph (b)(1)”;
c. Revising the first and second sentences of paragraph (a)(2)(ii);
d. In paragraph (a)(2)(iii) by adding the words “rather than certification testing” after the words “are required”;
e. Revising paragraph (b)(1)(i);
f. In paragraph (b)(1)(ii) by removing the words “§ 75.56 or” and “as applicable,”; and
g. Revising the first sentence of paragraphs (b)(2)(i) and (c).
The revisions and additions read as follows:
(a) * * *
(1) * * *
(i) For CEM systems or excepted monitoring systems under appendix D or E to this part, within 45 days after completing all initial certification tests, submit:
(A) To the Administrator, the electronic information required by paragraph (b)(1) of this section and a hardcopy certification application form (EPA form 7610-14). The results of the certification tests shall also be included in the appropriate electronic quarterly report submittal under § 75.64. Except for subpart E applications for alternative monitoring systems or unless specifically requested by the Administrator, do not submit a hardcopy of the test data and results to the Administrator.
(B) To the applicable EPA Regional Office and the appropriate State and/or local air pollution control agency, the hardcopy information required by paragraph (b)(2) of this section.
(ii) For units for which the owner or operator is applying for certification approval of the optional excepted methodology under § 75.19 for low mass emissions units, submit, no later than 45 days prior to commencing use of the methodology:
(A) To the Administrator, the electronic information required by paragraph (b)(1)(i) of this section, and a hardcopy certification application form (EPA form 7610-14); and
(B) To the applicable EPA Regional Office and appropriate State and/or local air pollution control agency, the hardcopy information required by § 75.19(a)(2), the hardcopy results of any appendix E (of this part) tests or any CEMS data analysis used to derive a fuel and unit specific default NO
(2) * * *
(ii) Within 45 days after completing all recertification tests under § 75.20(b), submit the hardcopy information required by paragraph (b)(2) of this section to the applicable EPA Regional
(b) * * *
(1) * * *
(i) A complete, up-to-date version of the electronic portion of the monitoring plan, according to § 75.53(e) and (f), in the format specified in § 75.62(c).
(2) * * *
(i) Any changed portions of the hardcopy monitoring plan information required under § 75.53(e) and (f). * * *
(c)
39. Section 75.64 is amended by:
a. Revising the first and third sentences of paragraph (a) introductory text and revising paragraph (a)(2) introductory text;
b. In paragraph (a)(2)(iii) by removing the words “§ 75.54(f) or”;
c. In paragraph (a)(2)(iv) by removing the words “§ 75.55(b)(3) or”;
d. In paragraph (a)(2)(vi) by removing the words “§ 75.54(g) or”;
e. In paragraph (a)(2)(vii) by removing the words “§ 75.56 or”;
f. In paragraph (a)(2)(viii) by removing the words “§ 75.56(a)(5)(vii), § 75.56(a)(5)(ix),”;
g. In paragraph (a)(2)(xi) by removing the words “§ 75.56(a)(7) or”;
h. In paragraph (a)(4) by removing the words “hundredth prior to April 1, 2000 and to the nearest” and the words “on and after April 1, 2000”;
i. Removing and reserving paragraphs (a)(2)(v), (a)(8), and (e);
j. In paragraph (d) by removing the words “or hardcopy”; and
k. In paragraph (f) by removing the words “modem and”.
The revisions read as follows:
(a)
(2) The information and hourly data required in § 75.53 and §§ 75.57 through 75.59, excluding the following:
40. Section 75.65 is amended by removing the words “§ 75.54(f) or” and “, as applicable,”.
41. Section 75.66 is amended by:
a. In paragraph (e) by removing the words “§ 75.55(b) or” and “, as applicable,”; and
b. Removing and reserving paragraph (i).
42. Section 75.70 is amended by:
a. Adding a hyphen to the term “non-affected” in paragraph (a)(1);
b. In paragraph (d)(1) by adding the words “in § 75.20” after the words “recertification procedures”;
c. Revising paragraphs (e), (f) introductory text, and (f)(1) introductory text;
d. In paragraphs (f)(1)(i), (ii), and (iii) by adding a comma after the word “valid” and revising the words “quality assured” to read “quality-assured”;
e. In paragraphs (f)(1)(ii) and (iii) by removing the word “or” from the end of each paragraph;
f. In paragraph (f)(1)(iii) by adding the word “rate” before the word “data”, revising the word “mmBtu” to read “mmBtu/hr”, and revising the word “accepted” to read “excepted”;
g. In paragraph (f)(1)(iv) by revising the words “volumetric flow monitor, and without a diluent monitor” to read “flow monitor”, by adding a comma after the reference to “§ 75.32”, and by removing the period and adding “; or” to the end of the paragraph;
h. Adding new paragraph (f)(1)(v);
i. In paragraph (g)(1) by adding the word “rate” after the words “and heat input”;
j. In paragraph (g)(2) by revising the words “of the unit under section 2.1” to read “, as defined in section 2.1.4.1”; and
k. Revising paragraph (g)(6).
The revisions and additions read as follows:
(e)
(f)
(1) For an owner or operator using a continuous emissions monitoring system, substitute for missing data in accordance with the applicable missing data procedures in §§ 75.31 through 75.37 whenever the unit combusts fuel and:
(v) A valid, quality-assured hour of moisture data (in percent H
(g) * * *
(6) For any unit using continuous emissions monitors, the conditional data validation procedures in § 75.20(b)(3)(ii) through (b)(3)(ix).
43. Section 75.71 is amended by:
a. In paragraph (a)(1) by adding the word “rate” after the words “heat input” and by removing the hyphen after each occurrence of the words “O
b. In the second sentence of paragraph (a)(2) by adding the word “rate” after
c. In paragraph (b)(1) by revising “i.e.” to read “e.g.” and by adding the words “or to calculate the heat input rate” before the words “, the owner”;
d. In paragraph (b)(3) by adding the word “rate” after the word “input” and by adding a comma after the word “maintain”;
e. In the first and second sentences of paragraph (c)(2) by adding the word “rate” after the words “heat input”; and
f. In paragraph (d)(2) by removing the words “or, if applicable, paragraph (e) of this section”, by revising the reference in “paragraph (c)” to read “paragraph (c)(1) or (c)(2)”, and by adding two new sentences to the end of the paragraph.
The revisions and additions read as follows:
(d) * * *
(2) * * * If the required CEMS are not installed and certified by that date, the owner or operator shall report hourly NO
44. Section 75.72 is amended by:
a. Revising the first sentence of the introductory paragraph to the section;
b. Revising paragraphs (a)(1) introductory text and (a)(1)(i);
c. Redesignating paragraph (a)(1)(ii) as paragraph (a)(1)(iii) and adding a new paragraph (a)(1)(ii);
d. In the newly redesignated paragraph (a)(1)(iii)(A) by adding the word “rate” after the words “heat input” and by adding the words “and a diluent monitor” after the word “system” in newly redesignated paragraph (a)(1)(iii)(B);
e. In paragraph (a)(2) introductory text by adding the words “, for purposes of heat input determination,” after the words “from each unit and”;
f. In paragraph (a)(2)(ii)(A) by adding the word “rate” after the words “heat input”;
g. In paragraph (b)(1) introductory text by removing the semicolon and adding the words “, for purposes of heat input determination,” at the end of the paragraph;
h. In paragraph (b)(2)(ii)(B) by adding the word “rate” after the words “heat input” in the first sentence;
i. In paragraph (b)(2)(iii) by adding the words “, in accordance with paragraph (a) of this section” after the word “purposes”;
j. Revising paragraph (c);
k. Revising paragraph (d);
l. In paragraph (e) introductory text by revising the first sentence, adding a new second sentence, and revising the words “appendix F of “ to read “appendix F to” in the third sentence;
m. In paragraph (e)(1) introductory text by revising the second sentence and adding a new third sentence;
n. In paragraph (e)(1)(i) by adding the word “rate” after “heat input” and by revising the reference to “§ 75.16(e)(5)” to read “§ 75.16(e)(3)”;
o. In paragraph (e)(2) by adding the word “rate” after the words “heat input” in the first sentence; and
p. In paragraph (g) by removing the words “the owner or operator should” and by revising the reference to “§ 75.16(e)(5)” to read “§ 75.16(e)(3)”.
The revisions and additions read as follows:
Except as provided in paragraphs (e) and (f) of this section, the owner or operator of an affected unit shall calculate hourly NO
(a) * * *
(1) Install, certify, operate, and maintain a NO
(i) Apportion the common stack heat input rate to the individual units according to the procedures in § 75.16(e)(3);
(ii) Install, certify, operate, and maintain a flow monitoring system and diluent monitor in the duct to the common stack from each unit; or
(c)
(1) Install, certify, operate, and maintain separate NO
(2) Monitor NO
(3) Install, certify, operate, and maintain a NO
(d)
(1) Install, certify, operate, and maintain a NO
(2) Install, certify, operate, and maintain a NO
(3) If the unit is eligible to use the procedures in appendix D to this part and if the conditions and restrictions of § 75.17(c)(2) are fully met, install, certify, operate, and maintain a NO
(e)
(1) * * * In addition, the owner or operator must provide heat input rate values for each unit utilizing a common stack. The owner or operator may either:
45. Section 75.73 is amended by:
a. In the second sentence of paragraph (a) by adding the word “compliance” before the word “deadline”, and by revising the reference to “§ 75.70” to read “§ 75.70(b)”;
b. Revising paragraph (a)(6) introductory text;
c. Adding new paragraphs (a)(8), (a)(9), (d)(6), (f)(1)(vii), and (f)(1)(viii);
d. Revising all of paragraph (c)(3) except for the heading and the first sentence;
e. Revising paragraph (e)(1); and
f. In paragraph (e)(2) by adding the words “certification or” before the words “recertification application” in the third sentence, and by adding a new sentence to the end of the paragraph.
The revisions and additions read as follows:
(a) * * *
(6)
(8) Total NO
(9) Formulas from monitoring plan for total NO
(c) * * *
(3) * * * In addition, to the extent applicable, each monitoring plan shall contain the information in § 75.53, paragraphs (f)(1)(i), (f)(2)(i), and (f)(4) in electronic format and the information in § 75.53, paragraphs (f)(1)(ii) and (f)(2)(ii) in hardcopy format. For units using the low mass emissions excepted methodology under § 75.19, the monitoring plan shall include the additional information in § 75.53, paragraphs (f)(5)(i) and (f)(5)(ii). The monitoring plan also shall identify, in electronic format, the reporting schedule for the affected unit (ozone season or quarterly), the beginning and end dates for the reporting schedule, seasonal controls indicator, ozone season fuel switching flag, and whether year-round reporting for the unit is required by a State or local agency.
(d) * * *
(6)
(e) * * *
(1)
(2) * * * Electronic submittal of all monitoring plan information, including hardcopy portions, is permissible provided that a paper copy of the hardcopy portions can be furnished upon request.
(f) * * *
(1) * * *
(vii) Reporting period heat input.
(viii) New reporting frequency and begin date of the new reporting frequency.
46. Section 75.74 is amended by:
a. Revising paragraph (c)(2)(i)(D)(
b. Adding a new second sentence to paragraph (c)(2)(ii);
c. In the third sentence of paragraph (c)(2)(ii)(C) by revising the words “in every period of five consecutive calendar” to read “every five”;
d. Revising paragraph (c)(2)(ii)(H)(
e. Revising the second sentence of paragraph (c)(3)(iii);
f. In the second sentence of paragraph (c)(3)(iv) by adding the words “the cumulative” after the word “only” and by revising the words “included when determining” to read “used to determine”;
g. In paragraph (c)(3)(v) by adding a new second sentence;
h. In paragraph (c)(3)(vi)(B) by removing the quotation marks around the words “probationary calibration error test” in the first sentence, by revising the reference to “§ 75.20(b)(3)” to read “§ 75.20(b)(3)(ii)” in the first sentence, and by adding the words “(subject to the restrictions in paragraph (c)(3)(xii) of this section)” after the words “§ 75.20(b)(3)” in the third sentence;
i. In paragraph (c)(3)(viii) by adding the word “cumulative” after the number “168”;
j. In paragraph (c)(3)(x) by adding the words “, if applicable,” after the words “§ 75.20(b)(3) and”;
k. In paragraph (c)(3)(xi) by adding a comma after each occurrence of the word “diagnostic”, by revising the words “§ 75.31 or § 75.33” in the third sentence to read “§ 75.31, § 75.33, or § 75.37”, and by adding the words “conditional data validation” before the word “provisions” in the fifth sentence;
l. In paragraphs (c)(3)(xii)(A) and (B) by revising each occurrence of the words “§ 75.31 or § 75.33” to read “§ 75.31, § 75.33, or § 75.37”, by adding a comma after the occurrence of the word “diagnostic” in each paragraph, and by adding the words “conditional data validation” before the word “provisions” in the second sentence of paragraph (c)(3)(xii)(B).
m. In paragraph (c)(4) by adding the word “rate” after the words “heat input” in the first sentence and by adding a new third sentence;
n. In paragraph (c)(5) by adding the word “rate” after the words “heat input”;
o. Revising paragraphs (c)(6)(v), (c)(7)(ii), and (c)(8)(ii);
p. Adding a new paragraph (c)(7)(iii);
q. In the second sentence of paragraph (c)(10)(ii) by revising the word “monitoring” to read “monitored”; and
r. In the second sentence of paragraph (c)(11) by revising the word “calender” to read “calendar”.
The revisions and additions read as follows:
(c) * * *
(2) * * *
(i) * * *
(D) * * *
(
(ii) * * * Notwithstanding this requirement, a pre-ozone season RATA need not be performed between October 1 and April 30, if a RATA was passed during the previous ozone season and if the conditions in paragraph (a)(3)(vii) of this section are met, thereby ensuring that the data from the CEMS are quality-assured at the beginning of the current ozone season.
(H) * * *
(
(3) * * *
(iii) * * * If the flow-to-load ratio test for the second calendar quarter is failed, the owner or operator shall follow the procedures in section 2.2.5(c)(8) of appendix B to this part. * * *
(v) * * * Automatic deadline extensions may be claimed for the two calendar quarters outside the ozone season (the first and fourth calendar quarters), since a fuel flow-to-load ratio test is not required in those quarters. * * *
(4) * * * The owner or operator shall include all calendar quarters in the year when determining the deadline for visual inspection of the primary fuel flowmeter element, as specified in section 2.1.6(c) of appendix D to this part.
(6) * * *
(v) The results of RATAs (and any other quality assurance test(s) required under paragraph (c)(2) or (c)(3) of this section) which affect data validation for the current ozone season, but which were performed outside the ozone season (i.e., between October 1 of the previous calendar year and April 30 of the current calendar year), shall be reported in the quarterly report for the second quarter of the current calendar year (or in the report for the third calendar quarter of the current calendar year, if the unit or stack does not operate in the second quarter).
(7) * * *
(ii) The standard missing data procedures of §§ 75.31 through 75.37 shall be used, with one exception. When a fuel which has a significantly higher NO
(iii) In order to apply the missing data routines described in §§ 75.31 through
(A) The use of the initial missing data procedures in § 75.31 shall commence with the first unit operating hour in the first ozone season for which emissions data are required to be reported under § 75.64.
(B) In § 75.31(a), the phrases, “during the first 720 quality-assured monitor operating hours within the ozone season” and “during the first 2,160 quality-assured monitor operating hours within the ozone season.” apply respectively instead of the phrases “during the first 720 quality-assured monitor operating hours” and “during the first 2,160 quality-assured monitor operating hours.”
(C) The sentence, “The owner or operator of a unit shall use these procedures for no longer than three ozone seasons following initial certification” applies instead of the last sentence of § 75.31(a).
(D) In § 75.32(a), the phrases “the first 720 quality-assured monitor operating hours within the ozone season,” “the first 2,160 quality-assured monitor operating hours within the ozone season,” and “three ozone seasons” apply, respectively, instead of the phrases “the first 720 quality-assured monitor operating hours,” “the first 2,160 quality-assured monitor operating hours,” and “three years (26,280 clock hours).”
(E) In § 75.32(a)(1), the phrase “Following initial certification, prior to completion of 3,672 unit operating hours within the subsequent ozone season(s)” applies instead of the phrase “Prior to completion of 8,760 unit operating hours following initial certification.”
(F) In Equation 8, the phrase “Total unit operating hours within the ozone season” applies instead of the phrase “Total unit operating hours.”
(G) In § 75.32(a)(2), phrase, “3,672 unit operating hours within the ozone season,” applies instead of the phrase, “8,760 unit operating hours”, and the phrase, “three ozone seasons” applies instead of the phrase, “three years (26,280 clock hours).”
(H) In the numerator of Equation 9, the phrase, “Total unit operating hours within the ozone season” applies instead of the phrase “Total unit operating hours”, and the phrase, “3,672 unit operating hours within the ozone season” applies instead of the phrase, “8,760 unit operating hours”. In the denominator of Equation 9, the number “3,672” applies instead of “8,760.”
(I) Use the following instead of the first three sentences in § 75.32(a)(3): “When calculating percent monitor data availability using Equation 8 or 9, the owner or operator shall include all unit operating hours within the ozone season, and all monitor operating hours within the ozone season for which quality-assured data were recorded by a certified primary monitor; a certified redundant or non-redundant backup monitor or a reference method for that unit; or by an approved alternative monitoring system under subpart E of this part. No hours from more than three ozone seasons earlier shall be used in Equation 9.” For a unit that has accumulated fewer than 3,672 unit operating hours in the previous three ozone seasons, use the following in the numerator of Equation 9, “Total unit operating hours for which quality-assured data were recorded in the previous three ozone seasons”, and in the denominator of Equation 9 use “Total unit operating hours in the previous three ozone seasons.”
(J) In § 75.33(a), the phrases “the first 720 quality-assured monitor operating hours within the ozone season,” “the first 2,160 quality-assured monitor operating hours within the ozone season,” and “three ozone seasons” apply, respectively, instead of the phrases “the first 720 quality-assured monitor operating hours,” “the first 2,160 quality-assured monitor operating hours,” and “three years (26,280 clock hours).”
(K) Instead of the last sentence of § 75.33(a), use “For the purposes of missing data substitution, the owner or operator of a unit shall not use quality-assured monitor operating hours of data that were recorded more than three ozone seasons prior to the ozone season in which the missing data period occurs.”
(L) In §§ 75.33(b), 75.33(c), 75.35, 75.36, and 75.37, the phrases, “720 quality-assured monitor operating hours within the ozone season” and “2,160 quality-assured monitor operating hours within the ozone season” apply, respectively, instead of the phrases “720 quality-assured monitor operating hours” and “2,160 quality-assured monitor operating hours.”
(M) In § 75.34(a)(2), the phrases, “720 (or 2,160) quality-assured monitor operating hours within the ozone season,” “previous 720 quality-assured monitor operating hours recorded within the ozone season in the uncontrolled database,” and “the requisite number of quality-assured monitor operating hours of SO
(8) * * *
(ii) For units with add-on emission controls, using the missing data option in § 75.34(a)(1), the range of operating parameters for add-on emission controls, as described in § 75.34(a) and information for verifying proper operation of the add-on emission controls during missing data periods, as described in § 75.34(d). For units using the missing data option in § 75.34(a)(2), information documenting the operating status of the add-on emission controls during unit operation, as described in § 75.34(d).
47. Section 1 of Appendix A to Part 75 is amended by:
a. In section heading 1.1 by revising the words “Pollutant Concentration and CO
b. In the second sentence of section 1.1 by revising the words “SO
c. In section heading 1.1.1 by removing the words “Pollutant Concentration and CO
d. In section heading 1.1.2 by removing the words “Pollutant Concentration and CO
e. In the fourth sentence of section 1.2 by revising the words “section 6.5.2” to read “section 6.5.2.1”; and
f. Removing the first sentence of section 1.2.2.
48. Section 2 of Appendix A to Part 75 is amended by:
a. Revising the second and third sentences of section 2.1;
b. In the first sentence of section 2.1.1 by revising the words “this section 2” to read “sections 2.1.1.1 through 2.1.1.5 of this appendix”;
c. Moving Equations A-1a and A-1b and the variable equations and Note following them from paragraph (c) of section 2.1.1.1 to the end of paragraph (a) of section 2.1.1.1;
d. Revising the definition of the variable “%S” in Equation A-1b of paragraph (a) of section 2.1.1.1;
e. Adding a definition for the variable “GCV” after the definition of the variable “%CO
f. Adding two sentences to the end of paragraph (b) of section 2.1.1.1;
g. Adding three sentences to the end of paragraph (a) of section 2.1.1.2;
h. In the definition of MPC in Equation A-2 in paragraph (c) of section 2.1.1.2 by adding the words “in section 2.1.1.1 of this appendix” after the words “as determined by Eq. A-1a or A-1b”;
i. Revising the fifth and tenth sentences of section 2.1.1.3;
j. In paragraph (c) of section 2.1.1.4 by adding a sentence after the first sentence;
k. Removing the first sentence of paragraph (d) of section 2.1.1.4 and adding three sentences in its place;
l. In the first sentence of section 2.1.1.5 by revising the words “paragraphs (a) and (b)” to read “paragraphs (a), (b), and (c)”;
m. In paragraph (c) of section 2.1.1.5 by revising the final sentence;
n. In section 2.1.2 by revising the words “section 2.1.2.1” to read “sections 2.1.2.1 through 2.1.2.5 of this appendix”;
o. In paragraph (a) of section 2.1.2.1 by adding two new sentences at the end of Option 1, by removing the word “or” from Option 3, by revising the period at the end of Option 4 to read “; or”, and by adding a new Option 5;
p. Adding two new sentences to the end of paragraph (c) of section 2.1.2.1;
q. Revising the first sentence of paragraph (d) of section 2.1.2.1;
r. Revising the second sentence of paragraph (e) and Table 2-2 in section 2.1.2.1;
s. Revising paragraph (a) of section 2.1.2.2;
t. In the third sentence of paragraph (b) of section 2.1.2.2 by adding the words “(if applicable)” after the words “ NO
u. Revising the second and third sentences of paragraph (c) of section 2.1.2.2;
v. Revising the fourth sentence of paragraph (a) of section 2.1.2.3;
w. In the first sentence of paragraph (b) of section 2.1.2.3 by revising the words “requires a span” to read “requires or allows the use of a span value”;
x. Revising the second sentence of paragraph (b) of section 2.1.2.4 and adding a new sentence after the first sentence;
y. Removing the first sentence of paragraph (c) of section 2.1.2.4 and adding three sentences in its place;
z. In the third sentence of section 2.1.2.5 by revising the words “paragraphs (a) and (b)” to read “paragraphs (a), (b), and (c)”;
aa. In paragraph (c) of section 2.1.2.5 by adding the word “diagnostic” before the words “linearity test” in the fifth sentence and by revising the final sentence;
bb. Amending section 2.1.3 by adding a sentence to the end of the section;
cc. In section 2.1.3.3 by adding two new sentences to the beginning of the section;
dd. In the fifth sentence of section 2.1.4.2 by adding the words “, as specified in section 2.2.2.1 of this appendix” after the words “of the calibration span value”;
ee. In section 2.1.6 by adding a sentence to the end of that section; and
ff. Revising section 2.2.
The revisions and additions read as follows:
* * * To meet these objectives, select the range such that the majority of the readings obtained during typical unit operation are kept, to the extent practicable, between 20.0 and 80.0 percent of the full-scale range of the instrument. These guidelines do not apply to: (1) SO
(a) * * *
(b) * * * Note that the initial MPC value is subject to periodic review under section 2.1.1.5 of this appendix. If an MPC value is found to be either inappropriately high or low, the MPC shall be adjusted in accordance with section 2.1.1.5, and corresponding span and range adjustments shall be made, if necessary.
(a) * * * Each initial MEC value shall be documented in the monitoring plan required under § 75.53. Note that each initial MEC value is subject to periodic review under section 2.1.1.5 of this appendix. If an MEC value is found to be either inappropriately high or low, the MEC shall be adjusted in accordance with section 2.1.1.5, and corresponding span and range adjustments shall be made, if necessary.
* * * If the SO
(c) * * * Alternatively, if RATAs are performed and passed on both measurement ranges, the owner or operator may use two separate SO
(d) The owner or operator shall designate the monitoring systems and components in the monitoring plan under § 75.53 as follows: when a single probe and sample interface are used, either designate the low and high monitor ranges as separate SO
(c) * * * Use the data validation procedures in § 75.20(b)(3), beginning with the hour in which the span is changed.
(a) * * *
Option 1: * * * For cement kilns, use 2000 ppm as the MPC. For process heaters, use 200 ppm if the unit burns only gaseous fuel and 500 ppm if the unit burns oil;
Option 5: If a reliable estimate of the uncontrolled NO
(c) * * * Note that whichever MPC option in section 2.1.2.1(a) of this appendix is selected, the initial MPC value is subject to periodic review under section 2.1.2.5 of this appendix. If an MPC value is found to be either inappropriately high or low, the MPC shall be adjusted in accordance with section 2.1.2.5, and corresponding span and range adjustments shall be made, if necessary.
(d) For units with add-on NO
(e) * * * For a unit with add-on NO
(a) Make an initial determination of the maximum expected concentration (MEC) of NO
(c) * * * The data base for the MEC shall not include any CEM data recorded during unit startup, shutdown, or malfunction or (for units with add-on NO
(a) * * * If the NO
(b) * * * Two separate NO
(c) The owner or operator shall designate the monitoring systems and components in the monitoring plan under § 75.53 as follows: When a single probe and sample interface are used, either designate the low and high ranges as separate NO
(c) * * * Use the data validation procedures in § 75.20(b)(3), beginning with the hour in which the span is changed.
* * * If a dual-range or autoranging diluent analyzer is installed, the analyzer may be represented in the monitoring plan as a single component, using a special component type code specified by the Administrator to satisfy the requirements of § 75.53(e)(1)(iv)(D).
The MPC and MEC values for diluent monitors are subject to the same periodic review as SO
* * * Alternatively, a default maximum potential moisture value of 15 percent H
(a) Design and equip each pollutant concentration and CO
(b) Design and equip each pollutant concentration or CO
Design all flow monitors to meet the applicable performance specifications.
Design and equip each flow monitor to allow for a daily calibration error test consisting of at least two reference values: (1) Zero to 20 percent of span or an equivalent reference value (e.g., pressure pulse or electronic signal) and (2) 50 to 70 percent of span. Flow monitor response, both before and after any adjustment, must be capable of being recorded by the data acquisition and handling system. Design each flow monitor to allow a daily calibration error test of (1) the entire flow monitoring system, from and including the probe tip (or equivalent) through and including the data acquisition and handling system, or (2) the flow monitoring system from and including the transducer through and including the data acquisition and handling system.
(a) Design and equip each flow monitor with a means to ensure that the moisture expected to occur at the monitoring location does not interfere with the proper functioning of the flow monitoring system. Design and equip each flow monitor with a means to detect, on at least a daily basis, pluggage of each sample line and sensing port, and malfunction of each resistance temperature detector (RTD), transceiver or equivalent.
(b) Design and equip each differential pressure flow monitor to provide (1) an automatic, periodic back purging (simultaneously on both sides of the probe) or equivalent method of sufficient force and frequency to keep the probe and lines sufficiently free of obstructions on at least a daily basis to prevent velocity sensing interference, and (2) a means for detecting leaks in the system on at least a quarterly basis (manual check is acceptable).
(c) Design and equip each thermal flow monitor with a means to ensure on at least a daily basis that the probe remains sufficiently clean to prevent velocity sensing interference.
(d) Design and equip each ultrasonic flow monitor with a means to ensure on at least a daily basis that the transceivers remain sufficiently clean (e.g., backpurging system) to prevent velocity sensing interference.
49. Section 3 of Appendix A to Part 75 is amended by:
a. In section heading 3.3.1 by adding the word “Monitors” after the word “SO
b. Revising section 3.3.1;
c. Revising paragraph (a) of section 3.3.2;
d. In the first sentence of paragraph (b) of section 3.3.2 by revising the words “not exceed” to read “be within”;
e. In section heading 3.3.3 by removing the words “Pollutant Concentration”;
f. In paragraph 3.3.3 by adding “±” before the words “1.0 percent”;
g. In section heading 3.3.4 by adding the word “Monitors” after the word “Flow”;
h. Revising section 3.3.4;
i. In the second sentence of section 3.3.6 by revising the words “appendix are” to read “appendix is”; and
j. Revising the second sentence of paragraph (b) of section 3.3.7.
The revisions and additions read as follows:
(a) The relative accuracy for SO
(b) For affected units where the average of the reference method measurements of SO
(a) The relative accuracy for NO
(a) The relative accuracy of flow monitors shall not exceed 10.0 percent at any load level at which a RATA is performed (the low, mid, or high load level, as defined in section 6.5.2.1 of this appendix).
(b) For affected units where the average of the flow reference method measurements of gas velocity at a particular load level of the relative accuracy test audit is less than or equal to 10.0 fps, the mean value of the flow monitor velocity measurements shall be within ±2.0 fps of the reference method mean value in fps at that load level, wherever the 10.0 percent relative accuracy specification is not achieved.
(b) * * * Alternatively, for affected units where the average of the reference method measurements of NO
50. Section 4 of Appendix A to Part 75 is amended by:
a. Revising the second sentence of the first paragraph of section 4;
b. Removing the last sentence of the first paragraph of section 4; and
c. In subparagraph (3) of section 4 by adding the words “the appropriate” before the word “units”, by removing the words “of the standard”, and by adding the word “e.g.,” before the words “lb/hr”.
The revisions and additions read as follows:
* * * These systems also shall have the capability of interpreting and converting the individual output signals from an SO
51. Section 6 of Appendix A to Part 75 is amended by:
a. In the first sentence of paragraph (a) of section 6.2 by adding the word “conditional” before the words “data validation procedures”;
b. In section 6.3.1 by removing the word “extended” before the words “unit outages” in the second sentence, and by adding a new sentence after the second sentence;
c. In the first sentence of paragraph (a) of section 6.3.1 by adding the word “conditional” before the words “data validation procedures”;
d. In the fourth sentence of section 6.3.2 by removing the word “extended” before the words “unit outages”, and by adding a new sentence after the fourth sentence;
e. In the first sentence of paragraph (a) of section 6.3.2 by adding the word “conditional” before the words “data validation procedures”;
f. In the first sentence of paragraph (a) of section 6.4 by adding the word “conditional” before the words “data validation procedures”;
g. In the first sentence of section 6.5 by adding the word “and” after the words “heat input,” and by removing the words “and each SO
h. Revising paragraphs (a) and (c) of section 6.5;
i. In the first sentence of paragraph (f)(1) of section 6.5 by adding the word “conditional” before the words “data validation procedures”;
j. In the second sentence of paragraph (g) of section 6.5 by removing the words “SO
k. Revising paragraph (a) of section 6.5.1 and paragraph (a) of section 6.5.2;
l. In paragraph (b) of section 6.5.2 by revising the words “section 6.5.2.1” to read “section 6.5.2.1(d)”;
m. In paragraph (c) of section 6.5.2 by adding the words “(or three operating levels)” after the word “level(s)”;
n. In paragraph (d) of section 6.5.2 by adding the words “(or operating levels)” after the word “level(s)”;
o. In section heading 6.5.2.1 by adding the words “(or Operating)” after the words “Normal Load”;
p. Revising paragraph (a) of section 6.5.2.1;
q. In the first sentence of paragraph (b) of section 6.5.2.1 by revising the words “30.0 to 60.0 percent” to read “> 30.0 percent, but ≤ 60.0 percent” and revising the words “60.0 to 100.0 percent” to read “> 60.0 percent”;
r. Revising paragraphs (c) and (d) of section 6.5.2.1;
s. Revising the first sentence of paragraph (e) of section 6.5.2.1;
t. Removing and reserving section 6.5.3;
u. Amending section 6.5.6 by removing the third sentence;
v. In paragraph (b)(2) of section 6.5.6 by revising the number “1.0” To read “1.2”;
w. Adding paragraph (b)(5) to section 6.5.6;
x. In the first sentence of paragraph (a) of sections 6.5.6.1 and 6.5.6.2 by revising the words “normal load” to read “the normal load level (or normal operating level)”;
y. In paragraph (c) of section 6.5.6.3 by removing the words “§ 75.56(a)(7) or” and the words “, as applicable”;
z. In paragraph (a) of section 6.5.7 by removing the words “or SO
aa. In section 6.5.10 by adding a comma after the number “7D”, and by adding a new third sentence.
The revisions and additions read as follows:
* * * Notwithstanding this requirement, for a peaking unit (as defined in § 72.2 of this chapter), only 3 of the 7 days in the test need be unit operating days. * * *
* * * Notwithstanding these requirements, for a peaking unit (as defined in § 72.2 of this chapter), only 3 of the 7 days in the test need be unit operating days. * * *
(a) Except as provided in § 75.21(a)(5), perform each RATA while the unit (or units, if more than one unit exhausts into the flue) is combusting the fuel that is a normal primary or backup fuel for that unit (for some units, more than one type of fuel may be considered normal, e.g., a unit that combusts gas or oil on a seasonal basis). For units that co-fire fuels as the predominant mode of operation, perform the RATAs while co-firing. When relative accuracy test audits are performed on continuous emission monitoring systems installed on bypass stacks/ducts, use the fuel normally combusted by the unit (or units, if more than one unit exhausts into the flue) when emissions exhaust through the bypass stack/ducts.
(c) For monitoring systems with dual ranges, perform the relative accuracy test on the range normally used for measuring emissions. For units with add-on SO
(a) Perform the required relative accuracy test audits for each SO
(a) Except for flow monitors on bypass stacks/ducts and peaking units, perform relative accuracy test audits for the initial certification of each flow monitor at three different exhaust gas velocities (low, mid, and high), corresponding to three different load levels or operating levels within the range of operation, as defined in section 6.5.2.1 of this appendix. For a common stack/duct, the three different exhaust gas velocities may be obtained from frequently used unit/load or operating level combinations for the units exhausting to the common stack. Select the three exhaust gas velocities such that the audit points at adjacent load or operating levels (i.e., low and mid or mid and high), in megawatts (or in thousands of lb/hr of steam production or in ft/sec, as applicable), are separated by no less than 25.0 percent of the range of operation, as defined in section 6.5.2.1 of this appendix.
(a) The owner or operator shall determine the upper and lower boundaries of the “range of operation” as follows for each unit (or combination of units, for common stack configurations) that uses CEMS to account for its emissions and for each unit that uses the optional fuel flow-to-load quality assurance test in section 2.1.7 of appendix D to this part:
(1) For affected units that produce electrical output (in megawatts) or thermal output (in klb/hr of steam production), the lower boundary of the range of operation of a unit shall be the minimum safe, stable load. For common stacks, the minimum safe, stable load shall be the lowest of the minimum safe, stable loads for any of the units discharging through the stack. Alternatively, for a group of frequently-operated units that serve a common stack, the sum of the minimum safe, stable loads for the individual units may be used as the lower boundary of the range of operation. The upper boundary of the range of operation of a unit shall be the maximum sustainable load. The “maximum sustainable load” is the higher of either: the nameplate or rated capacity of the unit, less any physical or regulatory limitations or other deratings; or the highest sustainable unit load, based on at least four quarters of representative historical operating data. For common stacks, the maximum sustainable load is the sum of all of the maximum sustainable loads of the individual units discharging through the stack, unless this load is unattainable in practice, in which case use the highest sustainable combined load for the units that discharge through the stack, based on at least four quarters of representative historical operating data. The load values for the unit(s) shall be expressed either in units of megawatts or thousands of lb/hr of steam load; or
(2) For affected units that do not produce electrical or thermal output, the lower boundary of the range of operation shall be the minimum expected flue gas velocity (in ft/sec) during normal, stable operation of the unit. The upper boundary of the range of operation shall be the maximum potential flue gas velocity (in ft/sec) as defined in section 2.1.4.1 of this appendix. The minimum expected and maximum potential velocities may be derived from the results of reference method testing or by using Equation A-3a or A-3b (as applicable) in section 2.1.4.1 of this appendix. If Equation A-3a or A-3b is used to determine the minimum expected velocity, replace the word “maximum” to read “minimum” in the definitions of “MPV,” “H
(c)
(2) If the affected unit does not produce electrical or steam load, follow the procedures in paragraph (c)(1) of this section, except that:
(i) The words “load level” shall read “operating level;” and
(ii) If the unit does not have an installed flow monitor, the historical data analysis described in paragraph (c)(1) of this section is not required.
(d)
(2) For units that do not produce electrical or thermal output, follow the procedures in paragraph (d)(1) of this section, except that:
(i) The words “load” and “load level” shall read “operating level;” and
(ii) If the unit does not have an installed flow monitor, the two most frequently-used operating levels and the normal operating level(s) shall be determined using sound engineering judgment, in lieu of performing a historical data analysis. The operating level determinations shall be based on knowledge of the unit, operating experience with the unit, and actual stack gas velocity measurements using EPA Method 2 in appendix A to part 60 of this chapter (or its allowable alternatives).
(e) The owner or operator shall report the upper and lower boundaries of the range of operation for each unit (or combination of units, for common stacks), in units of megawatts or thousands of lb/hr of steam production or ft/sec (as applicable), in the electronic quarterly report required under § 75.64. * * *
(b) * * *
(5) If Method 7E is used as the reference method for the RATA of a NO
(a) * * * Also, allow sufficient measurement time to ensure that stable temperature readings are obtained at each traverse point, particularly at the first measurement point at each sample port, when a probe is moved sequentially from port-to-port. * * * Alternatively, moisture measurements for molecular weight determination may be performed before and after a series of RATA runs at a particular load level (low, mid, or high), provided that the time interval between the two moisture measurements does not exceed three hours. If this option is selected, the results of the two moisture determinations shall be averaged arithmetically and applied to all RATA runs in the series. * * *
* * * Notwithstanding these requirements, Method 20 may be used as the reference method for relative accuracy test audits of NO
52. Section 7 of Appendix A to Part 75 is amended by:
a. In section heading 7.3 by revising the words “SO
b. Revising the first sentence of section 7.3;
c. Revising the variable
d. In the section heading and text of section 7.4 by revising the word “ NO
e. In section heading 7.4.2 by removing the words “(Monitoring System)”;
f. In the second sentence of section 7.6.1 by adding the words “or NO
g. In paragraph (a) of section 7.7 by removing the fourth sentence;
h. In paragraph (b) of section 7.7 by removing the first two sentences and adding four new sentences;
i. In the variable “(Heat Input)
j. In paragraph (d) of section 7.7 by adding the words “(i.e., the arithmetic average of the diluent gas concentrations for all clock hours in which a RATA run was performed)” to the end of the sentence;
k. In section 7.8 by designating the existing text as paragraph (a), removing
l. Revising Figure 6.
The revisions and additions read as follows:
Analyze the relative accuracy test audit data from the reference method tests for SO
(b) In Equation A-13, for a common stack, determine L
(c) * * *
(b) Units that do not produce electrical output (in megawatts) or thermal output (in klb of steam per hour) are exempted from the flow-to-load ratio test requirements of section 7.7 of this appendix and section 2.2.5 of appendix B to this part.
53. Section 1 of Appendix B to Part 75 is amended by:
a. Adding a fourth sentence to section 1; and
b. Removing the word “and” before the words “section 2.1.5.1” in the second sentence of section 1.3.1.
The revisions and additions read as follows:
* * * Electronic storage of the information in the QA/QC plan is permissible, provided that the information can be made available in hardcopy upon request during an audit.
54. Section 2 of Appendix B to Part 75 is amended by:
a. In paragraph (a) of section 2.1.4 by revising the words “< 200 ppm” in the first sentence to read “> 50.0 ppm but ≤ 200 ppm, or exceeds 5.0 ppm for span values ≤ 50.0 ppm”;
b. In the first sentence of section 2.2.1 by revising the word “Perform” to read “Unless a particular monitor (or monitoring range) is exempted under this paragraph or under section 6.2 of appendix A to this part, perform”;
c. In paragraph (c) of section 2.2.3 by adding a third sentence;
d. In the second sentence of paragraph (e) of section 2.2.3 by removing the words “or SO
e. In the second sentence of paragraph (f) of section 2.2.3 by revising the words “168 unit operating hour or stack operating hour grace period” to read “grace period of 168 cumulative unit or stack operating hours”;
f. In paragraph (a) of section 2.2.4 by revising both occurrences of the word “consecutive” to read “cumulative”;
g. In the first sentence of paragraph (b) of section 2.2.4 by adding the word “cumulative” after the number “168” and the words “first unit operating” before the words “hour following”;
h. In paragraph (a) of section 2.2.5 by removing the first sentence, revising the words “by an approved petition in accordance with” in the second sentence to read “from the flow-to-load ratio test under”, and by adding a final sentence before Eq. B-1;
i. Revising the third sentence of paragraph (a)(1) of section 2.2.5;
j. In paragraph (a)(3) of section 2.2.5 by adding the word “rate” after the words “heat input”;
k. In paragraph (a)(4) of section 2.2.5 by adding the word “acceptable” after each occurrence of the number “168”, and by adding in the third sentence the words “(i.e., at loads within ± 10 percent of L
l. Revising the last sentence of paragraph (b) of section 2.2.5;
m. Revising the introductory text of paragraph (c) of section 2.2.5;
n. Adding a new third sentence in paragraph (c)(1) of section 2.2.5;
o. In paragraph (c)(8) of section 2.2.5 by removing the second sentence and adding two new sentences in its place;
p. In the first sentence of the introductory paragraph to section 2.2.5.1 by revising the words “two weeks” to read “14 unit operating days”;
q. Revising paragraph (b) of section 2.2.5.1;
r. Revising section 2.2.5.2;
s. Revising the second and third sentences of paragraph (a) of section 2.2.5.3;
t. In the second sentence of paragraph (b) of section 2.2.5.3 by changing the number “5.0” to “10.0”;
u. In paragraph (c) of section 2.2.5.3 by adding the words “(if applicable)” after the words “flow-to-load test” in the second sentence and after the words “flow monitor” in the third sentence;
v. In the fourth sentence of paragraph (a) of section 2.3.1.1 by revising the words “720 unit (or stack) operating hour grace period” to read “grace period of 720 cumulative unit or stack operating hours”;
w. Removing and reserving paragraph (b) of section 2.3.1.2;
x. Removing the words “On and after January 1, 2000,” and capitalizing the letter “t” in the first instance of “the” in paragraph (c) of section 2.3.1.2;
y. In paragraph (d) of section 2.3.1.2 by adding the words “, as measured by the reference method during the RATA” after the words “≤10.0 fps” and by removing the words “(10.0 percent if prior to January 1, 2000)”;
z. In paragraph (e) of section 2.3.1.2 by adding the words “reference method” before the word “concentrations”, and by adding the words “) during the RATA” after the words “250 ppm”;
aa. In paragraph (f) of section 2.3.1.2 by adding the words “measured by the reference method during the RATA” after the words “average NO
bb. Removing and reserving paragraph (g) of section 2.3.1.2;
cc. In section heading 2.3.1.3 by adding the words “(or Operating)” after the words “RATA Load”;
dd. In paragraph (a) of section 2.3.1.3 by adding the words “(or operating level)” after each instance of the words “load level”, adding the words “(or operating levels)” after the words “load levels”, and by revising the words “section 6.5.2.1” to read “section 6.5.2.1(d)”;
ee. In paragraph (b) of section 2.3.1.3 by revising the words “section 6.5.2.1” to read “section 6.5.2.1(d)”;
ff. Revising paragraphs (c)(1) through (c)(6) of section 2.3.1.3;
gg. In paragraph (c) of section 2.3.2 by adding a new third sentence;
hh. In paragraphs (d) and (f) of section 2.3.2 by adding the words “(or operating level)” after each occurrence of the words “load level”, the words “(or single-level)” after the word “single-load”, the words “(or multiple-level)” after the word “multiple-load”, the words “(or operating level(s))” after the words “load level(s)”, and the words “(or 3-level)” after the words “3-load”;
ii. Revising paragraph (e) of section 2.3.2;
jj. In paragraph (a) of section 2.3.3 by revising the first two instances of the word “consecutive” to read “cumulative”, removing the word “or” after the first two semicolons, and by removing the words “consecutive calendar” after the word “five”;
kk. In the first sentence of paragraph (c) of section 2.3.3 by adding the word “cumulative” after the number “720”;
ll. Revising paragraph (b) of section 2.4;
mm. Revising footnote 2 of Figure 1 to Appendix B of Part 75; and
nn. In Figure 2 to Appendix B of Part 75 by removing the row for “Flow (Phase I)”, renaming the row for “Flow (Phase II)” as “Flow”, by revising the word “H
The revisions and additions read as follows:
(c) * * * If a routine daily calibration error test is performed and passed just prior to a linearity test (or during a linearity test period) and a mathematical correction factor is automatically applied by the DAHS, the correction factor shall be applied to all subsequent data recorded by the monitor, including the linearity test data.
(a)
(1) * * * For a unit that discharges its emissions through multiple stacks or that monitors its emissions in multiple breechings, Q
(b) * * * If E
(c)
(1) * * * Also, for units that co-fire different types of fuels, if the reference RATA was done while co-firing, then hours in which a single fuel was combusted may be excluded from the data analysis as different fuel hours (and vice-versa for co-fired hours, if the reference RATA was done while combusting only one type of fuel);
(8) * * * If, however, E
(b) If a problem with the flow monitor is identified through the investigation (including the need to re-linearize the monitor by changing the polynomial coefficients or K factor(s)), data from the monitor are considered invalid back to the first unit operating hour after the end of the calendar quarter for which E
Perform a single-load RATA (at a load designated as normal under section 6.5.2.1 of
(a) * * * Data from the monitoring system are considered invalid from the hour of commencement of the repair, replacement, or maintenance until either the hour in which the abbreviated flow-to-load test is passed, or the hour in which a probationary calibration error test is passed following completion of the repair, replacement, or maintenance and any associated adjustments to the monitor. If the latter option is selected, the abbreviated flow-to-load test shall be completed within 168 cumulative unit operating hours of the probationary calibration error test (or, for peaking units, within 30 unit operating days, if that is less restrictive). * * *
(c) * * *
(1) An annual 2-load (or 2-level) flow RATA shall be done at the two most frequently used load levels (or operating levels), as determined under section 6.5.2.1(d) of appendix A to this part. Alternatively, a 3-load (or 3-level) flow RATA at the low, mid, and high load levels (or operating levels), as defined under section 6.5.2.1(b) of appendix A to this part, may be performed in lieu of the 2-load (or 2-level) annual RATA.
(2) If the flow monitor is on a semiannual RATA frequency, 2-load (or 2-level) flow RATAs and single-load (or single-level) flow RATAs at the normal load level (or normal operating level) may be performed alternately.
(3) A single-load (or single-level) annual flow RATA may be performed in lieu of the 2-load (or 2-level) RATA if the results of an historical load data analysis show that in the time period extending from the ending date of the last annual flow RATA to a date that is no more than 21 days prior to the date of the current annual flow RATA, the unit (or combination of units, for a common stack) has operated at a single load level (or operating level) (low, mid, or high), for ≥85.0 percent of the time. Alternatively, a flow monitor may qualify for a single-load (or single-level) RATA if the 85.0 percent criterion is met in the time period extending from the beginning of the quarter in which the last annual flow RATA was performed through the end of the calendar quarter preceding the quarter of current annual flow RATA.
(4) A 3-load (or 3-level) RATA, at the low-, mid-, and high-load levels (or operating levels), as determined under section 6.5.2.1 of appendix A to this part, shall be performed at least once every five consecutive calendar years.
(5) A 3-load (or 3-level) RATA is required whenever a flow monitor is re-linearized, i.e., when its polynomial coefficients or K factor(s) are changed, except for flow monitors installed on peaking units and bypass stacks. For peaking units and bypass stacks, a single-load RATA at the normal load is required.
(6) For all multi-level flow audits, the audit points at adjacent load levels or at adjacent operating levels (e.g., mid and high) shall be separated by no less than 25.0 percent of the “range of operation,” as defined in section 6.5.2.1 of appendix A to this part.
(c) * * * If a routine daily calibration error test is performed and passed just prior to a RATA (or during a RATA test period) and a mathematical correction factor is automatically applied by the DAHS, the correction factor shall be applied to all subsequent data recorded by the monitor, including the RATA test data. * * *
(e) For a RATA performed using the option in paragraph (b)(1) or (b)(2) of this section, if the RATA is failed (that is, if the relative accuracy exceeds the applicable specification in section 3.3 of appendix A to this part) or if the RATA is aborted prior to completion due to a problem with the CEMS, then the CEMS is out-of-control and all emission data from the CEMS are invalidated prospectively from the hour in which the RATA is failed or aborted. Data from the CEMS remain invalid until the hour of completion of a subsequent RATA that meets the applicable specification in section 3.3 of appendix A to this part. If the option in paragraph (b)(3) of this section to use the data validation procedures and associated timelines in §§ 75.20(b)(3)(ii) through(b)(3)(ix) has been selected, the beginning and end of the out-of-control period shall be determined in accordance with § 75.20(b)(3)(vii)(A) and (B). Note that when a RATA is aborted for a reason other than monitoring system malfunction (see paragraph (h) of this section), this does not trigger an out-of-control period for the monitoring system.
(b) Except as provided in section 2.3.3 of this appendix, whenever a passing RATA of a gas monitor is performed, or a passing 2-load (or 2-level) RATA or a passing 3-load (or 3-level) RATA of a flow monitor is performed (irrespective of whether the RATA is done to satisfy a recertification requirement or to meet the quality assurance requirements of this appendix, or both), the RATA frequency (semi-annual or annual) shall be established based upon the date and time of completion of the RATA and the relative accuracy percentage obtained. For 2-load (or 2-level) and 3-load (or 3-level) flow RATAs, use the highest percentage relative accuracy at any of the loads (or levels) to determine the RATA frequency. The results of a single-load (or single-level) flow RATA may be used to establish the RATA frequency when the single-load flow RATA is specifically required under section 2.3.1.3(b) of this appendix (for flow monitors installed on peaking units and bypass stacks) or when the single-load (or single-level) RATA is allowed under section 2.3.1.3(c) of this appendix for a unit that has operated at one load level (or operating level) for ≥ 85.0 percent of the time since the last annual flow RATA. No other single-load (or single-level) flow RATA may be used to establish an annual RATA frequency; however, a 2-load or 3-load (or a 2-level or 3-level) flow RATA may be performed at any time or in place of any required single-load (or single-level) RATA, in order to establish an annual RATA frequency.
55. Appendix C to Part 75 is amended by:
a. Revising the section heading of section 2;
b. Revising the fifth sentence in section 2.2.1 and adding a new sentence after that fifth sentence;
c. Revising in section 2.2.3.9 the reference “75.51(a)(2)” to read “75.71(a)(2)”; and
d. Adding new sections 3 and 4.
The revisions and additions read as follows:
2.2.1 * * * For a cogenerating unit or other unit at which some portion of the heat input is not used to produce electricity or for a unit for which hourly average gross load in MWge is not recorded separately, determine the maximum hourly average gross load for the unit by converting the maximum rated hourly unit heat input (including heat input from auxiliary firing, if applicable) to an equivalent gross megawatt value, using the percentage efficiencies of the main combustion source and (if applicable) any auxiliary combustion sources. If the actual percentage efficiency of a particular combustion source is unknown, use a default value of 50 percent for a combustion turbine and 33 percent for any other type of combustion source. * * *
For affected units that do not produce electrical output in megawatts or thermal output in klb/hr of steam, this procedure may be used in accordance with the provisions of this part to provide substitute data for volumetric flow rate (scfh), NO
3.2.1 For each monitored parameter (flow rate, NO
3.2.2 In the electronic quarterly report required under § 75.64, indicate for each hour of unit operation the operational bin associated with the NO
3.2.3 The data acquisition and handling system must be capable of properly identifying and recording the operational bin number for each unit operating hour. The DAHS must also be capable of calculating and recording the following information for each unit operating hour of missing flow or NO
3.2.3.1 Average of the hourly flow rates reported by a flow monitor (scfh).
3.2.3.2 The 90th percentile value of hourly flow rates (scfh).
3.2.3.3 The 95th percentile value of hourly flow rates (scfh).
3.2.3.4 The maximum value of hourly flow rates (scfh).
3.2.3.5 Average of the hourly NO
3.2.3.6 The 90th percentile value of hourly NO
3.2.3.7 The 95th percentile value of hourly NO
3.2.3.8 The maximum value of hourly NO
3.2.3.9 Average of the hourly NO
3.2.3.10 The 90th percentile value of hourly NO
3.2.3.11 The 95th percentile value of hourly NO
3.2.3.12 The maximum value of hourly NO
3.2.4 When a bias adjustment is necessary for the flow monitor and/or the NO
3.2.5 Calculate all CEMS data averages, maximum values, and percentile values determined by this procedure using bias-adjusted values.
3.2.6 Use the calculated monitor or monitoring system data averages, maximum values, and percentile values to substitute for missing flow rate and NO
For affected units that do not produce electrical output in megawatts or thermal output in klb/hr of steam, this procedure may be used in accordance with the provisions of this part to provide substitute data for fuel flow rate.
4.2.1 Establish at least two, but no more than ten operational bins, corresponding to various operating conditions and parameters (or combinations of these) related to the fuel flow rate. Include a complete description of each operational bin in the hardcopy portion of the monitoring plan required under § 75.53(f)(1)(ii), identifying the parameters and operating conditions associated with the bin and explaining the relationship between these parameters and conditions and the magnitude of the fuel flow rate. Assign a unique number, 1 through 10, to each operational bin.
4.2.2 In the electronic quarterly report required under § 75.64, indicate for each hour of unit operation the operational bin associated with the fuel flow rate data, by recording the number assigned to the bin under section 4.2.1 of this appendix.
4.2.3 The data acquisition and handling system (DAHS) must be capable of properly identifying and recording the operational bin number for each unit operating hour. The DAHS must also be capable of calculating and recording the following information for each unit operating hour of missing fuel flow rate data within each identified operational bin during the previous 720 operating hours (on a rolling basis):
4.2.3.1 Arithmetic average of the hourly fuel flow rates reported by a certified fuel flowmeter system, in appropriate units of fuel flow rate.
4.2.3.2 The maximum value of hourly fuel flow rates reported by a certified fuel flowmeter system, in appropriate units of fuel flow rate.
4.2.4 The DAHS shall also be capable of separating the recorded fuel flow rate data on the basis of the type of fuel combusted in the unit. A separate database shall be created and maintained for each type of fuel when it is combusted alone in the unit. If different types of fuel are co-fired in the unit, an additional database shall be created and maintained for each type of fuel, for hours in which it is co-fired with any other type(s) of fuel(s).
4.3 Use the calculated average and maximum values to substitute for missing fuel flow rate data according to the applicable procedures in sections 2.4.2 and 2.4.3 in appendix D to this part.
56. Section 1 of Appendix D to Part 75 is amended by removing the final sentence of section 1.2.
57. Section 2 of Appendix D to Part 75 is amended by:
a. Revising sections 2.1.2, 2.1.2.1, and 2.1.2.2;
b. Revising the first sentence of section 2.1.4.1;
c. Revising section 2.1.4.3;
d. In section 2.1.5 by revising the words “calibrated fuel flow rate” to read “fuel flow rate measurable by the flowmeter” in the first sentence, by adding the words “(orifice, nozzle, and venturi-type flowmeters, only)” after the words “by design” in the second
e. In section 2.1.5.4 by revising the words “using the following” to read “in a manner consistent with”;
f. In paragraph (c) of section 2.1.6 by removing the words “2.1.5.1 or”;
g. In paragraph (d) of section 2.1.6 by removing the words “, where applicable,” before the words “those procedures” and “, where applicable” after the second occurrence of the words “element inspection”, and by adding “(if applicable)” after both occurrences of the words “test or”;
h. Adding new paragraphs (e) and (f) to section 2.1.6;
i. In the second sentence of paragraph (a) of section 2.1.6.1 by adding the word “upscale” after the word “other” and by adding a new third sentence;
j. In section heading 2.1.6.2 by revising the words “and Reporting of” to read “for”;
k. In paragraph (a) of section 2.1.6.2 by removing the second and third sentences;
l. Removing and reserving sections 2.1.6.2(b) and 2.1.6.2(c);
m. In the final sentence of section 2.1.6.3 by removing the words “§ 75.56 or” and “, as applicable”;
n. In the fourth sentence of paragraph (a) of section 2.1.6.4 by revising the words “indicates that” to read “is failed (if” and by adding a closing parenthesis after the word “corroded”;
o. In paragraph (a)(1) of section 2.1.6.4 by adding a new second sentence;
p. In paragraphs (a)(2) and (b)(2) of section 2.1.6.4 by revising the word “under” to read “, using”;
q. In paragraph (b) of section 2.1.6.4 by removing the first sentence;
r. In paragraph (b)(1) of section 2.1.6.4 by adding the words “and, if applicable, the transmitters have been successfully recalibrated” to the end of the final sentence;
s. In paragraph (c) of section 2.1.6.4 by revising the words “this period” to read “each period of invalid fuel flowmeter data described in paragraph (b) of this section”;
t. In section 2.1.7 by removing each occurrence of the words “where applicable,” and “as applicable,”, by removing the words “§ 75.54(a) or”, and by adding the words “(if applicable) a” and “(if applicable)” after the two occurrences of “test or”, respectively;
u. In paragraph (a) of section 2.1.7.1 by revising the first occurrence of “i.e.” to read “e.g.”, by revising the sixth sentence, and by adding the word “Arithmetic” before the word “average” in the definitions of the variables “Q
v. Revising paragraph (b) of section 2.1.7.1;
w. In paragraph (c) of section 2.1.7.1 by adding the words “average fuel flow rate and the fuel GCV in the” before the word “applicable” in the definition of the variable “(Heat Input)
x. In paragraph (a) of section 2.1.7.2 by adding a new third sentence;
y. Revising paragraph (b) of section 2.1.7.2;
z. In the variable for “(Heat Input)
aa. In paragraph (d) of section 2.1.7.2 by revising the third sentence and by adding a new fourth sentence;
bb. Revising the first sentence of paragraph (a) of section 2.1.7.3;
cc. Adding a second sentence to paragraph (b) of section 2.1.7.3;
dd. In the first sentence of paragraph (a) of section 2.1.7.4 by revising the reference to “section 2.1.7.2” to read “section 2.1.7.2(h)”;
ee. In the final sentence of paragraph (b) of section 2.1.7.4 by adding the word “fuel” after the word “two” and by adding the words “(as defined in § 72.2 of this chapter)” after the word “quarters”;
ff. Revising Table D-4 in section 2.2;
gg. In section 2.2.4.2 introductory text by adding the words “and GCV value” after the words “Use the sulfur content” in the fourth sentence, and by revising the reference to “section 2.2.4.3” to read “section 2.2.4.3(c)”;
hh. Revising paragraph (b) of section 2.2.4.2;
ii. In the second sentence of paragraph (c) of section 2.2.4.3 by revising the first and second occurrences of the words “two following values” with, respectively, the words “following conservative, assumed values” and “assumed values”;
jj. Revising paragraph (d) of section 2.2.4.3;
kk. Revising Table D-5 in section 2.3(b);
ll. Revising all of section 2.3.1.4 except for the section heading and paragraph (a)(1);
mm. In section 2.3.2.1.1 by adding a new second sentence and by revising Equation D-1h and the definitions of variables for Equation D-1h;
nn. Revising sections 2.3.2.1.2 and 2.3.2.4;
oo. In section 2.3.3.2 by revising the third sentence and adding a new fourth sentence;
pp. In section 2.3.4.3 by adding a new second sentence;
qq. Revising the fourth sentence of section 2.3.4.3.1;
rr. Revising section 2.3.4.3.2 and paragraph (a) of section 2.3.5;
ss. In paragraph (a) of section 2.3.6 by revising the first, second, fourth, and fifth sentences and by adding a new sentence after the second sentence;
tt. In the first sentence of paragraph (b) of section 2.3.6 by removing the words “(and hydrogen sulfide content, if applicable)”;
uu. In the first sentence of section 2.4.1 by removing the reference “2.3.3.1.2,”;
vv. Revising Table D-6 in section 2.4.1 and sections 2.4.2, 2.4.2.1(b) and heading, 2.4.2.2, and 2.4.2.3; and
ww. In section 2.4.3 by adding a new sentence to the end of that section.
The revisions and additions read as follows:
2.1.2 Install and use fuel flowmeters meeting the requirements of this appendix in a pipe going to each unit, or install and use a fuel flowmeter in a common pipe header (as defined in § 72.2 of this chapter). However, the use of a fuel flowmeter in a common pipe header and the provisions of sections 2.1.2.1 and 2.1.2.2 of this appendix shall not apply to any unit that is using the provisions of subpart H of this part to monitor, record, and report NO
2.1.2.1 Measure the fuel flow rate in the common pipe, and combine SO
2.1.2.2 Apportion the heat input rate measured at the common pipe to the individual units, using Equation F-21a, F-21b, or F-21d in appendix F to this part.
For an oil-fired unit that uses gas solely for start-up or burner ignition, a gas-fired unit that uses oil solely for start-up or burner ignition, or an oil-fired unit that uses a different grade of oil solely for start-up or burner ignition, a fuel flowmeter for the start-up fuel is permitted but not required. * * *
The designated representative of a unit that is restricted by a federally-enforceable permit
(e) When accuracy testing of the orifice, nozzle, or venturi meter is performed according to section 2.1.5.2 of this appendix, record the information displayed in Table D-1 in this section. At a minimum, record the overall accuracy results for the fuel flowmeter at the three flow rate levels specified in section 2.1.5.2 of this appendix.
(f) Report the results of all fuel flowmeter accuracy tests, transmitter or transducer accuracy tests, and primary element inspections, as applicable, in the emissions report for the quarter in which the quality assurance tests are performed, using the electronic format specified by the Administrator under § 75.64.
(a) * * * For temperature transmitters, the zero and upscale levels may correspond to fixed reference points, such as the freezing point or boiling point of water.
(a) * * *
(1) * * * If the primary element size is changed, also calibrate the transmitters or transducers, consistent with the new primary element size;
(a) * * * For orifice-, nozzle-, and venturi-type fuel flowmeters, if the fuel flow-to-load ratio is to be used as a supplement both to the transmitter accuracy test under section 2.1.6.1 of this appendix and to primary element inspections under section 2.1.6.4 of this appendix, then the baseline data must be obtained after both procedures are completed and no later than the end of the fourth calendar quarter following the calendar quarter in which both procedures were completed. * * *
(b) In Equation D-1b, for a fuel flowmeter installed on a common pipe header, L
(a) * * * Alternatively, the owner or operator may exclude non-representative hours from the data analysis, as described in section 2.1.7.3 of this appendix, prior to calculating the values of R
(b) For a fuel flowmeter installed on a common pipe header, L
(d) * * * If, for a particular fuel flowmeter, fewer than 168 hourly flow-to-load ratios (or GHR values) are available, or, if the baseline data collection period is still in progress at the end of the quarter and fewer than four calendar quarters have elapsed since the quarter in which the last successful fuel flowmeter accuracy test was performed, a flow-to-load (or GHR) evaluation is not required for that flowmeter for that calendar quarter. A one-quarter extension of the deadline for the next fuel flowmeter accuracy test may be claimed for a quarter in which there is insufficient hourly data available to analyze or a quarter that ends with the baseline data collection period still in progress.
(a) If E
(b) * * * If fewer than 168 hourly fuel flow-to-load ratio or GHR values remain after the allowable data exclusions, a fuel flow-to-load ratio or GHR analysis is not required for that quarter, and a one-quarter extension of the fuel flowmeter accuracy test deadline may be claimed.
(b) One of the conservative assumed values described in section 2.2.4.3(c) of this appendix. Follow the applicable provisions in section 2.2.4.3(d) of this appendix, regarding the use of assumed values.
(d) Continue using the assumed value(s), so long as the sample results do not exceed the assumed value(s). However, if the actual sampled sulfur content, gross calorific value, or density of an oil sample is greater than the assumed value for that parameter, then, beginning on the date of receipt of the results of the sample analysis, use the actual sampled value for sulfur content, gross calorific value, or density of fuel to calculate SO
(a) A fuel may initially qualify as pipeline natural gas, if information is provided in the monitoring plan required under § 75.53, demonstrating that the definition of pipeline natural gas in § 72.2 of this chapter has been met. The information must demonstrate that the fuel meets either the percent methane or GCV requirement and has a total sulfur content of less than or equal to 0.5 grains/100scf. The demonstration must be made using one of the following sources of information:
(2) The results of all available fuel sample analyses from the past 12 months, documenting the total sulfur content of the fuel and the percentage by weight of methane and/or GCV of the fuel. The fuel samples may be obtained and analyzed by the owner or operator, by an independent laboratory, or by the supplier of the gaseous fuel;
(3) Data from a 720-hour demonstration conducted using the procedures of sections 2.3.5 and 2.3.6 of this appendix, documenting the total sulfur content of the fuel and the percentage by weight of methane and/or the GCV of the fuel, and using comparable procedures to document the percentage by weight of methane; or
(4) If historical fuel sampling results or data from a 720-hour demonstration are not available, a fuel may initially qualify as pipeline natural gas if a sample of the fuel is obtained and analyzed for total sulfur content and for percent methane or GCV, and if the results of the sample analysis show that the total sulfur content and percentage methane or GCV meet the definition of pipeline natural gas in § 72.2 of this chapter.
(b) After a fuel initially qualifies as pipeline natural gas under paragraph (a) of this section, the owner or operator shall sample the fuel for total sulfur content at least semiannually and whenever it is reasonable to believe that the fuel composition has changed significantly. The owner or operator shall also sample the GCV of the fuel at the frequency specified in section 2.3.4.1 of this appendix.
(c) If the results of a sample under paragraph (b) of this section show that the total sulfur content of the fuel exceeds 0.5gr/100 scf, the fuel no longer qualifies as pipeline natural gas. When this occurs:
(1) If the sample results show that the fuel still qualifies as natural gas under section 2.3.2.4 of this appendix, discontinue using the 0.0006 lb/mmBtu default SO
(2) If the sample results show that the fuel no longer qualifies either as pipeline natural gas or natural gas, the owner or operator shall implement the procedures of section 2.3.3.1 of this appendix (for sulfur content determination) and section 2.3.4.3 of this appendix (for GCV determination), no later than 90 days after the end of the quarter in which the sample results are received.
ER = Default SO
S
GCV = Gross calorific value of the natural gas, Btu/100scf.
7000 = Conversion of grains/100scf to lb/100scf.
2.0 = Ratio of lb SO
10
2.3.2.1.2 For reporting purposes, apply the results of the required periodic fuel samples described in Table D-5 of this appendix as follows. Use Equation D-1h to recalculate the SO
(a) For daily samples of total sulfur content or GCV:
(1) If the actual value is to be used in the calculations, apply the results of each daily sample to all hours in the day on which the sample is taken; or
(2) If the highest value in the previous 30 daily samples is to be used in the calculations, apply that value to all hours in the current day. If, for a particular unit, fewer than 30 daily samples have been collected, use the highest value from all available samples until 30 days of historical sampling results have been obtained.
(b) For semiannual samples of total sulfur content:
(1) If the actual value is to be used in the calculations, apply the results of the most recent sample, until the date on which the results of the next sample are received; or
(2) If an assumed value (contract maximum or highest value from previous year's samples) is to be used in the calculations, apply the assumed value to all hours in the quarter unless a higher value is obtained in a semiannual fuel sample. In that case, use the sampled value, beginning with the date of receipt of the sample results. Consider the sample results to be the new assumed value. Continue using the new assumed value unless and until it is superseded by a higher value from a subsequent quarterly sample; or (if applicable) it is superseded by a new contract in which case the new contract value becomes the assumed value at the time the fuel specified under the new contract begins to be combusted in the unit; or (if applicable) both the calendar year in which the sampled value exceeded the assumed value and the subsequent calendar year have elapsed.
(c) For monthly samples of the fuel GCV:
(1) If the actual value is to be used in the calculations, apply the results of the most recent sample, until the date on which the results of the next sample are received; or
(2) If an assumed value (contract maximum or highest value from previous year's samples) is to be used in the calculations, apply the assumed value to all hours in each month of the quarter unless a higher value is obtained in a monthly GCV sample. In that case, use the sampled value, beginning with the date of receipt of the sample results. Consider the sample results to be the new assumed value. Continue using the new assumed value unless and until it is superseded by a higher value from a subsequent monthly sample; or (if applicable) it is superseded by a new contract in which case the new contract value becomes the assumed value at the time the fuel specified under the new contract begins to be combusted in the unit; or (if applicable) both the calendar year in which the sampled value exceeded the assumed value and the subsequent calendar year have elapsed.
(d) For samples of gaseous fuel delivered in shipments or lots:
(1) If the actual value for the most recent shipment is to be used in the calculations, apply the results of the most recent sample, until the date on which the results of the next sample are received; or
(2) If an assumed value (contract maximum or highest value from previous year's samples) is to be used in the calculations, apply the assumed value unless a higher value is obtained in a sample of a shipment. In that case, use the sampled value, beginning with the date of receipt of the sample results. Consider the sample results to be the new assumed value. Continue using the new assumed value unless and until: it is superseded by a higher value from a sample of a subsequent shipment; or (if applicable) it is superseded by a new contract in which case the new contract value becomes the assumed value at the time the fuel specified under the new contract begins to be combusted in the unit; or (if applicable) both the calendar year in which the sampled value exceeded the assumed value and the subsequent calendar year have elapsed.
(a) A fuel may initially qualify as natural gas if information is provided in the monitoring plan required under § 75.53, demonstrating that the definition of natural gas in § 72.2 of this chapter has been met. The information must demonstrate that the fuel meets either the percent methane or GCV requirement and has a total sulfur content of less than or equal to 20.0 grains/100 scf. This demonstration must be made using one of the following sources of information:
(1) The gas quality characteristics specified by a purchase contract or by a transportation contract;
(2) The results of all available fuel sample analyses from the past 12 months, documenting the total sulfur content of the fuel and the percentage by weight of methane and/or GCV of the fuel. The fuel samples may be obtained and analyzed by the owner or operator, by an independent laboratory, or by the supplier of the gaseous fuel;
(3) Data from a 720-hour demonstration conducted using the procedures of section 2.3.6 of this appendix, documenting the total sulfur content of the fuel and the percentage by weight of methane and/or the GCV of the fuel, and using comparable procedures to document the percentage by weight of methane; or
(4) If historical fuel sampling results or data from a 720-hour demonstration are not available, a fuel may initially qualify as natural gas if a sample of the fuel is obtained and analyzed for total sulfur content and for percent methane or GCV, and if the results of the sample analyses show that the total sulfur content and percentage methane or GCV meet the definition of natural gas in § 72.2 of this chapter.
(b) After a fuel initially qualifies as natural gas under paragraph (a) of this section, the owner or operator shall sample the fuel for total sulfur content at least semiannually and whenever it is reasonable to believe that the fuel composition has changed significantly. The owner or operator shall also sample the GCV of the fuel at the frequency specified in section 2.3.4.2 of this appendix.
(c) If the results of a periodic sample required under paragraph (b) of this section show that the total sulfur content of the fuel exceeds 20.0 gr/100 scf, the fuel no longer qualifies as natural gas. In that case, the owner or operator shall implement the procedures of section 2.3.3.1 of this appendix (for sulfur content determination) and section 2.3.4.3 of this appendix (for GCV determination), no later than 90 days after the end of the quarter in which the sample results are received.
* * * That is, for fuels delivered by pipeline which demonstrate a low sulfur variability (under section 2.3.6 of this appendix) use either the daily sample value or the highest value in the previous 30 daily samples or for fuels requiring hourly sulfur content sampling with a gas chromatograph use the actual hourly sulfur content). For fuels delivered in shipments or lots, use either the actual sulfur content from the most recent shipment or an assumed value (contract maximum or highest value from the previous year's samples). In all cases, for reporting purposes, apply the results of the required periodic total sulfur samples in accordance with the provisions of section 2.3.2.1.2 of this appendix.
* * * For reporting purposes, apply the results of the required periodic GCV samples in accordance with the provisions of section 2.3.2.1.2 of this appendix.
2.3.4.3.1 * * * For sampling from the tank after each delivery, use either the most recent GCV sample, the maximum GCV specified in the fuel contract, or the highest GCV from the previous year's samples.
2.3.4.3.2 For any gaseous fuel that does not qualify as pipeline natural gas or natural gas, which is not delivered in shipments or lots, and which performs the required 720 hour test under section 2.3.5 of this appendix, if the results of the test demonstrate that the gaseous fuel has a low GCV variability, determine the GCV at least monthly. In calculations of hourly heat input for a unit, use either the most recent monthly sample, the maximum GCV specified in the fuel contract, or the highest fuel GCV from the previous year's samples.
(a) This optional demonstration may be made for any fuel which does not qualify as pipeline natural gas or natural gas, and is not delivered only in shipments or lots. The demonstration data may be used to show that monthly sampling of the GCV of the gaseous fuel or blend is sufficient, in lieu of daily GCV sampling. The procedures in this section may also be used to demonstrate that the GCV of a particular gaseous fuel is within the range of GCV values for pipeline natural gas or natural gas, as defined in § 72.2 of this chapter.
(a) This optional demonstration may be made for any fuel which does not qualify as pipeline natural gas or natural gas, and is not delivered only in shipments or lots. The results of the demonstration may be used to show that daily sampling for sulfur in the fuel is sufficient, rather than hourly sampling. The procedures in this section may also be used to demonstrate that the total sulfur content of a particular gaseous fuel is within the limits for pipeline natural gas or natural gas, as defined in § 72.2 of this chapter. * * * Provide a minimum of 720 hours of data, indicating the total sulfur content of the gaseous fuel or blend (in gr/100 scf). The demonstration data shall be obtained using either manual hourly sampling or an on-line gas chromatograph capable of determining fuel total sulfur content on an hourly basis. * * *
2.4.2
(b) The maximum flow rate that the fuel flowmeter can measure (i.e, the upper range value of the flowmeter).
2.4.2.2
2.4.2.2.1 If load-based missing data procedures are used, substitute the arithmetic average of the hourly fuel flow rate(s) measured and recorded by a certified fuel flowmeter system at the corresponding operating unit load range during the previous 720 operating hours in which the unit combusted only that same fuel. If no fuel flow rate data are available at the corresponding load range, apply the same mathematical algorithm to, and use the same lookback period for, the data from the next higher load range, if such data are available. If no quality-assured fuel flow rate data are available at either the corresponding load range or a higher load range, substitute the maximum potential fuel flow rate (as defined in section 2.4.2.1 of this appendix) for each hour of the missing data period.
2.4.2.2.2 For units that do not produce electrical or thermal output and therefore cannot use load-based missing data procedures, provide substitute data for each hour of the missing data period as follows.
2.4.2.2.2.1 If operational bins (as defined in section 4 of appendix C to this part) are used, substitute the arithmetic average of the hourly fuel flow rates measured and recorded by a certified fuel flowmeter system at the corresponding operational bin during the previous 720 operating hours in which the unit combusted only that same fuel. If no quality-assured fuel flow rate data are available at the corresponding operational bin, or, if essential operating or parametric data are unavailable and the operational bin cannot be determined, substitute the maximum potential fuel flow rate (as defined in section 2.4.2.1 of this appendix) for each hour of the missing data period.
2.4.2.2.2.2 If operational bins are not used, substitute the arithmetic average of the hourly fuel flow rates measured and recorded by a certified fuel flowmeter system during the previous 720 operating hours in which the unit combusted only that same fuel. If no quality-assured fuel flow rate data are available, substitute the maximum potential fuel flow rate (as defined in section 2.4.2.1
2.4.2.3
2.4.2.3.1 If load-based missing data procedures are used, substitute the maximum hourly fuel flow rate measured and recorded by a certified fuel flowmeter system at the corresponding load range during the previous 720 operating hours when the fuel for which the flow rate data are missing was co-fired with any other type of fuel. If no such quality-assured fuel flow rate data are available at the corresponding load range, apply the same mathematical algorithm to, and use the same lookback period for, the data from the next higher load range (if available). If no quality-assured fuel flow rate data are available for co-fired hours, either at the corresponding load range or a higher load range, substitute the maximum potential fuel flow rate (as defined in section 2.4.2.1 of this appendix) for each hour of the missing data period.
2.4.2.3.2 For units that do not produce electrical or thermal output and therefore cannot use load-based missing data procedures, provide substitute fuel flow rate data for each hour of the missing data period as follows.
2.4.2.3.2.1 If operational bins (as defined in section 4 of appendix C to this part) are used, substitute the maximum hourly fuel flow rate measured and recorded by a certified fuel flowmeter system at the corresponding operational bin, during the previous 720 operating hours in which the unit for which the flow rate data are missing was co-fired with any other type of fuel. If no quality-assured fuel flow rate data for co-fired hours are available at the corresponding operational bin, or, if essential operating or parametric data are unavailable and the operational bin cannot be determined, substitute the maximum potential fuel flow rate (as defined in section 2.4.2.1 of this appendix) for each hour of the missing data period.
2.4.2.3.2.2 If operational bins are not used, substitute the maximum hourly fuel flow rate measured and recorded by a certified fuel flowmeter system during the previous 720 operating hours in which the fuel for which the flow rate data are missing was co-fired with any other type of fuel. If no quality-assured fuel flow rate data for co-fired hours are available, substitute the maximum potential fuel flow rate (as defined in section 2.4.2.1 of this appendix) for each hour of the missing data period.
2.4.2.3.3 If, during an hour in which different types of fuel are co-fired, quality-assured fuel flow rate data are missing for two or more of the fuels being combusted, apply the procedures in section 2.4.2.3.1 or 2.4.2.3.2 of this appendix (as applicable) separately for each type of fuel.
2.4.2.3.4 If the missing data substitution required in section 2.4.2.3.1 or 2.4.2.3.2 causes the reported hourly heat input rate based on the combined fuel usage to exceed the maximum rated hourly heat input of the unit, adjust the substitute fuel flow rate value(s) so that the reported heat input rate equals the unit's maximum rated hourly heat input. Manual entry of the adjusted substitute data values is permitted.
2.4.3 * * * In addition, if there is at least one hour, but fewer than 720 hours of quality-assured fuel flowmeter data available for the lookback periods described in sections 2.4.2.2 and 2.4.2.3 of this appendix, use all of the available fuel flowmeter data to determine the appropriate substitute data values.
58. Section 3 of Appendix D to Part 75 is amended by:
a. In the definition of the variable “%S
b. In the numerator of Equation D-4 in section 3.3.1 by revising the number “2” with the number “2.0”;
c. In the definition of the variable “GCV
d. In the definition of the variable “GCV
e. In paragraph (b) in section 3.4.3 by revising the words “Equation D-10 or D-11” to read “Equation F-21a or F-21b in appendix F to this part” in the third sentence and by removing equations and variable definitions for Equations D-10 and D-11;
f. In paragraph (c) of section 3.4.3 by revising the words “Equation D-10 or D-11” to read “Equation F-21a or F-21b”;
g. Revising the section heading of section 3.5;
h. In section heading 3.5.4 by adding the words “Rate and Heat Input” after the word “Input”; and
i. In section 3.5.4 by adding the subsection number “3.5.4.1” before the existing text of the section and adding new subsection 3.5.4.2 following the variable definitions for Equation D-15.
The revisions and additions read as follows:
59. Section 1 of Appendix E to Part 75 is amended by revising the second sentence of section 1.1 and adding two sentences after that second sentence to read as follows:
* * * If a unit's operations exceed the levels required to be a peaking unit, the owner or operator shall install and certify a NO
60. Section 2 of Appendix E to Part 75 is amended by:
a. Revising sections 2.1.4, 2.2 and 2.5.2;
b. In the second sentence of section 2.1.5 by revising the words “nearest 0.01 lb/mm/Btu” to read “nearest 0.001 lb/mmBtu”;
c. In section 2.3 by revising the words “10 unit” to read “30 unit” and the words “section 2.1 of appendix B of this part” with “§ 72.2 of this chapter,” and by revising the reference to “§ 75.60(a)” to read “§ 75.60”;
d. In sections 2.3.1 and 2.3.2 by revising the first sentence of each section, adding a new sentence after each first sentence, and revising each occurrence of the words
e. Revising the third sentence of 2.4.2;
f. Adding a new second sentence in section 2.5; and
g. Adding sections 2.5.2.1, 2.5.2.1.1, 2.5.2.1.2, 2.5.2.2, and 2.5.2.3.
The revisions and additions read as follows:
The designated representative of a unit that has a federally-enforceable permit restricting the combustion of a particular fuel to emergencies where the primary fuel is not available is exempted from the requirements of this appendix for testing the NO
Retest the NO
2.3.1 For a stationary gas turbine, select at least four operating parameters indicative of the turbine's NO
2.3.2 For a diesel or dual-fuel reciprocating engine, select at least four operating parameters indicative of the engine's NO
2.4.2 * * * Linearly interpolate to 0.1 mmBtu/hr heat input rate and 0.001 lb/mmBtu NO
* * * For the purpose of providing substitute data, calculate the maximum potential NO
2.5.2 Substitute missing NO
2.5.2.1 If the measured heat input rate during any unit operating hour is higher than the highest heat input rate from the baseline correlation tests, the NO
2.5.2.1.1 Substitute the higher of: the NO
2.5.2.2 For a unit with add-on NO
2.5.2.3 When emergency fuel (as defined in § 72.2) is combusted in the unit, report the fuel-specific NO
61. Section 2 of Appendix F to Part 75 is amended by revising Equation F-3 in section 2.3 to read as follows:
62. Section 3 of Appendix F to Part 75 is amended by removing the third sentence from section 3.3.5.
63. Section 5 of Appendix F to Part 75 is amended by:
a. In the definition of the variable “Q
b. In the first sentence of sections 5.6.1, 5.6.2, and 5.7 by revising the word “should” to read “shall.”
c. In the definitions for the variables “t
d. Revising the definitions of variables “HI
e. Adding section 5.6.3.
The revisions and additions read as follows:
5.6.3 As an alternative to using Equation F-21a or F-21b, the owner or operator may apportion the heat input rate at a common pipe to the individual units served by the common pipe based on the fuel flow rate to the individual units, as measured by uncertified fuel flowmeters. This option may only be used if a fuel flowmeter system that meets the requirements of appendix D to this part is installed on the common pipe. If this option is used, determine the unit heat input rates using the following equation:
64. Section 7 of Appendix F to Part 75 is amended by revising the definitions of variables “E
65. Section 8 of Appendix F to Part 75 is amended by:
a. In the first sentence of section 8.1.1 by adding the word “rate” after each occurrence of the words “heat input”;
b. Revising the definition of the variable “t
c. Adding definitions of the variables “p” and “u” to Equation F-25 of section 8.1.2.
The revisions and additions read as follows:
66. Section 2 of Appendix G to Part 75 is amended by:
a. Amending section 2.1 to designate the first two sentences following the variables in Equation G-1 as section 2.1.1, the third sentence as section 2.1.2, and the remaining text as section 2.1.3;
b. Revising the first sentence of section 2.3; and
c. Revising the definition of variable “F
The revisions read as follows:
2.3 In lieu of using the procedures, methods, and equations in section 2.1 of this appendix, the owner or operator of an affected gas-fired (or oil-fired) unit (as defined under § 72.2 of this chapter) may use the following equation and records of hourly heat input to estimate hourly CO
67. Section 5 of Appendix G to Part 75 is amended by:
a. Removing and reserving sections 5.1 and 5.1.1;
b. Revising the section heading and introductory text of section 5.2; and
c. Revising Table G-1 in section 5.2.2.
The revisions read as follows:
Use the procedures of this section to substitute for missing carbon content data.
68. The authority citation for part 78 continues to read as follows:
42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651,
69. Section 78.1 is amended by removing from paragraph (a)(1) the words “parts 72, 73, 74, 75, 76, and 77 of this chapter” and adding in their place “parts 72, 73, 74, 75, 76, or 77 of this chapter or part 97 of this chapter”; and adding a new paragraph (b)(6) to read as follows:
(b) * * *
(6) Under part 97 of this chapter,
(i) The adjustment of the information in a compliance certification or other submission and the deduction or transfer of NO
(ii) The decision on the allocation of NO
(iii) The decision on the allocation of NO
(iv) The decision on the deduction of NO
(v) The decision on the transfer of NO
(vi) The decision on a petition for approval of an alternative monitoring system;
(vii) The approval or disapproval of a monitoring system certification or recertification under § 97.71;
(viii) The finalization of control period emissions data, including retroactive adjustment based on audit;
(ix) The approval or disapproval of a petition under § 97.75;
(x) The determination of the sufficiency of the monitoring plan for a NO
(xi) The decision on a request for withdrawal of a NO
(xii) The decision on the deduction of NO
70. Section 78.2 is amended by removing the words “shall apply to this part” and adding to their place “shall apply to appeals of any final decision of the Administrator under parts 72, 73, 74, 75, 76, 77, or 78 of this chapter”.
71. Section 78.3 is amended by:
a. Amending paragraph (b)(3)(i) by adding, after the word “petitioner)”, the words “or the NO
b. In paragraph (c)(7) by adding, after the words “title IV of the Act”, the words “or part 97 of this chapter, as appropriate”;
c. In paragraph (d)(2) by adding, after the words “Acid Rain Program” the words “or on an account certificate of representation submitted by a NO
d. Redesignating paragraphs (d)(2) and (d)(3) as paragraphs (d)(3) and (d)(4) respectively; and
e. Adding new paragraphs (a)(3) and (d)(2).
The additions and revisions read as follows:
(a) * * *
(3) The following persons may petition for administrative review of a decision of the Administrator that is made under part 97 of this chapter and that is appealable under § 78.1(a) of this part:
(i) The NO
(ii) Any interested person.
(d) * * *
(2) Any provision or requirement of part 97 of this chapter, including the standard requirements under § 97.6 of this chapter and any emission monitoring or reporting requirements under part 97 of this chapter.
72. Section 78.4 is amended by adding two new sentences after the third sentence in paragraph (a) to read as follows:
(a) * * * Any filings on behalf of owners and operators of a NO
73. Section 78.12 is amended by adding, after the words “was properly issued or should be issued” in paragraph (a)(2), the words “or that a
74. The authority citation for part 97 continues to read as follows:
42 U.S.C. 7401, 7403, 7426, and 7601.
75. Section 97.2 is amended by:
a. Revising the definition of “continuous emission monitoring system or CEMS”;
b. In the definition of “Most stringent State or Federal NO
c. In the third sentence of the definition of “NO
d. In the definition of “NO
e. In the definition of “owner” by adding the word “the” before the final occurrence of the word “NO
f. In the definition of “Percent monitor data availability” by revising the words “3,672 hours per” to read “the total number of unit operating hours in the”, and by revising the symbol “%” to read “percent”.
The revisions and additions read as follows:
(1) A flow monitoring system, consisting of a stack flow rate monitor and an automated DAHS. A flow monitoring system provides a permanent, continuous record of stack gas volumetric flow rate, in units of standard cubic feet per hour (scfh);
(2) A nitrogen oxides concentration monitoring system, consisting of a NO
(3) A nitrogen oxides emission rate (or NO
(4) A moisture monitoring system, as defined in § 75.11(b)(2) of this chapter. A moisture monitoring system provides a permanent, continuous record of the stack gas moisture content, in units of percent H
76. Section 97.4(b) is amended by:
a. Amending the first sentence of paragraph (b)(1) by adding, after the words “federally enforceable permit that”, the words “restricts the unit to combusting only natural gas or fuel oil (as defined in § 75.2 of this chapter) during a control period and”;
b. In paragraph (b)(4)(i) by adding, after the words “with the restriction on”, the words “fuel use and”; and
c. In paragraph (b)(4)(vi)(B) by adding, after the words “the restriction on”, the words “fuel use or”.
77. Section 97.5 is amended by:
a. In the third sentence of paragraph (b)(2) by adding, after the word “submit”, the words “such a statement or”;
b. In paragraph (c)(6)(ii) by removing the period and replacing it with “; or”; and
c. Adding a new paragraph (c)(6)(iii).
The revisions and additions read as follows:
(c) * * *
(6) * * *
(iii) The date on which the unit resumes operation, if the unit is not required to submit a NO
78. Section 97.40 is amended by removing the word “program”.
79. Section 97.43 is amended by removing paragraph (c)(8).
80. Section 97.51 is amended by amending paragraph (b)(1)(i)(D) by adding, after the words “with respect to”, the word “ NO
81. Section 97.54 is amended in paragraph (f) introductory text by revising the colon after the words “as follows” with a period and by adding a new sentence to the end of the paragraph to read as follows:
(f) * * * For each State NO
82. Section 97.61 is amended in paragraph (b) by revising the words “same year as” to read “third year after the year of”.
83. Section 97.70 is amended by:
a. In paragraph (a)(1) by revising the words “§§ 75.72 and §§ 75.76” to read “§§ 75.71 and 75.72”;
b. Revising paragraph (b)(3);
c. Revising paragraph (b)(4);
d. Removing paragraphs (b)(5) and (b)(6);
e. Redesignating paragraphs (b)(7), (b)(8) and (b)(9) as paragraphs (b)(5), (b)(6), and (b)(7), respectively;
f. Revising newly redesignated paragraphs (b)(5) and (b)(6); and
g. Revising paragraph (c).
The revisions and additions read as follows:
(b) * * *
(3) For the owner or operator of a NO
(i) The earlier of 90 unit operating days after the date on which the unit commences commercial operation or 180 calendar days after the date on which the unit commences commercial operation; or (ii) May 1, 2002, if the compliance date under paragraph (b)(3)(i) of this section is before May 1, 2002.
(4) For the owner or operator of a NO
(i) The earlier of 90 unit operating days or 180 calendar days after the date on which the unit commences commercial operation, provided that this compliance date is during a control period; or (ii) May 1 immediately following the compliance date under paragraph (b)(4)(i) of this section, if such compliance date is not during a control period.
(5) For the owner or operator of a NO
(6) For the owner or operator of a NO
(i) The earlier of 90 unit operating days or 180 calendar days after the date on which emissions first exit to the atmosphere through the new stack or flue, provided that this compliance date is during a control period; or
(ii) May 1 immediately following the compliance date under paragraph (b)(6)(i) of this section, if such compliance date is not during a control period.
(c)
(2) The owner or operator of a NO
(i) The date and hour on which the unit commences operation, if the date and hour on which the unit commences operation is during a control period; or
(ii) The first hour on May 1 of the first control period after the date and hour on which the unit commences operation, if the date and hour on which the unit commences operation is not during a control period.
(3) Notwithstanding paragraphs (c)(2)(i) and (c)(2)(ii) of this section, the owner or operator may begin reporting NO
84. Section 97.71 is amended by:
a. Revising paragraph (a) introductory text;
b. In paragraphs (b)(1), (b)(2), and (b)(3)(ii) by adding the word “emission” before the words “monitoring system” in each occurrence in paragraph (b)(1), in both occurrences in the first sentence of paragraph (b)(2), and in the one occurrence in paragraph (b)(3)(ii); and by revising the word “a” to read “an” after the word “installs” in the second sentence of paragraph (b)(1);
c. In paragraphs (b)(3)(iii) and (b)(3)(iv)(C) by removing each occurrence of the words “or component thereof”; and
d. Revising the second sentence of paragraph (c), adding two new sentences to the end of paragraph (c), and removing paragraphs (c)(i) through (iii).
The revisions and additions read as follows:
(a) The owner or operator of a NO
(c) * * * The owner or operator of such a unit shall also meet the applicable certification and recertification procedures of paragraph (b) of this section, except that the excepted methodology shall be deemed provisionally certified for use under the NO
85. Section 97.72 is amended by:
a. In paragraph (a) by adding the word “emission” before the words “monitoring system” and the words “subpart H,” before “appendix D”; and
b. In paragraph (b) by adding the word “emission” before “monitoring system” in the first sentence, by removing each occurrence of the words “or component” in the paragraph, and by adding a new final sentence.
The revisions and additions read as follows:
(b) * * * The owner or operator shall follow the initial certification or recertification procedures in § 97.71 for each disapproved system.
86. Section 97.74 is amended by revising paragraphs (a)(1), (d)(1), and (d)(2)(ii); to read as follows:
(a) * * *
(1) The NO
(d) * * *
(1) If a unit is subject to an Acid Rain emission limitation or if the owner or operator of the NO
(i) For a unit for which the owner or operator intends to apply or applies for the early reduction credits under § 97.43, the calendar quarter that covers May 1, 2000 through June 30, 2000. NO
(ii) For a unit that commences operation before January 1, 2002 and that is not subject to paragraph (d)(1)(i) of this section, the calendar quarter covering May 1, 2002 through June 30, 2002. NO
(iii) For a unit that commences operation on or after January 1, 2002:
(A) The calendar quarter in which the unit commences operation, if unit operation commences during a control period. NO
(B) The calendar quarter which includes May 1 through June 30 of the first control period following the date on which the unit commences operation, if the unit does not commence operation during a control period. NO
(iv) A calendar quarter before the quarter specified in paragraph (d)(1)(i), (d)(1)(ii), or (d)(1)(iii)(B) of this section, if the owner or operator elects to begin reporting early under § 97.70(c)(3).
(2) * * *
(ii) Submit quarterly reports, documenting NO
(A) For a unit for which the owner or operator intends to apply or applies for early reduction credits under § 97.43, the calendar quarter covering May 1, 2000 through June 30, 2000. NO
(B) For a unit that commences operation before January 1, 2002 and that is not subject to paragraph (d)(2)(ii)(A)of this section, the calendar quarter covering May 1 through June 30, 2002. NO
(C) For a unit that commences operation on or after January 1, 2002 and during a control period, the calendar quarter in which the unit commences operation. NO
87. Section 97.87 is amended in second sentence of paragraph (b)(1)(iii)(A) by adding the word “be” after the words “shall not”.
88. Subpart J consisting of § 97.90 is added to read as follows:
The appeal procedures for the NO
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service, propose designation of critical habitat for
If this proposal is made final, section 7 of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Section 4 of the Act requires us to consider economic and other impacts of specifying any particular area as critical habitat.
We solicit data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise or further refine critical habitat boundaries prior to final designation based on habitat and plant surveys, public comments on the proposed critical habitat rule, finalization of pending habitat conservation plans, and new scientific and commercial information.
We will accept comments until the close of business on August 13, 2001. Public hearing requests must be received by July 30, 2001.
If you wish to comment, you may submit your comments and materials by any one of several methods:
1. You may submit written comments and information to the Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2730 Loker Avenue West, Carlsbad, California 92008.
2. You may hand-deliver written comments to our Carlsbad Fish and Wildlife Office at the address given above.
3. You may send comments by electronic mail (e-mail) to: fw1cfwo_deco@fws.gov. See the Public Comments Solicited section below for file format and other information about electronic filing.
You may view comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, by appointment, during normal business hours at the above address.
Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Office, at the above address (telephone 760/431-9440; facsimile 760/431-9618).
Most
Based on information from herbarium records at the San Diego Natural History Museum (SDNHM) and CNDDB (2000) records,
Typically,
The
Determining the size/magnitude of a given
The largest number of
In 1998, the five largest populations of
The smaller populations of
At the time the species was listed in 1998, we estimated that about 11,930 ha (30,310 ac) of land with clay soils or clay subsoils were within the general range of
On December 15, 1980, we published a Notice of Review of plants which included
On December 14, 1990, we received a petition dated December 5, 1990, from Mr. David Hogan of the San Diego Biodiversity Project, to list
On July 15, 1999, the California Native Plant Society (CNPS) and Southwest Center for Biological Diversity (SWCBD) filed a lawsuit in Federal District Court for the Southern District of California, in part, challenging our decision not to designate critical habitat for
Critical habitat is defined in section 3 of the Act as—(I) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification with regard to actions carried out, funded, permitted, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of proposed critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that lack a Federal nexus, critical habitat designation would not afford any additional protections under the Act with respect to such activities.
To be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).
Section 4 requires that we designate critical habitat, to the extent such habitat is determinable, at the time of listing. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we will often not have sufficient information to identify all areas of critical habitat. We are required, nevertheless, to make a decision and thus must base our designations on what, at the time of designation, we know to be critical habitat.
Within the geographic area occupied by the species, we will designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area occupied by the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), that provide essential life cycle needs of the species.
Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat in areas outside the geographic area occupied by the species.
Our Policy on Information Standards Under the Endangered Species Act, published in the
Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be endangered or threatened. At the time of the final listing determination (63 FR 54938), we concluded that designation of critical habitat for
In our final rule, we concluded that the designation of critical habitat for
We now conclude that there may be some additional benefits to designating critical habitat. While a critical habitat designation for habitat currently occupied by this species would not likely change the section 7 consultation because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation
There may also be some educational or informational benefits to designating critical habitat. Critical habitat may be used as a tool to help identify areas within the range of
In addition, three significant occurrences of
Based on our discussion above, we now conclude that there may be some additional benefits to designating critical habitat on lands essential for the conservation of
In determining areas that are essential to conserve
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we must consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species, and that may require special management considerations or protection. These include, but are not limited to: space for individual and population growth, and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. All areas proposed as critical habitat for
The proposed critical habitat is designed to provide sufficient habitat to maintain self-sustaining populations of
The long-term survival and conservation of
Based on our current knowledge of this species, the primary constituent elements of
(1) soils with a high clay content (generally >25 percent) (or clay intrusions or lenses) that are associated with grasslands (native, non-native, and mixed), open coastal sage scrub, or maritime succulent scrub communities between 25 m (80 ft) and 300 m (1000 ft) elevation; and
(2) plant communities associated with
In our proposed delineation of critical habitat for
We began by using the GIS layers to identify areas of suitable habitat within the geographic distribution of this species. We selected areas with appropriate soils and vegetation that are limited to the elevational range of the species within its known distribution. We then selected soils and plant communities that overlapped known
We then eliminated areas that did not contain both appropriate soils and appropriate vegetation such as, but not limited to, currently used agriculture fields, housing developments, and open water. Next, we eliminated all areas above 300 m (1000 ft) elevation, the upper limit of the known distribution of
We conducted this analysis to facilitate delineating suitable habitat containing the primary constituent elements. The long-term survival and conservation of
The boundaries of proposed critical habitat for
As we discuss in detail below (see “Relationship To Habitat Conservation Plans and Other Planning Efforts”), lands that are covered by an existing, legally operative, HCP with an operative implementing agreement (IA) in which
In defining critical habitat boundaries, we made an effort to exclude all developed areas, such as towns or housing developments, and lands unlikely to contain the primary constituent elements essential for conservation of
The proposed critical habitat units described below constitute our best assessment of areas that are essential for the species' conservation. We anticipate that in the time between the proposed rule and the final rule, and based upon the additional information received during the public comment period and field surveys, that the boundaries of the mapping units may be refined.
The approximate area encompassing the proposed designation of critical habitat by county and land ownership is shown in Table 1.
Critical habitat includes habitat throughout the species' current range in the United States (San Diego County, California). Lands proposed are under Federal, State, local, and private ownership. Federal lands include areas owned or managed by the Service and INS. Lands proposed as critical habitat have been divided into three critical habitat units. We are proposing to designate critical habitat on lands that are considered essential to the conservation of
The Sweetwater/Proctor Valley Unit encompasses approximately 1,565 ha (3,865 ac) at the northeastern limit of this species' distribution. This unit is south and east of State Route 54, south and west of State Route 94, and north of Upper Otay Reservoir. It includes portions of the Otay/Sweetwater Unit of SDNWR; lands belonging to the Sweetwater Authority around the Sweetwater Reservoir; lands belonging to the Otay Water District; lands that are proposed as preserve under the City of Chula Vista's Subarea Plan; portions of two project areas within the City of Chula Vista's Subarea Plan, but outside of the proposed preserve lands; and lands that are within major and minor amendment areas within the County of San Diego's Subarea Plan. Two areas in this unit have not been proposed as critical habitat, including the alignment for State Route 125 south and the San Diego County Park campground realignment and expansion because these areas have been analyzed and determined not to be essential.
This unit contains several large populations of
This unit contains multiple large
The Chula Vista Unit encompasses approximately 210 ha (515 ac) at the western portion of this plant's range. Most of the occurrences and populations in this unit are found in the remaining habitat patches along canyon edges that were not optimum for urbanization. This unit contains lands that are proposed as preserve under the City of Chula Vista's Subarea Plan, lands that are in a minor amendment area under the County of San Diego's Subarea Plan, or lands that are in a minor amendment area under the City of Chula Vista's Subarea Plan.
This unit contains the Rice Canyon population, which had more than 50,000 standing plants in 1994 (CNDDB 2000), and portions of (occurrences within) the Poggi Canyon population that had a reported 10,000 standing plants in 1990 (CNDDB 2000). This unit contains populations in the western portion of this species' distribution which though currently isolated from each other may contain significant amounts of genetic diversity and are, therefore, essential to the survival and conservation of the species. Peripheral populations may have genetic characteristics essential to overall long-term conservation of the species (i.e. they may be genetically different than more central populations) (Lesica and Allendorf, 1995).
The Otay Valley/Big Murphy's Unit encompasses approximately 910 ha (2,249 ac). It is east of Interstate 805, north of the International Boundary between the United States and Mexico on the east side, north of State Route 905 on the west side, west of Otay Mountain, and along the north rim of Otay Valley including Salt Creek and Wolf Canyon. This unit includes lands owned by INS, lands that are proposed as preserve under the City of Chula Vista's Subarea Plan, and lands that are in major and minor amendment areas in the County of San Diego's Subarea Plan. Areas in this unit that are within the alignment for State Route 125 south
This unit contains several large populations of
Unit 3 contains populations in the southern and eastern portions of this species' distribution, which may be important for its long-term survival and conservation. One population in this unit is located at the southwest edge of this species' range in the United States. This population may have connectivity with
Based on the proposed preserve design for the City of Chula Vista's Subarea Plan, and the designated preserve designs for the City and County of San Diego HCPs, these populations may all retain connectivity among themselves because the habitat mosaic does not have large gaps. The occurrences in this unit may also provide and receive pollen or fruits from
This connectivity will facilitate gene flow within this unit and among other units which, in turn, may allow evolutionary processes that affect
Because this unit contains a number of large
Section 7(a) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the action agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. We may issue a formal conference report, if requested by the Federal action agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if the species was listed or critical habitat designated. We may adopt the formal conference report as the biological opinion when the species is listed or critical habitat designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).
If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation , we would ensure that the permitted actions do not destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated, and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.
Activities on Federal lands that may affect
Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that destroy or adversely modify critical habitat include those that appreciably reduce the value of critical habitat for both the survival and recovery of
(1) Removing, thinning, or destroying
(2) Activities that appreciably degrade or destroy
(3) Appreciably decreasing habitat value or quality through indirect effects (e.g., edge effects, invasion of exotic plants or animals, or fragmentation); and
(4) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain grassland, scrub, and chaparral communities. These activities could include, but are not limited to, maintaining an unnatural fire regime either through fire suppression or prescribed fires that are too frequent or poorly-timed; residential and commercial development, including road building and golf course installations; agricultural activities, including row crops and livestock grazing; and vegetation manipulation such as clearing or grubbing in the watershed upslope from
If you have questions regarding whether specific activities will constitute adverse modification of critical habitat, contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see
To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery, and actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species concerned. Because we are designating areas that are occupied either by standing plants or the underground seedbank of
(1) Regulation of activities affecting waters of the U.S. by the Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and channelization by Federal agencies;
(3) Regulation of airport improvement activities by the FAA jurisdiction;
(4) Road construction, right of way designation, or regulation of agricultural activities by Federal agencies;
(5) Development on private lands requiring permits from other Federal agencies such as HUD;
(6) Construction of communication sites licensed by the FCC;
(7) Authorization of Federal grants or loans;
(8) Construction of roads and fences along the International Boundary between the United States and Mexico, and other activities associated with immigration enforcement by the INS;
(9) Activities funded by the EPA, DOE, or any other Federal agency; and
(10) Hazard mitigation and post-disaster repairs funded by the FEMA.
Subsection 4(b)(2) of the Act allows us to exclude areas from critical habitat designation where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species. For the following reasons, we believe that, in most instances, the benefits of excluding HCPs for which
The benefits of including HCP lands in critical habitat are normally small. The principal benefit of any designated critical habitat is that activities in such habitat that may affect it require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid adverse modification of critical habitat. Where HCPs are in place, our experience indicates that this benefit is small or non-existent. Currently approved and permitted HCPs are already designed to ensure the long-term survival of covered species within the plan area. Where we have an approved HCP, lands that we ordinarily
In addition, an HCP application must itself be consulted upon. While this consultation will not look specifically at the issue of adverse modification of critical habitat, unless critical habitat has already been designated within the proposed plan area, it will look at the very similar concept of jeopardy to the listed species in the plan area. Because HCPs, particularly large regional HCPs, address land use within the plan boundaries, habitat issues within the plan boundaries will have been thoroughly addressed in the HCP and the consultation on the HCP. Our experience is also that, under most circumstances, consultations under the jeopardy standard will reach the same result as consultations under the adverse modification standard. Implementing regulations (50 CFR part 402) define “jeopardize the continued existence of” and “destruction or adverse modification of” in virtually identical terms. Jeopardize the continued existence of means to engage in an action “that reasonably would be expected * * * to reduce appreciably the likelihood of both the survival and recovery of a listed species.” Destruction or adverse modification means an “alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species, in the case of critical habitat by reducing the value of the habitat so designated. Thus, actions satisfying the standard for adverse modification are nearly always found to also jeopardize the species concerned, and the existence of a critical habitat designation does not materially affect the outcome of consultation. Additional measures to protect the habitat from adverse modification are not likely to be required.
Further, HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs assure the long-term protection and management of a covered species and its habitat, and funding for such management through the standards found in the 5-Point Policy for HCPs (65 FR 35242) and the HCP No Surprises regulation (63 FR 8859). Such assurances are typically not provided by section 7 consultations which, in contrast to HCPs, often do not commit the project proponent to long term special management or protections. Thus, a consultation typically does not accord the lands it covers the extensive benefits an HCP provides.
The development and implementation of HCPs provide other important conservation benefits, including the development of biological information to guide conservation efforts and assist in species recovery and the creation of innovative solutions to conserve species while allowing for development. The educational benefits of critical habitat, including informing the public of areas that are important for the long-term survival and conservation of the species, are essentially the same as those that would occur from the public notice and comment procedures required to establish an HCP, as well as the public participation that occurs in the development of many regional HCPs. For these reasons, then, we believe that designation of critical habitat has little benefit in areas covered by HCPs.
The benefits of excluding HCPs from being designated as critical habitat may be more significant. They include relieving landowners, communities and counties of any additional minor regulatory review that might be imposed by critical habitat. Many HCPs, particularly large regional HCPs, take many years to develop and, upon completion, become regional conservation plans that are consistent with the recovery of covered species. Most regional plans benefit many species, both listed and unlisted. Imposing an additional regulatory review after HCP completion may jeopardize conservation efforts and partnerships in many areas and could be viewed as a disincentive to those developing HCPs. Excluding HCPs provides us with an opportunity to streamline regulatory compliance and confirms regulatory assurances for HCP participants.
A related benefit of excluding HCPs is that it would encourage the continued development of partnerships with HCP participants, including States, local governments, conservation organizations, and private landowners, that together, can implement conservation actions we would be unable to accomplish alone. By excluding areas covered by HCPs from critical habitat designation, we preserve these partnerships, and, we believe, set the stage for more effective conservation actions in the future.
In general, then, we believe the benefits of critical habitat designation to be small in areas covered by approved HCPs. We also believe that the benefits of excluding HCPs from designation are significant. Weighing the small benefits of inclusion against the benefits of exclusion, including the benefits of relieving property owners of an additional layer of approvals and regulation, together with the encouragement of conservation partnerships, would generally result in HCPs being excluded from critical habitat designation under section 4(b)(2) of the Act.
Not all HCPs are alike with regard to species coverage and design. Within this general analytical framework, we need to evaluate completed and legally operative HCPs in which
We expect that critical habitat may be used as a tool to identify those areas essential for the conservation of the species, and we will encourage development of HCPs for such areas on non-Federal lands. Habitat conservation plans currently under development are intended to provide for protection and management of habitat areas essential for the conservation of
Only HCPs within or adjacent to the boundaries of the proposed critical habitat units are discussed herein. Those approved and legally operative HCPs that provide coverage for
We have worked with local jurisdictions to complete several HCPs that include areas where the species occurs. These HCPs include the San Diego Gas and Electric HCP and two Subarea Plans under the MSCP. Both the City of San Diego's Subarea Plan and the County of San Diego's Subarea Plan have received coverage for
We find that the benefits of excluding lands covered by these HCPs would be significant in preserving positive relationships with our conservation partners, lessening potential additional regulatory review and potential economic burdens, reinforcing the regulatory assurances provided for in the implementing agreements for the approved HCPs, and providing for more established and cooperative partnerships for future conservation efforts.
In summary, the benefits of including these approved HCPs in critical habitat for
The Sweetwater Authority is currently working on an HCP and the City of Chula Vista is expected to complete their HCP subarea planning processes in the near future. We have worked and continue to work closely with the City of Chula Vista on the design of their preserve, specifically in relation to the conservation of
In the event that future HCPs, in addition to those under development by City of Chula Vista and Sweetwater Authority, covering
We will provide technical assistance and work closely with applicants with respect to HCPs currently under development and future HCPs to identify lands essential for the long-term conservation of
Should additional information become available that changes our analysis of the benefits of excluding any of these (or other) areas compared to the benefits of including them in the critical habitat designation, we may revise this proposed designation accordingly. Similarly, if new information indicates any of these areas should not be included in the critical habitat designation because they no longer meet the definition of critical habitat, we may revise this proposed critical habitat designation.
Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the
We intend that any final action resulting from this proposal to be as accurate and effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species due to designation;
(2) Specific information on the amount and distribution of
(3) Land use practices and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families; and,
(5) Economic and other values associated with designating critical habitat for
(6) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.
If you wish to comment on this proposed rule, you may submit your comments and materials by any one of several methods (see
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the
We will consider all comments and information received during the public comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.
The Act provides for one or more public hearings on this proposal, if requested. Requests for public hearings must be made at least 15 days prior to the close of the public comment period. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the
Executive Order 12866 requires each agency to write regulations/notices that are easy to understand. We invite your comments on how to make this notice easier to understand including answers to questions such as the following: (1) Are the requirements in the notice clearly stated? (2) Does the notice contain technical language or jargon that interferes with the clarity? (3) Does the format of the notice (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the notice in the
Send a copy of any comments that concern how we could make this notice easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240. You may e-mail your comments to this address: Execsec@ios.doi.gov.
In accordance with Executive Order 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB) in accordance with the four criteria discussed below. We are preparing a draft analysis of this proposed action, which will be available for public comment, to determine the economic consequences of designating the specific areas as critical habitat. The availability of the draft economic analysis will be announced in the
(a) While we will prepare an economic analysis to assist us in considering whether areas should be excluded pursuant to section 4 of the Act, we do not believe this rule will have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Therefore, we do not believe a cost benefit and economic analysis pursuant to EO 12866 is required.
Under the Act, critical habitat may not be adversely modified by a Federal agency action; the Act does not impose any restrictions through critical habitat designation on non-Federal persons unless they are conducting activities funded or otherwise sponsored, authorized, or permitted by a Federal agency. Section 7 requires Federal agencies to ensure that they do not jeopardize the continued existence of the species. Based upon our experience with the species and its needs, we conclude that any Federal action or authorized action that could potentially cause adverse modification of the proposed critical habitat would currently be considered as “jeopardy” under the Act (see Table 2). Accordingly, the designation of critical habitat for
(b) This rule is not expected to create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of
(c) This rule is not expected to materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species, and as discussed above we do not anticipate that the adverse modification prohibition (resulting from critical habitat designation) will have any significant incremental effects.
(d) OMB has determined that this rule may raise novel legal or policy issues and, as a result, this rule has undergone OMB review.
Under the Regulatory Flexibility Act (5 U.S.C. 601
The areas we are proposing as critical habitat are already occupied, by either or both standing plants and the seed bank, by
Therefore, we are certifying that this proposed rule is not expected to have a significant adverse impact on a substantial number of small entities. Thus, no regulatory flexibility analysis is necessary.
On May 18, 2001, the President issued an Executive Order (EO 13211) which applies to regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this proposed rule is not expected to significantly affect energy supplies, distribution, or use, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This rule, as proposed, will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will only be affected to the extent that they proposed activities requiring Federal funds, permits or other authorization. Activities with a Federal nexus may not destroy or adversely modify critical habitat. However, as discussed in section 1, these activities are currently subject to equivalent restrictions as a result of the listing of the species, and no further restrictions are anticipated.
(b) This rule, as proposed, will not produce a Federal mandate of $100 million or greater in any year, that is, it
In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. As discussed above, the designation of critical habitat affects only Federal agency actions. The rule will not increase or decrease current restrictions on private property concerning
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, we requested information from, and coordinated development of this critical habitat designation, with appropriate State resource agencies in California. The designation of critical habitat within the geographic range occupied by
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of
This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act is required. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB Control Number.
We have determined we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act, as amended. We published a notice outlining our reason for this determination in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no Tribal lands essential for the conservation of
A complete list of all references cited in this proposed rule is available upon request from the Carlsbad Fish and Wildlife Office (see
The primary author of this proposed rule is Mark A. Elvin (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we proposed to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.12(h), remove the entry for
(h) * * *
3. In § 17.96, as proposed to be amended at 65 FR 66865, November 7, 2000, add critical habitat for the Otay tarplant (
(b) Single-species critical habitat—flowering plants.
(1) Critical habitat units are depicted for San Diego County, California, on the maps below.
(2) The primary constituent elements of critical habitat for
(i) Soils with a high clay content (generally >25 percent) (or clay intrusions or lenses) that are associated with grasslands (native, non-native, and mixed), open coastal sage scrub, or maritime succulent scrub communities between 25 m (80 ft) and 300 m (1,000 ft) elevation;
(ii) Plant communities associated with
(iii) Critical habitat does not include non-Federal lands covered by a legally operative Habitat Conservation Plan issued under section 10(a)(1)(B) of the Act in which
(iv) Existing features and structures, such as buildings, paved or unpaved roads, and other landscaped areas not containing primary constituent elements, are not considered critical habitat. Federal actions limited to those areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat.
Environmental Protection Agency (EPA).
Final rule.
We, the Environmental Protection Agency (EPA), are promulgating public health and safety standards for radioactive material stored or disposed of in the potential repository at Yucca Mountain, Nevada. Section 801 of the Energy Policy Act of 1992 (EnPA, Pub. L. 102-486) directs us to develop these standards. Section 801 of the EnPA also requires us to contract with the National Academy of Sciences (NAS) to conduct a study to provide findings and recommendations on reasonable standards for protection of the public health and safety. The health and safety standards promulgated by EPA are to be “based upon and consistent with” the findings and recommendations of NAS. On August 1, 1995, NAS released its report (the NAS Report), titled “Technical Bases for Yucca Mountain Standards.” We have taken the NAS Report into consideration as the EnPA directs.
The Nuclear Regulatory Commission (NRC) will incorporate these final standards into its licensing regulations. The Department of Energy (DOE) must demonstrate compliance with these standards. The NRC will use its licensing regulations to determine whether DOE has demonstrated compliance with our standards prior to receiving the necessary licenses to store or dispose of radioactive material in Yucca Mountain.
Ray Clark, Office of Radiation and Indoor Air, U.S. Environmental Protection Agency, Washington, DC. 20460-0001; telephone 202-564-9310.
The DOE is the only entity directly regulated by these standards. Before it may accept waste at the Yucca Mountain site, DOE must obtain a license from NRC. Thus, DOE will be subject to our standards, which NRC will implement through its licensing proceedings. Our standards affect NRC only because, under the Energy Policy Act of 1992 (EnPA, Pub. L. 102-486, 42 U.S.C. 10141 n. (1994)), NRC must modify its licensing requirements, as necessary, to make them consistent with our final standards.
You may inspect the information file located in the Lied Library at the University of Nevada-Las Vegas, Research and Information Desk, Government Publications Section (702-895-2200) when classes are in session. Hours vary based upon the academic calendar, so we suggest that you call ahead to be certain that the library will be open at the time you wish to visit (for a recorded message, call 702-895-2255).
You may inspect the information file in the Public Library in Amargosa Valley, Nevada (phone 775-372-5340). As of this date, the hours are Tuesday through Thursday (10 a.m.-7 p.m.); Friday (10 a.m.-5 p.m.); and Saturday (10 a.m.-2 p.m.). The library is closed daily from 12:30 p.m.-1 p.m. It also is closed Sundays and Mondays.
We use many acronyms and abbreviations in this document. These include:
Spent nuclear fuel (SNF) and high-level radioactive waste (HLW) have been produced since the 1940s, mainly as a result of commercial power production and defense activities. Since then, the proper disposal of these wastes has been the responsibility of the Federal government. The Nuclear Waste Policy Act of 1982 (NWPA, Pub. L. 97-425) formalizes the current Federal program for the disposal of SNF and HLW by:
(1) Making DOE responsible for siting, building, and operating an underground geologic repository for the disposal of SNF and HLW;
(2) Directing us to set generally applicable environmental radiation protection standards based on authority established under other laws;
(3) Requiring NRC to implement our standards by incorporating them into its licensing requirements for SNF and HLW repositories.
This general division of responsibilities continues for the Yucca Mountain disposal system. Thus, today we are establishing public health protection standards (specific to the Yucca Mountain site, rather than generally applicable). The NRC will issue implementing regulations for this rule. The DOE will submit a license application to NRC. The NRC then will determine whether DOE has met the standards and whether to issue a license for Yucca Mountain. The NRC will require DOE to comply with all of the applicable provisions of 40 CFR part 197 before authorizing DOE to receive radioactive material at the Yucca Mountain site.
In 1985, we established generic standards for the management, storage, and disposal of SNF, HLW, and transuranic (TRU) radioactive waste (see 40 CFR part 191, 50 FR 38066, September 19, 1985), which apply to any facilities for the storage or disposal of these wastes, including Yucca Mountain. In 1987, the U.S. Court of Appeals for the First Circuit remanded the disposal standards in 40 CFR part 191 (
Also in 1987, the Nuclear Waste Policy Amendments Act (NWPAA, Pub. L. 100-203) amended the NWPA by, among other actions, selecting Yucca Mountain, Nevada, as the only potential site that DOE should characterize for a long-term geologic repository.
In October 1992, the Waste Isolation Pilot Plant Land Withdrawal Act (WIPP LWA, Pub. L. 102-579) and the EnPA became law. These statutes changed our obligations concerning radiation standards for the Yucca Mountain candidate repository. The WIPP LWA:
(1) Reinstated the 40 CFR part 191 disposal standards, except those portions that were the specific subject of the remand by the First Circuit;
(2) required us to issue standards to replace the portion of the challenged standards remanded by the court; and
(3) exempted the Yucca Mountain site from the 40 CFR part 191 disposal standards.
We issued the amended 40 CFR part 191 disposal standards, which addressed the judicial remand, on December 20, 1993 (58 FR 66398).
The EnPA, enacted in 1992, set forth our responsibilities as they relate to the Yucca Mountain repository. In the EnPA, Congress directed us to set public health and safety radiation standards for Yucca Mountain. Specifically, section 801(a)(1) of the EnPA directs us to “promulgate, by rule, public health and safety standards for the protection of the public from releases from radioactive materials stored or disposed of in the repository at the Yucca Mountain site.” The EnPA also directed us to contract with NAS to conduct a study to provide us with its findings and recommendations on reasonable standards for protection of public health and safety. Moreover, it provided that our standards shall be the only such standards applicable to the Yucca Mountain site and are to be based upon and consistent with NAS's findings and recommendations. On August 1, 1995, NAS released its report, “Technical Bases for Yucca Mountain Standards” (the NAS Report) (Docket No. A-95-12, Item II-A-1).
Throughout today's action, we refer to the provisions of 40 CFR part 191 to support the decisions we made regarding the components of the final Yucca Mountain rule. Pursuant to section 8(b)(2) of the WIPP LWA, 40 CFR part 191 is not applicable to the characterization, licensing, construction, operation, or closure of the Yucca Mountain repository. We believe, however, that while 40 CFR part 191 is not directly applicable to Yucca Mountain, because it contains the fundamental components for the protection of public health and the environment that apply to any SNF, HLW, or TRU radioactive waste repository, certain of its basic concepts must be applied to Yucca Mountain as appropriate. Further, because 40 CFR part 191 provides fundamental support for today's rule, we believe it is useful to explain here the process by which 40 CFR part 191 evolved.
We used the rulemaking for 40 CFR part 191 to define the fundamental components of any environmental standard applicable to the disposal of SNF, HLW, and TRU radioactive waste. In our proposal (47 FR 58196, December 29, 1982), we recognized two basic considerations regarding the disposal of SNF, HLW, and TRU radioactive waste:
• The intent of disposal is to isolate the wastes from the environment for a very long time, longer than any time over which active institutional controls might be effective; and
• The disposal systems will be designed to allow only very small releases to the environment, if not disturbed. A principal concern is the possibility of accidental releases due to unintended events or failure of engineered barriers.
These considerations mean that any standard that we establish and that NRC and DOE implement: (1) Can only be implemented during development and operation of the repository, (2) must address unintentional releases, and (3) must accommodate significant uncertainties. (See 47 FR 58198, December 29, 1982)
From these considerations, we proposed standards consisting of Containment Requirements, which limit the total amount of radionuclides that may enter the environment over 10,000 years; Assurance Requirements, which provide several principles enhancing confidence that the containment requirements will be met; and Procedural Requirements, which assure the proper application of the containment requirements. We also invited public comment on alternative approaches for the standards, specifically on the alternative of establishing exposure limits for individuals. Although the containment requirements, as proposed, were designed to protect people and the environment for a long time, we did not propose an individual exposure limit. We believed the compliance point for such a limit would have to be some distance from the repository. Otherwise, it would have to ignore the risks from unplanned events such as human intrusion. It seemed likely that individuals located extremely near the repository or who intrude into the repository would receive doses far exceeding any existing or reasonably acceptable radiation limits.
EPA received substantial public comment on the 40 CFR part 191 proposal. As a direct result of information provided in many of the comments, we issued a final rule (50 FR 38066, September 19, 1985) that differed in many respects from the proposal. In addition to containment and assurance requirements, the final rule included two new components:
• Individual Protection Requirements, which protect members of the public for 1,000 years of undisturbed performance; and
• Ground Water Protection Requirements, which protect “special sources of ground water” for 1,000 years of undisturbed performance.
The risk objectives for the containment requirements in the final rule maintained the same limiting level of health impacts as the proposal (1000 fatal cancers over 10,000 years for a repository containing 100,000 metric tons of heavy metal (MTHM)); however, we did modify the radionuclide-specific release limits to reflect updated performance analyses and updated information on the health effects of ionizing radiation. However, members of the public and our Science Advisory Board (SAB) expressed some concerns regarding residual risks and the ability of the licensee of any repository to demonstrate compliance with the standards given the uncertainties about these facilities that arise over the long time periods at issue (see the “Report on the Review of Proposed Environmental Standards for the Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes,” January 1984, Docket No. A-95-12, Item V-A-21). To address these concerns, we incorporated the concept that the standards be met with “reasonable expectation” (§ 191.13(b)). Improved performance assessments indicated that the containment requirements could, in fact, be achieved by a variety of repository site/design combinations without significant effects on disposal costs. The final rule also defined for the first time a “controlled area,” or tract of land inside of which compliance is not evaluated. The concept of a controlled area was carried from the proposal, where it was included in the definition of “accessible environment”. In addition, we added
On the basis of public comments and our analyses of disposal systems, we incorporated individual protection requirements, applicable to all pathways of exposure effective for 1,000 years after disposal. In addition, our analyses of disposal systems supported setting ground water protection requirements to protect “special sources of ground water” to limits very similar to the Maximum Contaminant Levels (MCLs) at 40 CFR part 141. Public comment was very influential towards our incorporation of individual-protection requirements and ground-water protection requirements. To address the concerns expressed in the proposed rule related to protection of individuals who are extremely near the repository or who may intrude into the repository, the individual-protection requirements apply to any member of the public in the accessible environment for the case of undisturbed performance.
Legal challenges required us to reconsider the individual and ground water protection requirements in a subsequent rulemaking to amend 40 CFR part 191 (see 58 FR 66398, December 20, 1993). In 1987, the U.S. Court of Appeals for the First Circuit remanded subpart B of the 1985 standards to EPA for further consideration (
The EnPA directs us to develop site-specific public health protection standards for the Yucca Mountain site. To perform this task properly, we must answer two fundamental questions relative to the content of the standards. These two questions are:
(1) What are the relevant components of such standards?
(2) How can they be applied in more detail in a reasonable but conservative manner to the Yucca Mountain site?
There are two primary sources of information, insight, and guidance on repository performance standards in general and the standards applicable to the Yucca Mountain site in particular. These sources are the generic standards for land disposal of SNF, HLW, and TRU radioactive waste (40 CFR part 191) and the NAS report mentioned above. We relied heavily on these sources in developing the Yucca Mountain standards.
As described in the previous section, we developed 40 CFR part 191 as generic standards that apply to the land disposal of SNF, HLW, and TRU radioactive wastes. The components of generic standards like 40 CFR part 191, such as the individual-protection requirement, would all apply to some degree to any candidate site, but may not be equally important at any particular site. The WIPP LWA exempts the Yucca Mountain site from being licensed under the generic standards; however, the basic components of the generic standards clearly are valid components for consideration in developing standards that apply to a specific site. For example, in the EnPA, Congress specifically instructs us to “prescribe the maximum annual effective dose equivalent to individual members of the public” (EnPA section 801(a)(1)); such an individual dose standard is an integral part of 40 CFR part 191.
We believe that 40 CFR part 191 is a logical starting point for developing the site-specific Yucca Mountain standards because it contains the fundamental components necessary to evaluate whether a potential geologic repository site will perform satisfactorily relative to the protection of public health and the environment. Where appropriate in the site-specific context of the Yucca Mountain standards, we rely on the precedent of, and the reasoning in, 40 CFR part 191 throughout this preamble as support for including specific components in the Yucca Mountain standards. This statement does not mean that we have applied the 40 CFR part 191 standards to Yucca Mountain. Rather, we evaluated the 40 CFR part 191 standards de novo to determine whether it may be appropriate for us to apply any of them in the Yucca Mountain context. The NAS Report is relevant because it contains recommendations on scientific issues involved with geologic disposal in general, as well as specific recommendations based upon examination of the Yucca Mountain site. We refer to these two sources in the discussions that follow to explain why we structured the standards in a particular way and how we considered the public comments we received in response to the proposed standards.
We evaluated each generic component of 40 CFR part 191 on an individual basis to determine whether it is appropriate to apply it to the Yucca Mountain site as a component of a standard protective of public health. If we found it was appropriate to apply one of 40 CFR part 191's generic components to Yucca Mountain, we included that component in the Yucca Mountain standards. Next, we considered how to incorporate each appropriate component in a reasonable, but conservative, manner to the site-specific conditions at the Yucca Mountain site. The NAS Report was a primary source of guidance and insight in answering that question, supplemented by the available data on the characteristics of the site including information on the distribution, lifestyles, and other demographic characteristics of the population in the vicinity of the site. The BID accompanying the 40 CFR part 197 standards contains much of this information. Other sources of information, such as DOE's Yucca Mountain DEIS, are noted in the following discussions as appropriate.
Before selecting and formulating specific elements of the standards, we must consider that radiological hazards to public health from a deep geologic repository come from the release of radionuclides and the subsequent exposure of the population to these radionuclides. This exposure occurs as a result of two different processes: the expected degradation over time (caused
We did not see the need to include in 40 CFR part 197 the containment requirements in 40 CFR part 191 for several reasons. First, we decided that, unlike the generic analyses supporting the development of release limits in 40 CFR part 191, the potential for large-scale dilution of radionuclides (and consequent wider exposure to large populations), through ground water and into surface water, as modeled in the supporting analyses for 40 CFR part 191, does not exist at Yucca Mountain. As discussed in Chapters 7 and 8 and Appendix IV of the BID and the preamble to proposed 40 CFR part 197 (64 FR 46991, August 27, 1999), the Yucca Mountain repository will be located in an unsaturated rock formation with limited amounts of infiltrating water passing through it and into the underlying tuff aquifer. Any releases into the ground water will be heavily constrained by the geologic features of the surrounding rocks to move in relatively confined pathways, rather than widely dispersed into the surrounding area around the repository. The aquifer is within a ground water system that discharges into arid areas having high evaporation rates and very little surface water, further limiting the potential for widespread population exposures.
As discussed in the preamble to the proposed 40 CFR part 191 (58 FR 46991), we developed the containment requirements in 40 CFR part 191 during the siting process mandated by the NWPA in the 1980s. In that context, population doses are an important consideration. The release limits in 40 CFR part 191 were found to be reasonably achievable for several types of geologic settings (including tuff) and would keep the risks to future populations acceptably small. Because the potential for significant exposures from the Yucca Mountain repository is primarily through a strongly directional ground water pathway (BID, Chapters 7 and 8), a “cautious, but reasonable” individual-protection standard will offer the same protection as the containment requirement included in 40 CFR part 191.
Although we included important components of 40 CFR part 191 in our Yucca Mountain standards, we did not simply replicate the provisions of 40 CFR part 191. For example, as discussed above, we do not include containment requirements because we believe that the individual-protection requirements adequately will protect the general population given the specific conditions at Yucca Mountain. Similarly, we do not include assurance requirements because we expect NRC to incorporate equivalent requirements into its implementing regulations. Because the assurance requirements in 40 CFR part 191 do not apply to NRC-licensed facilities
Section 801(a)(1) of the EnPA requires us to set public health and safety radiation protection standards for Yucca Mountain by rulemaking.
There are two primary mechanisms by which we explain the issues raised in public comments and our reactions to them. First, we discuss broad or major comments in the succeeding sections of this preamble. Second, we are publishing a document, accompanying today's action, entitled “Response to Comments” (Docket No. A-95-12, Item V-C-1). The Response to Comments document provides more detailed responses to issues addressed in the preamble. It also addresses all other significant comments on the proposal. We gave all the comments we received, whether written or oral, consideration in developing the final rule.
We received many comments that addressed broad issues related to the proposed standards. Several commenters simply expressed their support for, or opposition to, the Yucca Mountain repository. The purpose of our standards is to ensure that any potential releases from the repository do not result in unacceptably high radiation exposures. Our standards make no judgment regarding the suitability of the Yucca Mountain site or whether NRC should issue a license for the site. Such a decision is beyond the scope of our statutory authority.
Some comments suggested our standards should consider radiation exposures from all sources because of the site's proximity to the Nevada Test Site (NTS) and other sources of potential contamination. We are aware of the other such sources of radionuclide contamination in the area. However, our mandate under the EnPA is to set standards that apply only to the storage or disposal of radioactive materials in the Yucca Mountain repository, not to these other sources. Our standards do follow the widely accepted principle that, to allow for the consideration of other exposures in developing a total acceptable dose, any specific source accounts for only a fraction of one's total exposure.
Several comments supported our role in setting standards for Yucca Mountain. Other comments thought that aspects of our standards duplicate NRC's implementation role. We believe the provisions of this rule clearly are within our authority and they are central to the concept of an public health protection standard. We also believe our standards leave NRC the necessary flexibility to adapt to changing conditions at Yucca Mountain or to impose additional requirements in its implementation efforts, if NRC deems them to be necessary.
We received some comments that suggested we should have provided more or better opportunities for public participation in our decision making process. For example, that we should have rescheduled public hearings, extended the public comment period, and provided alternatives to the public hearing process. We provided numerous opportunities and avenues for public participation in the development of these standards. For example, we held public hearings in four locations: Washington, DC; Las Vegas, NV; Amargosa Valley, NV; and Kansas City, MO. We also opened a 90-day public comment period and met with key stakeholders during that time, including Native American tribal groups. We fully considered all comments that we received through May 1, 2000. We have, in effect, provided more than 240 days of public comment on the proposal. These measures greatly exceed the basic requirements for notice-and-comment rulemaking, and they are in full compliance with the public participation requirements of the APA.
Some comments argued that our standards for Yucca Mountain do not protect Nevadans to the same level as New Mexicans around WIPP. In fact, the individual-protection standards for Yucca Mountain and WIPP are the same: 15 mrem annual committed effective dose equivalent. The differences between the standards for Yucca Mountain and those for WIPP begin with the various statutes and the subsequent regulations promulgated under those authorities. The WIPP LWA required us to apply our generic radioactive waste standards (40 CFR part 191) to WIPP. The standards for Yucca Mountain, which we promulgate under authority granted in the EnPA, are site-specific, and therefore there are some differences compared with the standards applicable to WIPP; however, we are confident that the standards provide essentially the same level of protection from radiation exposure at both sites, as the exposure limits are the same for both.
Many comments requested consideration of issues outside the scope of our authority for this rulemaking. For example, a number of commenters suggested that we should explore alternative methods of waste disposal, such as neutralizing radionuclides. Comments also expressed concern regarding risks of transporting radioactive materials to Yucca Mountain. Considerations like these all are outside the scope of this rulemaking. Congress delegated to us neither the authority to postpone the promulgation of these standards in favor of the development of other disposal methods nor the regulation of transportation of waste to Yucca Mountain.
Radioactive wastes result from the use of nuclear fuel and other radioactive materials. Today, we are issuing standards pertaining to SNF, HLW, and other radioactive waste (we refer to these items collectively as “radioactive materials” or “waste”) that may be stored or disposed of in the Yucca Mountain repository. (When we discuss storage or disposal in this document in reference to Yucca Mountain, please understand that no decision has been made regarding the acceptability of Yucca Mountain for storage or disposal. To save space and to avoid excessive repetition, we will not describe Yucca Mountain as a “potential” repository; however, we intend this meaning to apply.) These standards apply only to facilities on the Yucca Mountain site.
Once nuclear reactions have consumed a certain percentage of the uranium or other fissionable material in nuclear reactor fuel, the fuel no longer is useful for its intended purpose. It then is known as “spent” nuclear fuel (SNF). Sources of SNF include:
(1) Commercial nuclear power plants;
(2) Government-sponsored research and development programs in universities and industry;
(3) Experimental reactors, such as liquid metal fast breeder reactors and high-temperature gas-cooled reactors;
(4) Federal government-controlled, nuclear-materials production reactors;
(5) Naval and other Department of Defense reactors; and
(6) U.S.-owned, foreign SNF.
It is possible to recover specific radionuclides from SNF through “reprocessing,” which is a process that dissolves the SNF, thus separating the radionuclides from one another. Radionuclides not recovered through
In the future, other types of radioactive materials could be identified for storage or disposal in the Yucca Mountain repository. These materials include highly radioactive low-level waste (LLW), known as “greater-than-Class-C waste,” and excess plutonium or other fissile materials resulting from the dismantlement of nuclear weapons. Because the plans for the disposal of these materials have not been finalized, neither NRC nor DOE has analyzed their impact upon the design and performance of the disposal system. However, regardless of the types of radioactive materials that finally are disposed of in Yucca Mountain, the disposal system must comply with 40 CFR part 197.
Ionizing radiation can cause a variety of health effects, which can be either “non-stochastic” or “stochastic.” Non-stochastic effects are those for which the damage increases with increasing exposure, such as destruction of cells or reddening of the skin. These effects appear in cases of exposure to large amounts of radiation. Stochastic effects are associated with long-term exposure to low levels of radiation. The types or severity of stochastic effects does not depend on the amount of exposure. Instead, the chance that a stochastic effect, such as cancer, will occur is assumed to increase with increasing exposure. For a detailed discussion of potential health effects related to exposure to radiation, see the preamble to the proposed rule (64 FR 46978-46979) and Chapter 6 of the BID.
Teratogenic effects can occur following fetal exposure. We believe that fetuses are more sensitive than are adults to the induction of cancer by radiation (see Chapter 6.5 of the BID). The fetus also is subject to radiation-induced physical malformations, such as small brain size (microencephaly), small head size (microcephaly), eye malformations, and slow growth prior to birth. Recent studies have focused on the apparently increased risk of severe mental retardation (as measured by the intelligence quotient). These studies indicate that the sensitivity of the fetus is greatest during 8 to 15 weeks following conception and continues, at a lower level, between 16 and 25 weeks.
The NAS published its reviews of human health risks from exposure to low levels of ionizing radiation in a series of reports issued between 1972 and 1990. However, scientists still do not agree on how best to estimate the probability of cancer occurring as a result of the doses encountered by members of the public
Over the last decade, the scientific community has performed an extensive reevaluation of the doses and effects in the Hiroshima and Nagasaki survivors (see Chapter 6.3 of the BID). These studies have resulted in increased estimates (roughly threefold between 1972 and 1990) of the extrapolated risk of cancer occurring because of exposure to environmental (background) levels of radiation. Nonetheless, the estimated number of health effects induced by small incremental doses of radiation above natural background levels remains small compared with the total number of fatal cancers that occur from other causes. In addition, because cancers that result from exposure to radiation are the same as those that result from other causes, it may never be possible to identify them in human epidemiological studies (see Chapter 6 of the BID and the example discussed later in this section). This difficulty in identifying stochastic radiation effects does not mean that such effects do not occur. It also is possible, however, that effects do not occur as a result of these small doses. That is, there might be an exposure level below which there is no additional risk above the risk posed by natural background radiation. Sufficient data to prove either possibility scientifically is lacking. Thus, we believe that the best approach is to assume that the risk of cancer increases linearly starting at zero dose. In other
The NAS Report stated that radiation causes about five cancers for every severe hereditary disorder caused by radiation exposure. Also, NAS concluded that nonfatal cancers are more common than fatal cancers. Despite this conclusion, NAS cited an ICRP study that judged that non-fatal cancers contribute less to overall health impact than fatal cancers “because of their lesser severity in the affected individuals.” (NAS Report pp. 37-39). We based our risk estimates for exposure of the population to low-dose-rate radiation on fatal cancers rather than on all cancers for the same reasons enumerated by NAS.
For radiation-protection purposes, we estimate (using a linear, non-threshold, dose-response model) an average risk for a member of the U.S. population of 5.75 in 100 (5.75 x 10
Of course, our risk estimates do contain some uncertainty. A recent uncertainty analysis published by NCRP (NCRP Report 126, Docket A-95-12, Item II-A-13) estimated that the actual risk of cancer from whole-body exposure to low doses of radiation could be between 1.5 times higher and 4.8 times lower (at the 90-percent confidence level) than our basic estimate of 5.75 × 10
Yucca Mountain is made of layers of ashfalls from volcanic eruptions that happened more than 10 million years ago. The ash consolidated into a rock type called “tuff,” which has varying degrees of compaction and fracturing depending upon the degree of “welding” caused by temperature and pressure when the ash was deposited. Regional geologic forces have tilted the tuff layers and formed Yucca Mountain's crest (Yucca Mountain's shape is a ridge rather than a peak). Below the tuff is carbonate rock formed from sediments laid down at the bottom of ancient seas that existed in the area.
There are two general hydrologic zones within and below Yucca Mountain. The upper zone is called the “unsaturated zone” because the pore spaces and fractures within the rock are not filled entirely with water. Below the unsaturated zone, beginning at the water table, is the “saturated zone,” in which water completely fills the pores and fractures. Fractures in both zones could act as pathways that allow for faster contaminant transport than would the pores. The DOE plans to build the repository in the unsaturated zone about 300 meters below the surface and about 300 to 500 meters above the water table (DOE Viability Assessment (DOE/VA), Docket No. A-95-12, Item V-A-5).
There are two major aquifers in the saturated zone under Yucca Mountain. The upper one is in tuff. The lower one is in carbonate rock. Regional ground water in the vicinity of Yucca Mountain is believed to flow generally in a south-southeasterly direction. See Chapters 7 and 8 of the BID for a fuller discussion of the aquifers and the other geologic attributes of the Yucca Mountain region.
We expect the engineered barrier system to consist of at least the waste form (SNF assemblies or borosilicate glass containing the HLW), internal stabilizers for the SNF assemblies, and the waste packages holding the waste. Spent nuclear fuel assemblies consist of uranium oxide, fission products, fuel cladding, and support hardware, all of which will be radioactive (see the
Section 801(a)(2) of the EnPA directs us to contract with NAS to conduct a study to provide findings and recommendations on reasonable standards for protection of public health and safety. Section 801(a)(2) specifically calls for NAS to address the following three issues:
(A) Whether a health-based standard based upon doses to individual members of the public from releases to the accessible environment (as that term is defined in the regulations contained in subpart B of part 191 of title 40, Code of Federal Regulations, as in effect on November 18, 1985) will provide a reasonable standard for protection of the health and safety of the general public;
(B) Whether it is reasonable to assume that a system for post-closure oversight of the repository can be developed, based upon active institutional controls, that will prevent an unreasonable risk of breaching the repository's engineered or geologic barriers or increasing the exposure of individual members of the public to radiation beyond allowable limits; and
(C) Whether it is possible to make scientifically supportable predictions of the probability that the repository's engineered or geologic barriers will be breached as a result of human intrusion over a period of 10,000 years.
On August 1, 1995, NAS submitted to us its report, entitled “Technical Bases for Yucca Mountain Standards.” The NAS Report is available for review in the docket (Docket No. A-95-12, Item II-A-1) and the information files described earlier. You can order the report from the National Academy Press by calling 800-624-6242 or on the World Wide Web at
The NAS Report contained a number of conclusions and recommendations. (The EnPA used the term “findings;” however, the NAS Report used the term “conclusions”). A summary of NAS's conclusions appears below. See pages 1-14 of the NAS Report, or the preamble to our proposed rule (64 FR 46980), for a list of NAS's conclusions and recommendations. For details on public participation in our review of the NAS Report, please see the preamble to the proposed rule (64 FR 46980-46981).
(a) “That an individual-risk standard would protect public health, given the particular characteristics of the site, provided that policy makers and the public are prepared to accept that very low radiation doses pose a negligibly small risk” (later termed “negligible incremental risk”). (This conclusion is the response to the issue Congress identified in EnPA Section 801(a)(2)(A));
(b) That the Yucca Mountain-related “physical and geologic processes are sufficiently quantifiable and the related uncertainties sufficiently boundable that the performance can be assessed over time frames during which the geologic system is relatively stable or varies in a boundable manner;”
(c) “That it is not possible to predict on the basis of scientific analyses the societal factors required for an exposure scenario. Specifying exposure scenarios therefore requires a policy decision that is appropriately made in a rulemaking process conducted by EPA;”
(d) “That it is not reasonable to assume that a system for post-closure oversight of the repository can be developed, based on active institutional controls, that will prevent an unreasonable risk of breaching the repository's engineered barriers or increasing the exposure of individual members of the public to radiation beyond allowable limits.” (This conclusion is the response to the issue Congress identified in EnPA section 801(a)(2)(B));
(e) “That it is not possible to make scientifically supportable predictions of the probability that a repository's engineered or geologic barriers will be breached as a result of human intrusion over a period of 10,000 years.” (This conclusion is the response to the issue Congress identified in EnPA Section 801(a)(2)(C)); and
(f) “That there is no scientific basis for incorporating the ALARA (as low as reasonably achievable) principle into the EPA standard or USNRC (U.S. Nuclear Regulatory Commission) regulations for the repository.”
(a) “The use of a standard that sets a limit on the risk to individuals of adverse health effects from releases from the repository;”
(b) “That the critical-group approach be used”;
(c) “That compliance assessment be conducted for the time when the greatest risk occurs, within the limits imposed by long-term stability of the geologic environment;” and
(d) “That the estimated risk calculated from the assumed intrusion scenario be no greater than the risk limit adopted for the undisturbed-repository case because a repository that is suitable for safe long-term disposal should be able to continue to provide acceptable waste isolation after some type of intrusion.”
Our rule establishes public health and safety standards governing the storage and disposal of SNF, HLW, and other radioactive material in the repository at Yucca Mountain, Nevada.
As noted earlier, section 801(a)(1) of the EnPA gives us rulemaking authority to set “public health and safety standards for the protection of the public from releases from radioactive materials stored or disposed of in the repository at the Yucca Mountain site.” The statute also directs us to develop standards “based upon and consistent with the findings and recommendations of the National Academy of Sciences.” Section 801(a)(2) of the EnPA directs us to contract with NAS to conduct a study to provide findings and recommendations on reasonable standards for protection of the public health and safety. Because the EnPA directs us to act “based upon and consistent with” NAS's findings, a major issue in this rulemaking is whether we must follow NAS's findings and recommendations without exception or whether we have discretionary decision-making authority.
As we discussed in the preamble to the proposed rule, we believe we have discretionary decision-making authority and, therefore, are not required to adopt,
Whether the EnPA binds us to following exactly NAS's findings and recommendations is a question that warrants close attention because it affects the scope of our rulemaking. If we must follow every view expressed in the NAS Report, we would have to treat any such issue as having been addressed conclusively by NAS. We would not need to entertain public comment upon the affected issues because the outcome would be predetermined by NAS.
We believe the EnPA does not bind us absolutely to follow the NAS Report. Instead, we used it as the starting point for this rulemaking. As Congress directed, today's rule is based upon and consistent with the NAS findings and recommendations. We were guided by the panel's findings and recommendations because of the special role Congress gave it and because of NAS's scientific expertise. However, the entirety of our standards is the subject of this rulemaking. Therefore, we have not treated the views expressed by NAS as necessarily dictating the outcome of this rulemaking, thereby foreclosing public scrutiny of important issues. For the reasons described below, we believe this interpretation of the EnPA is both consistent with the statute and prudent, because it avoids potential constitutional issues. Further, this interpretation supports an important EPA policy objective and legal obligation: Ensuring an opportunity for public input regarding all aspects of the issues presented in this rulemaking.
Section 801(a)(2) of the EnPA requires NAS to provide “findings and recommendations on reasonable standards for protection of the public health and safety.” This section of the EnPA calls for NAS to address three specific issues; however, Congress did not place any restrictions on other issues NAS could address. The report of the Congressional conferees underscored that “the (NAS) would not be precluded from addressing additional questions or issues related to the appropriate standards for radiation protection at Yucca Mountain beyond those that are specified.” (H.R. Rep. No. 102-1018, 102nd Cong., 2d Sess. 391 (1992)). Thus, given the potentially unlimited scope of NAS's inquiry under the statute, it could have provided findings and recommendations that would dictate literally all aspects of the public health and safety standards for Yucca Mountain, rendering our function a merely ministerial one.
Section 801(a)(1) of the EnPA plainly gives us the authority to issue, by rulemaking, public health and safety standards for Yucca Mountain. If at the same time that Congress gave NAS the authority to provide findings and recommendations on any issues related to the Yucca Mountain public health and safety standards, Congress also intended that NAS's findings and recommendations would bind us, then Congress effectively would have delegated to NAS a standard-setting authority that overrides our rulemaking authority. Carried to its logical conclusion, under this view of the statute, NAS would have authority to establish the public health and safety standards without a public rulemaking process. Congress' direction to EPA to set standards “by rule” would be unnecessary or relatively meaningless. It is both reasonable and appropriate to resolve this tension in the statute by interpreting NAS's findings and recommendations as non-binding, but highly influential, expert guidance to inform our rulemaking.
Thus, we do not believe the statute forces our rulemaking to adopt mechanically NAS's recommendations as standards. If it did, the statutory provisions would allow us to consider only those issues that NAS did not address. Further, the provisions calling for us to use standard rulemaking procedures in issuing the standards would be unnecessary to reach results that NAS already established. We consider the NAS Report's explicit references to decisions that should be made during the rulemaking process to be support for our position.
The EnPA conference report also reveals that Congress did not intend to limit our rulemaking discretion. The conference report clarifies that Congress intended NAS to provide “expert scientific guidance” on the issues involved in our rulemaking and that Congress did not intend for NAS to establish the specific standards:
The Conferees do not intend for the National Academy of Sciences, in making its recommendations, to establish specific standards for protection of the public but rather to provide expert scientific guidance on the issues involved in establishing those standards. Under the provisions of section 801, the authority and responsibility to establish the standards, pursuant to rulemaking, would remain with the Administrator, as is the case under existing law. The provisions of section 801 are not intended to limit the Administrator's discretion in the exercise of his authority related to public health and safety issues. (H.R. Rep. No. 102-1018, p. 391)
Our interpretation of the EnPA as not limiting the issues for consideration in this rulemaking is consistent with the views we expressed to Congress during deliberations over the legislation. The Chair of the Senate Subcommittee on Nuclear Regulation requested our views regarding the bill reported by the conference committee. The Deputy Administrator of EPA indicated the NAS Report would provide helpful input. Moreover, the Deputy Administrator pointed to the language, cited above, stating the intent of the conferees not to limit our rulemaking discretion and assured Congress that any standards for radioactive materials that we ultimately issue would be the subject of public comment and involvement and would fully protect human health and the environment (138 Cong. Rec. 33,955 (1992)).
Our interpretation also is consistent with the role that both NAS and Congress understood NAS would fulfill. During the Congressional deliberations over the legislation, NAS informed Congress that while it would conduct the study, it would not assume a standard-setting role because such a role is properly the responsibility of government officials. (138 Cong. Rec. 33,953 (1992)) Our interpretation of the NAS Report also avoids implicating potentially significant constitutional issues. Construing the EnPA as delegating to NAS the responsibility to determine the health and safety standards at Yucca Mountain may violate the Appointments Clause of the Constitution (Art. II, sec. 2, cl. 2), which imposes restrictions against giving Federal governmental authority to persons not appointed in compliance with that Clause. In addition, the Constitution places restrictions arising under the separation of powers doctrine upon the delegation of governmental authority to persons not part of the Federal government. We are not concluding, at this time, that an alternative interpretation necessarily would run afoul of constitutional limits. We believe, however, that it is
In summary, we do not believe we must, in this rulemaking, adopt all of NAS's findings and recommendations. The statute does, however, give NAS a special role. As noted previously, NAS's findings and recommendations were instrumental in this rulemaking. Our proposal is consistent with those findings and recommendations. We included many of the findings and recommendations in this rule. We tended to give greatest weight to NAS's judgments about issues having a strong scientific component, the area in which NAS has its greatest expertise. In addition, we reached final determinations that are congruent with NAS's analysis whenever we could do so without departing from the Congressional delegation of authority to us to promulgate, by rule, public health and safety standards for protection of the public. We believe our mandate from Congress required the consideration of public comments and the exercise of our own expertise and discretion.
We requested public comments concerning: how we should view and weigh NAS's findings and recommendations in the context of the specific issues presented in this rulemaking; whether we have given proper consideration to NAS's findings and recommendations; and whether we should give them more or less weight, and what the resulting outcome should be.
We received many comments regarding our EnPA authority and our interpretation of the NAS Report. Several comments took issue with our reasons for not simply adopting each of the NAS recommendations verbatim and stated that we are bound to do so. One comment asserted that our reasoning “exaggerates the impact of the NAS Report” on our rulemaking authority. However, these comments generally recognized that we can depart from the NAS panel's recommendations if it specifically stated that policy considerations could play a role in the decision, or if the recommendation at issue otherwise was not definitive (e.g., there was disagreement among the panel members). In particular, some comments suggested that we cannot include any provision if NAS did not recommend it. We disagree with this position. In the preamble to the proposed rule, we clearly stated our intentions regarding our use of the NAS Report (see 64 FR 46980-46983). We gave the NAS Report special consideration as “expert scientific guidance.” However, as discussed above, we do not believe that Congress intended the NAS Report to bind us absolutely. We note that NAS, in its comments on our proposed rule, did not offer an opinion on this point. Also, NAS acknowledges in several places in its report that, for policy or other reasons, we may elect to take approaches that differ from its recommendations. These statements show NAS did not consider its recommendations to be binding directions to EPA. The NAS did, however, identify aspects of the proposal it believes are inconsistent with its recommendations. A copy of NAS's comments on the proposal is in the docket (Docket No. A-95-12, Item IV-D-31). See the Response to Comments document for additional discussion of comments regarding our incorporation of the NAS recommendations (Docket No. A-95-12, Item V-C-1).
The following sections describe our public health and safety standards for Yucca Mountain and the considerations that underlie these standards. The next section addresses the storage portion of the standards. All of the other sections pertain to the disposal portion of the standards.
Section 801(a)(1) of the EnPA calls for EPA's public health and safety standards to apply to radioactive materials “stored or disposed of in the repository at the Yucca Mountain site.” The repository is the excavated portion of the facility constructed underground within the Yucca Mountain site (to be differentiated from the disposal system, which is made up of the repository, the engineered barriers, and the natural barriers). The EnPA differentiates between “stored” and “disposed” waste, although it indicates that we must issue standards that apply to both storage and disposal. Congress was not clear regarding its intended use of the word “stored” in this context. Also, NAS did not address the issue of storage versus disposal (see § 197.2 for our definition of “storage” and § 197.12 for our definition of “disposal”). The DOE currently conceives of the Yucca Mountain repository as a disposal facility, not a storage facility; however, this situation could change. Therefore, we decided to interpret the statutory language as directing us to develop standards that apply to waste that DOE either stores or disposes of in the Yucca Mountain repository. The storage standard, therefore, applies to waste inside the repository, prior to disposal.
We received several comments regarding our proposed definition of “disposal” in § 197.12, arguing that the potential benefits of backfilling are unknown at present. In response to these comments, we changed the definition in the final rule to exclude the requirement that DOE use backfilling in the Yucca Mountain repository. We believe that DOE should have the flexibility to design the repository so that it is as protective of public health and the environment as possible. Therefore, in order not to constrain DOE unnecessarily in its choice of repository designs, we changed the definition of “disposal” as the comments suggested. Thus, under the revised definition in our final rule, it is no longer necessary for DOE to use backfilling for waste disposal to occur.
Several comments also suggested that our proposed definitions of “disposal” and “barrier” run counter to established notions of deep geologic repositories because they allow DOE to rely upon both engineered and natural barriers, instead of natural barriers alone, to contain the radioactive material to be stored in Yucca Mountain. These comments suggested we amend these definitions, as appropriate, to delete references to engineered barriers. According to the comments, the Yucca Mountain repository must meet public health and safety standards with no assistance from manmade structures or barriers. The EnPA mandates that we establish site-specific standards for Yucca Mountain. Under this mandate, we believe it is appropriate, based on the conditions present at Yucca Mountain, to allow DOE the flexibility to develop a combined system, using engineered barriers and natural barriers, to contain radioactive material to be disposed of in Yucca Mountain. For additional discussion of this topic, please see Chapter 7 of the BID.
The DOE also will handle, and might store, radioactive material aboveground (that is, outside the repository). Our existing standards for management and storage, codified at subpart A of 40 CFR part 191, apply to such storage activities. Subpart A of 40 CFR part 191 requires that DOE manage and store SNF, HLW, and transuranic radioactive wastes at a site, such as Yucca Mountain, in a manner that provides a reasonable assurance that the annual dose equivalent to any member of the public in the general environment will not exceed 25 millirem (mrem) to the whole body. (Note that a demonstration of “reasonable assurance” is necessary to comply with the standard for storage,
We take this position regarding the applicability of subpart A of 40 CFR part 191 because section 801 of the EnPA specifically provides that the standards we issue shall be the only “such standards” that apply at Yucca Mountain. Thus, the EnPA is the exclusive authority for today's action regarding storage inside the repository. The WIPP LWA does not exclude Yucca Mountain from the management and storage provisions in subpart A of 40 CFR part 191. The 40 CFR part 197 standards supercede our generally applicable standards (40 CFR part 191) only to the extent that the EnPA requires site-specific standards for storage inside the repository at Yucca Mountain. Otherwise, the 40 CFR part 197 standards have no effect on our generic standards. As noted, we interpret the scope of section 801 to include both storage and disposal of waste in the repository. Thus, waste inside the repository is subject to the standards in today's action. Our generic standards (subpart A of 40 CFR part 191) will apply to waste stored at the Yucca Mountain site, but outside of the repository.
The storage standards in 40 CFR 191.03(a) are stated in terms of an older dose-calculation method and are set at an annual whole-body-dose limit of 25 mrem/yr. The storage standard for Yucca Mountain uses a modern dose-calculation method known as “committed effective dose equivalent” (CEDE). Even though today's final rule uses the modern method of dose calculation, we believe that the dose level maintains a similar risk level as in 40 CFR 191.03(a) at the time of its promulgation (see the discussion of the different dose-calculation methods in the
As discussed in the preamble to the proposed rule (64 FR 46983), we considered the differences among the conditions covered by the storage standards in 40 CFR 191.03(a) and the conditions that could affect storage in the Yucca Mountain repository. The most significant difference is that the storage in Yucca Mountain would be underground, whereas most storage covered under 40 CFR part 191 is aboveground. Otherwise, the technical situations we anticipate under both the existing generic standards and the Yucca Mountain standards are essentially the same. Also, our final rule extends a similar level of protection as in the 1985 version of subpart A of 40 CFR part 191. In other words, under the 40 CFR part 197 storage standard, exposures of members of the public from waste storage inside the repository would be combined with exposures occurring as a result of storage outside the repository but within the Yucca Mountain site (as defined in 40 CFR 197.2). The total dose could be no greater than 150 microsieverts (μSv) (15 mrem) CEDE per year (CEDE/yr).
We requested comments regarding our interpretation of section 801 and our approach to coordinating the doses originating from inside and outside the Yucca Mountain repository. We received two comments regarding this issue. One comment urged us to establish a single, new, and separate standard for the Yucca Mountain site that would encompass the pre-closure operations both aboveground and in the repository. The comment further stated that the suggested approach would avoid using two different rules for the same site. This suggested approach also would avoid the need to use the older dose methodology currently in 40 CFR part 191. Another comment stated that the application of subpart A of 40 CFR part 191 would not be inappropriate.
We considered establishing a new standard to cover the entirety of the management and storage operations at Yucca Mountain, as was suggested by one comment. This had the attractive feature of applying one standard, instead of two, to the management and storage activities in and around Yucca Mountain.
However, after considering the comments, the wording in section 801(a)(1) of the EnPA, and the impending rulemaking to amend subpart A of 40 CFR part 191, we have decided to cover the surface management and storage activities within the Yucca Mountain site under 40 CFR part 191 and management and storage activities in the Yucca Mountain repository under 40 CFR part 197. However, the combined doses incurred by any individual in the general environment from these activities must not exceed 150 μSv (15 mrem) CEDE/yr. This will require the conversion of doses from the surface activities from the older dose system (under which the 40 CFR part 191 standards were developed) into the newer system to be able to combine the doses from the two areas of operation. There are established methods to do this, e.g., in the appendix to 40 CFR part 191, but we are leaving the methodology in this case to NRC's implementation process. We are continuing to develop a rulemaking to update the dose system used in subpart A of 40 CFR part 191. When that amendment is finished, the conversion for the activities subject to subpart A of 40 CFR part 191 will be unnecessary.
Subpart B of this final rule consists of three separate standards (or sets of standards) that apply after final disposal, which are discussed in more detail in the appropriate sections of this document. The disposal standards are:
• An individual-protection standard;
• Ground-water protection standards; and
• A human-intrusion standard.
The first standard is an individual-protection standard. It specifies the maximum dose that a reasonably maximally exposed individual (RMEI) may receive from releases from the Yucca Mountain disposal system.
a. Is the Limit on Dose or Risk? Section 801(a)(1) of the EnPA directed that our standards for Yucca Mountain “shall prescribe the maximum annual effective dose equivalent to individual members of the public from releases to the accessible environment from radioactive materials stored or disposed of in the repository * * *.” The EnPA also requires us to issue our standards
The NAS recommended that we adopt a risk-based standard to protect individuals, rather than a dose-based standard as Congress prescribed. The NAS offered two reasons for its recommendation. First, a risk-based standard is advantageous relative to a dose-based standard because it “would not have to be revised in subsequent rulemakings if advances in scientific knowledge reveal that the dose-response relationship is different from that envisaged today” (NAS Report p. 64). Second, NAS believes a risk-based standard more readily enables the public to comprehend and compare the standard with human-health risks from other sources.
We reviewed and evaluated the merits of a risk-based standard as recommended by NAS (NAS Report, pp. 41-ff.). However, we chose to adopt a dose-based standard for the following reasons. First, EnPA section 801(a)(1) specifically directs us to promulgate a standard prescribing the “maximum annual dose equivalent to individual members of the public from releases to the accessible environment from radioactive materials stored or disposed of in the repository.” Also, the Conference Committee specifically stated that EPA's standards “shall prescribe the maximum annual dose equivalent to individual members of the public from releases to the accessible environment from radioactive materials stored or disposed of in the repository. (H. R. Rep. 102-1018, 102nd Cong., 2d Sess. 390 (1992)). In a situation such as this, where both the statutory language and the legislative history are clear, we are obliged to implement the clearly stated plain language of the statute and to carry out the unambiguous intent of the Congress.
Second, both national and international radiation protection guidelines developed by bodies of non-governmental radiation experts, such as ICRP and NCRP, generally have recommended that radiation standards be established in terms of dose. Also, national and international radiation standards, including the individual-protection requirements in 40 CFR part 191, are established almost solely in terms of dose or concentration, not risk. Therefore, a risk standard will not allow a convenient comparison with the numerous existing dose guidelines and standards.
However, we did establish the dose limit using the risk of developing a fatal cancer. The level of risk, about 8.5 fatal cancers per million members of the population per year (see the preamble to the proposed rule at 64 FR 46984), is a level the Agency has judged to be acceptable taking into account many factors, including existing radiation standards (such as subpart B of 40 CFR part 191), Congressional action (the WIPP LWA), and the comments received on the proposed standards. On page 46985 of the preamble to the proposed rule, we cited a risk of approximately seven in a million per year. This value was based upon the NAS risk value of 5 × 10
Finally, we did not receive any comments in favor of a risk standard that provided either a compelling technical or policy rationale for promulgating such a standard (see the Response to Comments document).
Therefore, we establish a standard stated as a dose rather than a risk.
We requested comments as to whether the standard should be expressed as risk or dose. Not unexpectedly, the comments were divided between the alternatives. Most of the comments supported the use of dose.
One comment stated that the calculation of a dose limit through a probabilistic performance assessment is a reasonable way to assure that the repository will meet the overall health risk objective. It is NRC's responsibility to determine how DOE must demonstrate compliance with our standards; however, we envision the use of a probabilistic assessment for the compliance demonstration. Another comment stated that a dose limit is a reasonable way for us to incorporate cancer risk into the regulation. As discussed to some extent in section III.B.1.b (
A few comments supported stating the standard in terms of risk rather than dose. For example, NAS was concerned that a dose standard would preclude the public from being able to compare risks with other hazardous materials. According to NAS, the use of a dose standard also makes it difficult for the public to compare the risks inherent in the ground-water protection standards with the risks inherent in the individual-protection standard. The NAS also stated that its recommendation to use a risk standard did not preclude us from using a dose standard, as long as the underlying risk basis was clearly understood. We believe that we have been sufficiently clear in describing the risk basis of the standards within this preamble and the Response to Comments document.
The inventory of radionuclides over time will depend upon the type and amount of radionuclides originally disposed of in the repository, the half-lives of the radionuclides, and the amount of any radionuclides formed from the decay of parent radionuclides (see Chapter 5 of the BID). In the time frame of tens to hundreds of thousands of years, the short-lived radionuclides initially present in SNF and HLW will decay. Therefore, the waste eventually will have radiologic hazards similar to a large uranium ore body; such ore bodies naturally occur in a variety of settings throughout the country. A typical uranium ore body contains relatively low concentrations of very long-lived radionuclides similar to those present in the radioactive wastes to be disposed of in Yucca Mountain (see the preamble to the final rule establishing 40 CFR part 191 (50 FR 38083, September 19, 1985)).
Both the natural and engineered barriers must delay and limit releases of radionuclides from the repository. For example, an engineered barrier could be the waste form. The DOE plans to convert liquid HLW, derived from reprocessing SNF, into a solid by entraining the radionuclides into a matrix of borosilicate glass. The molten glass then would be poured into and solidified in a second engineered barrier, a metal container (see Chapter 7 of the BID). In addition, it is possible to have other engineered barriers in the repository to serve as part of the disposal system (see Chapter 7 of the BID).
Natural barriers at Yucca Mountain also could slow the movement of radionuclides into the accessible environment. For instance, DOE plans to construct the repository in a layer of tuff located above the water table. The relative dryness of the tuff around the repository would limit the amount of water coming into contact with the waste, and would retard the future movement of radionuclides from the waste into the underlying aquifer. Any radioactive material that dissolved in infiltrating water, originating as surface precipitation, still would have to move to the saturated zone. In the saturated zone, which lies below the unsaturated zone, water completely fills the pores and fractures in the rock. Minerals, such as zeolites, in the tuff beneath the repository could act as molecular filters and ion-exchange agents for some of the released radionuclides, thereby slowing their movement. These minerals also could limit the amount of water that contacts the waste and could help retard the movement of radionuclides from the waste to the water table. This mechanism would be most effective if flow was predominantly through the matrix (the pores in the rock) (see Chapter 7 of the BID).
There are currently no perennial rivers or lakes adjacent to Yucca Mountain that could transport contaminants. Therefore, based on current knowledge and conditions, ground water and its usage will be the main pathways leading to exposure of humans. Current knowledge suggests that the two major ways that people would use the contaminated ground water are: (1) Drinking and domestic uses; and (2) agricultural uses (see Chapters 8 and 9 of the BID). In other words, radionuclides that reach the public could deliver a dose if an individual: (1) Drinks contaminated ground water or uses it directly for other household uses; (2) drinks other liquids containing contaminated water; (3) eats food products processed using contaminated water; (4) eats vegetables or meat raised using contaminated water; or (5) otherwise is exposed as a result of immersion in contaminated water or air or inhalation of wind-driven particulates left following the evaporation of the water.
We considered NAS's findings and recommendations in our determination of the CEDE level that would be adequately protective of human health. We also reviewed established EPA standards and guidance, other Federal agencies' standards for both radiation and non-radiation-related actions, and other countries' regulations. In addition, we evaluated guidance on dose limits provided by national and international non-governmental advisory groups of radiation experts.
Section 801(a)(1) of the EnPA calls for our Yucca Mountain standards to “prescribe the maximum annual effective dose equivalent to individual members of the public from releases of radioactive materials.” Development of the individual-protection standard required us to evaluate and specify several factors, which include the level of protection, whom the standards should protect, and how long the standards should provide protection. Determining the appropriate dose level is ultimately a question of both science and public policy. As NAS stated: “The level of protection established by a standard is a statement of the level of the risk that is acceptable to society. Whether posed as ‘How safe is safe enough?’ or as ‘What is an acceptable level?’, the question is not solvable by science” (NAS Report p. 49).
We requested comment regarding the reasonableness of our proposed 15 mrem CEDE/yr individual-protection standard. We received many comments, some of which supported the proposal, while others stated that we should make the level higher or lower. This final rule establishes a limit of 15 mrem CEDE/yr for the reasons discussed in the preamble to the proposed rule (see 64
Many comments argued that the proposed level was too low. For example, a few comments preferred a dose level of 25 mrem/yr to maintain consistency with current NRC regulations. Another comment advocated a dose level of 70 mrem/yr, given the long time frames, the national importance of the repository, and other factors. Other comments thought that the standard should be lower. Several of these comments supported a limit of 5 mrem/yr. Other comments supported a zero dose limit.
Some comments stated that, though they preferred a zero-release standard, they realized that our level was implementable. We agree that the disposal program should ideally have a goal of no releases. However, we believe it is incumbent upon us to set a stringent, yet reasonable, standard. We are establishing a standard that provides comparable protections to those of other activities related to radioactive and non-radioactive wastes. Given the current state of technology, it may not be possible to provide absolute certainty that there will be no releases over a 10,000 year or longer time frame. Therefore, we have attempted to establish a standard that is protective that can be implemented to show compliance.
Our final consideration in selecting a level of protection was guidance from national and international non-governmental bodies, such as ICRP and NCRP, which have recommended a total annual dose limit for an individual of 1 mSv (100 mrem) effective dose from exposure to all radiation sources except background and medical procedures. The dose level of 1 mSv (100 mrem) corresponds to an annual risk of fatal cancer of about 6 in 100,000 (6 × 10
There are multiple sources of potential radionuclide contamination on and near NTS, one of which is the Yucca Mountain site. Portions of NTS have been subjected to both underground and aboveground nuclear weapon detonations. A substantial quantity of radionuclides was created by these tests. An estimated inventory of 300 million curies remains underground (see Appendix II of the BID; Chapter 8 of DOE's Draft Environmental Impact Statement for Yucca Mountain (DOE/EIS/0250D), Docket No. A-95-12, Item V-A-4; and Nevada Risk Assessment/Management Program (NRAMP), Docket No. A-95-12, Item V-A-17). Elsewhere on the NTS, DOE is burying LLW in near-surface trenches and TRU radioactive waste has been disposed of in the Greater Confinement Disposal facility. Finally, there is a commercial LLW disposal system located west of Yucca Mountain near Beatty, Nevada. Each of these facilities could have releases of radioactivity into the ground water (see Chapter 8 of DOE's Draft Environmental Impact Statement for Yucca Mountain (DOE/EIS/0250D), Docket No. A-95-12, Item V-A-4; and Nevada Risk Assessment/Management Program (NRAMP), Docket No. A-95-12, Item V-A-17). The regional flow of ground water is believed to be generally from the locations where some of these practices have occurred toward the area where radionuclides released from the Yucca Mountain disposal system are presumed to go (see Nevada Risk Assessment/Management Program (NRAMP), Docket No. A-95-12, Item V-A-17). The total of the releases from these sources should be constrained to the total dose limit of 1 mSv (100 mrem) CED/yr, as recommended by ICRP, because the releases from these sources could affect the same group of people. The potential doses from these other sources might contribute to individual doses for the reasonably maximally exposed individual (RMEI) over different time frames. According to Chapter 8 of the DEIS for Yucca Mountain (DOE/EIS/0250D, Docket No. A-95-12, Item V-A-4), potential releases from LLW management and disposal operations may contribute very small individual doses. A quantitative attempt to allocate potential dose from these other sources would be highly speculative; however, it would be reasonable to maintain the allocation approach reflected in the established dose limits in both the United States and internationally.
In summary, based on our review of the guidance, regulations, and standards cited above, and the NAS Report, we are establishing a standard of 150 μSv (15 mrem) CEDE/yr for the Yucca Mountain disposal system (40 CFR 197.13). This level is 15% of the ICRP-recommended total dose limit. It falls within the range of standards used in other countries and the range recommended by NAS, and is also consistent with the individual-protection requirement in 40 CFR part 191. This level will be the CEDE level with which the dose over the compliance period must be compared. The compliance period is the time interval over which projections of the performance of the disposal system must be made for the purpose of assessing the future performance of the disposal system (see the
In both approaches, the attempt is made to consider a range of conditions for the exposed individuals that affect exposures, including geographic population distributions, lifestyles, and food consumption patterns for populations at risk. The characteristics of the RMEI are defined from consideration of current population distribution and ground water usage, and average food consumption patterns for the population in question. Such characterizations typically are done by surveying existing populations, and a “composite” RMEI is defined with one or more parameters that significantly affect exposure estimates set at high values so that the individual is “reasonably maximally exposed.” The CG approach typically is used under the assumption of a larger population within which a smaller group (the critical group) incurs a more homogeneous risk from exposures, in contrast to the larger population group where exposures will vary widely. Characteristics of the CG also are derived from information or assumptions about the potentially exposed population; however, a small group within the larger population, rather than a composite individual, is defined. Both the CG and the RMEI are then located above the path of the contamination plume and the exposure variations are calculated as a function of the parameters that control radionuclide transport from the contamination source (here, the repository). The “probabilistic” CG defined in the NAS Report (Appendix C) adds an additional layer of analytical detail by introducing the idea that the path of the radionuclide contamination is subject to considerable uncertainty and the exposure of the CG is further qualified by the probability that the contamination plume is tapped by the CG at any point in time. This approach assumes the location of the probabilistic CG is fixed independently of the projected path(s) for radionuclide migration from the repository, and the potential exposures then are a direct function of the probability that the contamination plume reaches the location of the group. The more common approach to locating the CG, for the purpose of estimating exposures, is to determine where the group can receive exposures from the contamination plume and then locating the CG at that place, regardless of whether a population is currently at that location or not. Both of these approaches appear to give essentially the same maximum dose levels to at least some individuals, because at some point in time the CG would tap into the contamination plume and receive the exposures. However, if assumed to be widely distributed geographically, many members of the CG could receive considerably smaller doses, or no dose, resulting in an average dose which does not reflect the intent of the CG concept. Overall, as explained further, below, the difference in the distribution of doses using the CG approach depends upon the implementation details describing how the total spectrum of dose assessments would be calculated.
We relied upon many factors in making the decision to use the RMEI concept. First, this approach is consistent with widespread practice, current and historical, of estimating dose and risk incurred by individuals even when it is impossible to specify or calculate accurately the exposure habits of future members of the population, as in this case where it is necessary to project doses for very long periods. Second, we believe that the RMEI approach is sufficiently conservative and that it is fully protective of the general population (including women and children, the very young, the elderly, and the infirm). The risk factor upon which the dose level was established is very small, 5.75 chances in 10,000,000 per mrem for fatal cancer. The lifetime risk then is this factor multiplied by the total dose received in each year of the individual's lifetime. We believe that the risk prior to birth is very similar to this risk level; however, relative to the rest of that individual's lifetime, the difference is small. Third, we believe that it provides protection similar to the CG recommended by NAS. The RMEI model uses a series of assumptions about the lifestyle of a hypothetical individual. This belief was supported by NAS in its comments on the proposed 40 CFR part 197. The NAS agreed that EPA's RMEI approach is “broadly consistent with the TYMS report's recommendation” (Docket No. A-95-12, IV-D-31). Fourth, it is possible to build the desired degree of
We believe the RMEI approach is more direct and easily understood than the probabilistic CG approach because the uncertainties of estimating doses for a randomly located population is avoided, but the approach is still “cautious, but reasonable.” We believe that the “probabilistic” CG described by NAS would give essentially the same high-end dose results for situations where the group is small, located in a relatively small area, and is above the path of the contamination plume. However, this was not the concept recommended by NAS. Therefore, we believe our RMEI approach captures the essential “cautious, but reasonable” approach recommended by NAS while minimizing speculative aspects of the probabilistic CG approach. We do not mean to imply that a CG approach would never be appropriate, or that we would never use a CG approach in a regulatory action or other decision. However, in this particular site-specific situation, had we used a CG, we would have considered it necessary to define it in detail (in terms of size and location) using cautious, but reasonable, assumptions, but as discussed elsewhere in this document, we believe that the RMEI approach is preferable for Yucca Mountain.
Our RMEI is a theoretical individual representative of a future population group or community termed “rural-residential” (see Chapter 8 of the BID for a description of this concept). The DOE will calculate the CEDE the RMEI receives using cautious, but reasonable, exposure parameters and parameter-value ranges as described below. The NRC would use the projected CEDE in determining whether DOE complies with the standard. The DOE will perform the dose calculation to estimate exposure resulting from releases from the waste into the accessible environment based upon the assumption of present-day conditions in the vicinity of Yucca Mountain. Under our standard, the RMEI will have food and water intake rates, diet, and physiology similar to those of individuals in communities currently living in the downgradient direction of flow of the ground water passing under Yucca Mountain.
We did, however, receive comments from tribal representatives expressing concern regarding an alternative approach. The Paiute and Shoshone Tribes stated that they use the Yucca Mountain area for traditional and customary purposes, including traditional gathering, and it is their belief that these uses should be incorporated into the formula upon which the final standards are based. We considered the Tribes' comments, but, for several reasons explained below, we conclude, after considering their description of tribal uses of the area, that the rural-residential RMEI is fully protective of tribal resources.
First, the tribal use of natural springs is apparently occurring in the vicinity of Ash Meadows, since we are not aware of another area downgradient from Yucca Mountain where water discharges in natural springs, with the possible exception of springs in the more distant Death Valley. These natural springs are likely fed by the “carbonate” aquifer, which is beneath the “alluvial” aquifer being used Town of Amargosa Valley (including at Lathrop Wells) now, and which we assume will be used in the future. The available data indicate that although it is likely that the alluvial aquifer would be contaminated by releases from the potential Yucca Mountain repository, flow is generally upward from the carbonate aquifer into the overlying aquifers, suggesting that there is no potential for radionuclides to move downward into the carbonate system. If downward movement were to occur, however, radionuclide concentrations would be significantly diluted in the larger carbonate flow system. As a result, springs fed from the carbonate aquifer would have lower contamination levels than would wells at the Lathrop Wells location, which tap aquifers closer to, and more directly affected by, the source of potential contamination. A more extensive discussion of the aquifer systems and geology in the Yucca Mountain area may be found in sections II.D and III.B.4.e of this preamble, and Chapters 7 and 8 of the BID.
Second, the tribal use of wildlife and non-irrigated vegetation should not contribute significantly to total individual dose estimates. Gaseous releases from the repository are not a significant contributor to individual doses (NAS report, pg. 59) through inhalation or rainfall, and should contribute less to contamination of wildlife and non-irrigated vegetation than the use of contaminated well water for raising crops and animals for food consumption. We believe our requirement that DOE and NRC base food ingestion patterns on current patterns for the agricultural area directly down gradient from the repository is a more conservative requirement.
Third, the dose incurred by the RMEI is calculated at a location closer to the disposal system than the Ash Meadows area (approximately 18 km versus 30
Fourth, the RMEI is assumed to be a full-time resident continually exposed to radiation coming from the disposal system. It appears that the tribal uses are intermittent and involve resources which are less likely to be contaminated, resulting in lower doses than those to the RMEI.
Presently, we expect the ground water pathway to be the most significant pathway for exposure from radionuclides transported from the repository (NAS Report p. 48; Chapter 8 of the BID). Our initial evaluation of potential exposure pathways from the disposal system to the RMEI suggests that the dominant fraction of the dose incurred by the RMEI likely will be from ingestion of food irrigated with contaminated water (see Chapter 8 of the BID). It is possible, however, that DOE and NRC will determine that another exposure pathway is more significant. Consequently, DOE and NRC must consider and evaluate all potentially significant exposure pathways in the dose assessments. As a result of the dose assessments using different combinations of parameter values, there will be a distribution of potential doses incurred by the RMEI. The NRC will use the mean value of that distribution of RMEI doses to determine DOE's compliance with the individual-protection standard. We requested comments regarding both the use of the RMEI approach and the use of the higher of the mean or median value to determine compliance with the individual-protection standard. We also requested comments regarding the desirability of adopting the CG approach rather than the RMEI approach. We further requested that comments supporting the CG approach address the level of detail our rule should include for the parameters used to describe the CG. Comments on various aspects of the RMEI approach appear later in this section. Comments on the mean/median compliance level are in the answer to Question #13 in section IV.
We received comments supporting both the RMEI and the CG approaches. For example, one commenter felt that NRC's proposed licensing regulation for Yucca Mountain (64 FR 8640, February 22, 1999) was more consistent with the NAS recommendation because it included a farming community CG (see NRC's proposed 10 CFR 63.115). This commenter also stated that the proposed 10 CFR part 63 contains the appropriate level of detail to define the CG. Other commenters recommended the use of a subsistence farmer CG approach on the grounds that such an approach is more protective than the rural-residential RMEI. These groups stated that the RMEI is “purely speculative.”
As noted earlier, NAS recommended using the CG concept. This approach can account for differences in age, size, metabolism, habits, and environment to avoid heavily skewing the results based upon personal traits that make certain people more or less vulnerable to radiation releases than the average within the group. In comparison, under the RMEI approach, the dose that the RMEI incurs is calculated using some maximum values and some average values for the factors that are important to estimating dose. Physical differences such as age, size, and metabolism are also incorporated into the risk value for development of cancer, in effect making the RMEI a “composite” individual. This procedure also projects doses that are within a reasonably expected range rather than projecting the most extreme cases.
Regarding the comments stating that the RMEI is “purely speculative,” we agree that the RMEI approach is speculative; however, it is less speculative than the scenario suggested in the comments supporting the use of a subsistence farmer. We are not aware of any subsistence farmers (as defined by the comments) in Amargosa Valley. If we used the comments' approach we would, therefore, be engaging in even more speculation than we are by using a current lifestyle. Any future projection involves speculation. Our basis for using the RMEI is that we are following NAS's recommendation to use current technology and living patterns because speculation upon future society and lifestyle variations can be endless and not scientifically supportable (NAS Report p. 122). As stated earlier, the danger in defining a probabilistic CG is that it may be skewed by including randomly located people who will have minimal exposures, resulting in less conservative estimates for the group. Given the conditions at Yucca Mountain, we considered this to be a very real possibility. We consider using a composite individual to be a much simpler means of accomplishing the same purpose while maintaining more control over who is represented in the exposure assessments. Had we opted to use a probabilistic CG, we would have identified certain characteristics of the group in order for it to meet our intent, as we have done with the RMEI.
Overall, we believe that the RMEI approach both meets the intent of NAS and the EnPA and continues a regulatory methodology that we previously have used successfully. Further, though it recommended that we use a CG approach, NAS seemed to recognize that a non-CG approach could accomplish the same purpose. In its report, NAS stated “[i]t is essential that the scenario that is ultimately selected
We selected a rural-residential RMEI as the basis of our individual exposure scenario. We assume that the rural-residential RMEI, is exposed through the same general pathways as a subsistence farmer. However, this RMEI would not be a full-time farmer. Rather, this RMEI, as part of a community typical of Amargosa Valley, might do personal gardening and earn income from other sources of work in the area. We assume further that the RMEI drinks two liters per day of water contaminated with radionuclides, and some of the food (based upon surveys) consumed by the RMEI is from the Town of Amargosa Valley. We consider the consumption of two liters per day of drinking water to be a high-exposure value because people consume water and other liquids from outside sources, such as commercial products. We intended that it would push the dose estimates towards a “reasonably maximal exposure.” Similarly, we assume that local food production will use water contaminated with radionuclides released from the disposal system. We believe this lifestyle is similar to that of most people living in Amargosa Valley today.
We received comments stating that: we should be more specific in defining characteristics of the RMEI; we should take future changes in population, land use, climate, and biota into consideration; and that something other than a rural-residential lifestyle would be a more appropriate choice.
One comment suggested that we should be more specific in setting the location, behavior, and lifestyle, or allow NRC to make that choice. There were also a few comments stating that NRC should specify the parameter values. We believe that we have specified the characteristics of the rural-residential RMEI in the detail necessary, given our current understanding, for the concept to be implemented as we intend. We also believe that our specification of the parameter values such as location for the RMEI and drinking water intake rate is appropriate and necessary for our standard to be implemented in the context in which we developed it. We further believe we have the authority to specify other parameter values; however, we believe that NRC, in its role as the licensing authority, can and should set most of the details for implementing the standard, such as water usage in the community where the RMEI resides. Also, under our standard, NRC has the flexibility to make any assumptions, other than those we specified (assumptions we specified include location, water intake rate, and diet reflective of current residents of the Town of Amargosa Valley), if alternative selections prove to be more appropriate for implementing the standard as we intend. The location we specified is not a fixed point but rather it must be in the accessible environment above the highest concentration of radionuclides in the plume of contamination. To assess water usage in the hypothetical community, DOE and NRC could use an approach similar to the representative volume approach described later in this document (
Among the comments regarding our assumptions about future populations, land use, climate, and biota, one stated that it is arrogant, as well as insensitive, to assume that all future people will be like us today, and that it is unrealistic to assume that future population distribution, patterned as it is today, will be static. The comment is correct in that there are many possible futures. However, it is necessary to limit speculation about possible futures so that the performance assessments can provide meaningful input into the decision process and the decision process itself is not confounded with speculative alternatives. Therefore, we agreed with and followed NAS when it recommended, “[i]n view of the almost unlimited possible future states of society * * * we have recommended that a particular set of assumptions be used about the biosphere * * * we recommend the use of assumptions that reflect current technologies and living patterns” (NAS Report p. 122).
A similar question arose when we developed the implementing regulations for WIPP. We resolved the question by developing the “future states” assumption (see 40 CFR 194.25). The position we have taken for the Yucca Mountain standards is consistent with our previous approach to this question.
There was a spectrum of suggestions recommending alternative RMEIs (from a fetus to the elderly and infirm). For example, one comment suggested pregnant women and the unborn within their wombs, children, the infirm, and the elderly as appropriate RMEIs. Other commenters urged using a subsistence farmer. Regarding the various ages and stages of human development, the risk value used for the development of cancer is an overall average risk value (see Chapter 6 of the BID for more details) that includes all exposure pathways, both genders, all ages, and most radionuclides. However, it does not cover the “unborn within the womb.” It is thought that the risk to the unborn is similar to that for those who have been born; however, the exposure period for the unborn is very short compared to the rest of the individual's average lifetime (see Chapter 6 of the BID for a discussion of cancer risk from
Some comments on our RMEI characteristics stated that they need to be more site-specific and should consider the alternative lifestyles of Native Americans. Other comments stated that the characteristics and location of the RMEI are implementation issues that should be left for determination by NRC. We believe that the final rule achieves the proper balance of site-specific characteristics that is fully protective of the public health and safety, and that the attributes of the RMEI specified in this rule are necessary to ensure that the Yucca Mountain disposal system achieves the level of protection that we intend.
Based upon these considerations of the subareas, we proposed the intersection of U.S. Route 95 and Nevada State Route 373, known as Lathrop Wells, as the point where the RMEI would reside. We consider it improbable that the rural-residential RMEI would occupy locations significantly north of U.S. Route 95, because the rough terrain and increasing depth to ground water nearer Yucca Mountain would likely discourage settlement by individuals because access to water is more difficult than it would be a few kilometers farther south. Also, there are currently several residents and businesses near this location whose source of water is the underlying aquifer (which we understand flows beneath Yucca Mountain). Therefore, we believe it is reasonable to assume that a rural community could be located near this intersection in the future, and that population increases in the short term would cluster preferentially around the main roads through the area.
We are requiring that the RMEI be located in the accessible environment (
Commercial farming occurs today farther south, in the southwestern portion of the Town of Amargosa Valley in an area near the California border and west of Nevada State Route 373. However, soil conditions in the vicinity of Lathrop Wells are similar to those in southwestern Amargosa Valley. Therefore, it should be feasible for the RMEI to grow some food, using contaminated water tapped by a well. We believe that it is reasonable to assume that other gardening, farming, and raising of domestic animals could occur using contaminated water (see Appendix IV of the BID). We have specified that selected parameters, such as the percentage of food grown by the RMEI, should reflect the lifestyles of current residents of the Town of Amargosa Valley.
Finally, we believe a rural-residential RMEI slightly north of Lathrop Wells would be among the most highly exposed individuals downgradient from Yucca Mountain, even though the ground water nearer the repository could contain higher concentrations of radionuclides. If individuals lived nearer the repository, they would be unlikely to withdraw water from the significantly greater depth for other than domestic use, and in the much larger quantities needed for gardening or farming activities because of the significant cost of finding and withdrawing the ground water. It is possible, therefore, for an individual located closer to the repository to incur exposures from contaminated drinking water, but not from ingestion of contaminated food. Based upon our analyses of potential pathways of exposure, discussed above, we believe that use of contaminated ground water (
As stated above, the method of calculating the RMEI dose is to select average values for most parameters except one or a few of the most sensitive, which are set at their maximum. We believe that an RMEI location above the highest concentration in the plume of contamination in the accessible environment and a consumption rate of two liters per day of drinking water from the plume of contamination represent high-end values for two of these factors. The NRC may identify additional parameters to assign high-end values in projecting the dose to the RMEI. To the extent possible, NRC should use site-specific information for any remaining factors. For example, NRC should use site-specific projections of the amount of contaminated food that would be ingested in the future. The NRC might base projections upon surveys that indicate the percentage of the total diet of Amargosa Valley residents from food grown in the Amargosa Valley area.
We requested comment regarding the potential approaches and assumptions for the exposure scenario to be used for calculating the dose incurred by the RMEI, particularly whether:
(1) Based upon the above criteria, there is now sufficient information for us to adequately support a choice for the RMEI location in the final rule or should we leave that determination to NRC in its licensing process based upon our criteria;
(2) Another location in one of the three subareas identified previously should be the location of the RMEI; and
(3) Lathrop Wells and an ingestion rate of two liters per day of drinking water are appropriate high-end values for parameters to be used to project doses to the RMEI.
Of the three subjects listed above, the only comments we received suggested different locations for the RMEI. A few commenters thought that the Lathrop Wells location is appropriate. However, a number of others stated that the
As stated earlier, we are designating the location above the point of highest concentration in the plume of contamination in the accessible environment (no farther south than 36° 40′ 13.6661″ North) as the location of the RMEI. This point would be approximately 18 kilometers south of the repository footprint. We do not believe that an RMEI likely would live much farther north of the compliance point (toward Yucca Mountain) because of the increasing depth to ground water and the increasing roughness of the terrain. In addition, we believe that, at approximately 18 km, a rural-resident RMEI will likely have the highest potential doses in the region because of both drinking contaminated water and eating food grown using contaminated water. That is, the rural resident at 18 km will receive a higher dose than would an individual living much closer to Yucca Mountain because the cost of extracting the water likely will allow only drinking the water and not having a garden capable of supplying a portion of an individual's annual food consumption (see Chapters 7 and 8 of the BID). Likewise, we do not believe that hypothesizing that the RMEI lives 30 km away is a cautious, but reasonable, assumption because: (1) At 30 km, the RMEI likely would use water that contains much lower concentrations of (
There were a few other comments related to the location of the RMEI. For example, one comment stated that the location should take into account the geology and hydrology of the site rather than be chosen in advance. Another comment believes that we should base the location upon the ability of the RMEI to sustain itself consistent with topography and soil conditions. Further, this commenter believes that depth to ground water should not be a factor because it is impossible to predict either human activities or economic imperatives.
We determined the point of compliance for the individual-protection standard using site-specific factors and NAS's recommendation to use current conditions (NAS Report p. 54). In preparing to propose a compliance point for the RMEI, we collected and evaluated information on the natural geologic and hydrologic features, such as topography, geologic structure, aquifer depth, aquifer quality, and the quantity of ground water, that may preclude drilling for water at a specific location (see Chapter 7 of the BID). For example, as stated above, we do not believe that a rural-residential individual would occupy areas much closer to Yucca Mountain because of the increasingly rough terrain and the increasing depth to ground water. With increasing depth to ground water come higher costs: (1) To drill for water; (2) to explore for water; and (3) to pump the water to the surface. We agree that it is impossible to predict either human activities or economic imperatives. Therefore, we followed NAS's recommendation to use current conditions to avoid highly speculative scenarios. This approach leads us to considering the depth to ground water as a key factor in determining the location and activities of the RMEI. The current location of people living in the vicinity of the repository is a reflection of this key factor.
And, finally, one commenter stated that the proposed RMEI concept forces DOE to assume the RMEI will withdraw water from the highest concentration within the plume without consideration of its likelihood. Forcing such an assumption neglects the low probability that a well will intersect the highest concentration within the plume.
This commenter's approach, which would use a probabilistic method to determine the radionuclide concentration withdrawn by the RMEI, is similar to one of the example CG approaches that NAS provided in its report (NAS Report Appendix C). The NAS approach would use statistical sampling of various parameters,
e.
We agree with NAS that an individual-protection standard can adequately protect the general population near Yucca Mountain because of the particular characteristics of the Yucca Mountain site. However, we chose not to adopt either a negligible incremental dose (NID) or NIR level because we are concerned that such an approach is not appropriate in all circumstances, and because of reservations regarding NAS's reasoning and analysis. We based our determination that an individual-risk standard is adequate to protect both the local and general population on considerations unique to the Yucca Mountain site. This is not, however, a general policy judgment by us regarding other uses of the NID or NIR concepts.
As noted in the preamble to the proposal (64 FR 46990), NAS referred to the NID level of 10 μSv (1 mrem)/yr per
Further, we do not believe it is appropriate to apply the NIR concept to consideration of population dose. A recent NCRP report questions the application of the NID concept to population doses. According to NCRP Report No. 121: “(a) Concept such as the NID (Negligible Incremental Dose) provides a legitimate lower limit below which action to further reduce individual dose is unwarranted, but it is not necessarily a legitimate cut-off dose level for the calculation of collective dose. Collective dose addresses societal risk while the NID and related concepts address individual risk.” (Principles and Application of Collective Dose in Radiation Protection, NCRP Report No. 121, Docket No. A-95-12, Item II-A-8). Based upon this principle, we think it inappropriate to use the NID or NIR concept to evaluate whether an individual-protection standard adequately protects the general population.
In summary, we are establishing an individual-protection standard for Yucca Mountain that will limit the annual radiation dose incurred by the RMEI to 150 μSv (15 mrem) CEDE. At the same time, we chose not to adopt a separate limit on radiation releases for the purpose of protecting the general population. Instead, we recommended in our proposal that DOE estimate and consider collective dose in its analyses. We based this recommendation upon several factors. The first factor is NAS's projection of extremely small doses to individuals resulting from air releases from Yucca Mountain. That dose level is well below the risk corresponding to our individual-protection standard for Yucca Mountain. It is also well below the level that we have regulated in the past through other regulations. Further, while we decline to establish a general Negligible Incremental Risk (NIR) level, we do agree with NAS that estimating the number of health effects resulting from a 0.0003 mrem/yr dose equivalent rate (NAS Report p. 59), in addition to the dose rate from background radiation, in the general population is uncertain and controversial. The second major factor is that, based upon current and site-specific conditions near Yucca Mountain, there is not likely to be great dilution resulting in exposure of a large population. In addition, we are establishing additional ground water protection standards that would set specific limits to protect users of ground water and that protect ground water as a resource. Finally, we require that all of the pathways, including air and ground water, be analyzed by DOE and considered by NRC under the individual-protection standard. We requested comment on this approach. We requested that commenters who disagree with this approach specifically address why it is inappropriate for the Yucca Mountain disposal system and make suggestions about how we might reasonably address this issue.
Most comments supported not establishing a collective-dose limit for Yucca Mountain. Two comments supported our decision not to establish an NIR or NID level. The NAS went further by also opposing our suggestion that DOE estimate collective dose for use in examining design alternatives because it is inconsistent with the NAS Report and with our conclusion that a collective-dose limit is unnecessary for the purpose of protecting the general public. On page 57 of its report, NAS stated:
“Earlier in this chapter, we recommend the form for a Yucca Mountain standard based on individual risk. Congress has asked whether standards intended to protect individuals would also protect the general public in the case of Yucca Mountain. We conclude that the form of the standards we have recommended would do so, provided that policy makers and the public are prepared to accept that very low radiation doses pose a negligibly small risk. This latter requirement exists for all forms of the standards, including that in 40 CFR (part) 191. We recommend addressing this problem by adopting the principle of negligible incremental risk to individuals.
“The question posed by Congress is important because limiting individual dose or risk does not automatically guarantee that adequate protection is provided to the general public for all possible repository sites or for the Yucca Mountain site in particular. As described in the previous section, the individual-risk standard should be constructed explicitly to protect a critical group that is composed of a few persons most at risk from releases from the repository. The standards are then set to limit the risk to the average member of that group. Larger populations outside the critical group might also be exposed to a lower, but still significant, risk. It is possible that a higher level of protection for this population represented by a lower level of risk than the one established by the standards might be considered.”
The NAS also states: “(O)n a collective basis, the risks to future local populations are unknowable. We conclude that there is no technical basis for establishing a collective population-risk standard that would limit risk to the nearby population of the proposed Yucca Mountain repository” (NAS Report p. 120)
After consideration of comments received on this question, we have determined that it is not necessary for us to recommend that DOE calculate collective dose, primarily because we believe the individual-protection standard will adequately protect the general population.
f.
In conducting required analyses of repository performance, including the performance assessment for determining compliance with the standards, the assessment for determining compliance
To avoid unsupportable speculation regarding human activities and conditions, we believe it is appropriate to assume that other parameters describing human activities and interactions with the repository (such as the level of human knowledge and technical capability, human physiology and nutritional needs, general lifestyles and food consumption patterns of the population, and potential pathways through the biosphere leading to radiation exposure of humans) will remain as they are today. Consistent with the NAS Report, we believe there may be an essentially unlimited number of predictions that could be made about future human societies, with an unlimited number of potential impacts on the significance of future risk and dose effects. Regulatory decision making involving many speculative scenarios for future societies and impacts would become extraordinarily difficult without any demonstrable improvement in public health and safety and should be avoided as much as possible. Therefore, DOE and NRC must assume that future states applicable to the repository, except for geologic, hydrologic, and climatic conditions, will remain unchanged from the time of licensing.
Comments we received on this subject strongly favored our approach, particularly with respect to changes in natural conditions. The comments noted that climatic variations should be expected to occur over the time frames for which performance projections are made because the climate has changed in the past. Another reason to consider climatic changes is that these changes could have a significant effect on repository performance in comparison to performance projections made using current day conditions. Comments also pointed out the seismically active nature of the area and implied that DOE should examine the effects of seismic activity on the disposal system's performance. Here again, we require DOE to consider variations in geologic conditions. The approach we proposed on this subject is consistent with the approach we used for the WIPP certification (40 CFR 194.25) and NAS's recommendations. We received no comments opposing this approach.
g.
We offered for comment two alternatives for the compliance period for the individual-protection standard. One alternative was to adopt a compliance period as the time to peak dose within the period of geologic stability. The second alternative was to adopt a fixed time period during which the repository must meet the disposal standards.
For the reasons discussed below, we selected the second alternative, which establishes a regulatory time period of 10,000 years. Therefore, the peak dose within 10,000 years after disposal must comply with the individual-protection standard. In addition, we require calculation of the peak dose within the period of geologic stability. The intent of examining the disposal system's performance after 10,000 years is to project its longer-term performance. We require DOE to include the results and bases of the additional analyses in the EIS for Yucca Mountain as an indicator of the future performance of the disposal system. The rule does not, however, require that DOE meet a specific dose limit after 10,000 years. We have concerns regarding the uncertainties associated with such projections, and whether very long-term projections can be considered meaningful; however, existing performance assessment results indicate that the peak dose may occur beyond 10,000 years (see Chapter 7, Section 7.3, of the BID). Such results may, therefore, give a more complete description of repository behavior. We acknowledge, however, that these results, because of the inherent uncertainties associated with such long-term projections, are not likely to be of the quality necessary to support regulatory decisions based upon a quantitative analysis and thus need to be considered cautiously. In any case, these very long-term projections will provide more complete information on disposal system performance.
As discussed below in section III.B.2.a (
The NAS evaluated these requirements for Yucca Mountain. First, it concluded that those aspects of disposal system and waste behavior that depend upon physical and geologic properties can be estimated within reasonable limits of uncertainty. Also, NAS believed that these properties and processes are sufficiently understood and boundable
We previously considered the question of the appropriate compliance period for land disposal of SNF, HLW, and TRU radioactive waste in the 40 CFR part 191 standards, where we promulgated a generic compliance period of 10,000 years. We set the 40 CFR part 191 compliance period at 10,000 years for three reasons:
(1) After that time, there is concern that the uncertainties in compliance assessment become unacceptably large (50 FR 38066, 38076, September 19, 1985);
(2) There are likely to be no exceptionally large geologic changes during that time (47 FR 58196, 58199, December 29, 1982); and
(3) Using time frames of less than10,000 years does not allow for valid comparisons among potential sites. For example, for 1,000 years, all of the generic sites analyzed appeared to contain the waste approximately equally both because of long ground water travel times at well-selected sites (47 FR 58196, 58199, December 29, 1982) and because of the containment capabilities of the engineered barrier systems (58 FR 66401, December 20, 1993).
The purpose of geologic disposal is to provide long-term barriers to the movement of radionuclides into the biosphere (NAS Report p. 19). As described earlier, DOE plans to locate the Yucca Mountain repository in tuff about 300 meters above the local water table. When the waste packages release nongaseous radionuclides, the released radionuclides most likely will be transported by water that moves through Yucca Mountain from the surface toward the underlying aquifer both horizontally between individual tuff layers and vertically downward, through fractures in the tuff layers. Once the radionuclides reach the aquifer, the ground water will carry them away from the repository in the direction of ground water flow in the aquifer. The most probable route for exposing humans to radiation resulting from releases from the Yucca Mountain disposal system is via withdrawal of contaminated water for local use. In the case of Yucca Mountain, DOE estimates that most radionuclides would not reach currently populated areas within10,000 years, because of the expected performance of the engineered barrier system (see Chapter 7 of the BID).
This finding alone seems to indicate that the compliance period for Yucca Mountain should be longer than 10,000 years to be protective; however, NAS concluded that the need to consider the exposures when they are calculated to occur must be weighed against the uncertainty associated with such calculations (NAS Report p. 72). As discussed below, exposures could occur over tens-of thousands to hundreds-of-thousands of years. As the compliance period is extended to such lengths, however, uncertainty generally increases and the resulting projected doses are increasingly meaningless from a policy perspective. The NAS stated that there are significant uncertainties in a performance assessment and that the overall uncertainty increases with time. Even so, NAS found that, “* * * there is no scientific basis for limiting the time period of the individual-risk standard to 10,000 years or any other value” (NAS Report p. 55). The NAS also stated that data and analyses of some of the factors that are uncertain early in the assessment might become more certain as the assessment progresses(NAS Report p. 72), though this would tend to apply more to assessments covering very long periods (
Today's rule requires that DOE demonstrate compliance for a period of 10,000 years after disposal. As discussed above, NAS concluded “there is no scientific basis for limiting the time period of the individual-risk standard to 10,000 years or any other value” (NAS Report p. 55). Despite NAS's recommendation, we conclude that there is still considerable uncertainty as to whether current modeling capability allows development of computer models that will provide sufficiently meaningful and reliable projections over a time frame up to tens-of-thousands to hundreds-of-thousands of years. Simply because such models can provide projections for those time periods does not mean those projections are meaningful and reliable enough to establish a rational basis for regulatory decisionmaking. Furthermore, we are unaware of a policy basis that we could use to determine the “level of proof” or confidence necessary to determine compliance based upon projections of hundreds-of-thousands of years into the future. The NAS indicated that analyses of the performance of the Yucca Mountain disposal system dealing with the far future can be bounded; however, a large and cumulative amount of uncertainty is
The selection of the compliance period for the individual-protection standard involves both technical and policy considerations. It was our responsibility to weigh both during this rulemaking. In addition to the technical guidance provided in the NAS Report, we considered several policy and technical factors that NAS did not fully address, as well as the experience of other EPA and international programs. As a result of these considerations, we are establishing a 10,000-year compliance period with a quantitative limit and a requirement to calculate the peak dose, using performance assessments, if the peak dose occurs after 10,000 years. Under this approach, DOE must make the performance assessment results for the post-10,000-year period part of the public record by including them in the EIS for Yucca Mountain.
In its discussion of the policy issues associated with the selection of the time period for compliance, NAS suggested that we might choose to establish consistent risk-management policies for long-lived, hazardous, nonradioactive materials and radioactive materials (NAS Report p. 56). We previously addressed the 10,000-year compliance period in the regulation of hazardous waste subject to land-disposal restrictions. Although they are subject to treatment standards to reduce their toxicity, some of these wastes, such as heavy metals, can essentially remain hazardous forever. Land disposal, as defined in 40 CFR 268.2(c), includes, but is not limited to, any placement of hazardous waste in land-based units such as landfills, surface impoundments, and injection wells. Facilities may seek an exemption from land disposal restrictions by demonstrating that there will be no migration of hazardous constituents from the disposal unit for as long as the waste remains hazardous (40 CFR 268.6). This period may include not only the operating phase of the facility, but also what may be an extensive period after facility closure. With respect to injection wells, we specifically required a demonstration that the injected fluid will not migrate from the injection well within 10,000 years (40 CFR 148.20(a)). We chose the 10,000-year performance period referenced in our guidance regarding no-migration petitions, in part, to be equal to time periods cited in draft or final DOE, NRC, and EPA regulations (10 CFR part 960, 10 CFR part 60, or 40 CFR part 191, respectively) governing siting, licensing, and releases from HLW disposal systems. With respect to other land-based units regulated under the Resource Conservation and Recovery Act (RCRA) hazardous-waste regulations, we concluded that the compliance period for a no-migration demonstration is specific to the waste and site under consideration. For example, for the WIPP no-migration petition, we found that “it is not particularly useful to extend this model beyond 10,000 years into the future * * * (However, t)he agency does believe * * * that modeling over a 10,000-year period provides a useful tool in assessing the long-term stability of the repository and the potential for migration of hazardous constituents” (55 FR 13068, 13073, April 6, 1990). Thus, establishing a 10,000 year compliance period for Yucca Mountain is consistent with risk-management policies that we have established for other long-lived, hazardous materials.
Second, the individual-protection requirements in 40 CFR part 191 (58 FR 66398, 66414, December 20, 1993) have a compliance period of 10,000 years. The 40 CFR part 191 standards apply to the same types of waste and type of disposal system as will be present at Yucca Mountain. Therefore, the use of a 10,000 year time period in this regulation is consistent with 40 CFR part 191. However, as we explained in the
Although 40 CFR part 191 itself does not directly apply to Yucca Mountain, the necessity to identify a generic compliance period is an important component of the development of radioactive waste standards, including the Yucca Mountain standards. In a regulatory approval process, a judgment is necessary about the technical reliability of repository performance projections. This consensus would involve the applicant, the regulatory authority, and the technical community in general. In the face of increasing uncertainties in projecting repository performance over hundreds-of-thousands of years, the potential for technical consensus on the reliability of these projections would decrease sharply. This decrease would lead to a dramatic increase in the difficulty of making a compliance decision related to such an extended time period. In setting the compliance period in 40 CFR part 191 at 10,000 years, we addressed the issue of increasing uncertainty by having a fixed time period rather than requiring that the time period be determined individually for any repository undergoing evaluation.
Third, we are concerned that there might be large uncertainty in projecting human exposure due to releases from the repository over extremely long periods. We agree with NAS's conclusion that it is possible to evaluate the performance of the Yucca Mountain disposal system and the surrounding lithosphere within certain bounds for relatively long periods. However, we believe that NAS might not have fully addressed two aspects of uncertainty.
One of the aspects of uncertainty relates to the impact of long-term natural changes in climate and its effect upon choosing an appropriate RMEI. For extremely long periods, major changes in the global climate, for example, a transition to a glacial climate, could occur (see Chapter 7 of the BID). We believe, however, that over the next 10,000 years, the biosphere in the Yucca Mountain area probably will remain, in general, similar to present-day conditions due to the rain-shadow effect of the Sierra Nevada Mountains, which lie to the west of Yucca Mountain (see Chapter 7 of the BID). As discussed
The other aspect of uncertainty concerns the range of possible biosphere conditions and human behavior. As IAEA noted, beyond 10,000 years it may be possible to make general predictions about geological conditions; however, the range of possible biospheric conditions and human behavior is too wide to allow “reliable modeling” (IAEA-TECDOC-767, p. 19, Docket No. A-95-12, Item II-A-5). It is necessary to make certain assumptions regarding the biosphere, even for the 10,000-year alternative, because 10,000 years represents a very long compliance period for current-day assessments to project performance. For example, it is twice as long as recorded human history (see
Fourth, many international geologic disposal programs use a 10,000-year period for assessing repository performance (see,
Finally, an additional complication associated with the time to peak dose within the period of geologic stability is that it could lead to a period of regulation that has never been implemented in a national or international radiation regulatory program. Focusing upon a 10,000-year compliance period forces more emphasis upon those features over which humans can exert some control, such as repository design and engineered barriers. Those features, the geologic barriers, and their interactions define the waste isolation capability of the disposal system. By focusing upon an analysis of the features that humans can influence or dictate at the site, it may be possible to influence the timing and magnitude of the peak dose, even over times longer than 10,000 years.
Based on the extensive public comment, consistency with other EPA radioactive and non-radioactive waste disposal programs, and a consideration of the numerous uncertainties associated with projecting repository performance over extended time periods, our final rule establishes the following requirements for the individual-protection standard and the human-intrusion analysis. For the individual-protection standard, a 10,000-year performance assessment is required for comparison against the 15 mrem standard. In addition, a post-10,000-year analysis of peak dose incurred by the RMEI is to be included in the EIS for Yucca Mountain, but is not to be held to a particular dose limit. We view the post-10,000-year analysis as an indicator of long-term performance that provides more complete information. For the human-intrusion analysis, DOE must determine the earliest time at which the human intrusion specified in the standard will occur. Should the intrusion occur at or before 10,000 years after disposal, DOE must demonstrate that the RMEI receives no more than 15 mrem/yr as a result of the intrusion (again, analytical results beyond 10,000 years are not judged against a dose limit, but must be included in the EIS). Should the intrusion occur after 10,000 years, DOE must include the analysis in the EIS for Yucca Mountain as an indicator of long-term disposal system performance.
Public comment supported a compliance period that ranged from 10,000 years to a million years and beyond (i.e., no time limitation). Comments supporting the 10,000-year time period expressed concern that such a time period was the longest time over which it is possible to obtain meaningful modeling results. Some comments agreed with our position on the reliability of dose calculations well in excess of 10,000 years. Other comments noted that, aside from the unprecedented nature of compliance periods exceeding 10,000 years, the greater uncertainties present at such times only serve to complicate the licensing process with no clear cut greater public health benefit. A few comments agreed that, because there likely will be radiation doses to individuals beyond 10,000 years, DOE should calculate peak dose, within the time period of geologic stability, and include these doses in the Yucca Mountain EIS.
Numerous comments suggested that the compliance period should extend to times beyond 10,000 years. Foremost among these comments, NAS suggested a compliance period that would extend to the time of peak dose or risk, within the period of geologic stability for Yucca Mountain (as long as one million years), based on scientific considerations. Though NAS based its recommendation on scientific considerations, it recognized that such a decision also has policy aspects (NAS Report, p. 56), and that we might select an alternative more consistent with previous Agency policy. We believe the unprecedented nature of a compliance period beyond 10,000 years was very persuasive and related strongly to developing a meaningful standard that is reasonable to implement. We also harbored strong concerns related to uncertainty in projecting human radiation exposures over extremely long time periods, for the reasons mentioned earlier.
Some comments suggested that the compliance period of the standard should be comparable to the amount of time that the materials to be emplaced in the Yucca Mountain repository will remain hazardous. While the hazardous lifetime of radioactive waste is important, it is but one of a variety of factors that must be considered in projecting the potential risks from disposal. The ability of the disposal system to isolate such long-lived materials relates to the retardation characteristics of the whole hydrogeological system within and outside the repository, the effectiveness of engineered barriers, the characteristics and lifestyles associated with the potentially affected population, and numerous other factors in addition to the hazardous lifetime of the materials to be disposed.
Thus, for a variety of technical and policy reasons, we believe that a 10,000-year compliance period is meaningful, protective, and practical to implement. We also believe that its use will result in a robust disposal system that will
The NRC must decide whether to license the Yucca Mountain disposal system. It must make that decision based upon whether DOE has demonstrated compliance with our 40 CFR part 197 standards. We proposed the quantitative analysis underlying that decision will be a performance assessment (as defined in § 197.12). The DOE and NRC must also make some decisions about what factors to include in the performance assessments, and how extensive those assessments must be to satisfactorily demonstrate compliance. We have addressed some of these performance assessment aspects in our proposal and final rule.
For repository performance assessments, our standards also require:
(1) That DOE exclude from performance assessments those natural features, events, and processes whose likelihood of occurrence is so small that they are very unlikely, which are those that DOE and NRC estimate to have less than a 1 in 10,000 (1 × 10
(2) Unlikely events with probabilities higher than stated in (1) above may be excluded from analyses for the human intrusion and ground water protection standards. We leave it to NRC to set the probability limit for these unlikely events in its implementing regulations; and
(3) That the performance assessment need not evaluate the releases from features, events, processes, and sequences of events and processes estimated to have a likelihood of occurrence greater than 1 x 10
We received only a few comments on the question of including low probability events; however, the comments we received supported our proposal. The comments also pointed out some potential confusion in the terms we used in describing unlikely versus very unlikely features, events, and processes. Our intent is to establish that there is no need to include, in the performance assessments used to demonstrate compliance with the individual-protection standard, features, events, and processes, and sequences of events and processes, with probabilities of less than 1 x 10
The comments we received on this question supported our contention that the geologic record is the best source of evidence for the frequency and magnitude of natural features, events, and processes that could affect repository performance, and that the geologic record is best preserved in the relatively recent past. More specifically, some comments suggested that the Quaternary Period should be the time frame over which DOE should examine evidence for rates and magnitudes of natural features, events, and processes. Because the Quaternary Period includes episodes of glaciation, it provides a means to estimate the potential effects of future climate variations. Further, we believe that the Period's duration (approximately two million years) provides an adequate time frame for estimating the frequency and severity of past seismic activity in the repository area. The NAS in its recommendations indicated that the repository area could be assumed to be “geologically stable” over a period of one million years for the purpose of bounding natural features, events, and processes. We believe that the Quaternary Period is a sufficiently long period of the geologic record to allow DOE to make reasonable
We allow the exclusion of unlikely natural features, events, and processes from both the ground water and human-intrusion assessments. The approach for the ground water protection requirements is consistent with subpart C of 40 CFR part 191, “Environmental Standards for Ground-Water Protection.” The approach for the human-intrusion analysis is consistent with NAS's recommendation (see the
In requesting public comment on this issue, we distinguished between expert judgment, which often is obtained informally, and expert elicitation, in which a more formal process is used. We focused on expert elicitation, and considered including one or all of the following requirements: (1) NRC must consider the source and use of the information so gathered; (2) we would have expected NRC to assure that, to the extent possible, experts with both expertise appropriate for the subject matter and independence from DOE will be on the expert elicitation panel consulted to judge the validity and adequacy of the model(s) or value(s) for use in a compliance assessment; and (3) we would have expected that, when DOE presents information to the expert elicitation panel, it should do so in a public meeting, and qualified experts, such as representatives of the States of Nevada and California, should be given an opportunity to present information.
The comments we received were uniformly opposed to our setting requirements to address expert opinion. There was general agreement among commenters that it would be more appropriate for NRC to use the licensing process to address any requirements relating to expert elicitation. Some commenters referred to NRC's NUREG-1563 (“Branch Technical Position on the Use of Expert Elicitation in the High-Level Radioactive Waste Program”), and to the fact that DOE has used it on several occasions. These comments reinforced our opinion that issuing requirements would be an implementation function better left to NRC. We do not expect to issue guidance on this topic, although we reserve the right to do so. We also recognize that such guidance would not be binding, unless it is promulgated by notice and comment rulemaking.
One comment suggested that we restrict the form the expert elicitation could take. The comment stated that it is inappropriate to estimate parameter values using Delphi surveys or other similar techniques that tend to “exclude the public from vital areas of debate.” Given that we leave the expert elicitation process to NRC and DOE, we choose not to address only this one particular aspect of that process because we believe that it would be inconsistent to impose any specific requirements on how DOE and NRC should use expert opinion. We believe that NRC and DOE are sufficiently sensitive to public opinion regarding the licensing of Yucca Mountain to avoid the appearance of secrecy or targeted polling of experts to obtain a specific outcome. Therefore, our rule does not address any aspects of DOE's ability to use expert elicitation.
The primary means for demonstrating compliance with the standards is the use of computer modeling to project the performance of the disposal system under the range of expected conditions. These modeling calculations involve the extrapolation of site conditions and the interactions of important processes over long time periods, extrapolations that involve inherent uncertainties in the necessarily limited amount of information that can be collected through field and laboratory studies and the unavoidable uncertainties involved in simulating the complex and time-
We received comments both supporting and opposing the concept of “reasonable expectation” and its application to the Yucca Mountain standards. Comments in favor of the approach agreed that the consideration of uncertainty is extremely important to a proper perspective on the degree of confidence possible for projections of disposal system performance over the long time frames involved in assessing repository performance. Comments against the concept voiced variations on three basic concerns: (1) That the concept is “new,” “untested,” and of “dubious legal authority” in the regulatory framework; (2) that it implies that less rigorous, and therefore unacceptable, science and analysis would result from the use of reasonable expectation; and (3) that the choice of approach to compliance decision making is solely an implementation concern that we should leave to NRC.
With respect to the legal authority and use of the reasonable expectation concept in the regulatory process, we believe that the reasonable expectation concept is well established in both the regulatory language in standards, as well as in actual application to deep geologic disposal of radioactive wastes, and has been judicially tested. We developed the “reasonable expectation” approach in the context of developing 40 CFR part 191, the generic standards for land disposal of SNF, HLW, and TRU radioactive waste, and more importantly the concept has been applied successfully in the EPA certification of the Waste Isolation Pilot Plant (WIPP), a deep geologic repository for TRU radioactive wastes. The WIPP repository is to date the only deep geologic repository for radioactive wastes in the United States that has been carried through a regulatory approval process. Therefore, we believe that the reasonable expectation concept is neither “new” nor “untried”, nor of “dubious legal authority” in the geologic repository regulatory experience. In fact, the use of reasonable expectation for the application to geologic disposal has been upheld in court (
In contrast, the reasonable assurance concept was developed and applied many times in the context of reactor licensing—not in the context of deep geologic disposal efforts—and has not been used in a regulatory review and approval process for a deep geologic disposal system. The judicial decision cited in one comment refers to the use of reasonable assurance in the context of reactor licensing, not in the context of deep geologic disposal. While the reasonable assurance concept has an established record of successful application and judicial approval in reactor licensing, it is in fact largely untried in the arena of geologic disposal.
Some comments suggested our approach would allow the use of less rigorous science to the assessment of disposal system performance in licensing. This perception may have arisen from our choice of wording in the proposal, where we stated that NRC may elect to use a more “stringent” approach. Such an interpretation was not our intent: the full text of our statement is that NRC may impose requirements that are “more stringent” than the “minimum requirements for implementation” that our rule establishes; in addition, we clearly stated that reasonable expectation “is less stringent than the reasonable assurance concept that NRC uses to license nuclear power plants” (proposed § 197.14(b), emphasis added). However, we will clarify our meaning here. Performance projections for deep geologic disposal require the extrapolation of parameter values (site characteristics related to performance) and performance calculations (projections of radionuclide releases and transport from the repository) over very long time frames that make these projections fundamentally not confirmable, in contrast to the situation of reactor licensing where projections of performance are only made for a period of decades and confirmation of these projections is possible through continuing observation. In this sense, a reasonable expectation approach to repository licensing would be necessarily “less stringent” than an approach to reactor licensing. We therefore must disagree with these comments that reasonable expectation requires less rigorous proof than NRC's reasonable assurance approach.
We do not believe that the reasonable expectation approach either encourages or permits the use of less than rigorous science in developing assessments of repository performance for use in regulatory decision making. On the contrary, the reasonable expectation approach takes into account the inherent uncertainties involved in projecting disposal system performance, rather than making assumptions which reflect extreme values instead of the full range of possible parameter values. It requires that the uncertainties in site characteristics over long time frames and the long-term projections of expected performance for the repository are fully understood before regulatory decisions are made. This approach has a number of implications relative to the data and analyses that would be used in making regulatory decisions. Cautious use of bounding assessments is implied since sufficient understanding of uncertainties must be developed to be sure such analyses are truly bounding. Performance scenarios should be developed realistically without omitting important components simply because they may be difficult to quantify with high accuracy, or always assuming worst case values in the absence of information. Elicited values for relevant data should not be substituted for actual field and laboratory studies when they can be reasonably performed, simply to conserve resources or satisfy scheduling demands. The gathering of credible information that would allow a better
Some comments expressed the opinion that our use of the reasonable expectation approach intrudes inappropriately into the area of implementation, which is the province of NRC. We do not believe that is the case. We have included the concept of reasonable expectation in the Yucca Mountain standards to provide a necessary context for understanding the standards and as context for the implementation of the licensing process NRC will perform. Projecting disposal system performance involves the extrapolation of physical conditions and the interaction of natural processes with the wastes for unprecedented time frames in human experience, i.e., many thousands of years. In this sense, the projections of the disposal system's long-term performance cannot be confirmed. Not only is the projected performance of the disposal system not subject to confirmation, the natural conditions in and around the repository site will vary over time and these changes are also not subject to confirmation, making their use in performance assessments equally problematical over the long-term (see Chapter 7 of the BID). In light of these fundamental limitations on assessing the disposal system's long-term performance, we believe that the approach used to evaluate disposal system performance must take into account the fundamental limitations involved (including the basic guidance given in § 197.14), and not hold out the prospect of a greater degree of “proof” than in reality can be obtained.
Relative to implementation, the primary task for the regulatory authority is to examine the performance case put forward by DOE to determine “how much is enough” in terms of the information and analyses presented, i.e., implementation involves how regulatory authority determines when the performance case has been demonstrated with an acceptable level of confidence. We have proposed no specific measures in our standards for that judgment. We have not specified any confidence measures for such judgments or numerical analyses, nor prescribed analytical methods that must be used for performance assessments, quality assurance measures that must be applied, statistical measures that define the number or complexity of analyses that should be performed, nor have we proposed any assurance measures in addition to the numerical limits in the standards. We have specified only that the mean of the dose assessments must meet the exposure limit, without specifying any statistical measures for the level of confidence necessary for compliance. We believe that measure is a minimal level for compliance determination, and we selected it to be consistent with the individual protection requirement we applied for the WIPP certification (40 CFR 194.55(f)). For the WIPP certification, EPA was also the implementing agency, and in 40 CFR part 194 we also included implementation requirements, including statistical confidence measures for the assessments and analytical approaches (§§ 194.55(b), (d), (f)) along with quality assurance requirements (§ 194.22), other assurance requirements (§ 194.41), requirements for modeling techniques and assumptions (§§ 194.23 and 25), use of peer review and expert judgment (§§ 194.26 and 194.27). We have not incorporated a similar level of detail in the Yucca Mountain standards because we believe we must specify only what is necessary to provide the context for implementation. We believe that our reasonable expectation approach provides a necessary context for understanding the intent of the standards and for its implementation. We have provided guidance statements in the standards (§ 197.14) relative to the approach that we believe appropriately address the inherent uncertainties in projecting the performance of the Yucca Mountain disposal system. The implementing agency is responsible for developing and executing the implementation process and, with respect to the level of expectation applicable in the licensing process, is free to adopt an approach it believes is appropriate, but we believe whatever approach is implemented must incorporate the aspects of reasonable expectation we have described in the standards and amplified upon in the Response to Comments document.
We adopted NAS's suggested starting point for a human-intrusion scenario. As NAS recommends, our standard requires a single-borehole intrusion scenario based upon Yucca Mountain-specific conditions. The intended purpose of analyzing this scenario “* * * is to examine the site-and design-related aspects of repository performance under an assumed intrusion scenario to inform a qualitative judgment” (NAS Report p. 111). The assessment would result in a calculated RMEI dose arriving through the pathway created by the assumed borehole (with no other releases included). Consistent with the NAS Report, we also require “that the conditional risk as a result of the assumed intrusion scenario should be no greater than the risk levels that would be acceptable for the undisturbed-repository case” (NAS Report p. 113). We interpreted NAS's term “undisturbed” to mean that the Yucca Mountain disposal system is not disturbed by human intrusion but that other processes or events that are likely to occur could disturb the system.
We require that the human-intrusion analysis of disposal system performance use the same methods and RMEI characteristics for the performance assessment as those required for the individual-protection standard, with two exceptions. The first exception is that the human-intrusion analysis would exclude unlikely natural features, events, and processes. The second exception is that the analysis only would address the releases occurring through the borehole (see the
As noted earlier, our rule uses the same RMEI description for this analysis and scenario as in the assessment for compliance with the individual-protection standard. It is possible that one could postulate that an individual occupies a location above the repository footprint in the future and is impacted by radioactive material brought to the surface during an intrusion event; however, the level of exposure of such an individual would be independent of whether the repository performs acceptably when breached by human intrusion in the manner prescribed in the scenario. Movement of waste to the surface as a result of human intrusion is an acute action. The resulting exposure is a direct consequence of that action. Thus, we interpret the NAS-recommended test of “resilience” to be a longer-term test as measured by exposures caused by releases that occur gradually through the borehole, not suddenly as with direct removal. In addition, the effects of direct removal depend on the specific parameters involved with the drilling, not on the disposal system's containment characteristics. We also require that the test of the disposal system's resilience be the dose incurred by the same RMEI used for the individual-protection standard. This approach is consistent with NAS's recommendation.
The DOE must determine when the intrusion would occur based upon the earliest time that current technology and practices could lead to waste package penetration without the drillers noticing the canister penetration. In general, we believe that the time frame for the drilling intrusion should be within the period that a small percentage of the waste packages have failed but before significant migration of radionuclides from the engineered barrier system has occurred because, based upon our understanding of drilling practices, this period would be about the earliest time that a driller would not recognize an impact with a waste package. Our review of information about drilling and experiences of drillers indicates that special efforts, such as changing to a specialized drill bit, would likely be necessary to penetrate intact, non-degraded waste packages of the type DOE plans to use. As stated earlier, DOE would determine the timing as part of the licensing process. The DOE's waste-package performance estimates indicate that a waste package would be recognizable to a driller for at least thousands of years (see Chapter 8 of the BID).
We requested comment regarding how much the human-intrusion analysis will add to protection of public health. Also, given current drilling practice in the vicinity of Yucca Mountain, we sought comment regarding whether our stylized, human-intrusion scenario is reasonable.
Comments on our intrusion scenario focused on a number of concerns. Some comment expressed opinions that the intrusion scenario was unrealistic since actual drilling to tap ground water would more probably be done not from the crest of Yucca Mountain but rather from the adjacent valley floors. Other comments stated that multiple drilling intrusions should be assumed rather than only one, and offered alternative scenarios for intrusion frequency and purposes other than tapping ground water. Some comments acknowledged that the scenario was an adequate test of repository resiliency independent of the question of attempting to predict future activities, and that the difficulty of reliably predicting future activities and human intention were unavoidable, as NAS concluded. Some comment stated that the probability of such an intrusion was so remote as to make the scenario useless for any type of repository analysis, while some comment expressed opinions that the entire question of human intrusion was an implementation issue that should be left to the discretion of NRC. Detailed responses to comments we received on the human intrusion question is found in the Response to Comments document accompanying this rule. Our response to some of the most common issues raised in the comments is given below.
A number of comments criticized the stylized definition of the scenario on the grounds it did not address the reality of the site location and resource potential. A convincing case can be made that intrusion is unlikely because of the low resource potential of the immediate Yucca Mountain area (see BID, Chapter 8), and that actual drilling to tap the underlying ground water would most probably be done in the valleys adjacent to Yucca Mountain, as some comments pointed out. We recognize these conditions and the relatively low resource potential; however, as NAS pointed out, there is no scientifically defensible basis to preclude intrusion (NAS Report p. 111). For this reason, the panel recommended that an intrusion scenario should be assessed separately from the expected repository performance case (NAS Report p. 109), and that a stylized intrusion scenario consisting of one borehole penetration should be considered (NAS Report p. 112) as a test of repository resilience to modest intrusion (p. 113). We agree with the NAS conclusions in this regard. As we have pointed out early in the preamble, releases and consequent exposures can come from either the gradual degradation of the disposal system under expected conditions or through disruption, most notably by human activities. Since intrusion cannot unequivocally be ruled out, and exposures can result from intrusions that release radionuclides, we believe it is necessary to consider human intrusion in the context of a repository standard focused on public health protection, even though the resource potential at the site is low. The nature of the intrusion, how it is analyzed and how it should be evaluated in the regulatory context, are the next issues to consider after the basic need to assess a human intrusion scenario is recognized.
Another line of comment we received stated that framing the intrusion scenario in part, or in any way whatever, should be considered an implementation detail that should be left to NRC. As stated earlier in this document (see section I.A.2,
We offered for comment two alternatives for the human intrusion standard. The first alternative simply stated that DOE must demonstrate a reasonable expectation that the annual dose incurred by the RMEI would not exceed 15 mrem CEDE as a result of an intrusion event, for 10,000 years after disposal. This parallels the basic individual-protection standard.
The second alternative incorporated our concern that assessments of longer-term performance be made available, if not explicitly used for compliance purposes. Under this alternative, we made a distinction based on how long after disposal the intrusion could occur. If the intrusion were to occur at or earlier than 10,000 years after disposal, DOE must demonstrate a reasonable expectation that annual exposures to the RMEI as a result of the intrusion event would not exceed 15 mrem CEDE. There would be no time limit for this analysis; as our proposal stated, “[i]f that intrusion can happen within 10,000 years, then DOE must do an analysis which projects the peak dose that would occur as a result of the intrusion within 10,000 years.” (64 FR 46999, August 27, 1999) However, if the intrusion occurred after 10,000 years, DOE would not have to compare its results against a numerical standard, but would have to include those results in its EIS.
We have selected the second alternative for our final human intrusion standard (§ 197.25). However, we are not requiring that DOE calculate a peak dose beyond 10,000 years for comparison against a numerical standard. If the intrusion event occurs earlier than 10,000 years after disposal, DOE need only compare the dose within 10,000 years to the numerical standard. DOE must include post-10,000-year results in its EIS, no matter when the intrusion occurs. We believe this alternative provides assurance that the full effects of an intrusion event will be assessed, regardless of when it occurs. We also believe that the selected alternative is more consistent with the NAS recommendations that a “consequence-based” analysis be performed (NAS Report p. 111).
The time frame for the intrusion has implications on how the projected doses are handled and evaluated. We are distinguishing between intrusion events that occur within 10,000 years and those that occur later than 10,000 years after disposal. In assessing events that occur within 10,000 years, we further distinguish the results based on whether exposures are incurred by the RMEI within the 10,000-year period. We have established the 10,000-year compliance period to reflect past precedents and a realization of the inherent uncertainties in long-term performance projections (see section III.(B)(1)(g)). For intrusion events that occur within 10,000 years and exposures are incurred by the RMEI within 10,000 years, doses are compared against the 15 mrem/yr limit given in the standard as part of the compliance case for licensing. For consistency in the treatment of post-10,000-year dose assessments, we are specifying that, when the dose to the RMEI from human intrusion events occurs after the 10,000 year period, the dose assessments are to be included in the EIS, along with the post-10,000 year performance assessments for the individual protection standard. Regardless of when the intrusion occurs, if exposures are incurred later than 10,000 years, they
We formulated the selected alternative to be responsive to the NAS recommendations, in addition to addressing our concern regarding the availability of post-10,000 year analyses. A key factor in evaluating an intrusion scenario is predicting when such an event might take place. However, as NAS concluded, “there is no scientific basis for estimating the probability of intrusion at far-future times' but that “we believe it is useful to assume that the intrusion occurs during a period when some of the canisters will have failed * * *” NAS Report p. 107, 112. Therefore, we specify that DOE must assume the intrusion occurs at “the earliest time after disposal that the waste package would degrade sufficiently that a human intrusion could occur without recognition by the drillers' (proposed § 197.25). This time would be determined through the licensing process, presumably by assessing the expected performance of the engineered barrier system. This provides DOE the flexibility to demonstrate that its engineered barrier system is sufficiently robust to withstand intrusion for a predictable time period, which then determines the nature of the waste inventory used in the analysis,
The inclusion of separate ground water protection standards in today's rule continues a longstanding Agency policy of protecting ground water resources and the populations who may use such resources. This policy is articulated in our primary ground water protection strategy document titled “Protecting the Nation's Ground Water: EPA's Strategy for the 1990's” (Docket No. A-95-12, Item V-A-13). We designed today's standards to protect the ground water in the vicinity of Yucca Mountain to benefit the current and future residents of the area who could use this ground water as a resource for drinking water and other domestic, agricultural, and commercial purposes. The following sections discuss the Agency's general approach to ground water protection, the NAS comments regarding ground water protection at Yucca Mountain, and some of the legal and regulatory issues associated with our final ground water protection standards.
Ground water is one of our nation's most precious resources because of its many potential uses. A significant portion (over 50 percent in the early 1990s) of the U.S. population draws on ground water for its potable water supply (“Protecting the Nation's Ground Water: EPA's Strategy for the 1990's,” Docket No. A-95-12, Item II-A-3). In addition to serving as a source of drinking water, people use ground water for irrigation, stock watering, food preparation, showering, and various industrial processes. When that water is radioactively contaminated, each of these uses completes a radiation exposure pathway for people. Ground water contamination is also of concern to us because of potential adverse impacts upon ecosystems, particularly sensitive or endangered ecosystems (“Protecting the Nation's Ground Water: EPA's Strategy for the 1990's,” Docket No. A-95-12, Item II-A-3). For these reasons, we believe it is a resource that needs protection. Therefore, we require protection of ground water that is a current or potential source of drinking water to the same level as the maximum contaminant levels (MCLs) for radionuclides that we established previously under the authority of the Safe Drinking Water Act (SDWA).
In January 1990, the Agency completed a strategy to guide future EPA and state activities in ground water protection and cleanup. The Agency-wide Ground Water Task Force developed two papers, which it issued for public review: an EPA Statement of Ground Water Principles and an options paper covering the issues involved in defining the Federal/State relationship in ground water protection. We combined these papers and other Task Force documents into an EPA Ground Water Task Force Report: “Protecting The Nation's Ground Water: EPA's Strategy for the 1990's” (“the Strategy,” EPA 21Z-1020, July 1991 (Docket No. A-95-12, Item II-A-3)). Our approach in this rule is consistent with this strategy.
Key elements of our ground water protection and cleanup strategy are the strategy's overall goals of preventing adverse effects on human health and the environment and protecting the environmental integrity of the nation's ground water resources. Our strategy also recognizes, however, that our efforts to protect ground water must consider the use, value, and vulnerability of the resource, as well as social and economic values. We believe it is important to protect ground water to ensure the preservation of the nation's currently used and potential underground sources of drinking water (USDWs) for present and future generations. Also, we believe it is important to protect ground water to ensure that where it interacts with surface water it does not interfere with the attainment of surface-water-quality standards; these standards are also necessary to protect human health and the integrity of ecosystems. We employ MCLs to protect ground water in numerous regulatory programs. Our regulations pertaining to hazardous-waste disposal (40 CFR part 264); municipal-waste disposal (40 CFR parts 257 and 258); underground injection control (UIC) (40 CFR parts 144, 146, and 148); generic SNF, HLW, and TRU radioactive waste disposal (40 CFR part 191); and uranium mill tailings disposal (40 CFR part 192) reflect this approach. These programs have demonstrated that such protection is scientifically and technically achievable, within the constraints that each program applies (“Progress In Ground Water Protection and Restoration,” EPA 440/6-90-001, Docket No. A-95-12, Item V-A-6).
Another critical issue in ground water protection is that ground water generally is not directly accessible. Thus, it is much more difficult to monitor and/or decontaminate ground water than is the case with other environmental media (“Ground-Water Protection Strategy” p. 11, August 1984, Docket No. A-95-12, Item V-A-13). Because of the expenses and difficulties associated with remediation of contaminated ground water, it is prudent and cost-effective to prevent the occurrence of such contamination (
In its report, NAS clearly identified the ground water pathway as the significant pathways of to the biosphere in the vicinity of Yucca Mountain(NAS Report pp. 52 and 81). The NAS also recognized that ground water modeling for the Yucca Mountain site is complex. Because the modeling for Yucca Mountain involves water movement through pore spaces (the matrix) and fractures in the rocks, as well as the degree of interconnectedness between the water moving in the two pathways, there is uncertainty regarding which model or models to use in the analysis:
Because of the fractured nature of the tuff aquifer below Yucca Mountain, some uncertainty exists regarding the appropriate mathematical and numerical models required to simulate advective transport * * * [E]ven with residual uncertainties, it should be possible to generate quantitative (possibly bounding) estimates of radionuclide travel times and spatial distributions and concentrations of plumes accessible to a potential critical group. (NAS Report p. 90)
In its report, NAS did not recommend specifically that we include a separate ground water protection provision in our environmental protection standards for Yucca Mountain. Neither, however, did NAS state that we should not include such a provision.
However, in its comments on the proposed rule, NAS specifically addressed our decision to include separate ground water protection standards for the Yucca Mountain site:
“(i)n the preamble (to the proposed rule), EPA implies that there is a scientific basis for inclusion of separate ground-water limits in the standards “ for example, EPA provides a detailed analysis of approaches to calculating such limits * * * The (NAS) respectfully disagrees and does not believe that there is a basis in science for establishing such limits for the reasons described above. The (NAS) recognizes EPA has the authority under the Energy Policy Act to establish separate ground-water limits as a matter of policy, but if it does so it should explicitly state the policy decisions embedded in the proposed standard and ask the public to comment on those decisions.
“If EPA wishes to establish such standards on the basis of science, it must make more cogent scientific arguments to justify the need for this standard”
(NAS Comments, p. 11, Docket No. A-95-12, Item IV-D-31).
For the reasons discussed above (see
Our analyses, and those of NAS, indicate that, of all the potential environmental pathways for radionuclides, travel through ground water is the most likely pathway to lead to human exposure to radiation from the Yucca Mountain disposal system (see Chapters 7 and 8 of the BID). The ground water protection standards in this rule protect ground water that is being used or that might be used as drinking water by restricting potential future contamination. Water from the aquifer beneath Yucca Mountain currently serves as a source of drinking water 20 to 30 km south of Yucca Mountain in the communities directly protected by the individual-protection standard. It is also a potential source of drinking water for more distant communities. As noted by NAS, the available ground water supply in the vicinity of Yucca Mountain could sustain a substantially larger population than that presently in the area (NAS Report p. 92).
As noted above, NAS asserted in its comments regarding the proposed rule, that we implied that there was a scientific basis for including separate ground water limits in the regulations. The NAS urged us to clearly state the
In keeping with the site-specific nature of these standards, we believe that it is appropriate to outline an approach to determining compliance with the ground water standards consistent with the geologic conditions along the anticipated ground water flow path for releases from the repository. The approach that we have devised consists of several components. The first component is to define a ground water resource use common for the current population making use of the ground water along the potential path of releases. The population living downgradient from the repository typically uses the ground water for domestic consumption and for agricultural activities. The dominant agricultural activity is alfalfa cultivation (see Chapter 8 of the BID). The next component of the approach is to define a method for assessing the extent of potential contamination in the aquifer that can be used for comparison against established limits. To address the unique setting of the repository, we are defining a “representative volume” of ground water consistent with the uses of the resource (see § 197.31(b)). The third component is to propose alternatives to defining how DOE could use the representative volume in making assessments of potential ground water contamination (see § 197.31). See the
We proposed to use the MCLs as appropriate standards against which to measure compliance. Comment upon our proposal was mixed. Some comments claimed that we misapplied the MCL concept in the Yucca Mountain standards compared with how we apply MCLs in other situations, such as the use of MCLs to define when drinking water from public water supplies is acceptable. Some comments supported the use of MCLs. Other comments pointed out that the dosimetry system used for the current MCLs has been superceded by newer approaches to assessing dose and risk from ground water use and that we should, therefore, not use the MCLs. A number of comments claimed that the use of separate ground water standards is completely unnecessary because the individual-protection standard includes the drinking water exposure pathway and, therefore, the ground water standards are unnecessary as a health protection measure.
Retaining separate ground water protection standards is consistent with both our national policy to protect ground water resources and with previous Agency regulations for geologic disposal facilities. Our generic standards in 40 CFR part 191, which apply to the same kinds of wastes contemplated for disposal at Yucca Mountain, contain separate ground water protection provisions. We believe that there is no question that separate ground water protection standards are appropriate for deep geologic disposal facilities. We believe that the use of contaminated ground water for purposes that could result in exposures to individuals should be of concern, and that avoiding contaminating useable ground water resources is in the general interest of the public at large. More specifically, contamination of water resources could result in the exposure of individuals well removed from the repository location. Also, if ground water were withdrawn from the repository sub-basin, and transported to other locations to supply water needs, a larger population would be exposed than if the water were used only locally. We commonly apply MCLs to water treatment facilities to assure that exposures to the subsequent users of the water are acceptable and the users are protected. The intent of using the MCLs as a compliance measure for the Yucca Mountain disposal system is to encourage a robust containment and isolation design that will not result in unacceptable contamination during the regulatory time frame, which would require future generations to shoulder the burden of water treatment due to contamination from the wastes. We also included ground water protection requirements in our certification process for WIPP, which is the only deep geologic disposal facility in the country that has actually gone through a regulatory review and approval process. We see no reason why we should not apply the same approach to protection for the Yucca Mountain disposal facility as we afforded to the population around WIPP. In fact, the Yucca Mountain disposal system will be located above aquifers that are the ground water supply for the residents living downgradient from the repository, whereas the aquifers potentially subject to contamination at the WIPP facility are highly saline, non-potable water sources. We recognize that the individual-protection standard includes a drinking water exposure pathway; however, from a policy perspective it is appropriate and consistent for us to provide separate protection for ground water resources in the Yucca Mountain area. As illustrated by the examples above, the protection of ground water resources is in the general interest of the public at large, because it is easily conceivable that uses of the resource could result in exposures well beyond the immediate vicinity of the repository. From a more practical perspective, it would be extremely difficult to predict with any reliability what the total range of potential exposures (and consequent health effects) would be for all possible uses of the resource, because such predictions would involve considerable speculation. It makes more sense to assure the resource is not contaminated in the first place. We are taking the more prudent course of attempting to prevent ground water contamination above the MCLs by imposing separate ground water protection requirements.
The NRC's determination of compliance with the ground-water protection standards will be based largely upon DOE's projections of potential future contaminant concentrations. The DOE will include these projections in the license application it submits to NRC. These projections, by their very nature, inevitably will contain uncertainty. An important cause of uncertainty, as NAS recognized, is the choice of conceptual site models (NAS Report p. 75). The conceptual models used for Yucca Mountain can differ fundamentally. For example, water can be presumed to flow through either pores in the rock or conduits through the rock (such as discrete fractures or a network of fractures that can act as preferential pathways for faster ground water flow), or a combination of the two. To further complicate the situation, any of these flow scenarios, with the possible exception of flow through conduits, can occur at Yucca Mountain whether or not the rock is saturated completely with water.
We believe that adequate data and the choice of models will be critical to any compliance calculation or determination because such data and models are the backbone of the performance assessment used to show compliance. The NAS examined the use of ground-water flow and contaminant-transport models in regulatory applications (“Ground Water Models: Scientific and Regulatory Applications,” 1990, Docket No. A-95-12, Item V-A-26). In that report, NAS concluded that data inadequacy is an impediment to the use of unsaturated fracture flow models for Yucca Mountain. However, NAS noted that data inadequacy also
The choice of modeling approaches to address the ground water system in the area of Yucca Mountain, based upon the conceptual model of the site developed from site characterization activities, is important to characterize contaminant migration, particularly the mixing of uncontaminated water with water that has been contaminated with radionuclides released from breached waste packages. The extent of the dilution afforded by mixing contaminated water with other ground water moving through the rocks below the repository but above the water table and the dispersion of the plume of contamination within the saturated zone as the ground water system carries radionuclides downgradient are critical elements of the dose assessments.
At one end of the spectrum of approaches to modeling the Yucca Mountain area's ground water system is the assumption that it is possible to model the system based upon flow through pores over a large area (tens of square kilometers). At the other extreme is the assumption that radionuclides are carried through fast-flow fractures in the unsaturated zone separately from uncontaminated ground water also passing through the repository footprint. Those radionuclides then are assumed to be carried through the saturated zone in fractures that allow little or no dispersion within, or mixing with, uncontaminated water in the saturated zone. This scenario is essentially “pipe flow” from the repository to the receptor. Although the flow of ground water at the site is influenced strongly by fractures, which the models should reflect, we believe that it is unreasonable to assume that no mixing with uncontaminated ground water would occur along the radionuclide travel paths because such mixing is a natural process, and would be governed by the degree of interconnection between individual fractures in the rocks. We requested comment upon this approach, including consideration of the practical limitations on characterizing the flow system over several or tens of square kilometers.
Comments varied from statements that we should not allow DOE to consider mixing of contaminated water from the repository with uncontaminated water along potential flow paths, that such dilution is an expected process in the natural system, and that these decisions about the flow system modeling are implementation details which we should defer to NRC. We agree that some degree of mixing along the ground water flow paths is to be expected and, if supported by the hydrogeologic characterization, should be considered in modeling approaches used to make projections of radionuclide migration from repository releases. We also agree that detailed decisions about the approach to modeling the ground water flow system at the site are an implementation concern for NRC. We therefore make no specific requirements in this regard. We do believe that whatever specific modeling approach and attendant assumptions that DOE or NRC make should attempt to model realistically the expected behavior of the actual flow regime downgradient from the repository. Recalling the “pipe-flow” scenario described above, we believe it would be highly unrealistic to assume that no mixing of the contaminated water with ground water along the flow path occurs along the distance from the repository to the furthest allowable boundary of the controlled area. Although the actual dispersion effects for the fractured rock geohydrologic setting are anticipated to be small (see Chapter 7 of the BID), ignoring such processes is still inappropriately over-conservative because it would neglect a natural process that is expected to occur. Consistent with this perspective, we specify two alternative methods that DOE could use for determining radionuclide concentrations in the representative volume of ground water. We believe these two alternatives provide appropriate direction for making the compliance determination while allowing ample flexibility for the implementation decisions concerning the details of characterizing the ground water flow and modeling approaches that DOE ultimately must select and defend in the licensing process.
Our intent was to develop ground water protection standards that NRC can reasonably implement. In this regard, NAS indicated that quantitative estimates of ground water contamination should be possible (NAS Report p. 90). We thus require DOE to project the level of radioactive contamination it expects to be in the representative volume of ground water. The representative volume could be calculated to be in a contaminated aquifer that contains less than 10,000 mg/L of TDS and that is downgradient from Yucca Mountain. Through the use of this method, we intend to avoid requiring DOE and NRC to project the contamination in every small, possibly unrepresentative amount of water because we believe that this approach is not scientifically defensible considering the inherent uncertainties in hydrologic data and the limitations of modeling calculations. For example, we do not intend that NRC must consider whether a few gallons of water in a single fracture would exceed the standards. Thus, we allow use of a larger volume of water that must, on average, meet the standards. See below for a discussion of this larger volume, the “representative volume.”
Because the purpose of the engineered and natural barriers of the geologic repository at Yucca Mountain is to contain radionuclides and minimize their movement into the general environment, we anticipate that radionuclide releases from the repository will not occur for a long period of time. With this assumption in mind, we believe that ground water protection for the Yucca Mountain site should focus upon the protection of the ground water as a resource for future human use. It is the general premise of this rule that the individual-protection standard will adequately protect those few current residents closest to the repository. The intent of the ground water standards is protecting the aquifer as both a resource for current users, and a potential resource for larger numbers of future users either near the repository or farther away in communities comprised of a substantially larger number of people than presently exist in the vicinity of Yucca Mountain. To implement this conceptual approach and develop an approach for compliance determinations, we believe that the ground water standards currently used, the MCLs, should apply to public water supplies downgradient from the repository in aquifers at risk of contamination from repository releases. There is presently no public water supply providing treatment to meet MCLs before the water reaches consumers downgradient of Yucca Mountain, and there is no guarantee that such a system will be in place to protect future users from contamination caused by releases from the disposal system. Applying the MCLs in the ground water assures that the level of protection
To implement the standards in § 197.30, we require that DOE use the concept of a “representative volume” of ground water. Under this approach, DOE and NRC will project the concentration of radionuclides released from the Yucca Mountain disposal system, for comparison against the MCLs, that would be present in the representative volume in the accessible environment over the 10,000-year period of the standards. The representative volume will be a volume of water projected to supply the annual water demands for defined resource uses. We believe that water demand estimates for calculation of the representative volume should reflect the current resource demands for the general lifestyles and demographics of the area, but not be rigidly constrained by current activities, because potential contamination would occur far into the future. In the area south of Yucca Mountain, people currently use ground water for domestic purposes, commercial agriculture (for example, dairy cattle, feed crops, other crops, and fish farming), residential gardening, commercial, and municipal uses (see Chapter 8 of the BID). The ground water resources, as reflected by estimates of current usage and aquifer yields, indicate that there is theoretically enough water to support a substantially larger population than presently exists at each of the four alternative locations we proposed for the point of compliance (
We believe that, ideally, the representative volume should be fully consistent with the protection objectives of the ground water protection strategy; however, we also recognize the unusual features of these standards. That is, the 10,000-year compliance period introduces unresolvable uncertainties that make this situation fundamentally different from the situations of clean-up or foreseeable, near-term potential contamination to which the SDWA ground water protection strategy ordinarily applies. The size of the area that must be modeled (tens of km
We specifically requested comment upon whether 1,285 acre-feet is the most appropriate representative volume of ground water, or whether other values within the ranges discussed below are more appropriate. We believe that there may be significant technical, policy, or
Comments on our alternatives for the representative volume size varied from agreement with our preferred volume of 1,285 acre-ft to favoring larger and smaller volumes. We believe that the larger volume mentioned in the proposed rule, 4,000 acre-ft, is not a suitable choice for a number of reasons. This number is an estimate of the perennial yield in the sub-basin containing Yucca Mountain. It is an estimate of the amount of ground water that can be removed annually without seriously depleting the aquifer. Because there are relatively few wells in this sub-basin, the 4,000 acre-ft estimate is not highly reliable and is difficult to justify. This is one reason why we did not select this number. Perhaps more importantly, the perennial yield is not a physical location in the aquifer and the challenge of projecting repository performance is to project the path of potential contamination from the repository. The perennial yield concept is not consistent with the idea that the modeling of potential contamination from the repository should use an actual volume of water, the representative volume, to determine compliance with the standards. Small volumes of ground water would be difficult to model with confidence over the long time frames and distances appropriate for the Yucca Mountain repository. More specifically, we believe it is not possible to model for the 10 acre-ft representative volume (see the Response to Comments document for more detail). Comment on the 120 acre-ft volume was generally that this volume was too small for defensible modeling, which agrees with our assessment. As stated above, we consider 120 acre-ft to be within the range of feasible modeling, but very close to the lower limit of scientifically defensible modeling capabilities. It also does not reflect the typical use of the ground water resource, which is better represented by the agricultural scenario we have selected.
There are a number of fundamental limitations involved in modeling the flow of ground water over long distances that are direct functions of the variability of the hydrologic properties in the aquifers along its dimensions. Averaging assumptions are used in modeling to greater and lesser extents to address these limitations, as a function of the information available regarding the natural variability of hydrologic properties along the flow paths. Our approach to calculating ground water contaminant concentrations (the well capture zone or slice-of-the-plume methods described in § 197.31(b)) centers the representative volume to include the highest concentration portion of the projected plume. If the representative volume is too small, it does not capture a volume large enough to reflect the natural processes that will occur along the flow path. Therefore, the concentrations will be unrealistically high and will not be a reasonable representation of the variations that should be expected in the actual situation. The exact limit on the lowest size of the representative volume adequately reflecting modeling limitations and the data base of hydrologic information about the site is a difficult expert judgment. An exact lower limit is not possible to identify because of the inherent limitations in gathering site data and performing modeling. Our opinion after extensive discussions with qualified experts is that a representative volume on the order of 100 acre-ft or below is the lower limit of modeling capability for the Yucca Mountain ground water flow regime (Yucca Mountain Docket, A-95-12, Item II-E-10).
We based the 1,285 acre-ft representative volume on a hypothetical small farming community of 25 people and an alfalfa farm with 255 acres under cultivation. This approach assumes a small community whose water needs include domestic consumption and an agricultural component comparable to present water usage in the vicinity of the repository. We based the size of the average area of alfalfa cultivation, 255 acres, on site-specific information for the nine existing alfalfa-growing operations in Amargosa Valley in 1998, which ranged in size from about 65 acres to about 800 acres (see Chapter 8 of the BID). Using a water demand for alfalfa farming in Amargosa Valley of 5 acre-feet per acre per year, we estimate that the annual water demand for the average operation is 1,275 acre-ft (Chapter 8 of the BID). An average value of 0.4 acre-ft per person for domestic water use is typical of the area (Chapter 8 of the BID), which for the small community of 25 people would add 10 acre-ft for domestic uses, resulting in a total representative volume of 1,285 acre-ft. Comments on the derivation of the 1,285 acre-ft representative volume supported this size as being technically feasible for modeling and consistent with water resource demands in the area downgradient from the repository.
To implement the standards in § 197.30, we require that DOE use the concept of a “representative volume” of ground water. Under this approach, DOE will project the concentration of radionuclides or the resultant doses within a “representative volume” of ground water for comparison against the standards. We have selected a value of 3,000 acre-ft/yr as the representative volume. This value is a “cautious, but reasonable” figure for protecting users of the ground water downgradient of the repository, as described below. Our approach focuses on the anticipated water use immediately downgradient of the repository, and is closely aligned with the alternatives offered for public comment in our proposed rule.
The preamble to the proposed rule noted that the representative volume should reflect the water usage of a hypothetical community that may exist in the future. The preamble also noted that the water usage should reflect the current general lifestyles and demographics of the area, but not be rigidly constrained by current activities. Using current activities and near-term projections of planned activities in the downgradient area leads us to three types of water demands that can be identified for the downgradient area: Water demand for individual domestic and municipal uses, water demand for commercial/industrial uses, and water demand for agricultural uses.
In deciding how to make this projection, we have concluded in the final rule that our focus in developing an appropriate representative volume should be to consider the spectrum of likely downgradient uses of the ground water resources, as well as the site-specific hydrologic characteristics of the disposal system itself. To avoid speculation on all possible uses of ground water, we have been guided by the premise that current uses in the immediate downgradient area, as well as short-term projections for water uses reflecting growth projections for the area, should be considered in defining an appropriate representative volume for the ground water standard. We believe that the most likely future uses
Deriving a representative volume involves identifying water demands for the spectrum of likely uses, and includes an examination of projected plume characteristics. This leads us to focus primarily on projected uses occurring downgradient of the repository. As noted above, the current and anticipated water demands downgradient of the repository consist of residential/municipal uses, commercial/industrial uses and agricultural uses.
Currently, the population at the Lathrop Wells is small, about ten people (BID Chapter 8), however near-term projections for the area between Lathrop Wells and the NTS boundary indicate that a science museum and industrial park are under development (Docket No. A-95-12, Items V-A-16, V-A-19). There are also growth projections for the Amargosa Valley area (Docket No. A-95-12, Items V-A-14, 15), leading us to believe that residential/municipal water demands as well as commercial/industrial water demands are likely in the near-term for the area between Lathrop Wells and the NTS boundary.
Projected water demand for the science museum and industrial park are on the order of 100 acre-ft/yr (Docket No. A-95-12, Item V-A-19). Based upon the growth projections, we believe that some residential population growth should be anticipated for the area in addition. In the preamble for the proposed rule, we included a representative volume of 120 acre-ft/yr for a small residential community of approximately 150 persons, which included water uses for individuals and municipal uses. We believe that these water demands should be incorporated into the representative volume, so that the representative volume addresses all potential water users. Limiting the water demand to only one of these uses, we believe, would not be representative of the spectrum of potential users that might be exposed to contaminated water from repository releases. For example, the water demand for the small population at Lathrop Wells would be on the order of less than 10 acre-ft/yr. Our evaluations of representative volume options in the proposed rule (Docket No. A-95-12, Item II-E-10), and the responses we received concerning these options, consistently concluded that such small volumes would not allow credible scientifically defensible projections to be made.
The contribution of agricultural activities to the representative volume can be derived from a consideration of current farming activities in Amargosa Valley. In the Town of Amargosa Valley, agricultural activities consume the largest volumes of ground water, but are largely confined to the location approximately 25-30 km downgradient from the repository location. However, the ground water used for these activities could be contaminated if radionuclide releases from the disposal system were sufficiently high to exceed the limits given in § 197.30. To protect the agricultural resource use, we have used alfalfa farming as a measure of water demand. Although there is no alfalfa farming currently at the compliance location, and no near-term planning for it, our approach to protecting the resource is to include the appropriate water demand in the representative volume at the compliance location. By protecting this volume upgradient of where the actual resource is anticipated to be tapped, we will be protecting the larger actual volume of water that will be used for agricultural purposes downgradient from the compliance location.
As described previously, alfalfa cultivation is the largest water consumer in the agricultural sector, and this activity is anticipated to continue (BID Chapter 8). We have defined an average-sized alfalfa farm based upon current information about acreage under cultivation in Amargosa Valley (BID Chapter 8). We have retained this value to avoid speculation about the future of this particular activity for the following reasons. The demand for alfalfa cultivation to support the local dairy industry in Amargosa Valley is anticipated to be strong for the near-term. The hydrologic basin in which this activity takes place is fully allocated, suggesting that dramatic increases in alfalfa cultivation are unlikely since the water allocations necessary for dramatic increases are not readily available (BID Chapter 8). Therefore, we are using the value of 1,275 acre-feet/yr for an average-sized farm for developing a representative volume figure (this represents the proposed value of 1,285 acre-feet, less the 10 acre-feet assumed for purely domestic use).
The anticipated behavior of the ground-water flow system from Yucca Mountain is important in determining the total contribution of the agricultural water demand to the representative volume, since the width of potential contamination plumes will determine how large a volume of contaminated ground water could be tapped for agricultural purposes and consequently should be protected from unacceptable contamination. Projections of ground water flow, from particle-tracking analyses, have been performed by DOE to determine the path of possible contaminant flow from advective transport (ground water movement) alone (Docket No. A-95-12, Items V-A-5, V-A-27). The particle tracks near the compliance boundary, the southwesternmost corner of NTS (a distance of approximately 18 km from the southern end of the repository), indicate that the width of a potential contamination plume at the compliance location is about 1.8-2.0 kilometers. Farther downgradient, the width of the particle-track ground water travel path widens slightly to a width of between 2 and 3 km. This width does not consider dispersive effects that will occur, which contribute to uncertainty in projecting the actual size of a potential contamination plume. The actual width will be a function of a number of other factors, including the location of failed waste packages over time within the repository and the particular values of dispersion parameters chosen for analyses. Somewhat smaller or larger contamination plume widths could result, but the particle track approach results offer a satisfactory approximation.
The average alfalfa farm we have defined (255 acres in a square shape) is only approximately one kilometer on an edge. Since the exact location of a contamination plume and the variations in radionuclide contaminant concentrations within it are uncertain and cannot be projected with high confidence, we are using two average sized alfalfa farms across the path of the contamination plume to increase confidence that the highest concentration portions of a potential contamination plume will be included in the representative volume, giving a total contribution of 2,550 acre-ft/yr for the agricultural component of the representative volume. Again, we are not assuming the existence of actual farms at the compliance location, but we are assessing the effects of radionuclide contamination on the water volume that they could use at more distant locations.
In total, the contributions to the representative volume consist of the agricultural use water demand for two average size alfalfa farms (2,550 acre-ft/yr), the commercial/industrial water demand for the Lathrop Wells development projections (100 acre-ft/yr), and individual/municipal use water demand for a small community consistent with the near-term growth projections for the area (120 acre-ft/yr). These three components amount to 2,770 acre-ft/yr. As mentioned above,
There is, of course, uncertainty in projecting the size and shape of contamination plumes from the repository as well as projecting human activities into the future, and we have limited this source of uncertainty by considering only near-term projections for growth and development in the area, but some degree of inherent uncertainty will always remain. To address these residual uncertainties in this approach, we increase the representative volume by about 10%, to a total 3,000 acre-ft/yr. We believe that this figure represents a cautious, but reasonable, estimate of the representative volume to protect the ground water resource downgradient of the repository.
We considered an alternative way of evaluating the representative volume concept for application to the ground water protection standards. This approach considers the larger scale ground water flows and uses in the larger basin (Basin 230) which receives outflow from the basin where the repository is located (Basin 227A). The primary water use in this region is in the Amargosa Desert hydrographic basin (Basin 230, see BID Chapter 8), where farming, mining, and other industrial uses occur. This water comes from four basins that have an estimated total water budget of about 43,800 acre-feet, which represents ground water that flows into the Amargosa Desert basin.
The Jackass Flats basin (Basin 227A, which includes Yucca Mountain and the point of compliance location) is one of four basins that flow from the north into the Amargosa Desert basin and provide the ground water that is used for these activities. It is the only one of these basins into which it is reasonable to anticipate that water contaminated by releases from the repository would flow. The Jackass Flats basin contributes about 8,100 acre-feet to the total Amargosa Valley water budget (Table 8-6, BID). Considering the approximate nature of these values, it is reasonable to approximate the contribution of the Jackass Flats to flow into the Amargosa Desert basin and to current water uses at 20%.
Although the Amargosa Desert basin has a water appropriation limit of about 41,093 acre-feet, in 1997, the reported ground water use in the Amargosa Desert basin was about 13,900 acre-feet (BID Chapter 8). That is, the use was less than appropriated. Moreover, actual water use fluctuates significantly, depending primarily on the level of irrigation and mining activities in a given year (BID Chapter 8). To estimate the actual contribution of flow from Jackass Flats, we again refer to the largest water use in the area downgradient from the repository, which is for irrigation, particularly for the cultivation of feed for livestock (primarily alfalfa). There are nine alfalfa farms in the affected area, ranging from approximately 65 to 800 acres (BID Chapter 8). Estimates of acreage under cultivation for feedstock has shown a steady increase from 1994 to 1999 (Table 8-6, BID), with an increase of 50% from 1997 to 1999. Assuming that it also increased by 50%, the 1997 irrigation use of 9,379 acre-feet (Table 8-4, BID) could have increased by approximately 4,700 acre-feet in 1999. This assessment gives a range of water use from approximately 13,900 acre-feet in 1997 to an estimate of 18,600 acre-feet in 1999, placing the corresponding 20% contribution from Jackass Flats in a range of approximately 2,800 to 3,700 acre-feet. From this range of possible values, we again selected 3,000 acre-feet as a value that is conservative (toward the low end of the range), but also makes an allowance for the uncertainty inherent in these estimates.
In summary, both approaches to deriving a “cautious, but reasonable” representative volume for the purpose of ground water protection converge on a value of 3,000 acre-ft/yr. Our approach to developing an appropriate representative volume considered the size of the ground water resource and its current and projected uses. Accordingly, we have selected a representative volume of 3,000 acre-feet for this rule. This volume is within the 10 to 4,000 acre-feet range described in the proposed rule and addressed in the public comments and represents a reasonable and site-specific approach to protecting groundwater resources in the vicinity of Yucca Mountain.
Our standards require DOE to assume that the entire representative volume is drawn at the compliance point, that is, 18 km south of the repository, rather than in the Amargosa Valley itself, at 25 to 30 km south of the repository. Therefore, it is adequate not only to protect downgradient uses, but also to protect all of these reasonably projected uses, should the representative volume be withdrawn at the compliance point. As noted above, we believe that given the uncertainties of projecting any particular future and the difficulties of modeling that using the small volumes that would be required by relying only on current projected uses, this is a reasonable approach for determining how ground water should be protected at this particular site.
There are two basic approaches that DOE must choose between for calculating the concentrations of radionuclides in the accessible environment. The DOE may perform this analysis by determining how much contamination is in: (1) A “well-capture zone;” or (2) a “slice of the plume” (see immediately below for explanations of these approaches). For either approach, the volume of water used in the calculations is equal to the representative volume,
The “well-capture zone” is the portion of the aquifer containing a volume of water that one or more water supply wells, pumping at a defined rate, withdraw from an aquifer. The dimensions of the well-capture zone are determined by the pumping rate in combination with aquifer characteristics assumed for calculations, such as hydraulic conductivity, gradient, and the screened interval. If DOE uses this approach, it must assume that the:
(1) Wells have characteristics consistent with public water supply wells in Amargosa Valley, for example, well bore size and length of the screened interval;
(2) Screened interval includes the highest concentration in the plume of contamination at the point of compliance; and
(3) Pumping rate is set to produce an annual withdrawal equal to the representative volume.
To include an appropriate measure of conservatism in the compliance calculations for the well-withdrawal approach, for the purpose of the analysis, DOE should assume that pumping wells that tap the highest concentration within the projected plume of contamination would supply
The “slice of the plume” is a cross-section of the plume of contamination centered at the point of compliance with sufficient thickness parallel to the prevalent flow of the plume such that it contains the representative volume. If DOE uses this approach, it must:
(1) Propose to NRC, for its approval, where the edge of the plume of contamination occurs, for example, where the concentration of radionuclides reaches 0.1% of the level of the highest concentration at the point of compliance;
(2) Assume that the slice of the plume is perpendicular to the prevalent direction of flow of the aquifer; and
(3) Set the volume of ground water contained within the slice of the plume equal to the representative volume.
Both alternatives require DOE to determine the physical dimensions and orientation of the representative volume during the licensing process, subject to approval by NRC. Factors that would go into determining the orientation of the representative volume would include hydrologic characteristics of the aquifer and the well.
The DOE must demonstrate compliance with the ground water protection standards (§ 197.30) assuming undisturbed performance of the disposal system. The term “undisturbed performance” means that human intrusion or the occurrence of unlikely, disruptive, natural processes and events do not disturb the disposal system. The intent of the ground water protection standards is to assess whether the expected performance of the repository system will lead to contamination of the ground water resource above the MCLs. The assessment of resource pollution potential is based upon the engineered design of the repository being sufficiently robust under expected conditions to prevent unacceptable degradation of the ground water resource over time. Disruption of the disposal system is inconsistent with that intent. For this reason we have specified that the ground water standards apply to undisturbed performance. Our approach also recognizes that human behavior is difficult to predict and, if human intrusion occurs, that individuals may be exposed to radiation doses that would be more attributable to human actions than to the quality of repository design (NAS Report p. 11). The requirement that DOE project performance for comparison with the ground water protection standards based on undisturbed-performance scenarios is consistent with our generally applicable standards for SNF, HLW, and TRU radioactive waste in 40 CFR part 191 (58 FR 66402, December 20, 1993; 50 FR 38073 and 38078, September 19, 1985).
We also require that DOE combine certain estimated releases from the Yucca Mountain disposal system with the pre-existing naturally occurring or man-made radionuclides to determine the concentration in the representative volume. This requirement means that DOE must show a reasonable expectation that the releases of radionuclides from radioactive material in the Yucca Mountain disposal system will not cause the projected level of radioactivity in the accessible environment to exceed the limits in § 197.30.
We requested public comment regarding these approaches to ground water protection (
Comments generally approved of the idea of providing alternate approaches for determining the concentration of contaminants in the representative volume. Other comments requested additional clarification of the approaches. We developed these approaches to measuring the representative volume in the plume of contamination to provide conservative but reasonable methods of assessing contaminant concentrations. We intend both methods to avoid extreme assumptions that would involve using only the highest potential area of contamination in a contamination plume for comparison against the standards and to allow reasonable consideration of the expected behavior of the flow regime downgradient of the repository. For example, the well capture-zone approach has conservative aspects consistent with our general approach to regulations (a “cautious, but reasonable”, approach). These aspects include locating the well in the path of the plume and requiring it to have characteristics similar to water supply wells in the area, while also allowing DOE to consider well-bore dilution effects for the water supply wells that realistically would be expected in actual practice. To keep the modeling analyses from becoming too complicated to perform and assess with a reasonable degree of confidence, we specify that DOE use average hydrologic properties to avoid the problem of summing up possibly thousands of individual model runs. We attempt to specify only the most important specifics for the two methods to provide a necessary context to assure the standards are understood as we intend, but still to provide flexibility for NRC in its implementation of the standards. For example, we neither established requirements nor made recommendations regarding models to be used for the plume modeling methods. We left the applicant (DOE) and the implementing authority (NRC) the decision on defining the outer boundary of the contamination plume for this approach.
We received some comment asking for additional clarification concerning the two methods proposed for calculating radionuclide concentrations in a contamination plume, and in response we have made some wording changes in the final standards. We proposed that the screened interval for the withdrawal well be centered in the middle of the contamination plume (proposed § 197.36 (b)(1)(ii)). The intent was to take a conservative approach and assume that the well taps the contamination plume where the highest contamination occurs, rather than being positioned such that only a portion of the lower concentration margin of the plume is included in the representative volume—such a situation would allow a high dilution of the contamination from pumping effects. For a physical situation where the contamination plume is very narrow and located at the top of the aquifer, a physically unrealistic situation could occur if the well's screened interval must be centered on the middle of the contamination plume,
Another clarifying change we have made addresses the “averaging” of hydrologic properties (§ 197.31(a)(2)) in the downgradient portions of the ground water flow system for the purpose of making calculations for comparison against the ground water protection standards. In the proposed standards, we used the phrase “average hydrologic characteristics”. We did not intend to imply that a simple arithmetic averaging process would adequately represent the expected variation in hydrologic properties that results from heterogeneity of the flow system at the site (Chapter 7 and Appendix VI of the BID), or that simple arithmetic averaging would be an allowable approach. We believe that a simple arithmetic averaging approach would mask the expected heterogeneity of the flow system. The values for hydrologic properties of the aquifers along the flow path used in calculations should be conservative but reasonable values, which are representative of the expected heterogeneity in the aquifers. Heterogeneity can be accounted for by using spatial statistical averaging methods that can limit extrapolation of data obtained from field measurements in one locale and which are applied to other locations represented by fewer or poorer quality data. By using such techniques, conservative but reasonable data can be developed that adequately represent the heterogeneity of the aquifers for modeling purposes. We have modified the proposed language to reflect that the “averaged” values should be conservative but reasonable representations of the aquifer's hydrologic properties.
It is important to emphasize that our decision not to apply the Class-IV well ban to Yucca Mountain does not affect other disposal systems that dispose of hazardous or radioactive waste into or above a formation which, within one-quarter (1/4) mile of the disposal system, contains a USDW. We based today's rule upon site and facility-specific characteristics of the Yucca Mountain disposal system. Today's rule is limited to the Yucca Mountain disposal system.
We requested public comment upon our approaches designed to protect ground water resources in the vicinity of the repository. We are concerned that ground water resources in the vicinity of Yucca Mountain receive adequate protection from radioactive contamination. The primary purpose of our ground water standards is to prevent contamination of drinking-water resources. Because the compliance period is 10,000 years after disposal, references to levels of contamination mean those levels projected to exist at specific future times, unless otherwise noted. However, these projections will be made at the time of licensing. This approach prevents placing the burden upon future generations to decontaminate that water by implementing expensive clean-up or treatment procedures. We believe it is prudent to protect drinking water from contamination through prevention rather than to rely upon clean-up afterwards. Absent the protection this prevention provides, future generations might find it necessary to intrude into the sealed repository to remediate radionuclides released from waste packages inside the repository, in addition to treating contaminated ground water along the ground water flow path. Thus, our ground water protection standards stress pollution prevention and provide protection from contamination of sources of drinking water containing up to 10,000 mg/L of total dissolved solids (TDS). We emphasize that the individual-protection standard (§ 197.20) covers all ground water pathways, including drinking water.
The definition of USDW received extensive discussion in the legislative history of the SDWA as reflected in the report of the House Committee on Interstate and Foreign Commerce. To guide the Agency, the Committee Report suggested inclusion of aquifers with fewer than 10,000 mg/L of TDS (H.R. Rep. No. 1185, 93d Cong., 2d Sess. 32, 1974). We have reviewed the current information regarding the use of aquifers for drinking water which contain high levels of TDS. This review found that ground water containing up to 3,000 mg/L of TDS that is treated is in widespread use in the U.S. In the Yucca Mountain vicinity, with few exceptions (one being the Franklin Playa area), ground water contains less than 1,000 mg/L of TDS. Our review also found that ground water elsewhere in the nation, containing as much as 9,000 mg/L of TDS, currently supplies public water systems. Based upon this review and the legislative history of the SDWA, we are proposing that it is reasonable to protect the aquifers potentially affected by releases from the Yucca Mountain disposal system. Therefore, the provisions in § 197.30 would apply to all aquifers, or their portions, containing less than 10,000 mg/L of TDS. We took the definitions associated with § 197.30 directly from our UIC regulations (40 CFR parts 144 through 146).
One comment suggested that we change the definition of “aquifer” in the final rule to exclude perched water bodies. A perched water body is a static area of ground water, usually above the water table, that is unconnected to an aquifer but that may infiltrate into an aquifer over time. Based upon our review of this comment, typical definitions of “aquifer” in the technical literature, and the available site-specific information regarding the existence of perched water bodies in the vicinity of Yucca Mountain, we decided to make the suggested change. This comment
We requested comment regarding our proposal to impose the ground water protection standards during the first 10,000 years following disposal. Question 14 in the preamble to our proposal specifically asked: “Is the 10,000-year compliance period for protecting the RMEI and ground water reasonable or should we extend the period to the time of peak dose?” (64 FR 47010-47011) Comments related to the compliance period applied to both the RMEI and ground water. See the discussion of issues pertaining to both the RMEI and ground water protection in section III.B.1.g (
Our understanding, based upon current knowledge, of the flow of ground water passing under Yucca Mountain is as follows (except where noted otherwise, Chapter 7 and Appendix VI of the BID are the sources for the information in this paragraph). The general direction of ground water movement in the aquifers under Yucca Mountain is south and southeast. The major aquifers along the flow path are in fractured tuff, alluvium, and, underlying both of these, the deeper carbonate rocks. At the edge of the repository, the tuff aquifer is relatively (several hundred meters) thick. The tuff aquifer gets closer to the surface toward its natural discharge points. Potential releases of radionuclides from the engineered barrier system into the surrounding rocks would be highly directional and would reflect the orientation of fractures, rock unit contacts, and ground water flow in the area downgradient from Yucca Mountain. Directly under the repository, we anticipate that any waterborne releases of radionuclides will move through the unsaturated zone and downward into the tuff aquifer, in an easterly direction, between layers of rocks that slant to the east, and downward along generally vertical fractures in the rock units until reaching the saturated zone. The layer of tuff gradually thins proceeding south (downgradient) from Yucca Mountain. As the tuff aquifer thins, the overlying alluvium becomes thicker until the tuff disappears and the water in the aquifer moves into the alluvium to become the “alluvial aquifer.” Along the flow path, there might be movement of water between the carbonate aquifer and either the tuff or alluvial aquifers. If there is significant upward flow from the carbonate aquifer, contamination in overlying aquifers could be diluted. It is generally believed, however, that any such flow would not significantly affect the concentration of radionuclides in the overlying aquifers. Conversely, downward movement of ground water from the tuff aquifer could contaminate the carbonate aquifer. Limited information currently available indicates that ground water from the lower carbonate aquifer moves upward into the overlying aquifer; however, this interpretation may not be correct for the entire flow path from beneath the repository to the compliance points southward from Yucca Mountain. Today, most of the water for human use is withdrawn between 20 and 30 km away from the repository footprint (that is, at Lathrop Wells and farther south through the Town of Amargosa Valley) where it is more easily and economically accessed for agricultural use and human consumption. It is likely that the alluvial aquifer is the major source of this water (see Chapter 8 and Appendix V of the BID).
Another basis of our understanding is the historical record of water use in the region. The record indicates that significant, long-term human habitation has not occurred in the southwestern area of NTS, or for that matter anywhere in the vicinity of Yucca Mountain, except where ground water is very easily accessed (for example, in Ash Meadows) (see Chapter 8 of the BID). This observation coincides with current practice whereby the number of wells generally decreases with greater depth to ground water (see Chapter 8 of the BID). The difficulty in accessing ground water in the tuff aquifer in the near vicinity of Yucca Mountain increases because of the rough terrain, the relative degree of fracturing of the tuff formations containing the aquifer, and the great depth to ground water there. As described earlier, the ground water flow from under Yucca Mountain is thought to be generally south and southeast. In those directions, the ground water gets progressively closer to the Earth's surface the farther away it
Because of DOE's ongoing site characterization studies, it is possible that, at the time of licensing, data not now available will reveal important inaccuracies in the preceding conception of the ground water flow under, and downgradient from, Yucca Mountain. We intend compliance with the ground water standards to be assessed where DOE and NRC project the highest concentrations of radionuclides in the representative volume of ground water in the accessible environment. The DOE will determine this location by modeling releases into the saturated zone beneath the repository and the subsequent movement of radionuclides downgradient from Yucca Mountain. After selecting a location, however, DOE must continue to evaluate new information regarding ground water flow. If this new information indicates that the highest concentrations would occur at a location in the accessible environment different from the one selected by DOE and NRC, DOE must propose a new compliance location to NRC. The new location is subject to NRC's approval. The next section discusses the concept of accessible environment as it relates to the controlled area.
After reviewing and evaluating the public comments, various precedents, the EnPA, and NAS's recommendations, we adopted the concept of a controlled area as an essential precondition to assessing compliance with the ground water standards. The ground water standards must be met in the accessible environment where the highest radionuclide concentrations in the representative volume of ground water are projected to occur during the compliance period (10,000 years). The highest projected concentrations will be compared to the regulatory limits established in today's rule. The accessible environment includes any location outside the controlled area. The controlled area may extend no more than 5 km in any direction from the repository footprint, except in the direction of ground water flow. In the direction of ground water flow, the controlled area may extend no farther south than latitude 36°40′13.6661″ North, which corresponds to the latitude of the southwest corner of the Nevada Test Site, as it exists today (Department of Energy submittal of Public Land Order 2568, dated December 19, 1961, Docket No. A-95-12, Item V-A-29). The size of the controlled area may not exceed 300 km
The alternatives for the ground water standards' compliance point presented in the proposed rule correspond to downgradient distances of approximately 5, 18, 20, and 30 km from the repository footprint. The first alternative mirrored the approach used in 40 CFR part 191. This approach incorporates the concept of a controlled area, not to exceed 100 km2, and not to extend more than 5 km in any direction from the repository footprint. The second alternative also incorporated the concept of a controlled area, not to extend more than 5 km in any direction from the footprint, except that DOE could include any contiguous area within the boundary of NTS. The last two alternatives described specific points of compliance at distances of about 20 and 30 km, respectively, from the repository footprint. We also intended these controlled areas and points of compliance to be in the predominant direction of ground water movement from the repository. Consequently, they would reflect the transport path for radionuclides released from the repository. We intended the controlled area options to describe that area of land dedicated to the sole use of serving as the natural barrier portion of the disposal system. Compliance with the standards within the controlled area is not an issue in regulatory decision making because this area is considered part of the overall disposal system and is dedicated to limiting radionuclide transport by means of the natural processes operative within it. Rather, compliance will be judged at the location where projected concentrations are highest and that is no closer to the repository than the edge of the controlled area. The controlled area also serves as the basis for institutional control measures intended to limit access around the repository site. This use of the controlled area, to limit access to the site, is an assurance measure we have left to the discretion of NRC as the implementing authority. Our rule does not require any specific institutional controls to be applied to the controlled area. As part of the licensing process, DOE will propose the specific shape and size of the controlled area. The NRC's proposed rule establishing licensing criteria for the Yucca Mountain facility specifically requires that DOE have permanent control of the land. We anticipate that Congress and the President will authorize a legislative withdrawal of an area within which the site is located. The DOE will determine the extent of land that will be requested of Congress to legislatively withdraw from all other public or private use. For its DEIS (Docket No. A-95-12, Item V-A-4), DOE analyzed a potential land withdrawal area of 600 km2 in the context of site characterization needs. The legislative land withdrawal represents the societal decision on the area of land to be dedicated to the characterization and operation of a disposal system. Although the land withdrawal may exceed 300 km
We adopted the concept of a controlled area from the generic standards in 40 CFR part 191. Those standards state that the maximum size of the controlled area is 100 km
It would be unreasonable for us to limit DOE's flexibility while site characterization and disposal system design are continuing, or to issue standards that do not account for the uncertainties of ground water flow in the region. Therefore, today's rule provides that the size of the controlled area may be up to 300 km
In reaching this decision regarding the maximum size of the controlled area, we must draw a contrast between the approach used in 40 CFR part 191 and today's rule. As mentioned earlier, although the WIPP LWA exempted the Yucca Mountain site from licensing under the provisions of 40 CFR part 191, the radiation protection principles in 40 CFR part 191 are still applicable, and we examined them while developing site-specific standards for Yucca Mountain. Throughout this preamble, we note where and why we have carried some of the concepts forward from 40 CFR part 191 if we believe they are necessary for protective standards at Yucca Mountain, and how we have applied them in ways consistent with the site-specific information and understanding of the Yucca Mountain site. Part 191 established a controlled area with a maximum distance in any direction of 5 km from the repository footprint to provide a location for judging compliance with the individual-protection (§ 191.15), ground water protection (§ 191.24), and containment requirements (§ 191.13). Thus, the controlled-area concept in 40 CFR part 191 links a 5 km maximum distance from the repository footprint to a limit on the size of the controlled area (100 km
By contrast, 40 CFR part 197 is site-specific. The 1987 NWPA amendments specified Yucca Mountain as the only potential repository site where DOE may conduct characterization activities. Therefore, since passage of the 1987 amendments, the Yucca Mountain site has been under an intense characterization effort. Because of these efforts, a significant amount of information has been generated regarding past, present, and planned population patterns, land use, engineered design, and the hydrogeological characteristics of the host rock and ground water systems at the Yucca Mountain site. Based upon information currently available, it appears that contaminated ground water will flow predominantly in a relatively narrow path from the Yucca Mountain repository. See the Yucca Mountain DEIS, Chapter 3 (DOE/EIS-0250 D, July 1999, Docket No. A-95-12, Item V-A-4, and the Viability Assessment, Docket No. A-95-12, Item V-A-5). In addition to the extensive data base compiled over the years, we have the recommendations of NAS. Significantly, NAS endorsed the use of present knowledge using “cautious, but reasonable” assumptions in defining exposure scenarios (NAS Report p. 100).
Concerning the size of the controlled area, though we have a general understanding of the primary direction of ground water flow, our present knowledge continues to evolve through site characterization. As a result, we believe the “cautious, but reasonable” approach allows DOE the flexibility to utilize a controlled area up to a maximum of 300 km
The size and shape of the controlled area proposed by DOE in the licensing process will depend upon two fundamental elements: (1) The dimensions of the repository layout for the waste inventory and thermal loading, as defined in the final repository design; and (2) uncertainty in ground water flow directions. Both of these aspects are evolving since studies for both site characterization and repository design are still in progress. However, DOE provides some indication in its DEIS of the range of repository-design layouts under various assumed waste inventories and thermal loading alternatives. Combining these repository alternatives in the DEIS, with projected ground water flow paths to the southern most extension of the controlled area at latitude 36° 40′ 13.6661″ North, gives potential controlled area sizes from 100 km
In addition to ground water flow path uncertainties, the size and shape of the controlled area also depend upon understanding how and where (in relation to the repository layout) radionuclides could be introduced into the ground water. Failed waste packages during the regulatory time-frame supply the releases carried into the ground water system. While DOE has adopted a new highly engineered waste package anticipated to have containment lifetimes into the tens of thousands of years (TRW Environmental Safety Systems Inc., “Repository Safety Strategy: Plan to Prepare the Postclosure Safety Case to Support Yucca Mountain Site Recommendation and Licensing Considerations”, TDR-WIS-RL-000001, January 2000, Docket No. A-95-12, Item V-A-24), some small number of waste packages can be anticipated to fail within the regulatory period due to
Regarding the alternatives we proposed for the ground water point of compliance, none of the information we have reviewed suggests that it is likely or reasonable to assume that year-round residents will live within 5 km of the repository footprint. As discussed in Chapter 8 and Appendix IV of the BID, it would be extremely difficult to farm that close to Yucca Mountain, partly because extracting ground water at that location would be both technically challenging and very expensive for an individual or small group. In addition, much of this area has rough terrain and soils not conducive to farming. Our understanding of projections of future land use does not indicate significant population growth much farther north of Lathrop Wells,
As one goes farther away from Yucca Mountain in the direction of ground water flow, it is easier to drill for ground water because the water table is closer to the ground surface and the geologic medium changes from tuff to alluvium. In addition, the soil characteristics improve such that agricultural pursuits become more feasible, as evidenced by the widespread agricultural activity in Amargosa Valley some 30 km from Yucca Mountain. There are approximately 10 residents at about 20 km (Lathrop Wells) and hundreds of residents at a distance of 30 km. Current projections of population growth indicate southern Nevada as one of the fastest growing areas in the country (see the Yucca Mountain DEIS, Chapter 3 (DOE/EIS-0250D, July 1999, Docket No. A-95-12, Item V-A-4), and reports prepared for Nye County and Amargosa Valley (Docket No. A-95-12, Items V-A-14, V-A-15, and V-A-16)). We selected latitude 36° 40′ 13.6661″ North, which corresponds to the southwest corner of NTS as it exists today (Docket No. A-95-12, Item V-A-29), as the maximum distance that the controlled area may extend in the direction of ground water flow (south). Given the expected population growth in southern Nevada, it is reasonable to project that some population growth may occur slightly north of Lathrop Wells, although the boundaries of NTS are likely to remain and restrict population expansion in this direction, at least for the near future. As indicated previously, the representative volume of ground water used to demonstrate compliance would reflect a small community including alfalfa cultivation and some residential and light industrial development. At distances progressively closer than 18 km to the repository, it becomes more difficult to drill for water, soil conditions become less favorable for agriculture, and more land is subject to restricted access by the Federal government. We believe, based upon the site-specific information now available, and using cautious, but reasonable assumptions, the southwest corner of NTS, or an equivalent distance in the direction of ground water flow, would be the closest location for a small group to be accessing ground water.
Several comments suggested that we should locate the point of compliance for ground water protection purposes at the boundary of the Yucca Mountain repository footprint. As discussed above, 40 CFR part 191 established the concept that a certain amount of geology surrounding a repository is part of the overall disposal system. The controlled-area concept limited considerations of radiation dose to individuals or contamination of ground water to areas outside of this controlled area. The controlled area in 40 CFR part 191 applies at a distance from the repository, to be determined by the implementing agency, but not to exceed 5 km from the footprint. We continue to support the concept of a compliance point at some distance beyond the repository footprint. In the case of Yucca Mountain, most of the land within the repository footprint is rugged terrain, with extreme depths to ground water, and land unsuitable for agricultural pursuits (see Chapter 8 of the BID). Therefore, we did not choose a compliance point at the edge of the Yucca Mountain repository footprint.
A number of comments suggested we locate the point of compliance, or limit the distance to the boundary of the controlled area, at distances ranging from 5 km to 30 km from the repository footprint. As we indicated previously, we adopted NAS's recommendations to use present knowledge and cautious, but reasonable, assumptions in making regulatory decisions. For the reasons discussed earlier, we did not choose to base compliance with the standards upon a uniform 5 km distance from the repository. Other comments supported placing the compliance point at 30 km, citing the volume of water currently withdrawn at that distance. Indeed, most of the agricultural activities in the vicinity of Yucca Mountain currently take place in this area, and it is home to hundreds of residents. This situation occurs because of the easy accessibility of ground water and soil conditions conducive to a variety of agricultural activities. However, a distance of 30 km would effectively ignore the existence of populations who presently access ground water closer to the repository. Given the prospect of future population growth as well, at distances of about 20 to 30 km from the repository footprint, it would appear more reasonable to protect ground water resources at distances closer than 30 km. Therefore, we did not choose the “30 km” alternative as the compliance point.
Distances approximating 20 km appear more reasonable to consider to assess compliance with the ground water standards. As described in Chapter 8 of the BID, no farming currently occurs closer than about 23 km from the repository footprint. Also, as one gets closer than about 18 km to the repository footprint, the depth to water begins to increase dramatically from about 100 m at a distance of 20 km to a few hundred meters at a distance of
In addition to requesting comments regarding all aspects of this rulemaking, many of which we have highlighted in the preceding sections of this document, we also requested comment based upon sixteen specific questions. These specific questions appear below, along with brief summaries of the comments we received and our responses to those comments. As with each of the comments discussed elsewhere in this document, we present detailed and comprehensive responses in the accompanying Response to Comments document.
Regarding the concepts of negligible incremental dose or risk, though we have recognized elsewhere in this preamble that individual doses from
We also disagree with NAS when it states on page 120 of its report: “On a collective basis, the risks to future local populations are unknowable.” There is no question that there will be uncertainty in the estimate; however, even without our recommendation, DOE has already published projected collective doses for Yucca Mountain (see Table 4-34 on p. 4-39 of the Yucca Mountain DEIS, Docket No. A-95-12, Item V-A-4), and is likely to refine these estimates. These estimates could fulfill the NCRP recommendation to use collective dose in a non-regulatory fashion to assess acceptability of a facility (Docket No. A-95-12, Item II-A-8).
Most comments on this issue supported not establishing a collective-dose limit for Yucca Mountain. Two other comments supported our decision to not establish an NIR or NID level. One comment went further by opposing our suggestion that DOE use estimated collective dose to examine design alternatives on the grounds that such action is unnecessary to protect the general public. That comment also stated that we have not provided guidance on what to do with the collective dose estimates and that we are making policy judgments with respect to collective dose estimation. Upon consideration of those comments, we are not recommending that DOE estimate collective dose, primarily because we believe that the individual-protection standard will adequately protect the general population.
In summary, those reasons are that the RMEI approach:
(1) Is consistent with widespread practice, current and historical, of estimating dose and risk incurred by individuals even when it is impossible to specify or calculate accurately the exposure habits of future members of the population (as in this case where it is necessary to project doses for very long periods);
(2) Is sufficiently conservative and fully protective of the general population;
(3) Provides protection similar to the probabilistic CG approach recommended by NAS for small groups—it has the same goal and purpose as does NAS's recommended probabilistic CG approach,
(4) Allows the desired degree of conservatism to be built but within the site-specific limits and the framework which we have established.
(5) Is straightforward and relatively simple to understand, and is more appropriate than the probabilistic CG for the situation at Yucca Mountain. It is less speculative to implement than is the probabilistic CG approach given the unique conditions present at Yucca Mountain (and is a cautious, but reasonable, approach). For example, given the known characteristics of ground water flow at Yucca Mountain, locating the receptor in the direct path is more protective, and easier to implement, than assessing an average dose incurred by a randomly-located group of receptors; and,
(6) Has been used by us in the past (whereas we have not used the CG concept).
A number of other comments suggested other groups or individuals that would represent more appropriately the individual to be protected by the individual-protection standard. The suggestions included a fetus, the elderly and infirm, and subsistence farmers. Regarding the various ages and stages of development, the risk value used for the development of cancer is an overall average risk value (see Chapter 6 of the BID for more details) that includes all exposure pathways, both genders, all ages, and most radionuclides. However, it does not cover the “unborn within the womb” (see Chapter 6 of the BID). It is thought that the risk per unit dose for prenatal exposures is similar to the average risk per unit dose for postnatal exposures; however, the exposure period is very short compared to the rest of the individual's average lifetime. (See Chapter 6 of the BID for a discussion of cancer risk from
A related aspect of fixing biosphere conditions for dose assessments is the question of potential variations in climate and geologic conditions because these factors play an important part in developing the ground water contaminant concentrations that serve as input for the biosphere dose assessments. We specify that DOE should vary climate and geologic conditions over a reasonable range of values based on an examination of evidence in the geologic record for conditions in the area. The evidence preserved in the relatively recent geologic record provides a means to reasonably bound the range of possible conditions.
Based on further review of site-specific information, we decided to locate the RMEI in the accessible environment above the highest concentration of radionuclides in the plume of contamination. The accessible environment begins at the edge of the controlled area, which may extend no farther south than the southern boundary of NTS (latitude 36° 40′ 13.6661” North), which is approximately 18 km south of the repository (roughly 2 km closer than the Lathrop Wells location we proposed). We do not believe that an RMEI likely would live much closer to the Yucca Mountain repository because of the increasing depth to ground water and the increasing roughness of the terrain (see Chapter 8 of the BID), although the RMEI would still have rural-residential characteristics described in § 197.21 if the controlled area does not extend as far south as the NTS boundary. In addition, we believe that, at 18 km, a rural resident likely will receive the highest potential doses in the region because, as we have defined the RMEI, the potential dose at this location will be from drinking water, as well as through ingestion of food grown with contaminated ground water. With the RMEI eating food grown using contaminated water, the rural resident at 18 km will have a higher dose than an individual would have living much closer than 18 km because the cost of water likely would preclude a garden and likely would allow only drinking the water and domestic uses (see Chapter 8 of the BID). Likewise, we do not think that hypothesizing that the RMEI lives 30 km away is a cautious or reasonable assumption because: (1) At 30 km, the RMEI likely would use water in which contaminants would be much more diluted; (2) the downgradient residents closest to Yucca Mountain are currently near Lathrop Wells; and (3) Nye County projects short-term (20 years) growth between U.S. Route 95 and the southern boundary of NTS; therefore, population there is not an ephemeral phenomenon. Therefore, placing the RMEI at about 18 km from the repository footprint reflects the location of existing residents, is reasonably conservative, and provides more protection of public health, relative to one commenter's suggested location of 30 km.
There were a few other comments related to the location of the RMEI. For example, one comment suggested that, in selecting the location, we should consider the geology and hydrology of the site rather than choosing the location in advance. Another comment stated that we should base the location of the RMEI on the ability of the RMEI to sustain itself consistent with topography and soil conditions. This comment also stated that depth to ground water should not be a factor because it is impossible to predict either human activities or economic imperatives.
We determined the point of compliance for the individual-protection standard using site-specific factors and NAS's recommendation to use current conditions (NAS Report p. 54). In preparing to propose a location for the RMEI, we collected and evaluated information on the natural geologic and hydrologic features such as topography, geologic structure, aquifer depth, aquifer quality, and the quantity of ground water, that may preclude drilling for water at a specific location (see Chapters 7 and 8, and Appendices IV and VI, of the BID). We also considered geologic conditions, for example, we do not believe that a rural-residential individual would occupy areas much closer to Yucca Mountain because of the increasing rough terrain and the increasing depth to ground water (see Chapter 8 of the BID). With increasing depth to ground water come higher costs: (1) To explore for water; (2) to drill for water; and (3) to pump the water to the surface (see Appendix IV of the BID). Our final standard requires DOE and NRC to consider other, more appropriate locations based upon
Finally, one comment stated that the proposed RMEI concept forces DOE to assume the RMEI will withdraw water from the highest concentration within the plume without consideration of the likelihood. According to this comment, forcing such an assumption neglects the low probability that a well will intersect the highest concentration within the plume.
This comment's approach, which would utilize a probabilistic method to determine the radionuclide concentration withdrawn by the RMEI, is similar to one of the example critical group approaches that NAS provided in its report (NAS Report, Appendix C). The NAS's approach would use statistical sampling of various parameters, i.e., considering the likelihood (probability) of various conditions existing, to arrive at a dose for comparison to the standard. However, we did not use this CG approach for the following reasons: (1) There is no relevant experience in applying the probabilistic CG approach, (2) the probabilistic CG approach is very complex and is difficult to implement in a manner that assures it would meet the requirements of defining a CG (i.e., a small group of people who are homogeneous in regards to exposure characteristics, including receiving the highest doses among the general population), and (3) we are concerned that this approach does not appear to identify clearly which individual characteristics describe who is being protected. A probabilistic approach for CG dose assessment could include members that would receive little or no exposure and members that would receive much higher exposures. An RMEI is a more conservative approach, based upon site-specific conditions, because the RMEI serves to represent those individuals in the community who would receive the highest doses, based on cautious, but reasonable, assumptions. Finally, a significant majority of the comments on the NAS Report opposed the use of the probabilistic CG approach. We further believe that prudent public health policy requires that our approach be followed to provide reasonable conservatism. To allow the probability of any particular location being contaminated is not a prudent approach to the ultimate goal of testing acceptable performance.
Regarding the NIR, we decline to set such a level. We agree with NAS's conclusion that “ * * * an individual risk standard [will] protect the public health, given the particular characteristics of the site * * *” (NAS Report p. 7). However, we do not accept the remainder of that statement: “ * * * provided that policy makers and the public are prepared to accept that very low radiation doses pose a negligibly small risk” (NAS Report p. 7). We do not agree that collective doses made up of very small individual doses are necessarily negligible. We base our decision on the site-specific characteristics of Yucca Mountain and the levels of individual risk that we previously have used. See the preamble to the proposed rule (64 FR 46991) for the full discussion of our reasoning. We summarize this discussion immediately below.
The NAS based its recommendations upon guidance from NCRP in which NCRP proposed a “Negligible Incremental Dose” level of 1 mrem/yr. Dose levels below 1 mrem/yr would be considered “negligible” for any source or practice (see the NAS Report pp. 59-61 and NCRP Report No. 116, p. 52, Docket No. A-95-12, Item II-A-7). The IAEA has made similar recommendations to define an “exempt practice” (see IAEA Safety Series No. 89, p. 10, Docket No. A-95-12, Item II-A-6). However, it is not clear to us that an exemption for whole sources or practices, such as waste disposal in general, should apply to such specific situations such as gaseous releases from a particular repository because gaseous releases comprise only one category of releases from a repository; other releases are projected via the ground water pathway. In addition, we believe that it is inappropriate to avoid calculating a radiation dose merely because it is small on an individual basis (NCRP Report No. 121, p. 62, Docket No. A-95-12, Item II-A-8). Finally, we do not believe that it is appropriate to apply the NIR concept to population doses (NCRP Report No. 121, p. 62, Docket A-95-12, Item II-A-8). In its Report No. 121, NCRP stated: “[a] concept such as the NID (Negligible Incremental Dose) * * * is not necessarily a legitimate cut-off dose level for the calculation of collective dose. Collective dose addresses societal risk while the NID and related concepts address individual risk” (NCRP Report No. 121, p. 62, Docket No. A-95-12, Item II-A-8).
Despite our belief that it is inappropriate to set an NID level, we acknowledge that the extremely low levels of individual risk from the doses that NAS cited (NAS Report p. 59) (i.e., 0.0003 millirem/yr, for airborne releases) are well below those levels that we have used for other regulations.
In addition, the standards in 40 CFR part 191 provide both release limits, which act as a form of collective dose protection, and individual-protection limits. The release limits act to restrict the potential of dilution being used by disposal system designers to meet the individual-protection limit. However, the potential for large-scale dispersal of radionuclides through ground water and into surface water does not exist at Yucca Mountain.
Therefore, for the reasons enumerated above, we believe that we do not need to include a general population-
On the other hand, numerous comments suggested that a compliance period of 10,000 years is not reasonable. They urged us to extend the compliance period beyond 10,000 years for a variety of reasons. Foremost among these reasons is that NAS suggested a compliance period that would extend to the time of peak dose or risk, within the period of geologic stability for Yucca Mountain, which it estimated could be as long as one million years. The NAS based its recommendations on scientific considerations. The NAS concluded that it is possible to assess the performance of the repository over times during which the geologic system is “relatively stable” or varies in a “boundable manner” (NAS Report p. 9). It also noted that policy considerations could act to shorten this period. Other comments suggested that the compliance period of the standard should be comparable to the hazardous lifetime of the materials to be emplaced in the Yucca Mountain repository.
It is unclear whether an assessment of the disposal system based on NAS's recommendation for a standard that would apply to time of peak dose within the period of geologic stability (about one million years) would be meaningful given the expected rigor of a licensing process. As discussed above in section III.B.1.g, we believe that the substantial uncertainty in projecting human radiation exposures over extremely long time periods, such as a million years, is unacceptable. For example, analyzing long-term natural changes would require unprecedented performance assessment modeling of numerous and different climate regimes including several glacial-interglacial cycles. This situation could require the specification of exposure scenarios based on arbitrary assumptions rather than “cautious, but reasonable” assumptions rooted in present-day knowledge. In fact, NAS indicated it knew of no scientific basis for identifying such scenarios (NAS Report p. 96). Another concern relates to the possible biosphere conditions and human behavior. Even for a period as “short” as 10,000 years, it is necessary to make certain assumptions. For periods on the order of one million years, even natural human evolutionary changes become a consideration. Regulating to such long time periods could become arbitrary. Moreover, NAS based its time-frame recommendation on scientific considerations; however, it recognized that such a decision also has policy aspects (NAS Report p 56). The NAS recognized that the existence of these policy aspects might lead us to select an alternative more consistent with previous Agency policy. Indeed, we considered the longest practical regulatory periods associated with other Agency programs, as well as 40 CFR part 191. We believe the unprecedented nature of a compliance period beyond 10,000 years argues against imposing such a long regulatory period here. Also, numerous international disposal programs use a 10,000-year compliance period. Many of these same programs have committed to consider more qualitative evaluations beyond 10,000 years. (See GAO/RCED-94-172, 1994, Docket No. A-95-12, Item V-A-7. Chapter 3 of the BID also contains information on international programs.) Of course, as knowledge and technical capabilities grow, this situation could change over time.
The hazardous lifetime of radioactive waste is important; however, it is but one of several factors that a regulator must consider in projecting the potential risks from disposal. Indeed, some of the radionuclides expected to be in the waste inventory at Yucca Mountain have half-lives extending to thousands or hundreds of thousands of years (and even a million years or more in a few cases). The ability of the repository to isolate such long-lived materials relates to the retardation characteristics of the whole hydrogeological system within and outside the repository, the effectiveness of engineered barriers, the characteristics and lifestyles associated with the potentially affected population, and numerous other factors in addition to the hazardous lifetime of the materials to be disposed.
With respect to uncertainty in the projected peak dose, one commenter suggested that NRC should deny the license application if modeling results show an uncertainty range of five orders of magnitude above the dose limit in our individual-protection standard. Modeling results, and their associated uncertainties, are but a part of the complete record on which NRC will determine whether the disposal system complies with 40 CFR part 197. For the reasons cited above, we consider a 10,000-year compliance period, and the additional requirement that DOE calculate the peak dose beyond 10,000 years and include this assessment in the Yucca Mountain Environmental Impact Statement, to be the most appropriate approach, given the state of technology and knowledge today. In addition, we require DOE to provide a “reasonable expectation” that disposal system performance will meet the standard. Calculation of doses to the RMEI involves projecting doses that are within a reasonably expected range rather than projecting the most extreme case. This approach is in concert with NAS's recommendations to use “cautious, but reasonable” assumptions to define who is to be protected (NAS Report pp. 5-6). The degree of uncertainty in the dose assessments considered acceptable in the licensing process is, in our opinion, an implementation decision that should be the responsibility of NRC. We believe that we have provided sufficient detail in the standard to provide the context needed to assure the standard is applied as we intend (see, e.g., our discussions of “reasonable expectation” in section III.B.2.c and in the Response to Comments Document that accompanies this rule); however, the final decision regarding the acceptable degree of uncertainty is NRC's responsibility.
For a variety of technical and policy reasons, we believe that a 10,000-year compliance period is meaningful, protective, practical to implement, and will result in a robust disposal system protective for periods beyond 10,000
We specify a compliance measure we believe is reasonable but still conservative: the mean of the distribution of projected doses from DOE's performance assessments. The primary reason we impose this requirement is that it provides a necessary context for implementation of the standard. In addition, we note that it is also consistent with the approach we implemented in certifying WIPP.
We consider it necessary to supply context for understanding the intent of the standard to constrain and direct the otherwise unbounded range of approaches to demonstrating compliance that could be justified in the absence of such context. For example, it would be possible to use only a small number of assessments to demonstrate compliance if the standard specified only an exposure limit. In such a case, the full range of relevant site conditions and processes might not be considered. Further, the analyses and the regulatory decision making might not capture the uncertainties in projecting long-term performance. At the other extreme, without a defined performance measure, endless and exhaustive site characterization studies and analyses could be required. The impetus for these endless and exhaustive studies and analyses would be a perceived need to identify the most extreme “worst-case” scenarios (regardless of their actual likelihood of occurring). We believe that a thorough assessment of repository performance expectations should examine the full range of reasonably foreseeable site conditions and relevant processes expected during the regulatory time frame. In making quantitative estimates of repository performance, we believe that unrealistic or extreme situations or assumptions should not dominate estimates of expected performance (see additional discussions about “reasonable expectation” in this preamble and the Response to Comments Document). With these considerations in mind, we believe that specifying a performance measure is necessary to supply the proper context for implementing the standard in the regulatory process, as well as providing the applicant (DOE) a focus for its efforts to build the compliance arguments and supporting calculations.
In line with our use of the term “reasonable expectation,” the fundamental compliance measure consistent with a literal mathematical interpretation of this term would be the mean value of the distribution of calculated doses. However, as the only alternative for a compliance measure, the mean may in some cases be interpreted too restrictively. In actuality, some situations may result in very high dose estimates for situations that have low probabilities. Simply averaging these “outliers” into the distribution of calculated dose estimates can bias the mean levels that may be unrealistically high. Although this is certainly a conservative (and therefore desirable) approach, its effects can be unrealistically conservative (not a desirable situation). The result of overly conservative effects is to drive regulatory decision making on the basis of very low probability and potentially unrealistic situations.
Because of these potential situations, we also proposed using the median of the expected range of calculated values as another interpretation of the “expected” situation. The median (reflecting a value exceeded half of the time) may be more conservative if some of the variables involved in the performance calculations have skewed distributions. However, we conclude that, in the case of Yucca Mountain, the mean is an appropriate measure.
By specifying the mean as the performance measure and probability limits for the processes and events to be considered (§ 197.36), and in concert with the intent of our “reasonable expectation” approach in general, we have implied that probabilistic approaches for the disposal system performance assessments are expected. The probabilistic approach is well established in DOE's approach to performance projections (see the DEIS and Vol. 3 of the Viability Assessment, Docket No. A-95-12, Items V-A-4 and V-A-5). Based on DOE's past actions and stated intent, we believe that DOE will continue to follow this approach and that, therefore, it is unnecessary for us to specify additional requirements in the standard to assure that DOE continues to follow this approach. We also believe that specifying such requirements could be interpreted to exclude the use of deterministic analyses. These analyses can be useful for carefully focused bounding analyses and sensitivity studies. For these reasons we have specified only the fundamental performance measures to provide the context for understanding, without additional qualifications, the intent of the standard for implementation efforts.
A number of comments stated that, though they agreed with our selection of performance measures, the choice should be left as an implementation detail for NRC. Relative to the implementation question, we believe that specifying the fundamental compliance measure is necessary as a means to supply the proper context for understanding the intent of the rule and for implementation guidance as explained above. We feel this is distinctly different than the implementation responsibility of NRC, as explained below.
We do not believe that setting the fundamental compliance measure intrudes into NRC's implementation authority because the primary task for the regulatory authority is to examine the performance case put forward by DOE to determine “how much is enough” in terms of the information and analyses presented (i.e., how will the regulatory authority determine when the performance case has been demonstrated with an acceptable level of confidence). Our standard contains no specific measures for that judgment. We do not specify any confidence measures for such judgments or numerical analyses. Also, we do not prescribe analytical methods that must be used for performance assessments, quality assurance measures that must be applied, statistical measures that define the number or complexity of analyses that should be performed, or any assurance measures in addition to the numerical limits in the standard. We specify only that the mean of the dose assessments must meet the exposure limit. There are many other considerations and decisions that
For the WIPP certification, the compliance measure selected for the individual-protection standard was the higher of the mean or median of the calculated distributions of doses from releases (40 CFR 194.55(f)). The mean or median are reasonably conservative measures because they are influenced by high exposure estimates found when analyzing the full range of site conditions and relevant processes, without being geared to exclusively reflect high-end results, as would be the case if we selected as the measure a high-end percentile of the calculated dose distribution (such as the 95th or 99th percentile). Our final rule for Yucca Mountain specifies only that the mean be used, as we believe that it is appropriately conservative in this situation.
Comments in favor of the intrusion scenario as we framed it in the proposed rule focused upon the difficulties in defending any predictions about the probability of drilling intrusions through the repository and in reliably predicting a hypothetical drilling intrusion in any detail. These comments echoed NAS's conclusions about the reliability of post-closure institutional controls to prevent intrusion, and the inability to make scientifically supportable predictions of the probability of human-intrusion events over the regulatory period (NAS Report pp. 104-109). The NAS reasoned that because it is not possible to reliably eliminate the potential for human intrusion, the only reasonable approach would be to assume an intrusion occurs and assess the consequences on disposal system performance. In this light, NAS recommended that a simple stylized drilling intrusion through the repository to the underlying ground water table be assessed as a test of the resiliency of the disposal system (NAS Report Chap. 4). Because it is impossible to scientifically exclude the potential for an intrusion, and because proposing the nature of an intrusion is at best speculative, these comments agreed that the stylized approach that assumes an intrusion and assesses the consequences is appropriate. We have followed the NAS's recommendations closely in framing the human intrusion standard.
Some comments on the framing of the intrusion scenario proposed that, for various reasons, multiple intrusions should be considered, rather than simply assuming one borehole penetration through the repository. Because of certain site-specific considerations with respect to Yucca Mountain, and in light of the rationale underlying the NAS recommendations, it is not appropriate to modify the scenario to include multiple penetrations through the repository. It is impossible to accurately predict the potential for intrusion in the distant future. Therefore, postulating multiple intrusions is just as speculative as postulating a single intrusion at any given time or specific location over the repository. For this reason, NAS recommended that we develop a stylized intrusion in our rulemaking (NAS Report p. 111). We agree with this recommendation because disruption of the engineered and natural barriers is a means through which radionuclides can escape the repository and be transported to the accessible environment where exposures of individuals can result. Therefore, an evaluation of human-intrusion consequences is appropriate for a repository standard. The NAS also recommended that we define a typical intrusion scenario for analysis (NAS Report p. 108) and recommended a stylized approach to framing the scenario (NAS Report p. 111) and a consequence analysis of the scenario (NAS Report p. 111). The intent of this approach is that the disposal system should be resilient “to at least moderate inadvertent intrusions” (NAS Report p. 113). Scenarios ranging from single penetrations to many penetrations through the repository over the regulatory time period would give a very wide range of results—none more or less defensible than any other, making their use in regulatory decision making ambiguous at best. To avoid the speculative aspects of defining intrusion scenarios, we believe the stylized single intrusion recommended by NAS is sufficient and would provide a suitable test of the Yucca Mountain disposal system's performance.
Related comments offered opinions that the prospect of drilling for water resources at the top of Yucca Mountain is not a credible scenario because drilling for water would be more sensible in the adjacent valleys. These comments, however, did not offer
Some comments stated that defining the stylized scenario as we did effectively makes the human-intrusion dose assessment results into design constraints for the repository. We do not believe the stylized scenario imposes any design constraints because the waste package penetration is assumed to occur regardless of the particular design chosen for the waste package. Here again, none of these comments proposed alternative scenarios. Rather, they simply questioned the basic relevance of a human intrusion standard. For the reasons mentioned previously, however, we reiterate our belief that an analysis of human-intrusion is necessary, and we also note that NAS (NAS Report p. 108) stated that “EPA should specify in its standard a typical intrusion scenario...”. We do not believe it should be regarded as a design constraint unless the results of the consequence analyses indicate that the limited breaching of the natural and engineered barriers would result in the standard being exceeded. Even though the probability of drilling intrusions may be low, it is impossible to unequivocally eliminate them. Therefore, we agree with NAS's conclusion that the “repository should be resilient to at least modest inadvertent intrusions” (NAS Report p. 113).
We believe as a matter of prudent policy that ground water protection standards are neither redundant nor unnecessary because they address specific aspects of natural resource protection not covered by the individual-protection standard. Rather, such standards are complementary to the public health and safety standards applicable to the Yucca Mountain
Over the years, many of our regulatory programs have incorporated the MCLs as an important part of our regulations related to both radioactive and non-radioactive wastes. This approach grew out of the development and implementation of our ground water protection strategy, “Protecting the Nation's Ground-Water: EPA's Strategy for the 1990s” (“the Strategy,” Docket No. A-95-12, Item II-A-3). The use of ground water protection requirements, including the use of MCLs, is reflected in our regulations pertaining to hazardous waste disposal (40 CFR part 264), municipal waste disposal (40 CFR parts 257 and 258), underground injection control (UIC) (40 CFR parts 144, 146, and 148), and uranium mill tailings disposal (40 CFR part 192). We also have incorporated the MCLs into our generally applicable standards for the disposal of SNF, HLW, and TRU radioactive waste (40 CFR part 191). These generic regulations apply to the land disposal of these materials everywhere in the United States except at Yucca Mountain. Extending comparable ground-water protection standards to the proposed Yucca Mountain disposal system will assure reasonable and similar protections wherever the disposal of SNF, HLW, or TRU radioactive waste occurs in this country.
In our response to Question 15, we note our concerns related to adopting only an all-pathways individual-protection standard with no specific ground-water protection provisions. For a more detailed discussion of the issues associated with these two options (all-pathways with and without separate ground water protection), please see the Response to Comments document.
Numerous commenters suggested that we should extend the compliance period beyond 10,000 years for a variety of reasons. Foremost is that NAS suggested a compliance period extending up to the time of peak dose or risk, within the period of geologic stability for Yucca Mountain (i.e., up to one million years). Other commenters suggested that the compliance period should be comparable to the hazardous lifetime of the materials to be emplaced in the Yucca Mountain repository. As indicated in our response to Question 8 above and in section III.B.1.g, we have significant concerns relating to making meaningful projections of repository performance over the time periods implied by NAS's recommendations. These concerns extend to modeling the time to peak concentration to judge compliance with the ground water standards, which NAS did not explicitly consider. Modeling of exposure scenarios and climatic conditions very different from those experienced over the last 10,000 years, coupled with the potential for human evolutionary changes over such extended time frames, introduces tremendous uncertainties. This situation may result in making arbitrary assumptions in performance assessment modeling, rather than making informed choices based upon cautious, but reasonable, assumptions rooted in present-day knowledge. Regarding the hazardous lifetime of the materials to be emplaced in the Yucca Mountain repository, it is true that there will be radioactive materials remaining after the end of the 10,000-year regulatory period. Nevertheless, the ability of a repository to isolate such long-lived radionuclides depends upon a variety of other factors, including the retardation characteristics of the whole hydrogeological system within and outside of the repository, the effectiveness of the engineered barriers, the characteristics and lifestyles associated with the potentially affected population, as well as the hazardous lifetime of the materials to be emplaced in the repository.
Although we received numerous comments suggesting that 10,000 years was insufficient as a compliance period, we received little in the way of suggestions regarding on how to reasonably implement standards covering these potentially very extended time periods. For example, one commenter suggested that we put the burden on NRC and DOE to develop methods to estimate, with some degree of certainty, the effects after 10,000 years without explaining how the agencies could achieve these results. Please note that NAS specifically addressed this matter (NAS Report, pp. 12-13):
“It might be possible that some of the current gaps in scientific knowledge and uncertainties that we have identified might be reduced by future research * * *. Conducting such an appraisal, however, should not be seen as a reason to slow down ongoing research and development programs, including geologic site characterization, or the process of establishing a standard to protect public health.”
We agree with NAS's conclusion. We expect more information will be developed in the time between the promulgation of this rule and the NRC licensing decision to address some of the remaining uncertainties.
Comments/Our Responses. Our promulgation of only an all-pathways, individual-protection standard, such as 25 mrem/yr, with no ground-water
The all-pathways, individual-protection standard is the primary mechanism to protect public health from releases of radioactivity from the Yucca Mountain repository. We believe that an all-pathways limit, supplemented with ground water protection standards, provides complete public health protection and assures that ground water resources will be safe for use by future generations. In addition, the ground water resources in the vicinity of Yucca Mountain support a diverse agricultural community and important ecological systems (e.g., the endangered Devil's Hole pupfish).
We believe that separate ground water protection standards designed to protect the ground water resource in the vicinity of Yucca Mountain is a necessary element of our Yucca Mountain standards. Our decision to include separate ground water protection standards is a policy decision. As explained in section III.B.4 (
We believe that both ground-water protection standards, incorporating the MCLs to protect ground-water resources, and an individual-protection standard, as embodied in an all-pathways standard, are complementary and necessary to provide adequate public health protection and protection of an invaluable national natural resource. For a more detailed discussion of the issues associated with the options for the individual-protection standard and the ground-water protection standards, please see the Response to Comments document.
Comments supporting the use of a post-10,000-year projection for regulatory purposes cited the long-term hazard posed by the wastes planned for Yucca Mountain, the need to protect future generations, and the possibility that the individual doses would exceed our standard in the post-10,000-year time frame. As indicated in our response to Question 8 above, we considered these and other issues in determining that a 10,000-year compliance period is most appropriate. This compliance period is protective, meaningful, and practical to implement. By also including a post-10,000-year dose assessment in the EIS, which provides more complete information on long-term performance, we believe a robust disposal system protective for time periods beyond 10,000 years will result.
In considering the appropriate use of the post-10,000-year dose assessment, we have had to balance these very difficult issues. It is possible to set computer models to run for time periods beyond 10,000 years; however, this approach does not necessarily result in an equal or higher level of confidence that the exposed individuals will be protected. As numerous comments pointed out, it is likely that such results will contain greater uncertainties. We agree with these comments. Yet, despite these greater uncertainties, such assessments can be somewhat informative though not necessarily reliable dose predictions. We note, for example, the considerations that supported Sweden's proposed regulations for SNF and nuclear waste (“The Swedish Radiation Protection Institute's Proposed Regulations Concerning the Final Management of Spent Nuclear Fuel or Nuclear Waste,” SSI Report 97:07, May 1997, Docket No. A-95-12, Item V-A-11). Regarding long-term assessments (beyond 1,000 years), such studies “do not mean that the full protective capacity of the repository can be forecasted, e.g., on the scale of a million years into the future. However, studies of such (repository) subsystems can provide valuable information without actually being considered as a prediction of doses to living organisms' (Id. at 11). We believe that requiring DOE to include a post-10,000-year dose assessment in the EIS is an appropriate means to address the issues associated with such long-term impacts. We note that in our proposal, we stated that “NRC is not to use” post-10,000-year results in assessing compliance with the individual-protection standard. However, in its comments on our proposal, NRC stated that, if DOE uses post-10,000-year results to bolster its compliance case, “the Commission should not be constrained from considering such information” (Docket No. A-95-12, Item II-D-92). We agree. At the very least, more complete information on long-term disposal system performance will be available. In addition, during this time, the repository design will become more clearly defined by new information. For more extensive discussions of this issue, please see our response to Question 8 above and the Response to Comments document.
As discussed above at Section III.B.1, the purpose of the Individual Protection Standard is to protect public health and safety. As discussed in Section III.B.4, the Ground Water Protection Standard serves two purposes. First, it protects the ground water resource. Second, by protecting that resource, the Ground Water Protection Standard also furthers the goal of public health and safety. Consistent with the recommendations of the National Academy of Sciences, the Individual Protection Standard is adequate in itself to protect public health and safety. In addition, EPA is adopting the Ground Water Protection Standard in its discretion in order to provide additional protection to the vital ground water resource, and in so doing, is also providing an extra measure of public health and safety protection. Thus, notwithstanding that the Individual Protection and Ground Water Standards have coincident
Under Executive Order 12866 [58
(1) Have an annual effect upon the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
In accordance with the terms of Executive Order 12866, EPA determined that this rule is a “significant regulatory action” because it raises novel legal or policy issues arising out of the specific legal mandate of Section 801 of the Energy Policy Act of 1992. Thus, this action was submitted to OMB for review.
In accordance with the terms of Executive Order 12866, EPA determined that this rule is a “significant regulatory action” because it raises novel legal or policy issues arising out of the specific legal mandate of Section 801 of the Energy Policy Act of 1992. Thus, this action was submitted to OMB for review. Any changes to the rule that were made in response to OMB suggestions or recommendations have been documented in the public record.
Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations And Low-income Populations (Environmental Justice),” directs us to incorporate environmental justice as part of our overall mission by identifying and addressing disproportionately high and adverse human health and environmental effects of programs, policies, and activities upon minority populations and low-income populations.
We find no disproportionate impact in the outcome of this rulemaking. No plan has thus been devised to address a disproportionate impact.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect upon children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule upon children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives that we considered.
As discussed in the preamble in sections II.C and III.B.1.a, the primary risk factor considered in our risk assessment is incidence of fatal cancer. We have derived a risk value for the onset of fatal cancer that considers children, since it is an overall average risk value (see Chapter 6 of the BID for more details) that includes all ages from birth onward, all exposure pathways, both genders, and most radionuclides. We do note that the risk factor does not include the fetus. However, we believe that the risk of fatal cancer per unit dose incurred by the unborn is similar to that for those who have been born, but the exposure period is very short compared to the rest of the individual's average lifetime, so the risk of fatal cancer to the unborn is proportionately lower and does not have a significant impact upon the overall risk of fatal cancer incurred by an individual over a lifetime. (See Chapter 6 of the BID for more discussion of the risk of fatal cancer resulting from in utero exposure.)
Therefore, this final rule is not subject to Executive Order 13045 because we do not have reason to believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children.
On January 1, 2001, Executive Order 13084 was superseded by Executive Order 13175. However, this rule was developed when Executive Order 13084 was still in force, and so tribal considerations were addressed under Executive Order 13084.
Under Executive Order 13084, “Consultation and Coordination with Indian Tribal Governments,” we may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs upon those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or we consult with those governments. If we comply by consulting, Executive Order 13084 requires us to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of our prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires us to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
The radiological protection standards promulgated by today's rule are applicable solely and exclusively to the Department of Energy's potential storage and disposal facility at Yucca Mountain. Therefore, this rule does not significantly or uniquely affect the communities of Indian tribal governments, nor does it impose any direct compliance costs on such communities. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
In our proposal, we requested public comment on potentially applicable voluntary consensus standards that would be appropriate for inclusion in the Yucca Mountain rule. We received no comments on this aspect of the rule. The closest analogy to consensus standards for radioactive waste disposal facilities are our regulations at 40 CFR part 191. As discussed above in this preamble, Congress expressly prohibited the application of the 40 CFR part 191 standards to the Yucca Mountain disposal facility, and, therefore, the standards promulgated today are site-specific standards developed solely for application to the Yucca Mountain disposal facility.
We have determined that this rule contains no information collection requirements within the scope of the Paperwork Reduction Act, 42 U.S.C. 3501-20.
The Congressional Review Act, 5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Public Law 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions upon state, local, and tribal governments and the private sector. Under section 202 of UMRA, we generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before we promulgate a rule for which a written statement is needed, section 205 of UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome if the Administrator publishes with the final rule an explanation as to why that alternative was not adopted. Before we establish any regulatory requirements that significantly or uniquely affect small governments, including tribal governments, we must develop, under section 203 of UMRA, a small-government-agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input into the development of regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory provisions of Title II of UMRA) for State, local, or tribal governments or the private sector. The final rule promulgates radiological protection standards applicable solely and exclusively to the Department of Energy's potential storage and disposal facility at Yucca Mountain. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of UMRA.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355 (May 22, 2001)), provides that agencies shall prepare and submit to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, a Statement of Energy Effects for certain actions identified as “significant energy actions.” Section 4(b) of Executive Order 13211 defines “significant energy actions” as “any action by an agency (normally published in the
We have not prepared a Statement of Energy Effects because this rule is not a significant energy action, as defined in Executive Order 13211. While this rule is a significant regulatory action under Executive Order 12866, we have determined that it is not likely to have an adverse effect on the supply, distribution, or use of energy.
Environmental protection, High-level radioactive waste Nuclear energy, Radiation protection, Radionuclides, Spent nuclear fuel, Uranium, Waste treatment and disposal.
The Environmental Protection Agency is adding a new part 197 to Subchapter
Subchapter F—Radiation Protection Programs
Sec. 801, Pub. L. 102-486, 106 Stat. 2921, 42 U.S.C. 10141 n.
This subpart covers the storage of radioactive material by DOE in the Yucca Mountain repository and on the Yucca Mountain site.
(1) The highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and
(2) Other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation.
(1) The site recommended by the Secretary of DOE to the President under section 112(b)(1)(B) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10132(b)(1)(B)) on May 27, 1986; or
(2) The area under the control of DOE for the use of Yucca Mountain activities at the time of licensing, if the site designated under the Nuclear Waste Policy Act is amended by Congress prior to the time of licensing.
The NRC implements this subpart A. The DOE must demonstrate to NRC that normal operations at the Yucca Mountain site will and do occur in compliance with this subpart before NRC may grant or continue a license for DOE to receive and possess radioactive material within the Yucca Mountain site.
The DOE must ensure that no member of the public in the general environment receives more than an annual committed effective dose equivalent of 150 microsieverts (15 millirems) from the combination of:
(a) Management and storage (as defined in 40 CFR 191.2) of radioactive material that:
(1) Is subject to 40 CFR 191.3(a); and
(2) Occurs outside of the Yucca Mountain repository but within the Yucca Mountain site; and
(b) Storage (as defined in § 197.2) of radioactive material inside the Yucca Mountain repository.
The standards in this part take effect on July 13, 2001.
This subpart covers the disposal of radioactive material in the Yucca Mountain repository by DOE.
All definitions in subpart A of this part and the following:
(1) The atmosphere (including the atmosphere above the surface area of the controlled area);
(2) Land surfaces;
(3) Surface waters;
(4) Oceans; and
(5) The lithosphere.
(1) The surface area, identified by passive institutional controls, that encompasses no more than 300 square kilometers. It must not extend farther:
(a) South than 36° 40′ 13.6661″ north latitude, in the predominant direction of ground water flow; and
(b) Than five kilometers from the repository footprint in any other direction; and
(2) The subsurface underlying the surface area.
Disposal of radioactive material in the Yucca Mountain disposal system begins when all of the ramps and other openings into the Yucca Mountain repository are sealed.
(1) Markers, as permanent as practicable, placed on the Earth's surface;
(2) Public records and archives;
(3) Government ownership and regulations regarding land or resource use; and
(4) Other reasonable methods of preserving knowledge about the location, design, and contents of the Yucca Mountain disposal system.
(1) Identifies the features, events, processes, (except human intrusion), and sequences of events and processes (except human intrusion) that might affect the Yucca Mountain disposal system and their probabilities of occurring during 10,000 years after disposal;
(2) Examines the effects of those features, events, processes, and sequences of events and processes upon the performance of the Yucca Mountain disposal system; and
(3) Estimates the annual committed effective dose equivalent incurred by the reasonably maximally exposed individual, including the associated uncertainties, as a result of releases caused by all significant features, events, processes, and sequences of events and processes, weighted by their probability of occurrence.
The NRC implements this subpart B. The DOE must demonstrate to NRC that there is a reasonable expectation of compliance with this subpart before NRC may issue a license. In the case of the specific numerical requirements in § 197.20 of this subpart, and if performance assessment is used to demonstrate compliance with the specific numerical requirements in §§ 197.25 and 197.30 of this subpart, NRC will determine compliance based upon the mean of the distribution of projected doses of DOE's performance assessments which project the performance of the Yucca Mountain disposal system for 10,000 years after disposal.
Reasonable expectation means that NRC is satisfied that compliance will be achieved based upon the full record before it. Characteristics of reasonable expectation include that it:
(a) Requires less than absolute proof because absolute proof is impossible to attain for disposal due to the uncertainty of projecting long-term performance;
(b) Accounts for the inherently greater uncertainties in making long-term projections of the performance of the Yucca Mountain disposal system;
(c) Does not exclude important parameters from assessments and analyses simply because they are difficult to precisely quantify to a high degree of confidence; and
(d) Focuses performance assessments and analyses upon the full range of defensible and reasonable parameter distributions rather than only upon extreme physical situations and parameter values.
The DOE should not project changes in society, the biosphere (other than climate), human biology, or increases or decreases of human knowledge or technology. In all analyses done to demonstrate compliance with this part, DOE must assume that all of those factors remain constant as they are at the time of license application submission to NRC. However, DOE must
The DOE must demonstrate, using performance assessment, that there is a reasonable expectation that, for 10,000 years following disposal, the reasonably maximally exposed individual receives no more than an annual committed effective dose equivalent of 150 microsieverts (15 millirems) from releases from the undisturbed Yucca Mountain disposal system. The DOE's analysis must include all potential pathways of radionuclide transport and exposure.
The reasonably maximally exposed individual is a hypothetical person who meets the following criteria:
(a) Lives in the accessible environment above the highest concentration of radionuclides in the plume of contamination;
(b) Has a diet and living style representative of the people who now reside in the Town of Amargosa Valley, Nevada. The DOE must use projections based upon surveys of the people residing in the Town of Amargosa Valley, Nevada, to determine their current diets and living styles and use the mean values of these factors in the assessments conducted for §§ 197.20 and 197.25; and
(c) Drinks 2 liters of water per day from wells drilled into the ground water at the location specified in paragraph (a) of this section.
The DOE must determine the earliest time after disposal that the waste package would degrade sufficiently that a human intrusion (see § 197.26) could occur without recognition by the drillers. The DOE must:
(a) If complete waste package penetration is projected to occur at or before 10,000 years after disposal:
(1) Demonstrate that there is a reasonable expectation that the reasonably maximally exposed individual receives no more than an annual committed effective dose equivalent of 150 microsieverts (15 millirems) as a result of a human intrusion, at or before 10,000 years after disposal. The analysis must include all potential environmental pathways of radionuclide transport and exposure; and
(2) If exposures to the reasonably maximally exposed individual occur more than 10,000 years after disposal, include the results of the analysis and its bases in the environmental impact statement for Yucca Mountain as an indicator of long-term disposal system performance; and
(b) Include the results of the analysis and its bases in the environmental impact statement for Yucca Mountain as an indicator of long-term disposal system performance, if the intrusion is not projected to occur before 10,000 years after disposal.
For the purposes of the analysis of human intrusion, DOE must make the following assumptions:
(a) There is a single human intrusion as a result of exploratory drilling for ground water;
(b) The intruders drill a borehole directly through a degraded waste package into the uppermost aquifer underlying the Yucca Mountain repository;
(c) The drillers use the common techniques and practices that are currently employed in exploratory drilling for ground water in the region surrounding Yucca Mountain;
(d) Careful sealing of the borehole does not occur, instead natural degradation processes gradually modify the borehole;
(e) Only releases of radionuclides that occur as a result of the intrusion and that are transported through the resulting borehole to the saturated zone are projected; and
(f) No releases are included which are caused by unlikely natural processes and events.
The DOE must demonstrate that there is a reasonable expectation that, for 10,000 years of undisturbed performance after disposal, releases of radionuclides from waste in the Yucca Mountain disposal system into the accessible environment will not cause the level of radioactivity in the representative volume of ground water to exceed the limits in the following Table 1:
(a) It is the volume of ground water that would be withdrawn annually from an aquifer containing less than 10,000 milligrams of total dissolved solids per liter of water to supply a given water demand. The DOE must project the concentration of radionuclides released from the Yucca Mountain disposal system that will be in the representative volume. The DOE must then use the projected concentrations to demonstrate a reasonable expectation to NRC that the Yucca Mountain disposal system complies with § 197.30. The DOE must make the following assumptions concerning the representative volume:
(1) It includes the highest concentration level in the plume of contamination in the accessible environment;
(2) Its position and dimensions in the aquifer are determined using average hydrologic characteristics which have cautious, but reasonable, values representative of the aquifers along the radionuclide migration path from the Yucca Mountain repository to the
(3) It contains 3,000 acre-feet of water (about 3,714,450,000 liters or 977,486,000 gallons).
(b) The DOE must use one of two alternative methods for determining the dimensions of the representative volume. The DOE must propose its chosen method, and any underlying assumptions, to NRC for approval.
(1) The DOE may calculate the dimensions as a well-capture zone. If DOE uses this approach, it must assume that the:
(i) Water supply well(s) has (have) characteristics consistent with public water supply wells in the Town of Amargosa Valley, Nevada, for example, well-bore size and length of the screened intervals;
(ii) Screened interval(s) include(s) the highest concentration in the plume of contamination in the accessible environment; and
(iii) Pumping rates and the placement of the well(s) must be set to produce an annual withdrawal equal to the representative volume and to tap the highest concentration within the plume of contamination.
(2) The DOE may calculate the dimensions as a slice of the plume. If DOE uses this approach, it must:
(i) Propose to NRC, for its approval, where the location of the edge of the plume of contamination occurs. For example, the place where the concentration of radionuclides reaches 0.1% of the level of the highest concentration in the accessible environment;
(ii) Assume that the slice of the plume is perpendicular to the prevalent direction of flow of the aquifer; and
(iii) Assume that the volume of ground water contained within the slice of the plume equals the representative volume.
To complement the results of § 197.20, DOE must calculate the peak dose of the reasonably maximally exposed individual that would occur after 10,000 years following disposal but within the period of geologic stability. No regulatory standard applies to the results of this analysis; however, DOE must include the results and their bases in the environmental impact statement for Yucca Mountain as an indicator of long-term disposal system performance.
Yes. The DOE's performance assessments shall not include consideration of very unlikely features, events, or processes, i.e., those that are estimated to have less than one chance in 10,000 of occurring within 10,000 years of disposal. The NRC shall exclude unlikely features, events, and processes, or sequences of events and processes from the assessments for the human intrusion and ground water protection standards. The specific probability of the unlikely features, events, and processes is to be specified by NRC. In addition, unless otherwise specified in NRC regulations, DOE's performance assessments need not evaluate, the impacts resulting from any features, events, and processes or sequences of events and processes with a higher chance of occurrence if the results of the performance assessments would not be changed significantly.
Yes. We can amend this rule by conducting another notice-and-comment rulemaking. Such a rulemaking must include a public comment period. Also, we may hold one or more public hearings, if we receive a written request to do so.
Yes. The individual protection and ground water protection standards are severable.
Immigration and Naturalization Service, Justice.
Interim rule with request for comments.
This rule implements Title I of the Child Citizenship Act of 2000 (CCA), Public Law 106-395. First, this rule amends the Immigration and Naturalization Service (Service) regulations by adding a new part which addresses application procedures for foreign-born children residing in the United States pursuant to a lawful admission for permanent residence, who acquire citizenship automatically under section 320 of the Immigration and Nationality Act (Act), as amended. This rule establishes procedures for these foreign-born children, including adopted children, to obtain certificates of citizenship. Second, this rule also addresses application procedures for foreign-born children residing outside of the United States, who can acquire citizenship under section 322 of the Act, as amended, by approval of an application and taking of the oath of allegiance.
The Service is publishing this interim rule to provide U.S. citizen parents seeking certificates of citizenship on behalf of their minor children with information about how to acquire certificates of citizenship under the current application process.
The Service will work with Congress, the adoption community, and other stakeholders to re-engineer the current application process not only for children who acquire U.S. citizenship automatically but also for children who acquire citizenship by application. This re-engineering will address both the application process and the costs.
Parents who wish to receive a certificate of citizenship for their minor children now may apply using the current procedures noted in this rule. Alternatively, they may apply for a U.S. passport from the Department of State and wait until the Service has completed re-engineering of the application process.
The CCA became effective on February 27, 2001. Publication of this regulation does not alter the effective date of the CCA nor does it affect the status of individuals who acquired U.S. citizenship by operation of law on that date.
Please submit written comments to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2101-00 on your correspondence. Written comments may also be submitted via facsimile to 202-305-0143. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.
Richard Sheridan, Immigration Services Division, Office of Field Operations, Immigration and Naturalization Service, 801 I Street NW., Suite 900, Washington, DC 20536, telephone (202) 616-0583.
On October 30, 2000, the President signed H.R. 2883, the Child Citizenship Act of 2000 (CCA), Public Law 106-395, into law. Title I, section 101 of the CCA permits certain foreign-born children who are residing in the United States pursuant to a lawful admission for permanent residence to acquire citizenship automatically upon fulfillment of certain conditions. Title I, section 102 of the CCA permits certain foreign-born children residing outside the United States to receive citizenship on approval of an application and taking of the oath of allegiance.
Title II of the CCA amends the Act and related statutes to provide protections for certain aliens who impermissibly voted in a Federal, State, or local election or falsely represented themselves as United States citizens in order to obtain Federal, State, or local benefits. The Service will address the provisions of Title II of the CCA in a separate rulemaking.
The Service published a proposed rule in the
The CCA became effective on February 27, 2001, which was 120 days from the date of enactment.
Foreign-born children who are residing in the United States will acquire citizenship automatically if:
(1) The child has at least one United States citizen parent (by birth or naturalization); and
(2) The child currently is under 18 years of age; and
(3) The child currently is residing in the United States in the legal and physical custody of the United States citizen parent, pursuant to a lawful admission for permanent residence.
If adopted, the child must meet all of the above requirements as well as satisfy the requirements applicable to adopted children under section 101(b)(1) of the Act.
Foreign-born children who are residing outside of the United States will acquire citizenship on approval of an application for a certificate of citizenship and taking of the oath of allegiance, unless the oath is waived in accordance with section 337(a) of the Act. The Service will issue a certificate of citizenship if the following conditions have been fulfilled:
(1) The child has at least one United States citizen parent (by birth or naturalization);
(2) The United States citizen parent has been physically present in the United States or its outlying possessions for at least 5 years, at least 2 of which were after the age of 14, or the United States citizen parent has a citizen parent who has been physically present in the United States or its outlying possessions
(3) The child currently is under 18 years of age;
(4) The child currently is residing outside the United States in the legal and physical custody of the United States citizen parent; and
(5) The child is temporarily present in the United States pursuant to a lawful admission and is maintaining such lawful status in the United States.
If an adopted child, all of the above conditions must be fulfilled and the child must satisfy the requirements applicable to adopted children under section 101(b)(1) of the Act.
No, section 104 of the CCA provides that on the effective date, February 27, 2001, its provisions apply to those “individuals who satisfy the requirements of section 320 or 322 of the Immigration and Nationality Act, as in effect on such effective date.” Both section 320 and 322 of the Act, as amended, require that an individual be under the age of 18 years in order to be eligible for citizenship under the new provisions. Individuals who are 18 years old or older on February 27, 2001, do not qualify for citizenship under the new law. However, an individual over the age of 18 can apply for naturalization, if eligible in all respects.
Under the CCA an adopted child must satisfy the requirements of section 101(b)(1) of the Act in order to be eligible to acquire automatic citizenship. Thus, currently those adopted children who immigrate to the United States (or adjust status in the United States to that of a lawful permanent resident) under section 101(b)(1)(E) of the Act, or under 101(b)(1)(F) of the Act and thereafter have a full, final and complete adoption, are qualified children. The term “child” as applied to all other children shall have the same meaning as that provided in the text of section 101(c)(1) of the Act.
To qualify under the CCA, applicants must establish not only that they have been admitted to the United States as lawful permanent residents, but also that they are “residing in” the United States pursuant to admission in such status. Admission in any immigrant classification will satisfy the requirement that the applicant be admitted to the United States as a lawful permanent resident. A more difficult question is raised by the requirement that the applicant be “residing in” the United States. Under the section 101(a)(33) of the Act, “residence” is defined as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” On the other hand, in certain circumstances, an alien with lawful permanent resident status may live outside the United States without losing that status, and for some purposes U.S. citizens living outside the United States are considered to still have a residence in the United States.
The Service, in conjunction with the Department of State, is reviewing the legal question of whether, and if so, under what circumstances, a child with lawful permanent resident status who is actually living outside the United States can be described as “residing in” the United States for purposes of the CCA. Until this question is resolved, the Service and Department of State will only document as a United States citizen a child in two instances. First, the child will qualify if, on or after February 27, 2001, the child is admitted as a lawful permanent resident and actually living in the United States. Second, in the case of a child who was previously admitted as a lawful permanent resident but was absent from the United States on February 27, 2001, the child will qualify only if that child returned to the United States after February 27, 2001 and was re-admitted as a lawful permanent resident. The child must also be in the legal and physical custody of the U.S. citizen parent. The Service and Department of State, in the interim, will regard that child as residing in the United States.
Under section 322 of the Act, a foreign-born child who resides outside the United States must be lawfully admitted to the United States and maintain such lawful status until the application for certificate of citizenship is approved and the oath of allegiance administered (unless waived). “Admission” is defined under section 101(a)(13) of the Act. A child may be admitted in any nonimmigrant classification. A child is considered to have maintained lawful status if his or her nonimmigrant classification has not been revoked or has not expired by operation of law.
Both section 320 and 322 of the Act, as amended by the CCA, require a U.S. citizen parent(s) to establish that the child is in his or her legal custody. The term “legal custody” refers to the responsibility for and authority over a child. For the purpose of the CCA, the Service will presume that a U.S. citizen parent has legal custody of a child, and will recognize that U.S. citizen parent as having lawful authority over the child, absent evidence to the contrary, in the case of: (1) A biological child who currently resides with both natural parents (who are married to each other, living in marital union, and not separated), (2) a biological child who currently resides with a surviving natural parent (if the other parent is deceased), or (3) in the case of a biological child born out of wedlock who has been legitimated and currently resides with the natural parent.
In the case of an adopted child, a determination that a U.S. citizen parent has legal custody will be based on the existence of a final adoption decree. In the case of a child of divorced or legally separated parents, the Service will find a U.S. citizen parent to have legal custody of a child, for the purpose of the CCA, where there has been an award of primary care, control, and maintenance of a minor child to a parent by a court of law or other appropriate government entity pursuant to the laws of the state or country of residence. The Service will consider a U.S. citizen parent who has been awarded “joint custody,” to have legal custody of a child. “Joint custody” refers to the award of equal responsibility for and authority over the care, education, religion, medical treatment and general welfare of a child to both parents by a court of law or other appropriate government entity pursuant to the laws of the state or country of residence. There may be other factual circumstances under which the Service will find the U.S. citizen parent to have legal custody for purposes of the CCA.
In the case of an adopted child or a child of divorced or legally separated parents, a determination that a parent has legal (and/or joint) custody will be based on the provisions of the adoption and/or divorce decree or separation agreement executed under the laws of the state or country of residence. In cases where the issue of custody is not explicitly addressed in the divorce decree or separation agreement, a determination of legal and/or joint
No. They are citizens automatically, if they meet all the conditions, without having to file an application. However, parents of children who meet the conditions for automatic acquisition of citizenship under the CCA may either apply for a certificate of citizenship from the Service or for a passport from the Department of State, if they want to document the child's status as a U.S. citizen.
U.S. citizen parents of adopted children should submit a Form N-643, Application for Certificate of Citizenship in Behalf of an Adopted Child, with the required filing fee of $125.00. In most instances, the Service will have all the required documentation necessary to adjudicate the application for a certificate of citizenship in the child's administrative file. U.S. citizen parents of adopted children generally will only need to submit photographs of the child and the required fee. For children who immigrate to the United States and are adopted or have to be re-adopted in the United States, the Service will also request evidence of a full and final adoption. In certain instances, the Service may request additional documentation to supplement the record if required documentation is not in Service administrative file(s) or to resolve discrepancies between the application and the documentation in Service records.
U.S. citizen parents of biological children should submit a Form N-600, Application for Certificate of Citizenship, with the required fee of $160.00. As with adopted children, in most instances, the Service will have all the required documentation necessary to adjudicate the application for certificate of citizenship in the child's or parent's administrative file. U.S. citizen parents of biological children generally will only need to submit photographs of the child and the required fee. In certain instances, the Service may request additional documentation to supplement the record if required documentation is not in Service administrative file(s) or to resolve discrepancies between the application and the documentation in Service records.
U.S. citizen parents should submit a Form N-600, with the required fee of $160.00, for biological children and Form N-643, with the required fee of $125.00, for adopted children. The Service will also require parents to submit, as appropriate:
(1) Photographs of the child;
(2) Child's birth certificate;
(3) Evidence of U.S. citizen parent's citizenship;
(4) Marriage certificate (if applicable);
(5) Evidence of termination of previous marriages (if applicable);
(6) Evidence of U.S. citizen parent's (or the citizen parent of the U.S. citizen) physical presence in the United States;
(7) Evidence of the child's lawful admission to the United States and maintenance of such status;
(8) Evidence of a full and final adoption (if applicable);
(9) Evidence of all legal name changes (if applicable).
In addition, in certain circumstances, depending on the facts of the case, parents may also be required to submit:
(1) Evidence of legitimation (if applicable);
(2) Evidence of legal custody (if applicable);
(3) Evidence that an adopted child (not orphan) meets the definition of 101(b)(1)(E) (if applicable); and
(4) Evidence of an approval notice for a Form I-600, classifying the child as an orphan (if applicable).
Under the CCA, the U.S. citizen parent of a child living abroad must have at least 5 years of physical presence in the United States, 2 years of which are after the age of 14, in order to apply for a certificate of citizenship on behalf of a minor child. If the U.S. citizen parent cannot meet this requirement, a child may still qualify for citizenship under the CCA if the U.S. citizen parent has a U.S. citizen parent who met the physical presence requirements noted above. If the child is relying on the physical presence of the U.S. citizen parent's citizen parent, the Form N-600/N-643, Supplement A must also be submitted. There is no fee for this supplement form.
As part of its efforts to re-engineer and streamline the certificate of citizenship application process, the Service is considering consolidating the Form N-643 and the Form N-600/N-643, Supplement A, into the Form N-600. The information requested on these three forms is largely duplicative and by consolidating the information on one form, all United States citizen parent(s) potentially will be able to request a certificate of citizenship on behalf of their minor child without having to complete multiple forms. The Service is publishing elsewhere in this issue of the
The Service, after review of all public comments, will determine whether it will use the revised and consolidated Form N-600. If so, the Service, upon approval by OMB, will publish a notice in the
The public should continue to use the current Forms N-600, N-643, and N-600/N-643, Supplement A until further notice.
For minor biological children who reside in the United States pursuant to a lawful admission for permanent residence and acquire citizenship automatically, a U.S. citizen parent should file the Form N-600, with the required fee of $160.00, as specified under 8 CFR 103.7(b)(1), with the appropriate district office or suboffice in the United States having jurisdiction over the parent and child's place of residence.
For minor adopted children who reside in the United States pursuant to a lawful admission for permanent residence and acquire citizenship automatically, a U.S. citizen parent should file the Form N-643, with the required fee of $125.00, as specified under 8 CFR 103.7(b)(1), with the appropriate district office or suboffice in the United States having jurisdiction over the parent and child's place of residence.
For minor biological children who reside outside of the United States with the U.S. citizen parent, a U.S. citizen parent may file the Form N-600, with
For minor adopted children who reside outside of the United States with the U.S. citizen parent, a U.S. citizen parent may file the Form N-643, with the required fee of $125.00, as specified under 8 CFR 103.7(b)(1), with any stateside district office. The parent should include a request with the Form N-643, noting preferred interview dates, and should allow sufficient time (at least 90 days) to enable the Service office to preliminarily adjudicate the application, schedule the interview, and send the appointment notice to the foreign address.
Under 8 CFR 341.2, in certain instances the Service may process applications for certificates of citizenship without an interview. Generally an interview will not be required to obtain a certificate of citizenship under the CCA. However, the Service may request an interview to clarify or resolve issues raised by, or discrepancies between, the application and Service records. Applications filed for children who become citizens upon their parent(s)' naturalization frequently can be adjudicated without an interview, provided the Service has proper evidence of the parent(s)’ naturalization and the Service administrative file(s) that contain the documentation of the naturalizing parent and child's identity and relationship. Similarly, applications filed for children who immigrated as IR-3s (orphan adopted abroad by a U.S. citizen) may be adjudicated without an interview if the office has the child's A-file. Interviews for IR-4s (orphans coming to the United States to be adopted by U.S. citizen parent(s)) may be waived if the adjudicating officer has the child's administrative file and evidence of the final adoption (or the recognition by the state of residence of a foreign adoption).
All applications for certificates of citizenship filed under section 322 require an interview with both the U.S. citizen parent and the child.
For pending applications filed to recognize citizenship status already acquired, the Service will continue to adjudicate such applications under the relevant law applicable to the case. For applications that required Service approval before an individual could be deemed a United States citizen, as of February 27, 2001, the Service will adjudicate those cases under the new law and for applicants who automatically acquire citizenship as of February 27, 2001, the Service will issue certificates of citizenship reflecting the person's citizenship as of that date. The Service will reopen a previously denied N-600 and adjudicate the application pursuant to the new law if the application would have been approvable if filed on or after February 27, 2001 under the new section 320 of the Act. In those cases, the applicant will not be required to refile the application.
The CCA amends section 320 and repeals section 321 of the Act, effective February 27, 2001. Therefore, February 26, 2001, was the last date on which a person could automatically become a United States citizen under the provisions of section 320 and 321 of the Act as previously in force. All persons who acquired citizenship automatically under the provisions of sections 320 and 321 of the Act as previously in force up to February 26, 2001, may apply for a certificate of citizenship at any time and the application will be adjudicated under the provisions of sections 320 and 321 of the Act as in force prior to February 27, 2001.
If the district director denies the Form N-600 or N-643, the applicant will be provided with a written decision detailing the reasons for denial. An applicant may appeal the decision to the Administrative Appeals Office (AAO) by filing a Form I-290B, Notice of Appeal to the Administrative Appeals Unit with the appropriate fee, within 30 days from the date of decision.
No, the current procedures for immigrating adopted children and orphans to the United States, as specified under 8 CFR part 204, are unaffected by the CCA. However, the Service is investigating ways in the future to streamline the process for documenting automatic acquisition of citizenship by these children. In addition, the Service intends to remove the Affidavit of Support (Form I-864) requirement for children adopted abroad who will receive citizenship at the time of entry as lawful permanent residents. This is the majority of cases. However, children born and residing outside of the United States or children who will not be adopted until after they enter the United States will still require the affidavit of support.
No. Adopted children who are currently residing in the United States with a U.S. citizen parent(s) but who are in nonimmigrant or parole status do not qualify for automatic citizenship. Such children will acquire automatic citizenship only after they immigrate to the United States or adjust status in the United States to that of a lawful permanent resident. Once the child becomes a lawful permanent resident and all other requirements of the CCA are met, the child will be a citizen of the United States automatically by operation of law.
No. There are currently in existence a Compact of Free Association between the United States of America and the Republic of the Marshall Islands and with the Federated States of Micronesia (48 U.S.C. 1910, note), and a Compact of Free Association between the United States of America and Palau (48 U.S.C. 1931, note) (Compacts, Compact countries). Pursuant to section 141(a) of the Compacts, citizens of the Compact Countries may enter the United States,
Children who are adopted in these countries and are admitted to the United States under section 141(a) of the Compacts do not qualify for automatic citizenship under the CCA because they were admitted as nonimmigrants. Such children, however, can benefit from the CCA once they become lawful permanent residents.
To obtain lawful permanent resident status for such adopted children, U.S. citizen parents must file a Form I-130, Petition for Alien Relative, establishing that the child meets the requirements of section 101(b)(1)(E) of the Act. Section 101(b)(1)(E) requires the child to have been adopted under the age of 16 years and to have resided with and in the legal custody of the adoptive U.S. citizen parent for at least 2 years.
Only if such adopted children meet the requirements of the CCA, including lawful permanent residence.
The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (Covenant), 48 U.S.C. 1801, note, provides that the CNMI is under the sovereignty of the United States (Covenant, section 101). All persons born in the CNMI on or after November 3, 1986, the date on which the Covenant became fully effective, are citizens of the United States at birth (Covenant, section 303). Most persons born in the CNMI prior to November 3, 1986, also became United States citizens on that day (Covenant, section 301). Accordingly, most children of adoptable age born in the CNMI are United States citizens. Their United States citizenship therefore does not depend on the CCA.
There are currently in existence a Compact of Free Association between the United States of America and the Republic of the Marshall Islands and with the Federated States of Micronesia (48 U.S.C. 1910, note), and a Compact of Free Association between the United States of America and Palau (48 U.S.C. 1931, note) (Compacts, Compact countries). Pursuant to section 141(a) of the Compacts, citizens of the Compact Countries may enter the United States, lawfully engage in occupations, accept employment, and establish residence as non-immigrants in the United States, its territories and possessions, without regard to section 212 (a)(5)(A) (labor certification), (7)(A) (immigrant visa) and (B) (non-immigrant visa) of the Immigration and Nationality Act (INA). Citizens of the Compact Countries who seek to immigrate into the United States must follow standard procedures of the INA. Adopted children who enter the United States to reside with their adoptive parents are not temporary visitors, but intend to become permanent residents,
Children who are adopted in these countries and are admitted to the United States under section 141(a) of the Compacts do not qualify for automatic citizenship under the CCA because they were admitted as nonimmigrants. Such children, however, can benefit from the CCA once they become lawful permanent residents.
To obtain lawful permanent resident status for such adopted children, U.S. citizen parents must file a Form I-130, Petition for Alien Relative, establishing that the child meets the requirements of section 101(b)(1)(E) of the Act. Section 101(b)(1)(E) requires the child to have been adopted under the age of 16 years and to have resided in the United States, in the legal custody of the adoptive U.S. citizen parent for at least 2 years.
Adopted children who are currently residing in the CNMI with a U.S. citizen parent(s) who are neither United States citizens nor citizens of a Compact Country but who are in nonimmigrant or parole status do not qualify for automatic citizenship. Such children will acquire automatic citizenship only after they immigrate to the United States or adjust status in the United States to that of a lawful permanent resident. Once the child becomes a lawful permanent resident and all other requirements of the CCA are met, the child will be a citizen of the United States automatically by operation of law.
It should be noted, however, first, that it is not likely that many adopted children fall into that class, and, second, due to the peculiar immigration status of the CNMI, the vast majority of those adopted children will be lawful permanent residents. Although the CNMI is under the sovereignty of the United States and most of the persons born in the CNMI are citizens of the United States, the CNMI is not a part of the United States for the purposes of the Immigration and Nationality Act (INA). Section 101(a)(38). Aliens who seek to enter the United States governed by the INA (all areas subject to the sovereignty of the United States except American Samoa and the CNMI) from the CNMI are therefore subject to the visa requirements of the INA. There is no equivalent provision to section 141(a) of the Compacts in the Covenant that would permit the entry of non-immigrants from the CNMI under a visa waiver. Hence, alien adopted children residing in the CNMI who are not citizens of the Compact Countries must have a visa, and it may be assumed that either the adoptive parent or the issuing visa official will see to it that the adopted children will travel under an immigrant visa that will insure the acquisition of lawful permanent resident status.
Thus for all practical purposes the only alien adopted children from the CNMI who lack the lawful permanent resident requirement of the CCA would be citizens of the Compact Countries who entered as non-immigrants, and parolees.
A child who qualifies for citizenship automatically will be deemed a citizen on the date the last condition is fulfilled
This interim rule is effective on publication, although the Service invites post-promulgation comments and will address any such comments in a final rule. For the following reason, the Service finds that good cause exists for adopting this rule without the prior notice and comment period ordinarily required by 5 U.S.C. 553(b). The amendments made by Public Law 106-395 apply to individuals who satisfy the requirements of section 320 and 322 of the Act beginning February 27, 2001. It is therefore impracticable to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b).
The Acting Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule merely establishes procedures for U.S. citizen parents to apply for certificates of citizenship for foreign-born children residing permanently in the United States or residing abroad. The affected parties are not small entities, and the impact of the regulation is not an economic one.
This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been reviewed by the Office of Management and Budget.
This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
The Service is considering consolidating the Form N-643, and the Form N-600/N-643, Supplement A, into the Form N-600. In addition, the information collection requirement, Form N-600 is in the process of being revised. Since this interim rule takes effect on publication, the public should continue to use Forms N-600, N-643, and N-600/N-643, Supplement A until further notice.
The Service is publishing a draft copy of this form in an information collection notice published in this issue of the
The Service, after review of all public comments, will determine whether it will use the revised and consolidated Form N-600. If so, the Service, upon approval by OMB, will publish a notice in the
Administrative practice and procedure, Authority delegations (Government Agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.
Citizenship and naturalization, Courts.
Citizenship and naturalization, Infants and children, Reporting and recordkeeping requirements.
Citizenship and naturalization, Infants and children, Reporting and recordkeeping requirements.
Administrative practice and procedure, Citizenship and naturalization, Courts, Reporting and recordkeeping requirements.
Citizenship and naturalization, Courts.
Citizenship and naturalization, Reporting and recordkeeping requirements.
Citizenship and naturalization, Reporting and recordkeeping requirements.
5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
(f) * * *
(3) * * *
(iii) * * *
(NN) Applications for certificates of citizenship under §§ 320.5 and 322.5 of this chapter.
8 U.S.C. 1103, 1421, 1443, 1447, 1448; 8 CFR part 2.
8 U.S.C. 1103, 1443; 8 CFR part 2.
As used in this part, the term:
(1) For the purpose of the CCA, the Service will presume that a U.S. citizen parent has legal custody of a child, and will recognize that U.S. citizen parent as having lawful authority over the child, absent evidence to the contrary, in the case of:
(i) A biological child who currently resides with both natural parents (who are married to each other, living in marital union, and not separated),
(ii) A biological child who currently resides with a surviving natural parent (if the other parent is deceased), or
(iii) In the case of a biological child born out of wedlock who has been legitimated and currently resides with the natural parent.
(2) In the case of an adopted child, a determination that a U.S. citizen parent has legal custody will be based on the existence of a final adoption decree. In the case of a child of divorced or legally separated parents, the Service will find a U.S. citizen parent to have legal custody of a child, for the purpose of the CCA, where there has been an award of primary care, control, and maintenance of a minor child to a parent by a court of law or other appropriate government entity pursuant to the laws of the state or country of residence. The Service will consider a U.S. citizen parent who has been awarded “joint custody,” to have legal custody of a child. There may be other factual circumstances under which the Service will find the U.S. citizen parent to have legal custody for purposes of the CCA.
(a)
(1) The child has at least one United States citizen parent (by birth or naturalization);
(2) The child is under 18 years of age; and
(3) The child is residing in the United States in the legal and physical custody of the United States citizen parent, pursuant to a lawful admission for permanent residence.
(b)
(a)
(b)
(i) The child's birth certificate or record;
(ii) Marriage certificate of child's parents (if applicable);
(iii) If the child's parents were married before their marriage to each other, proof of termination of any previous marriage of each parent (e.g., death certificate or divorce decree);
(iv) Evidence of U.S. citizenship of parent, (i.e., birth certificate; naturalization certificate; FS-240, Report of Birth Abroad; a valid unexpired U.S. passport; or certificate of citizenship);
(v) If the child was born out of wedlock, documents verifying
(vi) In case of divorce, legal separation, or adoption, documentation of legal custody;
(vii) Copy of Permanent Resident Card/Alien Registration Receipt Card or other evidence of lawful permanent resident status (e.g. I-551 stamp in a valid foreign passport or Service-issued travel document);
(viii) If adopted, a copy of the full, final adoption decree and, if the adoption was outside of the United States and the child immigrated as an IR-4 (orphans coming to the United States to be adopted by U.S. citizen parent(s)), evidence that the foreign adoption is recognized by the state where the child is permanently residing; and
(ix) Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.
(2) If the Service requires any additional documentation to make a decision on the application for certificate of citizenship, applicants may be asked to provide that documentation under separate cover or at the time of interview. Applicants do not need to submit documents that were submitted in connection with: An application for immigrant visa and retained by the American Consulate for inclusion in the immigrant visa package, or an immigrant petition or application and included in a Service administrative file. Applicants should indicate that they wish to rely on such documents and identify the administrative file(s) by name and alien number. The Service will only request the required documentation again if necessary.
All applicants (and U.S. citizen parent(s) if application filed on behalf of a minor biological or adopted child) must appear for examination unless such examination is waived under the guidelines expressed in § 341.2 of this chapter.
(a)
(b)
8 U.S.C. 1103, 1443; 8 CFR part 2.
As used in this part the term:
(1) For the purpose of the CCA, the Service will presume that a U.S. citizen parent has legal custody of a child, and will recognize that U.S. citizen parent as having lawful authority over the child, absent evidence to the contrary, in the case of:
(i) A biological child who currently resides with both natural parents (who are married to each other, living in marital union, and not separated),
(ii) A biological child who currently resides with a surviving natural parent (if the other parent is deceased), or
(iii) In the case of a biological child born out of wedlock who has been legitimated and currently resides with the natural parent.
(2) In the case of an adopted child, a determination that a U.S. citizen parent has legal custody will be based on the existence of a final adoption decree. In the case of a child of divorced or legally separated parents, the Service will find a U.S. citizen parent to have legal custody of a child, for the purpose of the CCA, where there has been an award of primary care, control, and maintenance of a minor child to a parent by a court of law or other appropriate government entity pursuant to the laws of the state or country of residence. The Service will consider a U.S. citizen parent who has been awarded “joint custody,” to have legal custody of a child. There may be other factual circumstances under which the Service will find the U.S. citizen parent to have legal custody for purposes of the CCA.
(a)
(1) The child has at least one United States citizen parent (by birth or naturalization);
(2) The United States citizen parent has been physically present in the United States or its outlying possessions for at least 5 years, at least 2 of which were after the age of 14, or the United States citizen parent has a United States citizen parent who has been physically present in the United States or its outlying possessions for at least 5 years, at least 2 of which were after the age of 14;
(3) The child currently is under 18 years of age;
(4) The child currently is residing outside the United States in the legal and physical custody of the United States citizen parent; and
(5) The child is temporarily present in the United States pursuant to a lawful admission and is maintaining such lawful status in the United States.
(b)
(a)
(b)
(i) The child's birth certificate or record;
(ii) Marriage certificate of child's parents (if applicable);
(iii) If the child's parents were married before their marriage to each other, proof of termination of any previous marriage of each parent (
(iv) Evidence of U.S. citizenship of parent (
(v) If the child was born out of wedlock, documents verifying legitimation according to the laws of the child's residence or domicile or father's residence or domicile (if applicable);
(vi) In case of divorce, legal separation, or adoption, documentation of legal custody (if applicable);
(vii) Documentation establishing that the U.S. citizen parent or U.S. citizen grandparent meets the required physical presence requirements (
(viii) Evidence that the child is present in the United States pursuant to a lawful admission and is maintaining such lawful status (e.g., Form I-94, Arrival/Departure Record) (in certain circumstances, this evidence may be presented at the time of interview);
(ix) If adopted, a copy of a full, final adoption decree;
(x) For adopted children (not orphans) applying under section 322 of the Act, evidence that they satisfy the requirements of section 101(b)(1)(E);
(xi) For adopted orphans applying under section 322 of the Act, a copy of notice of approval of a Form I-600 Petition to Classify Orphan as an Immediate Relative, and supporting documentation for such form (except the home study); and
(xii) Evidence of all legal name changes, if applicable, for child, U.S. citizen parent, or U.S. citizen grandparent.
(2) If the Service requires any additional documentation to make a decision on the Form N-600 or N-643, parents may be asked to provide that documentation under separate cover or at the time of interview. Parents do not need to submit documents that were submitted in connection with: An application for immigrant visa and retained by the American Consulate for inclusion in the immigrant visa package, or another immigrant petition or application and included in a Service administrative file. Parents should indicate that they wish to rely on such documents and identify the administrative file(s) by name and alien number. The Service will only request the required documentation again if necessary.
The U.S. citizen parent and the child shall appear in person before a Service officer for examination on the application for certificate of citizenship.
(a)
(b)
8 U.S.C. 1103, 1443; 8 CFR part 2.
8 U.S.C. 1103, 1443, 1448; 8 CFR part 2.
8 U.S.C. 1103, 1443; 8 CFR part 2.
Pub. L. 82-414, 66 Stat. 173, 238, 254, 264, as amended; 8 U.S.C. 1103, 1409(c), 1443, 1444, 1448, 1452, 1455; 8 CFR part 2.
(a) * * *
(1)
Notice of Information Collection Under Review; Application for Certificate of Citizenship.
The Department of Justice, Immigration and Naturalization Service (Service) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The Service is considering consolidating the Form N-643, and the Form N-600/N-643, Supplement A, into the Form N-600. In addition, the information collection requirement, Form N-600 is in the process of being revised. Until such proposed revised form is approved by the Office of Management and Budget, the public should continue to use Forms N-600, N-643, and N-600/N-643, Supplement A until further notice.
The Service is publishing a draft copy of this form as well as the related interim rule elsewhere in this issue of the
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
Organizations and individuals interested in submitting comments regarding this burden estimate or any aspect of this information collection requirement, including suggestions for reducing the burden, should direct them to the Immigration and Naturalization Service, Policy Directives and Instructions Branch, Immigration and Naturalization Service, Room 4034, 425 I Street, NW., Washington, DC 20536; Attention: Richard A. Sloan, Director, (202) 514-3291.
If additional information is required contact: Mr. Robert B. Briggs, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, 1331 Pennsylvania Avenue, NW., National Place Building, Suite 1220, Washington, DC 20530.
Notice inviting applications for fiscal year (FY) 2001 for new awards for the Alternative Financing Program and a pre-application meeting.
We invite applications for new grant awards for FY 2001 for the Alternative Financing Program authorized under title III of the Assistive Technology Act of 1998 (AT Act).
This competition focuses on projects designed to meet a priority that we have chosen from allowable activities specified in the program statute (see 34 CFR 75.105(b)(2)(v)) and sections 301-305 of the Assistive Technology Act of 1998 (29 U.S.C. 3051-3055).
The eight National Education Goals focus the Nation's education reform efforts and provide a framework for improving teaching and learning.
This notice addresses the National Education Goal that every adult American will be literate and will possess the knowledge and skills necessary to compete in a global economy and exercise the rights and responsibilities of citizenship.
The total amount available in FY 2001 for the AFP is $14.7 million. We are no longer required to award a minimum of $500,000 to States, outlying areas are no longer restricted to a maximum of $105,000, nor are we required to distribute any remaining funds among those States based on population and density. In order for NIDRR to have increased flexibility and to insure a greater number of funding options within the total allocation for this program, NIDRR encourages applicants to submit and clearly identify in the application, multiple and alternative budgets. Applicants should include the required matching funds and the necessary materials for each of the different amounts proposed.
The meeting site is accessible to individuals with disabilities, and a sign language interpreter will be available. If you need an auxiliary aid or service other than a sign language interpreter in order to participate in the meeting (
Under 34 CFR 75.105(c)(3) and sections 301-305 of title III of the AT Act, we consider only applications that meet the priority. We will establish the AFP in order to provide assistance to States and to outlying areas so that individuals with disabilities of all ages and their family members, guardians, advocates, and authorized representatives will have increased access to funding for AT devices and services through alternative financing mechanisms (loans). Consistent with sections 301-305 of the Act, the requirements are as follows:
(a) Each grantee must enter into a contract with a community-based organization (including a group of such organizations), such as Centers for Independent Living, that has individuals with disabilities involved in organizational decision making at all organizational levels, to administer the alternative-financing program. The contract must: (1) Include a provision requiring that the program funds, including the Federal and non-Federal
(b) Each grantee and any community-based organization that enters into a contract with the State or outlying area, must submit, 12 months after receipt of the fiscal year 2001 award, each of the following policies, procedures, data, and information: (1) A procedure to review and process in a timely manner requests for financial assistance for immediate and potential technology needs, including consideration of methods to reduce paperwork and duplication of effort, particularly relating to need, eligibility, and determination of the specific AT device or service to be financed through the project; (2) a policy and procedure to assure that access to the AFP shall be given to consumers regardless of type of disability, age, income level, location of residence in the State or outlying area, or type of AT device or AT service for which financing is requested through the program; and (3) a procedure to assure consumer-controlled oversight of the program.
(c) Each grantee must provide the following information: (1) The ratio of funds provided by the State for the AFP to funds provided by the Federal Government; (2) the type of alternative financing mechanism used and the community-based organization with which the State or outlying area entered into a contract; (3) the following information concerning each disabled individual served by the project: The amount of assistance, type of AT device or AT service financed through the project, type of disability, age, gender, race, ethnicity, socioeconomic status, primary language, geographic location within the State or outlying area, employment status, whether the consumer is part of an underrepresented population or rural population, and whether the consumer tried to secure financial support from other sources and, if so, a description of those sources.
(d) Each grantee must provide one or a combination of the following: (1) A low-interest loan fund; (2) an interest buy-down program; (3) a revolving loan fund; (4) a loan guarantee or insurance program; (5) a program operated by a partnership among private entities for the purchase, lease, or other acquisition of AT devices or AT services; or (6) another mechanism that meets the requirements of this program and is described in an application, peer reviewed and approved by the Department.
(e) Each grantee must provide matching funds so that the Federal share of the cost of the AFP is not more than 75 percent. A State is no longer required to receive a minimum award of $500,000; an outlying area is no longer restricted to a maximum award of $105,000; the State or outlying area match must be at least 25 percent of the total program cost.
(f) Each applicant must provide the following assurances in its application: (1) The State or outlying area will provide the non-Federal share of the cost of the AFP in cash, from State, local, or private sources; (2) the State or outlying area will continue the AFP after Federal funding has terminated on a permanent basis; (3) the State or outlying area will provide information describing the manner in which, the program will expand and emphasize consumer choice and control; (4) the State or outlying area will supplement and not supplant other Federal, State, and local public funds expended to provide any currently operating AFP in the State or outlying area. The State or outlying area must use new State-level or outlying area-level funds to match the Federal share. The State or outlying area may not use existing spending, such as Title I AT Act funds, that are used to support an existing AFP, to match the Federal grant; (5) the State or outlying area will place all funds that support the AFP, including funds repaid during the life of the program, in a permanent separate account, apart from any other fund; (6) the State's or outlying area's community-based organization will invest funds in low-risk securities in which a regulated insurance company may invest under the law of the State or the outlying area if the organization administering funds invests funds within this account; (7) the State's or outlying area's community-based organization will administer the funds with the same judgement and care that a person of prudence, discretion, and intelligence would exercise in the management of the financial affairs of such person; (8) funds comprised of the principal and interest from the State or outlying area account for this activity will be available to support the AFP; (9) any interest or investment income that accrues on or derives from such funds after such funds have been placed under the control of the organization administering the AFP, but before those funds are distributed for purposes of supporting the program, will be the property of the organization administering the program; and (10) the State or outlying area will limit the indirect costs of the total amount available for the AFP to 10 percent, including both the Federal and State or outlying area funds.
In addition, the project must:
(a) Provide in accessible formats materials that can be used by potential loan applicants and lending institutions to obtain, share and disseminate information on loan availability, eligibility requirements and procedures and general loan related updates;
(b) Coordinate and share information, resources and with the State and outlying area AT Act projects; and
(c) Conduct and submit to NIDRR and the AFTAP an annual evaluation of its activities using the data collection instrument developed by the Alternative Financing Technical Assistance Project.
Some of the procedures in these instructions for transmitting applications differ from those in the Education Department General Administrative Regulations (EDGAR) (34 CFR 75.102). Under the Administrative Procedure Act (5 U.S.C. 553) the Department generally offers interested parties the opportunity to comment on proposed regulations. However, these amendments make procedural changes only and do not establish new substantive policy. Therefore, under 5 U.S.C. 553(b)(A), the Secretary has determined that proposed rulemaking is not required.
The U.S. Department of Education is expanding its pilot project of electronic submission of applications to include certain formula grant programs, as well as additional discretionary grant competitions. The Alternative Financing Program—CFDA 84.224C is one of the programs included in the pilot project. If you are an applicant under the Alternative Financing Program, you may submit your application to us in either electronic or paper format.
The pilot project involves the use of the Electronic Grant Application System (e-APPLICATION, formerly e-GAPS) portion of the Grant Administration and Payment System (GAPS). We request your participation in this pilot project. We shall continue to evaluate its
If you participate in this e-APPLICATION pilot, please note the following:
• Your participation is voluntary.
• You will not receive any additional point value or penalty because you submit a grant application in electronic or paper format.
• You can submit all documents electronically, including the Application for Federal Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Fax a signed copy of the Application for Federal Assistance (ED 424) after following these steps:
1. Print ED 424 from the e-APPLICATION system.
2. Make sure that the institution's Authorizing Representative signs this form.
3. Before faxing this form, submit your electronic application via the e-APPLICATION system. You will receive an automatic acknowledgement, which will include a PR/Award number (an identifying number unique to your application).
4. Place the PR/Award number in the upper right hand corner of ED 424.
5. Fax ED 424 to the Application Control Center within three working days of submitting your electronic application. We will indicate a fax number in e-APPLICATION at the time of your submission.
• We may request that you give us original signatures on all other forms at a later date.
You may access the electronic grant application for the Alternative Financing Program at: http://e-grants.ed.gov.
We have included additional information about the e-APPLICATION pilot project (see Parity Guidelines between Paper and Electronic Applications) in the application package.
You may also contact ED Pubs via its Web site: http://www.ed.gov/pubs/edpubs.html or its E-mail address (edpubs@inet.ed.gov). If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.224C.
Individuals with disabilities may obtain a copy of the application package in an alternative format by contacting the Grants and Contracts Services Team, U.S. Department of Education, 400 Maryland Avenue, SW., room 3317, Switzer Building, Washington, DC 20202-2550. Telephone: (202) 205-8351. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Services (FIRS) at 1-800-877-8339. However, the Department is not able to reproduce in an alternative format the standard forms included in the application package.
Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, S.W., room 3414, Switzer Building, Washington, D.C. 20202-2645. Telephone: (202) 205-5880. Individuals who use a telecommunications device for the deaf (TDD) may call the TDD number at (202) 205-4475. Internet: Donna.Nangle@ed.gov.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, or computer diskette) on request to the contact person listed in the preceding paragraph.
You may review this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at the previous site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, D.C., area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 3051-3058.
Health Care Financing Administration (HCFA), HHS.
Interim final rule with comment period.
This interim final rule with comment period implements, or conforms the regulations to, certain statutory provisions relating to Medicare payments to hospitals for inpatient services that are contained in the Medicare, Medicaid, and SCHIP (State Children's Health Insurance Program) Benefits Improvement and Protection Act of 2000 (BIPA).
Many of the provisions of BIPA modify changes to the Social Security Act made by the Balanced Budget Refinement Act of 1999 or the Balanced Budget Act of 1997 or both. Some of the provisions of BIPA have effective dates that are prior to its passage on December 21, 2000.
Mail written comments (an original and three copies) to the following address only: Health Care Financing Administration, Department of Health and Human Services, Attention: HCFA-1178-IFC, P.O. Box 8010, Baltimore, MD 21244-1850.
If you prefer, you may deliver by hand or courier your written comments (an original and three copies) to one of the following addresses:
Comments mailed to the addresses indicated as appropriate for courier delivery may be delayed and could be considered late.
Because of staffing and resource limitations, we cannot accept comments by facsimile (FAX) transmission. In commenting, please refer to file code HCFA-1178-IFC.
Comments received timely will be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, in the Department's offices at 7500 Security Boulevard, Baltimore, MD on Monday through Friday of each week from 8:30 a.m. to 5 p.m. (phone: (410) 786-9994).
For comments that relate to information collection requirements, mail a copy of comments to the following addresses:
This
Section 1886(d) of the Social Security Act (the Act) sets forth a system of payment for the operating costs of acute care hospital inpatient stays under Medicare Part A (Hospital Insurance) based on prospectively set rates. Section 1886(g) of the Act requires the Secretary to pay for the capital-related costs of hospital inpatient stays under a prospective payment system. Under these prospective payment systems, Medicare payment for hospital inpatient operating and capital-related costs is made at predetermined, specific rates for each hospital discharge. Discharges are classified according to a list of diagnosis-related groups (DRGs). Payment for cases within each DRG is weighted to account for the average resources used to treat patients within that DRG. In addition, these payments are adjusted by a wage index (and a geographic adjustment factor derived from the wage index in the case of capital payments) to account for the varying costs of labor across areas, and by separate adjustment factors for the additional indirect operating costs associated with medical education (IME) and for treating a disproportionate share of low-income patients.
Certain specialty hospitals are excluded from the prospective payment system. Under section 1886(d)(1)(B) of the Act, the following classes of hospitals and hospital units are excluded from the prospective payment system: psychiatric hospitals and units, rehabilitation hospitals and units, children's hospitals, long-term care hospitals, and cancer hospitals. For these hospitals and units, Medicare payment for operating costs is based on reasonable costs subject to a hospital-specific annual limit.
Under sections 1820 and 1834(g) of the Act, payments are made to critical access hospitals (CAHs) (that is, rural hospitals that meet certain statutory requirements) for inpatient and outpatient services on a reasonable cost basis. Reasonable cost is determined under the provisions of section 1861(v)(1)(A) of the Act and existing regulations under 42 CFR Parts 413 and 415.
Under section 1886(a)(4) of the Act, costs of approved educational activities are excluded from the operating costs of inpatient hospital services. Hospitals with approved graduate medical education (GME) programs are paid for the direct costs of GME in accordance
The regulations governing the hospital inpatient prospective payment system are located in 42 CFR Part 412. The regulations governing excluded hospitals and hospital units and the regulations governing direct GME are located in 42 CFR Part 413. The regulations governing CAHs are located in 42 CFR Parts 413 and 485.
On December 21, 2000 the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (Pub. L. 106-554) was enacted. Public Law 106-554 made a number of changes to the Act affecting Medicare payments to hospitals for inpatient services. Many of the provisions of Public Law 106-554 are modifications to provisions of the Act included in the Balanced Budget Act of 1997 (Pub. L. 105-33) or the Balanced Budget Refinement Act of 1999 (Pub. L. 106-113) or both. Some of the provisions of Pub. L. 106-554 have effective dates that are prior to its passage on December 21, 2000. Other provisions do not become effective until April 1, 2001 or later.
The following chart is a summary of the effective dates of the policy changes we are implementing in this interim final rule with comment period as a result of Public Law 106-554. The individual changes are summarized below.
The following is a summary of the policy changes we are implementing in this interim final rule with comment period as a result of Public Law 106-554:
•
•
•
•
•
•
We are implementing section 512 of Public Law 106-554 which revised the formula for determining the additional payment amounts to hospitals for Medicare+Choice nursing and allied health education costs.
As a result of implementing section 301 of Public Law 106-554, which provides increased inpatient operating payment rates, the unified outlier threshold for inpatient operating and inpatient capital-related costs was recalculated. Therefore, we are revising the capital outlier offset which also requires us to revise the capital-related rates.
•
•
•
•
•
•
•
Section 1886(d)(5)(F) of the Act provides for additional payments to prospective payment hospitals that serve a disproportionate share of low-income patients. Hospitals that meet the DSH patient percentage criteria are entitled to adjustments to their payments, including outlier payments.
Under section 1886(d)(5)(F)(v) of the Act, as it existed prior to enactment of Public Law 106-554 and under § 412.106(c) of the existing regulations, a hospital qualifies for DSH if the hospital has a disproportionate patient percentage equal to:
• At least 15 percent for an urban hospital with 100 or more beds or a rural hospital with 500 or more beds;
• At least 40 percent for an urban hospital with fewer than 100 beds;
• At least 45 percent for a rural hospital with 100 beds or fewer, if it is not also classified as an SCH;
• At least 30 percent for a rural hospital with more than 100 beds and fewer than 500 beds or which is classified as an SCH; or
• The hospital has 100 or more beds, is located in an urban area, and receives more than 30 percent of its net inpatient revenues from State and local government sources for the care of indigent patients not eligible for Medicare or Medicaid.
Section 211(a) of Public Law 106-554 amended section 1886(d)(5)(F)(v), to provide that, beginning with discharges occurring on or after April 1, 2001, the qualifying threshold is reduced to 15 percent for all hospitals. Therefore, we are revising § 412.106(c) to reflect the change in DSH qualifying threshold percentages.
Section 211(b) of Public Law 106-554 further amends section 1886(d)(5)(F) to revise the calculation of the disproportionate share percentage adjustment for hospitals affected by the revised thresholds as specified in section 211(a) of the Act. These adjustments, which are effective for discharges occurring on or after April 1, 2001, are as follows:
• Urban hospitals with fewer than 100 beds and whose disproportionate patient percentage is equal to or greater than 15 percent and less than 19.3 percent receive the disproportionate share adjustment percentage determined using the following formula:
• Urban hospitals with fewer than 100 beds and whose disproportionate patient percentage is equal to or greater than 19.3 percent:
Receive a flat add on of 5.25 percent.
• Rural hospitals that are both Rural Referral Centers (RRCs) and SCHs receive the disproportionate share adjustment percentage determined using the following:
Higher of SCH or RRC adjustment.
• Rural hospitals that are SCHs and are not RRCs and whose disproportionate patient percentage is equal to or greater than 15 percent and less than 19.3 percent receive the disproportionate share adjustment percentage determined using the following formula:
• Rural hospitals that are SCHs and are not RRCs and whose disproportionate patient percentage is equal to or greater than 19.3 percent and less than 30 percent:
Receive a flat add on of 5.25 percent.
• Rural hospitals that are SCHs and are not RRCs and whose disproportionate patient percentage is equal to or greater than 30 percent:
Receive 10 percent.
• Rural referral centers whose disproportionate patient percentage is greater than or equal to 15 percent and less than 19.3 percent receive the disproportionate share adjustment percentage determined using the following formula:
• Rural referral centers whose disproportionate patient percentage is equal to or greater than 19.3 percent but less than 30 percent:
Receive a flat add on of 5.25 percent.
• Rural referral centers whose disproportionate patient percentage is equal to or greater than 30 percent receive the disproportionate share adjustment percentage determined using the following formula:
• Rural hospitals with fewer than 500 beds and whose disproportionate patient percentage is equal to or greater than 15 percent and less than 19.3 percent receive the disproportionate share adjustment percentage using the following formula:
• Rural hospitals with fewer than 500 beds and whose disproportionate patient percentage is equal to or greater than 19.3 percent:
Receive a flat add on of 5.25 percent.
If we calculate disproportionate patient percentages to the hundredth place (our current practice), these payment formulas result in an anomaly for some disproportionate patient percentages just below 19.3 percent (but greater than 19.2 percent). That is, as the percentage values approach 19.3, the DSH adjustment resulting from the formula exceeds 5.25 percent. This would result in a higher DSH adjustment for percentages just below 19.3 than for percentages of 19.3 and above. Because we believe it would be contrary to the Congress' intent for hospitals with a disproportionate patient percentage of less than 19.3 percent to receive a greater payment than those hospitals of the same class that have a disproportionate patient percentage of 19.3 or greater, we are implementing this provision so that, for disproportionate patient percentages below 19.3 for affected hospitals, the DSH adjustment will not exceed 5.25 percent.
We are revising § 412.106(d) to reflect the changes in the disproportionate share adjustment.
Section 4403(a) of Public Law 105-33 amended section 1886(d)(5)(F) of the Act to reduce the payment a hospital would otherwise receive under the DSH formula in effect prior to Public Law 106-554 by 1 percent for FY 1998, 2 percent for FY 1999, 3 percent for FY 2000, 4 percent for FY 2001, 5 percent for FY 2002, and 0 percent for FY 2003 and each subsequent fiscal year. Subsequently, section 112 of Public Law 106-113 modified the amount of the reductions under Public Law 105-33 by changing the reduction to 3 percent for FY 2001 and 4 percent for FY 2002. Section 303 of Public Law 106-554 further modified the amount of the reductions under Public Law 106-113 by changing the reduction to 3 percent for discharges occurring on or after October 1, 2000 and before April 1, 2001, and to 1 percent for discharges occurring on or after April 1, 2001 and before October 1, 2001. Therefore, we are revising § 412.106(e) to reflect the changes made by section 303 of Public Law 106-554.
Section 6003(f) of Public Law 101-239 added section 1886(d)(5)(G) of the Act and created the category of Medicare-dependent, small rural hospitals (MDHs) (defined in § 412.108) which are eligible for a special payment adjustment under the hospital inpatient prospective payment system. (For a more detailed discussion see the April 20, 1990
Section 1886(d)(5)(G)(iii) of the Act and § 412.108(a)(1) of the regulations define an MDH as any hospital that meets all of the following criteria:
• The hospital is located in a rural area (as defined in § 412.63(b)).
• The hospital has 100 or fewer beds (as defined in § 412.105(b)) during the cost reporting period.
• The hospital is not also classified as an SCH (as defined in § 412.92).
• In the hospital's cost reporting period that began during FY 1987, at least 60 percent of the hospital's inpatient days or discharges were attributable to individuals receiving Medicare Part A benefits during the hospital's cost reporting period.
If the cost reporting period is for less than 12 months, the hospital's most recent 12-month or longer cost reporting period before the short period is used.
Section 212 of Public Law 106-554 provides that, effective with cost reporting periods beginning on or after April 1, 2001, hospitals have the option to base MDH eligibility on two of the three most recently audited cost reporting periods for which the Secretary has a settled cost report, rather than on the cost reporting period that began during FY 1987. The criteria for at least 60 percent Medicare utilization will be met if in at least two of the three most recently audited cost reporting periods for which the Secretary has a settled cost report, at least 60 percent of the hospital's inpatient days or discharges were attributable to individuals receiving Medicare Part A benefits.
Hospitals that qualify under this new provision are subject to the other provisions already in place for MDHs, that is, the payment methodology as defined in § 412.108(c) and the volume decrease provision as defined in § 412.108(d).
A hospital must notify its fiscal intermediary to be considered for MDH status under this new provision. Any hospital that believes it meets the criteria to qualify as an MDH, based on at least two of the three most recently audited cost reporting periods, must submit a written request to its intermediary. The hospital's request must be submitted within 180 days from the date of the notice of amount of program reimbursement for the cost reporting period in question. The intermediary will make its determination and notify the hospital within 180 days from the date it receives the hospital's request and all of the required documentation.
We are revising § 412.108(a)(1)(iii) to reflect the additional option provided by section 212 of Public Law 106-554.
Section 301(a) of Public Law 106-554 amended section 1886(b)(3)(B)(i) of the Act by changing the percentage increase for the hospital inpatient payment rates for FYs 2001, 2002, and 2003. Previously, section 1886(b)(3)(B)(i) (as amended by section 406 of Public Law 106-113) established the update factor to the payment rates for inpatient prospective payment system hospitals (other than SCHs, who received the full market basket update effective October 1, 2000) as market basket minus 1.1 percent for FYs 2001 and 2002; the update factor for FY 2003 and subsequent fiscal years was established as the full market basket. Section 301(a) of Public Law 106-554 amended section 1886(b)(3)(B)(i) of the Act and changed the update factor for FY 2001 to the full market basket. Section 301(a) also revised the update factors applied to FYs 2002 and 2003. Prior to enactment of Public Law 106-554, the update factor for FY 2002 was the market basket minus 1.1 percentage points and the update factor for FY 2003 was the full market basket. Section 301(a) of Public Law 106-554 amended section 1886(b)(3)(B)(i) of the Act to revise the update factor for FYs 2002 and 2003 to be the market basket minus 0.55 percentage points.
Further, section 301(b) of Public Law 106-554 provided a special rule to implement the full market basket update
As directed by the special rule in section 301(b) of Public Law 106-554, any discharges occurring on or after October 1, 2000, and before April 1, 2001, will be paid in accordance with the standardized amounts set forth in the FY 2001 hospital inpatient prospective payment system final rule published in the August 1, 2000,
To implement the special rule under section 301(b) of Public Law 106-554, we have recomputed the standardized amounts effective for discharges occurring on or after April 1, 2001. That is, we replaced the update factor of 2.3 percent applied to the standardized amounts in the August 1, 2000, final rule, with the update factor of 4.5 percent (the market basket percentage plus 1.1, or 3.4 plus 1.1 percentage points).
Section 1886(d)(4)(C)(iii) of the Act specifies that, beginning in FY 1991, the annual diagnosis-related group (DRG) reclassification and recalibration of the relative weights must be made in a manner that ensures that aggregate payments to hospitals are projected to be the same as those that would have been made without such adjustments. Section 1886(d)(3)(E) of the Act requires us to update the hospital wage index on an annual basis beginning October 1, 1993. This provision also requires us to make any updates or adjustments to the wage index in a manner that ensures that aggregate payments to hospitals are projected to be the same as those that would have been made without the change in the wage index.
Finally, under section 1886(d)(8)(D) of the Act, the Secretary is required to adjust the standardized amounts so as to ensure that final aggregate payments under the prospective payment system are projected to equal the aggregate prospective payments that would have been made absent the geographic reclassification provisions of sections 1886(d)(8)(B) and (C) and 1886(d)(10) of the Act.
The distributive effects on hospital payments of the IME and DSH changes also included in Public Law 106-554 required us to recalculate the budget neutrality factors that are required by section 1886(d)(8)(D) of the Act.
The budget neutrality factors that were used to establish the standardized amounts effective for discharges occurring on or after October 1, 2000 were: 0.997225 for the DRG reclassification and recalibration and updated wage index (65 FR 47112); and 0.993187 for geographic reclassification (65 FR 47113). Using the same methodology that was used to calculate the budget neutrality factors in the August 1, 2000 final rule, the corresponding budget neutrality factors for the standardized amounts effective for discharges occurring on or after April 1, 2001 and before October 1, 2001 are: 0.997122 and 0.993279. The budget neutrality factor for Puerto Rico did not change. Therefore, the budget neutrality factor for Puerto Rico as published in the August 1, 2000
In accordance with section 1886(d)(3)(B) of the Act, which directs the Secretary to adjust the national standardized amounts to account for the estimated proportion of total payments made to outlier cases, the fixed-loss outlier threshold was also revised as a result of the change made by Public Law 106-554 to the update factor for the operating standardized amounts. For discharges occurring on or after April 1, 2001 and before October 1, 2001, we are establishing a fixed-loss cost outlier threshold equal to: The prospective payment rate for the DRG, plus IME and DSH payments, plus $16,500 ($14,940 for hospitals that have not yet entered the prospective payment system for capital-related costs). In determining the outlier threshold, we used the same methodology employed to determine the outlier threshold for FY 2001 (65 FR 47113 through 47114). Outlier payments for discharges occurring on or after October 1, 2000 and before April 1, 2001, will be determined in accordance with the standardized amounts and outlier thresholds set forth in the FY 2001 final rule published in the August 1, 2000
Although the market basket percentage used to update SCHs was not revised by Public Law 106-554, the standardized rates applied to these hospitals for discharges occurring on or after April 1, 2001 and before October 1, 2001 also increase slightly. This increase in SCH rates is due to the budget neutrality factors effective for this portion of the fiscal year.
For discharges occurring on or after April 1, 2001 and before October 1, 2001, the outlier adjustment factors are as follows:
Section 1886(d)(5)(B) of the Act provides that prospective payment hospitals that have residents in an approved GME program receive an additional payment to reflect the higher indirect operating costs associated with GME. The regulations regarding the calculation of this additional payment, known as the IME adjustment, are located at § 412.105. The additional payment is based in part on the applicable IME adjustment factor. The IME adjustment factor is calculated using a hospital's ratio of residents-to beds, which is represented as r, and a multiplier, which is represented as c, in the following equation:
Public Law 106-113 revised the formula multiplier for discharges occurring during FY 2001 to 1.54. However, section 302(b) of Public Law 106-554 provides a special payment rule which states that, for discharges occurring on or after April 1, 2001 and before October 1, 2001, IME payments are to be made as if “
Under amendments enacted by section 302(a) of Public Law 106-554, for discharges occurring during FY 2002, the formula multiplier is 1.6. For discharges occurring during FY 2003 and thereafter, the formula multiplier is 1.35. Changes to the factor for discharges occurring in FY 2002 and thereafter are addressed in the proposed rule on FY 2002 hospital inpatient prospective payment system rates and changes (66 FR 22688). We are amending § 412.105(d)(3) to reflect the additional payment provided for discharges occurring during FY 2001 under section 302(b) of Public Law 106-554.
Under the hospital inpatient prospective payment system, special payment protections are provided to SCHs. Section 1886(d)(5)(D)(iii) of the Act defines an SCH as, among other things, a hospital that, by reason of factors such as isolated location, weather conditions, travel conditions, travel time, or absence of other like hospitals (as determined by the Secretary), is the sole source of inpatient hospital services reasonably available to Medicare beneficiaries. The regulations that set forth the criteria a hospital must meet to be classified as an SCH are located at § 412.92(a).
Prior to FY 2001, SCHs were paid based on whichever of the following rates yielded the greatest aggregate payment to the hospital for the cost reporting period: (1) The Federal national rate applicable to the hospital; (2) the updated hospital-specific rate based on FY 1982 costs per discharge; or (3) the updated hospital-specific rate based on FY 1987 costs per discharge.
Section 405 of Public Law 106-113, which amended section 1886(b)(3) of the Act, provides that an SCH that was paid for its cost reporting period beginning during 1999 on the basis of either its updated FY 1982 or FY 1987 cost per discharge (the hospital-specific rate as opposed to the Federal rate) may elect to receive payment under a methodology using a third hospital-specific rate, based on the hospital's FY 1996 costs per discharge. This amendment to the statute means that, for cost reporting periods beginning on or after October 1, 2000, eligible SCHs can elect to use the allowable FY 1996 operating costs for inpatient hospital services as the basis for their target amount, rather than either their FY 1982 or FY 1987 costs.
Section 213 of Public Law 106-554, extends to all SCHs the option to rebase using their FY 1996 operating costs. That is, in order to rebase using its allowable FY 1996 operating costs, it is not necessary that the SCH was paid for its cost reporting period beginning during 1999 on the basis of the either its FY 1982 or FY 1987 costs. The provision is effective as if it were included in the enactment of section 405 of Public Law 106-113. Therefore, it applies to all SCHs for cost reporting periods beginning on or after October 1, 2000.
As discussed in the August 1, 2000 final rule implementing the 1996 rebasing under section 405 of Public Law 106-113 (65 FR 47083), when calculating an eligible SCH's FY 1996 hospital-specific rate, we utilize the same basic methodology used to calculate FY 1982 and FY 1987 base period amounts. That methodology is set forth in §§ 412.71 through 412.75 of the regulations, and discussed in detail in several prospective payment system documents published in the
Our fiscal intermediaries will identify those SCHs that were not included in the FY 1996 rebasing provision prior to enactment of Public Law 106-554, and calculate the FY 1996 hospital-specific rate. If this rate exceeds the Federal rate and the higher of the FY 1982 or FY 1987 updated costs per discharge, the hospital will receive payment based on the FY 1996 hospital-specific rate (based on the blended amounts described in section 1886(b)(3)(I)(i) of the Act).
The fiscal intermediary will notify affected hospitals of their FY 1996 hospital-specific rate prior to October 1, 2001. Consistent with our policies relating to FY 1982 and FY 1987 hospital-specific rates, we will permit hospitals to appeal a fiscal intermediary's determination of the FY 1996 hospital-specific rate under the procedures set forth in 42 CFR part 405, subpart R, which concern provider payment determinations and appeals. In the event of a modification of base period costs for FY 1996 rebasing due to a final nonappealable court judgment or certain administrative actions (as defined in § 412.72(a)(3)(i)), the
For purposes of payment to SCHs for which the FY 1996 hospital-specific rate yields the greatest aggregate payment, section 213 of Public Law 106-554 utilizes a formula similar to that set forth in section 405 of Public Law 106-113, except that the Federal rate will now be included in the blend, as set forth below:
• For discharges during FY 2001,
• 75 percent of the Federal amount or the greater of the updated FY 1982 or FY 1987 former target (identified in the statute as the subsection (d)(5)(D)(i) amount), plus 25 percent of the updated FY 1996 amount (identified in the statute as the “rebased target amount”).
• For discharges during FY 2002,
• 50 percent of the greater of the Federal amount or the updated FY 1982 or FY 1987 former target, plus 50 percent of the updated FY 1996 amount.
• For discharges during FY 2003,
• 25 percent of the Federal amount or the greater of the updated FY 1982 or FY 1987 former target, plus 75 percent of the updated FY 1996 amount.
• For discharges during FY 2004 or any subsequent fiscal year, the hospital-specific rate would be determined based on 100 percent of the updated FY 1996 amount.
We are revising § 412.92(d) to incorporate the provisions of section 1886(b)(3)(I) of the Act as amended by section 213 of Public Law 106-554.
Under sections 1861(v) and 1886(a) of the Act, hospitals that operate approved nursing or allied health education programs may be eligible for the reimbursement of their reasonable costs of operating such programs. Section 1886(h) of the Act establishes the methodology for determining payments to hospitals for the direct costs of GME programs. Section 1886(h) of the Act, as implemented in regulations at 42 CFR 413.86, specifies that Medicare payments for direct costs of GME are based on a prospectively determined per resident amount (PRA). The PRA is multiplied by the number of full-time equivalent residents working in all areas of the hospital complex (and nonhospital sites, where applicable), and the product is then multiplied by the hospital's Medicare share of total inpatient days to determine Medicare's direct GME payment.
Section 1886(h)(3)(D) of the Act, as added by section 4624 of Public Law 105-33, provides a 5-year phase-in of payments to teaching hospitals for direct costs of GME associated with services to Medicare+Choice (managed care) enrollees for portions of cost reporting periods occurring on or after January 1, 1998. The amount of payment for direct GME is calculated by (1) multiplying the aggregate approved amount (that is, the product of the PRA and the number of FTE residents working in all areas of the hospital (and nonhospital sites, if applicable)), by the ratio of the number of inpatient bed days that are attributable to Medicare+Choice enrollees to total inpatient bed days, and (2) multiplying the result by an applicable percentage.
The applicable percentages are 20 percent for portions of cost reporting periods occurring in calendar year (CY) 1998, 40 percent in CY 1999, 60 percent in CY 2000, 80 percent in CY 2001, and 100 percent in CY 2002 and subsequent years. (Section 1886(d)(11) of the Act, as added by section 4622 of Public Law 105-33, provides a 5-year phase-in of payments to teaching hospitals for IME associated with services to Medicare+Choice enrollees for portions of cost reporting periods occurring on or after January 1, 1998, as well. However, the Medicare+Choice IME payments are irrelevant for the purposes of this section of the interim final rule, because although section 541 of Public Law 106-113 affects the payments for Medicare+Choice direct GME, it in no way affects the payments for Medicare+Choice IME.)
Section 541 of Public Law 106-113 further amended section 1886 of the Act by adding subsection (l) and amending section 1886(h)(3)(D) to provide for additional payments to hospitals for nursing and allied health education programs associated with services to Medicare+Choice enrollees. Hospitals that operate approved nursing or allied health education programs, as defined under the regulations at 42 CFR 413.85, and receive Medicare reasonable cost reimbursement for these programs, would receive additional payments. This provision is effective for portions of cost reporting periods occurring in a calendar year, beginning with calendar year 2000.
Section 1886(l) of the Act, as added by section 541 of Public Law 106-113, specifies the methodology to be used to calculate these additional payments and places a limitation, that is, $60 million, on the total amount that is projected to be expended in any calendar year. We refer to the total amount of $60 million or less as the payment “pool.” We emphasize that we use the term “pool” solely for ease of reference; the term reflects an estimated dollar figure, a number that is plugged into a formula to calculate the amount of additional payments. The term “pool” does not refer to a discrete fund of money that is set aside in order to make the additional payments (thus, for example, if the estimated “pool” is $50 million, we use the number $50 million to calculate the amount of additional payments, but this does not mean that we set aside $50 million in a separate fund from which we make the additional payments). The total amount of additional payments is based on the ratio of estimated total direct GME payments for Medicare+Choice enrollees to estimated total Medicare direct GME payments, multiplied by the total Medicare nursing and allied health education payments. Under section 541 of Public Law 106-113, a hospital would receive its share of these additional payments in proportion to the amount of Medicare nursing and allied health education payments received in the cost reporting period that ended in the fiscal year that is 2 years prior to the current calendar year, to the total amount of nursing and allied health payments made to all hospitals in that cost reporting period. Section 541(b) of Public Law 106-113 amended section 1886(h)(3) of the Act to provide that direct GME payments for Medicare+Choice utilization will be reduced to account for the additional payments that are made for nursing and allied health education programs under the provisions of section 1886(l) of the Act.
We implemented section 541 by establishing regulations at 42 CFR 413.87 to incorporate the provisions of section 1886(l) of the Act. We specified the rules for a hospital's eligibility to receive the additional payment under section 1886(l), the requirements for determining the additional payment to each eligible hospital, and the methodologies for calculating each additional payment and for calculating the payment “pool.” The preamble language regarding § 413.87 can be found in the August 1, 2000 interim final rule with comment period (65 FR 47036 through 47039).
Public Law 106-554 further amended section 1886(l)(2)(C) of the Act. Specifically, section 512 of Public Law 106-554 changed the formula for determining the additional amounts to be paid to hospitals for Medicare+Choice nursing and allied health costs. Under Public Law 106-113, as described above, the additional
For portions of cost reporting periods occurring on or after January 1, 2001, an eligible hospital will receive the additional payment amount calculated according to the following steps:
• Total Medicare payments received for approved nursing or allied health education programs based on data from the settled cost reports for the period(s) ending in the fiscal year that is 2 years prior to the current calendar year;
• Total inpatient days for that same cost reporting period; and
• Total Medicare+Choice inpatient days for that same cost reporting period.
For example, if the current calendar year is 2001, determine the hospital's total nursing or allied health education payments made in its cost reporting period(s) ending in FY 1999. Also, determine the hospital's total inpatient days and total Medicare+Choice inpatient days for its cost reporting period ending in FY 1999. If a hospital has more than one cost reporting period ending in that fiscal year, the fiscal intermediary will add the nursing and allied health payments made to the hospital over those cost reporting periods. The inpatient days and Medicare+Choice inpatient days for the cost reporting periods would be added, as well.
• The total of all nursing and allied health education program payments made to all hospitals for all cost reporting periods ending in the fiscal year that is 2 years prior to the current calendar year.
• The total of all inpatient days from those same cost reporting periods.
• The total of all Medicare+Choice inpatient days for those same cost reporting periods.
For all cost reporting periods ending in FY 1999, Medicare paid $250,000,000 in total nursing and allied health education program payments. The total number of inpatient days across all hospitals in that year was 142,000,000, and the total number of Medicare+Choice inpatient days was 14,200,000.
The CY 2001 Medicare+Choice nursing and allied health payment “pool” is $26,000,000. Thus, Hospital A's Medicare+Choice nursing and allied health education payment for CY 2001 will be calculated as follows:
To determine these totals, we will use the best available cost reporting data for the applicable hospitals from the Hospital Cost Report Information System (HCRIS) for cost reporting periods in the fiscal year that is 2 years prior to the current calendar year. If the necessary data are not included in HCRIS because a hospital files a manual cost report, we will obtain the necessary data from the fiscal intermediaries that serve those hospitals. If a hospital has more than one cost reporting period ending in the fiscal year that is 2 years prior to the current calendar year, we will include all of the hospital's cost reports for those periods in our calculations. If a hospital does not have a cost reporting period ending in the fiscal year that is 2 years prior to the current calendar year (such as a hospital with a long cost reporting period), the hospital's data will be included in the calculations for the calendar year that is 2 years after the fiscal year in which the long cost reporting period ends.
In accordance with section 1886(l) of the Act, each calendar year, HCFA estimates a total amount, not to exceed $60 million, which is the basis for determining the additional payments for nursing and allied health education associated with Medicare+Choice enrollees to hospitals that operate approved nursing or allied health education programs. The “pool” is calculated for each calendar year by determining the product of: (1) The ratio of total projected Medicare+Choice direct GME payments to total projected direct GME payments, and (2) the total projected nursing and allied health education payments. This methodology is explained in more detail in the August 1, 2000 interim final rule with comment period (65 FR 47038).
The projections of direct GME, Medicare+Choice direct GME, and nursing and allied health payments for a calendar year are based on the best available cost report data from HCRIS. (For example, for CY 2001, the
In order for the Secretary to make the additional payments to eligible hospitals operating approved nursing or allied health education programs, section 1886(h)(3)(D) of the Act, as amended by section 541(b) of Public Law 106-113, specifies that the Secretary will carve out an estimated percentage of payments that are made to teaching hospitals for direct GME associated with services to Medicare+Choice enrollees. Specifically, the law provides that the estimated reductions in Medicare+Choice direct GME payments must equal the estimated total additional Medicare+Choice nursing and allied health education payments. The percentage reduction is estimated by calculating the ratio of the Medicare+Choice nursing and allied health payment “pool” for the current calendar year to the projected total Medicare+Choice direct GME payments made to all hospitals for the current calendar year. Accordingly, the regulations at § 413.86(d)(4) state that for portions of cost reporting periods occurring in a calendar year, each hospital that receives Medicare+Choice direct GME payments will have these payments reduced by a certain percentage.
In order for the Medicare+Choice nursing and allied health payments to be made in CY 2001 (as described in section A above), HCFA must provide the appropriate data to the fiscal intermediaries. The data that HCFA will provide include the Medicare+Choice nursing and allied health payment “pool” for CY 2001, the total amount of Medicare nursing and allied health education payments made to all hospitals for cost reporting periods ending in FY 1999, the total number of inpatient days from all hospitals for cost reporting periods ending in FY 1999, the total Medicare+Choice inpatient days from all hospitals for cost reporting periods ending in FY 1999, and the percent reduction to Medicare+Choice direct GME payments in CY 2001. (The fiscal intermediaries will obtain the data for each individual hospital from the hospital's cost report to complete the calculation). We are not publishing this data in this interim final rule with comment period, because the FY 1999 data in HCRIS is not complete at this time. Rather, we will provide the necessary data to the fiscal intermediaries in a Program Memorandum as soon as more complete data is available later this calendar year.
We are revising § 413.87 to incorporate the provisions of section 512 of Public Law 106-554.
It has come to our attention that the regulations at § 413.86(d)(4) and § 413.87(d) contain errors. The regulations at § 413.86(d)(4) currently read, “Effective for cost reporting periods beginning on or after January 1, 2000, the product derived from step three is reduced in accordance with the provisions of § 413.87(f).” Consistent with the statutory effective date and to clarify the intent of the reference to § 413.87(f), we are revising § 413.86(d)(4) to state that, “Effective for portions of cost reporting periods occurring on or after January 1, 2000, the product derived from step three is reduced by a percentage equal to the ratio of the Medicare+Choice nursing and allied health payment “pool” for the current calendar year as described at § 413.87(f), to the projected total Medicare+Choice direct GME payments made to all hospitals for the current calendar year.” We are also making a conforming change to § 413.87(d), which currently reads, “Subject to the provisions of paragraph (f) of this section * * *” instead, we are revising this language to state, “Subject to the provisions of § 413.86(d)(4) * * *.”
Section 301(b) of Public Law 106-554 provides for a special rule for payment for the operating standardized amounts for hospitals other than SCHs for FY 2001. For discharges occurring on or after April 1, 2001, and before October 1, 2001, the update to the operating standardized amounts for hospitals other than SCHs is equal to the market basket percentage increase plus 1.1 percentage points. This provision amends the prior statutory 1.1 percent reduction to the update to the FY 2001 operating standardized amounts for hospitals other than SCHs as provided by section 4401(a)(1) of Public Law 105-33 and section 406 of Public Law 106-113.
Section 1886(d)(3)(B) of the Act directs the Secretary to adjust the inpatient operating national standardized amounts to account for the estimated proportion of operating DRG payments made to payments in outlier cases. Accordingly, as a result of this change to the update to the operating standardized amounts for discharges occurring on or after April 1, 2001 and before October 1, 2001, we are revising the fixed-loss outlier thresholds. The regulations at § 412.312(c) establish a unified outlier methodology for inpatient operating and inpatient capital-related costs, which utilizes a single set of thresholds to identify outlier cases for both inpatient operating and inpatient capital prospective payment system payments. Because operating DRG payments will increase as a result of section 301 of Public Law 106-554, we decreased the fixed-loss threshold. The decrease in the outlier threshold also results in an increase in the estimated outlier payments for capital from 5.91 percent to 6.21 percent. Thus, the capital national outlier adjustment factor is revised from 0.9409 (as specified in the August 1, 2000 final rule (65 FR 47121)) to 0.9379.
The basic methodology for determining the capital Federal rate is set forth in §§ 412.308 through 412.352. Although the operating update was affected by section 301 of Public Law 106-554, the standard capital Federal rate update remains unchanged (0.9 percent). The exceptions adjustment factor is determined based on an estimate of the ratio of exception payments to total capital payments. As a result of the fixed-cost outlier threshold, which affects total capital payments, in order to maintain budget neutrality for exception payments, we are revising the exception adjustment factor from 0.9785 to 0.9787. The national GAF/DRG budget neutrality factor is revised from 0.9979 to 0.9978. The Puerto Rico GAF/DRG budget neutrality factor remains unchanged (1.0037). Accordingly as a result of the revisions to the capital outlier reduction factor and the capital exceptions adjustment factor, for discharges occurring on or after April 1, 2001 and before October 1, 2001, the national capital Federal rate is revised from $382.03 (65 FR 47127) to $380.85 and the Puerto Rico capital rate is revised from $185.06 (65 FR 47127) to $184.61 as set forth in section IX of this interim final rule with comment period.
In accordance with § 412.328(e), the hospital-specific rate is determined using the update factor and the exceptions adjustment factor. As a result of revising the exceptions adjustment factor to account for the change to the fixed-loss outlier threshold resulting from the special payment rule for FY 2001 provided for under section 301(b) of Public Law 106-554, for discharges occurring on or after April 1, 2001 and before October 1, 2001, the cumulative net adjustment to the hospital-specific rate has been revised from 1.0147 (65 FR 47124) to 1.0145. For discharges occurring on or after April 1, 2001, and before October 1, 2001, the hospital-specific rate is determined by multiplying the FY 2000 hospital-specific rate by the cumulative net adjustment of 1.0145.
For cost reporting periods beginning before October 1, 1997, a hospital that had inpatient operating costs less than, or equal to, its ceiling was paid its costs plus the lower of 50 percent of the difference between inpatient operating costs and the ceiling or 5 percent of the ceiling.
Section 4415 of Public Law 105-33 amended section 1886(b)(1)(A) of the Act to provide that for cost reporting periods beginning on or after October 1, 1997, if a hospital's net inpatient operating costs are less than or equal to, the ceiling, the amount of the bonus payment would be the lower of 15 percent of the difference between the inpatient operating costs and the ceiling or 2 percent of the ceiling.
Section 306 of the Public Law 106-554 has further amended section 1886(b)(1)(A) of the Act, as it applied to a psychiatric hospital or unit, to provide that effective for cost reporting periods beginning on or after October 1, 2000, and before October 1, 2001, if a psychiatric hospital or unit's net inpatient operating costs are less than, or equal to, the ceiling, the amount of the bonus payment is the lower of 15 percent of the difference between the inpatient operating costs and the ceiling, or 3 percent of the ceiling.
We are revising the regulations at § 413.40(d)(2) to incorporate this change.
In the August 29, 1997 final rule with comment period (62 FR 46018), in accordance with section 4414 of Public Law 105-33, we implemented section 1886(b)(3)(H) of the Act, which provides for caps on the target amounts for existing and new excluded hospitals and units for cost reporting periods beginning on or after October 1, 1997, through September 30, 2002. The caps on the target amounts apply to three classes of excluded hospitals: psychiatric hospitals and units, rehabilitation hospitals and units, and long-term care hospitals. In establishing the caps on the payment amounts within each class of hospital for new hospitals, section 1886(b)(7)(C) of the Act, as amended by section 4416 of Public Law 105-33, instructed the Secretary to provide an appropriate adjustment to take into account area differences in average wage-related costs. However, because the statutory language under section 4414 of Public Law 105-33 did not provide for the Secretary to adjust for area differences in wage-related costs in establishing the caps on the target amounts within each class of hospital for existing hospitals, we did not adjust for wage-related differences for existing facilities.
In the August 1, 2000 interim final rule with comment period (65 FR 47039), we implemented section 121 of Public Law 106-113, which further amended section 1886(b)(3)(H) of the Act by directing the Secretary to provide for an appropriate wage adjustment to the caps on the target amounts for all psychiatric hospitals and units, rehabilitation hospitals and units and long-term care hospitals, effective for cost reporting periods beginning on or after October 1, 1999, through September 30, 2002. For purposes of calculating the caps, section 1886(b)(3)(H)(ii) of the Act requires the Secretary to first “estimate the 75th percentile of the target amounts for such hospitals within such class for cost reporting periods ending during fiscal year 1996.” Section 1886(b)(3)(H)(iii) of the Act, as added by section 121 of Public Law 106-113, requires the Secretary to provide for “an appropriate adjustment to the labor-related portion of the amount determined under such subparagraph to take into account differences between average wage-related costs in the area of the hospital and the national average of such costs within the same class of hospital.”
The August 1, 2000 final rule (65 FR 47096) listed the FY 2001 labor-related share and nonlabor-related share of the national 75th percentile wage-neutralized cap for long-term care hospitals as follows:
Section 307(a) of Public Law 106-554 further amends section 1886(b)(3) of the Act and provides for a 2-percent increase to the wage-adjusted 75th percentile cap on the target amount for long-term care hospitals effective for cost reporting periods beginning during FY 2001. This provision is only applicable to long-term care hospitals that were subject to the cap for existing excluded providers as specified in § 413.40(c).
In accordance with section 1886(b)(3) of the Act as amended, for cost reporting periods beginning during FY 2001, the revised labor-related and nonlabor-related shares of the cap on the target amount for long-term care hospitals, which reflect the 2-percent increase, are as follows:
Note that the national 75th percentile wage-neutralized caps on the target amount for the other excluded hospitals and units subject to the caps under section 1886(b)(3)(H) of the Act (psychiatric and rehabilitation) are not affected by section 307 of Public Law 106-554. We are revising the regulations
In the August 29, 1997 final rule with comment period (62 FR 46016), we implemented the amendment to section 1886(b)(3)(B) of the Act, as made by section 4411 of Public Law 105-33, which set forth the applicable rate-of-increase percentage for cost reporting periods beginning during FY 1999 through FY 2002. The rate-of-increase is equal to the market basket increase percentage minus an amount based on the percentage by which the hospital's operating costs exceed the hospital's ceiling for the most recent available cost reporting period. The applicable rate-of-increase percentages (update factors) for FY 2001 are described in the August 1, 2000 final rule (65 FR 47125). For FY 2001, the market basket increase percentage was forecast at 3.4 percent, which results in an update for long-term care hospitals for FY 2001 of between 0.9 percent and 3.4 percent, or 0 percent, depending on the hospital's costs in relation to its rate-of-increase limit.
In addition to the increase to the cap on the target amounts for long-term care hospitals, section 307(a) of Public Law 106-554 also amends section 1886(b)(3) of the Act to provide for a 25 percent increase to the target amounts determined under section 1886(b)(3)(A) of the Act for long-term care hospitals, for cost reporting periods beginning in FY 2001, subject to the applicable cap on the target amounts. Thus, this provision requires a revision to the determination of each long-term care hospital's FY 2001 target amount as specified § 413.40(c)(4). For cost reporting periods beginning during FY 2001, the hospital-specific target amount otherwise determined for a long-term care hospital as specified in the regulations at § 413.40(c)(4)(ii) is multiplied by 1.25 (that is, increased by 25 percent), subject to the limitation that the revised FY 2001 target amounts for a long-term care hospital cannot exceed its wage-adjusted national cap as required by section 1886(b)(3) of the Act, as amended by section 307(a) of Public Law 106-554. Note that the 25 percent increase to the target amount under section 307(a) of Public Law 106-554 is applicable only to long-term care hospitals, and not to other excluded hospitals as defined by section 1886(d)(1)(B) of the Act (psychiatric and rehabilitation hospitals and units, children's and cancer hospitals).
We are revising the regulations at § 413.40(c)(4)(iii) to incorporate this change.
Under section 1834(g) of the Act, prior to the enactment of the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, Public Law 106-113, clinical diagnostic laboratory services furnished by a CAH to its outpatients were, like other outpatient CAH services, paid for on a reasonable cost basis, subject to the Part B deductible and coinsurance provisions. With respect to coinsurance, this meant that the beneficiary was responsible for payment of 20 percent of the CAH's customary charges for the services and the CAH received payment from the Medicare program equal to 80 percent of its reasonable costs of furnishing the services.
Section 403(e) of Public Law 106-113 amended section 1833(a) of the Act and eliminated the Part B coinsurance and deductible for laboratory tests furnished by a CAH on an outpatient basis. Thus, CAHs were not permitted to impose a deductible or coinsurance charge on the beneficiary for these services. Also, in accordance with section 1833(a)(1)(D) and (a)(2)(d), as also amended by section 403(e) of Public Law 106-113, Medicare Part B was to pay 100 percent of the lesser of the amount determined under the local laboratory fee schedule, the national limitation amount for that test, or the amount of the charges billed for the tests.
The effect of this change was that clinical diagnostic laboratory tests furnished by a CAH to its outpatients, were paid for on the same basis as clinical diagnostic laboratory tests furnished by full-service hospitals to outpatients. Section 403(e)(2) of Public Law 106-113 provided that this provision was effective with respect to services furnished on or after November 29, 1999.
Section 201(a) of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act (BIPA), Public Law 106-554 amends section 1834(g) of the Act to provide that there will be no collection of coinsurance, deductible, copayments, or any other type of cost sharing from Medicare beneficiaries with respect to outpatient clinical diagnostic laboratory services in a CAH.
Section 201(a) further provides that payment for these services will be made on a reasonable cost basis. Section 201(b) of the Public Law 106-554, amends section 1833(a) of the Act by eliminating any reference to CAHs receiving payment for outpatient clinical diagnostic laboratory services on a fee schedule basis. These amendments are effective for services furnished on or after November 29, 1999.
We are incorporating the provisions of section 201 of Public Law 106-554 in section 413.70 of the regulations and changing the references cited in § 410.152(k)(2). To prevent any misunderstanding of the scope of section 201(a), we are further revising § 413.70(b)(3)(iii) to clarify that payment to a CAH for clinical diagnostic laboratory tests for individuals who are not inpatients of the CAH will be made on a reasonable cost basis only if the individuals are outpatients of the CAH at the time the specimens are collected. Outpatient status will be determined under the definition in § 410.2, which provide that an “outpatient” is a person who has not been admitted as an inpatient but is registered as an outpatient and receives services (rather than supplies alone) from the CAH.
We recognize that CAHs may appropriately function as reference laboratories, by performing clinical diagnostic laboratory tests on specimens from persons who do not meet the “outpatient” definition but have the specimens drawn at other locations, such as physician offices. Payment for clinical diagnostic laboratory tests for these other individuals (that are persons who are not patients of the CAH when the specimens are collected) will be made in accordance with the provisions of sections 1833(a)(1)(D) and 1833(a)(2)(D) of the Act.
Revised program instructions and billing systems changes to implement these provisions are being developed and will be released as soon as possible.
Prior to enactment of Public Law 106-113, section 1834(g) of the Act provided that the amount of payment for outpatient CAH services would be the reasonable costs of the CAH in providing such services. However, the reasonable costs of the CAH's services to outpatients included only the CAH's costs of providing facility services, and did not include any payment for professional services. Physicians and other practitioners who furnished professional services to CAH outpatients billed the Part B carrier for these services and were paid under the
Section 403(d) of Public Law 106-113 amended section 1834(g) of the Act to permit the CAH to elect to be paid for its outpatient services under an optional method. CAHs making this election would be paid amounts equal to the sum of the following costs, less the amount that the hospital may charge as described in section 1866(a)(2)(A) of the Act (that is, Part A and Part B deductibles and coinsurance amounts):
• For facility services, not including any services for which payment may be made as outpatient professional services, the reasonable costs of the CAH in providing the services; and
• For professional services otherwise included within outpatient CAH services, the amounts that would otherwise be paid under Medicare if the services were not included as outpatient CAH services.
Section 403(d) of Public Law 106-113 added section 1834(g)(3) to the Act to further specify that payment amounts under this optional method are to be determined without regard to the amount of the customary or other charge. The amendment made by section 403(d) was effective for cost reporting periods beginning on or after October 1, 2000.
Section 202 of Public Law 106-554, amends section 1834(g) of the Act to provide that when a CAH elects the option to be paid for Medicare outpatient services under the reasonable costs for facility services plus fee schedule amounts for professional services method, Medicare will pay 115 percent of the amount it would otherwise pay for the professional services. This provision is effective for items and services furnished on or after July 1, 2001.
We are revising the regulations at § 413.70(b)(3) to reflect the change in the level of payment for professional services under the alternative payment method for outpatient CAH services.
Under the law in effect prior to enactment of the Medicare, Medicaid and SCHIP Balanced Budget Refinement Act of 1999 (Public Law 106-113), CAH status was available to facilities only if they were hospitals at the time of their application for designation as CAHs. This requirement was implemented through regulations, at § 485.610 (Condition of Participation: Status and limitations) and § 485.612 (Condition of Participation: Compliance with hospital requirements at time of application). Section 403(c) of the Public Law 106-113 added subparagraphs (C) and (D) to section 1820(c)(2) of the Act to specify that recently closed facilities and facilities that had downsized from hospital status to being a clinic or health center would also be eligible to apply for CAH designation.
In the August 1, 2000 final rule (65 FR 47052), we revised our regulations at § 485.610 to reflect the provisions of section 403(c) of the Public Law 106-113. However, we inadvertently did not make a conforming change to § 485.612, which continues to state that the applicant facility must be a hospital with a provider agreement to participate in the Medicare program at the time it applies for designation as a CAH. To correct this oversight and reflect the provisions of section 403(c) in the regulations at § 485.612, we are revising § 485.612 to state that the requirement to have a provider agreement as a hospital at the time of application does not apply to recently closed facilities as described in § 485.610(a)(2) or to health clinics or health centers as described in § 485.610(a)(3).
Section 4451 of Public Law 105-33 required that allowable bad debt reimbursement for hospitals be reduced by 25 percent for cost reporting periods beginning during FY 1998, by 40 percent for cost reporting periods beginning during FY 1999, and by 45 percent for cost reporting periods beginning during a subsequent fiscal year.
Section 541 of Public Law 106-554 amended section 1861(v)(1)(T) thereby modifying the reduction in payment for Medicare beneficiary bad debt for hospitals made by section 4451 of Public Law 105-33. Specifically, this provision reduces the amount of bad debts otherwise treated as allowable reductions in revenue, attributable to the deductibles and coinsurance amounts, by 30 percent for cost reporting periods beginning during FY 2001 and later. Therefore, for cost reporting periods beginning during the year 2001 and later, hospital bad debt amounts otherwise allowable will be reimbursed at 70 percent of the total allowable amount. We are revising § 413.80 to implement this change.
We ordinarily publish a notice of proposed rulemaking in the
On August 1, 2000, we published a final rule addressing FY 2001 payment rates and policies for prospective payment system hospitals and excluded hospitals and hospital units (65 FR 47054). Subsequently, on December 21, 2000, Public Law 106-554 was enacted. This public law contains a number of provisions relating to issues addressed in the final rule that have effective dates of October 1, 2000, April 1, 2001, or other dates prior to the end of FY 2001.
In accordance with section 1871(b) of the Act, publication of a notice of proposed rulemaking is not required before implementing the statutory provisions of Public Law 106-554 that take effect October 1, 2000 or April 1, 2001. In addition, notice and comment would be unnecessary because the provisions of Public Law 106-554 that are addressed in this rule do not permit the exercise of discretion. Delaying publication of the rule to provide for notice and a comment period would also be impracticable and contrary to the public interest because it is important that the rule be published as soon as possible, in order for the public to know how we are implementing the statutory provisions covered by the rule, and in order to revise our current regulations to conform with the changes mandated by Public Law 106-554.
We are providing a 30-day period for public comments on all of these provisions.
This rule has been determined to be a major rule as defined in Title 5, United State Code, section 804(2), that is, one with an anticipated annual effect of $100 million or more on the economy. Ordinarily, under 5 U.S.C. 801, as added by section 251 of Public Law 104-121, a major rule shall take effect 60 days after the later of (1) the
Because of the large number of items of correspondence we normally receive on
We have examined the impacts of this rule as required by Executive Order 12866. Although not required to do so, due to the interim final nature of this rule, we have also examined the impacts of this rule under the criteria of the Regulatory Flexibility Act (RFA) Public Law 96-354, section 1102(b) of the Act, and the Unfunded Mandate Reform Act of 1995 (UMRA) Public Law 104-4. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for rules that constitute significant regulatory action, including rules that have an economic effect of $100 million or more annually (major rules). We have determined that this is a major rule within the meaning of Executive Order 12866.
The RFA requires agencies to analyze options for regulatory relief of small businesses in issuing a proposed rule and a final rule that has been preceded by a proposed rule. For purposes of the RFA, small entities include small businesses, nonprofit organizations and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $25 million or less annually. For purposes of the RFA, all hospitals are considered small entities. Individuals and States are not included in the definition of a small entity.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a proposed rule or a final rule preceded by a proposed rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of an MSA and has fewer than 100 beds.
Section 202 of the UMRA also requires that agencies assess anticipated costs and benefits before issuing any proposed rule or any final rule preceded by a proposed rule that may result in expenditures in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million or more. This interim final rule with comment period does not mandate any requirements for State, local, or tribal governments.
We estimated the impact of the changes described in this interim final rule with comment period resulting from the passage of Public Law 106-554 on the inpatient prospective payment systems to be $1.04 billion. The changes, discussed separately below are as follows:
The effects of the change in the DSH payment reduction factor and the DSH payment qualification criteria as set forth by sections 211 and 303 of Public Law 106-554.
• The effects of introducing the option to base eligibility for Medicare dependent hospitals (MDHs), for hospitals otherwise qualifying for MDH status, on discharges during two of the three most recently audited cost reporting periods as directed by section 212 of Public Law 106-554.
• The total change in payments for hospitals, other than SCHs, including the increase in the update factor from market basket minus 1.1 percentage points, or 2.3 percent, to market basket plus 1.1 percentage points, or 4.5 percent, based on the policies in effect for the first half of FY 2001, relative to payments based on the policies in effect for the second half of FY 2001. (As directed by section 301 of Public Law 106-554). We estimate the financial impact of this provision will be $700 million.
Table 1 displays the estimated payment impacts of the provisions of Public Law 106-554 for all hospitals under the inpatient hospital prospective payment system. Specifically, this table compares simulated payments for hospitals using the policy and payment rate updates in effect for discharges occurring on or after October 1, 2000 and before April 1, 2001, to simulated payments using the policy changes and payment rate updates published in this interim final rule with comment. The hospital categories in the table are identical to those published in the August 1, 2000 final rule. Also, the simulation methodology here is identical to the methodology described in that final rule.
The estimated overall impact of the changes in policy and the update to the standardized amounts is a 2.9 percent increase in payments across all hospitals, and the average payment per case increased $202, from $6,883 to $7,085.
• The effects of the change to the IME adjustment factor as directed by section 302 of Public Law 106-554.
• The effects of expanding the 1996 rebasing option to all SCHs as directed by Section 213 of Public Law 106-554.
• The effects of the changes made to the TEFRA payment mechanism under section 1886(b) by sections 306 and 307(a) of 106-554.
1. Decrease In Reductions for DSH Payments and Changes in Treatment of Rural and Small Urban Disproportionate Share Hospitals.
Under section 303 of Public Law 106-554, reductions in the otherwise applicable DSH payment formula amounts would be 2 percent in FY 2001 and 3 percent in FY 2002. We estimate that the financial impact of this amendment from October 1, 2000 through FY 2002 will be $40 million. To implement the FY 2001 provision, DSH payments for discharges occurring on or after October 1, 2000 and before April 1, 2001, are reduced by 3 percent (which was the reduction in effect prior to enactment of Public Law 106-554), and for discharges occurring on or after April 1, 2001 and before October 1, 2001, DSH amounts would be reduced by only 1 percent.
Additionally, Section 211 of Public Law 106-554 amended section 1886(d)(5)(F)(v) of the Act, by lowering the thresholds by which certain classes of hospitals qualify for DSH. Specifically, for discharges occurring on or after April 1, 2001, the qualifying
In column 1 of Table 1 we present the combined effect of the two DSH provisions, as discussed in section III of this interim final rule with comment period. We compared estimated aggregate payments for the first half of FY 2001 to estimated aggregate payments for the second half of FY 2001 keeping all payment factors constant except those affected by the DSH changes. Because the criteria for qualifying for DSH payment status was changed as discussed above, more hospitals should be receiving DSH payments for the second half of FY 2001.
Comparing Table 1 of this section to the Table 1 in the Inpatient Prospective Payment System Final Rule that appeared in the August 1, 2000
For example, the DSH payment category for urban hospitals with fewer than 100 beds is estimated to increase by 284, from 72 hospitals in the first half of FY 2001 to 356 hospitals in the second half of FY 2001. Rural SCHs estimated to qualify for DSH payments rose by 389, from 149 in the first half of FY 2001 to 538 hospitals in the second half of FY 2001. RRCs appear to experience an increase of 83 providers, with the number of providers estimated to qualify for DSH payments moving from 56 to 139. Other rural DSH hospitals with fewer than 100 beds appear to benefit as well, with the number of those eligible for DSH payments estimated to increase by 364 from 103 to 467.
Overall, we estimate that hospitals experience a 0.4 percent increase in payments, with rural hospitals receiving an increase of 1.7 percent and large urban and other urban hospitals both receiving a 0.2 percent increase.
Rural DSH hospitals with between 0 and 100 beds are estimated to receive the largest increase, 4.1 percent. Urban DSH hospitals with between 0 and 100 beds are estimated to receive a 3.5 percent increase in payments. We anticipate that no hospitals were negatively impacted by these changes in DSH policy.
Section 212 of Public Law 106-554 provides an option to base eligibility for an MDH on discharges during two of the three most recently audited cost reporting periods. An otherwise qualifying hospital would be able to be classified as an MDH if at least 60 percent of its inpatient days or discharges were attributable to Medicare Part A beneficiaries during two of the three most recently audited cost reporting periods, for which the Secretary has a settled cost report, effective with discharges on or after April 1, 2001.
To estimate the effect of this change we examined cost report data from 1994 through 1999, and selected all hospitals with settled and audited cost reports for each prospective payment system year (1994 through 1999). We then took these subsets of settled and audited cost reports and selected providers who met the criteria for MDH status and who had at least 60 percent of inpatient days or discharges attributable to Medicare Part A beneficiaries, for 1 year.
We then combined the sets of qualifying providers from each prospective payment system year during the period of 1994 through 1999 and selected those providers who met the 60 percent criterion for 2 out of 3 cost reports and would therefore meet the MDH criteria as stated in Section 212 of Public Law 106-554. Although we identified 139 hospitals through this analysis, these providers were already listed as MDH providers in our records. However, it is important to note that our most complete data set for hospital cost reports is still 1998 and we are therefore unable to measure the effects of this provision on the most recent data. Therefore, while the results of one analysis appear to indicate that this provision will not have the first half of FY 2001 to the second half of FY 2001. We have estimated the financial impact of this amendment to be $10 million.
Section 302 of the Public Law 106-554 modified the transition for the IME adjustment that was first established by Public Law 105-33 and revised by Public Law 106-113. Specifically, the new transition schedule (where
• For discharges occurring on or after October 1, 2000 and before April 1, 2001,
• For discharges occurring on or after April 1, 2001 and before October 1, 2001,
• For discharges occurring during FY 2002,
• For discharges occurring on or after October 1, 2002,
We have estimated the financial impact of this provision to be $200 million. To estimate the impact of this change, we compared estimated aggregate payments for the first half of FY 2001 to estimated aggregate payments for the second half of FY 2001, keeping all payment factors except those affected by the IME changes constant.
Overall, hospitals appear to be experiencing a 0.4 percent increase in payments, with large urban hospitals receiving a 0.6 percent increase and other urban hospitals receiving an increase of 0.3 percent. Rural hospitals are estimated to receive a 0.1 percent increase. Teaching hospitals with 100 or more residents are estimated to receive a 1.2 percent increase in payments. Additionally, urban hospitals in the New England region are projected to experience an 0.8 percent increase, while rural hospitals in the New England region are projected to experience an increase of 0.4 percent.
Section 405 of the Public Law 106-113 included a 1996 rebasing option for cost reporting periods beginning October 1, 2000, that was limited to SCHs that received payment based on their hospital-specific rate for reporting periods beginning in 1999. This
In estimating the impact of this change, we compared estimated aggregate payments for the first half of FY 2001 to estimated aggregate payments for the second half of FY 2001, keeping all payment factors except those effected by the SCH changes constant. Overall, hospitals do not appear to be experiencing any change in payments due to this provision, though some categories of hospitals, for example rural SCH and RRC hospitals, are estimated to receive a 0.1 percent increase.
We are implementing sections 306 and 307(a) of Public Law 106-554 which makes several modifications to the TEFRA payment mechanism under section 1886(b). Section 306 amends section 1886(b)(1)(A) of the Act, as it applies to a psychiatric hospital or unit, to provide that if a psychiatric hospital or unit's net inpatient operating costs are less than, or equal to, the ceiling for cost reporting periods beginning on or after October 1, 2000 and before October 1, 2001, the amount of bonus payment is the lower of 15 percent of the difference between the inpatient operating costs and the ceiling, or 3 percent of the ceiling.
Prior to enactment of Public Law 106-554, for cost reporting periods beginning before October 1, 1997, a hospital (or unit) that had net inpatient operating costs that were less than its ceiling was paid the lower of 50 percent of the difference between inpatient operating costs and the ceiling, or 5 percent of the ceiling. Section 4415 of Public Law 105-33 amended section 1886(b)(1)(A) of the Act to provide that for cost reporting periods beginning on or after October 1, 1997, the amount of the bonus payment would be based on the lower of 15 percent of the difference between the net inpatient operating costs and the ceiling, or 2 percent of the ceiling.
The impact on hospitals of the increase in the bonus payment from 2 percent to 3 percent depends on the hospital's or unit's total allowable net inpatient operating costs based on its current cost report. Because a hospital's or unit's cost reporting period generally covers a 12-month period of time and this provision is effective for cost reporting periods beginning on or after October 1, 2000 and before October 1, 2001, the relevant cost data needed to determine the impact of this provision will not be available until sometime after October 1, 2001. Our initial estimate of the financial impact of this provision is $20 million; however, given the lack of available data we are unable to fully estimate the financial impact this provision will have on the Medicare program.
We are also implementing section 307(a) of Public Law 106-554 which amended section 1886(b)(3) of the Act to provide for a 2 percent increase to the wage-adjusted 75th percentile cap on the target amount for LTCHs, effective for cost reporting periods beginning during FY 2001. This provision is applicable to LTCHs that were subject to the cap for existing excluded providers, as specified in § 413.40(c).
In addition to the increase to the cap on the target amounts for LTCHs, section 307(a) of Public Law 106-554 also amends section 1886(b)(3) of the Act to provide for a 25 percent increase to the target amounts determined under 1886(b)(3)(A) of the Act for all LTCHs, effective for cost reporting periods beginning during FY 2001. Thus, this provision requires a revision to the determination of each LTCH's FY 2001 target amount as specified in § 413.40(c)(4). For cost reporting periods beginning during FY 2001, the hospital-specific target amount otherwise determined for a LTCH as specified in the regulations at § 413.40(c)(4)(ii) is multiplied by 1.25 (that is, increased by 25 percent). However, the revised FY 2001 target amount for the LTCH cannot exceed its wage-adjusted national cap as required by 1886(b)(3) of the Act, as amended by section 307(a) of Public Law 106-554.
In order to estimate the impact of the 25 percent increase in the hospital-specific target amount as well as the 2 percent increase in the LTCH cap, we adjusted the historical hospital-specific target amounts for each LTCH, as specified in § 413.40(c)(4)(iii)(A), by a factor of 1.25 (that is, the 25 percent increase). We then determined the wage-adjusted cap for these LTCHs and increased the cap by 2 percent to calculate the applicable cap on the hospital's adjusted target amount. An analysis of the best available data indicates that 64.6 percent of the LTCHs will benefit only from the 25 percent increase; in other words, these hospitals' target amounts were at least 25 percent below their cap. Our analysis also indicated that 22.9 percent of the hospitals will only benefit from the 2 percent increase in the wage-adjusted cap (their target amounts prior to the BIPA provision were equal to or exceeded the cap). The analysis also showed that 13.5 percent of the hospitals will benefit from both the 25 percent increase and the 2 percent increase provisions. These hospitals will not benefit from the full 25 percent increase to their target amounts because prior to this Public Law 106-554 provision their target amounts were not less than 25 percent below their cap. Thus, these hospitals received a portion of the 25 percent increase to their target amounts plus the 2 percent increase to the payment limitations.
The impact of the increases in hospital-specific target amounts and wage-adjusted caps for LTCHs was estimated based on FY 1998 cost reporting data as this was the most complete data source available. We note that these changes will also have somewhat of an impact on incentive payments, continuous improvement bonus payments, or other payment adjustment for excluded hospitals outlined in the regulations at § 413.40(d). However, in making this comparative analysis, we did not attempt to determine the impact on those payments. Our initial estimate of the financial impact of this provision is $10 million; however, given the lack of available data we are unable to fully estimate the financial impact this provision will have on the Medicare program.
Section 201(a) of Public Law 106-554 amends section 1834(g) of the Act to state that there will be no collection of coinsurance, deductible, copayments, or other type of cost sharing from Medicare beneficiaries with respect to outpatient clinical diagnostic laboratory services in a CAH. This provision also provides for the payment of those services on a reasonable cost basis. Furthermore, section 201(b) of Public Law 106-554 amends section 1833(a) of the Act by eliminating any reference to a CAH receiving payment for outpatient clinical diagnostic laboratory services on a fee schedule basis. These amendments are effective for services furnished on or after November 29, 1999.
There are approximately 365 facilities that qualify as CAHs. These CAHs are paid based on reasonable costs rather than a fee schedule amount for outpatient clinical diagnostic laboratory services furnished on or after November 29, 1999. We estimate that the financial impact of this amendment from November 29, 1999 through fiscal year 2001 will be $4.5 million.
Section 202 of Public Law 106-554 amends section 1834(g) of the Act to provide that when a CAH elects to be paid for Medicare outpatient services under the reasonable costs for facility services plus fee schedule amounts for professional services method, Medicare will pay 115 percent of the amount it would otherwise pay for the professional services. This provision is effective for items and services furnished on or after July 1, 2001.
At this point, our information indicates that very few CAHs have elected this option. We note that, with the enactment of this provision, which increases payment levels, that there may be an increase in the number of CAHs that make the election. We do not have adequate data to develop a reliable estimate of the financial impact of the change. Based on current levels of interest, we believe the financial impact will be minimal.
Overall, the changes implemented by Public Law 106-554 are estimated to increase payments to providers by 2.9 percent. Given the 0.22 percentage increase in the update factor for the inpatient hospital payment rates as discussed in section V. of this interim final rule, the increase in hospitals eligible for DSH payments, the changes to the DSH formulas and the increase in the IME adjustment factor, this is not suprising. Additionally, the lowered threshold for outlier payments enabled some classes of providers to more easily qualify for outlier status. For example, urban hospitals with neither DSH nor IME are estimated to experience a 0.1 percent increase from each of those two provisions due to the effects of the provisions on payment distribution and outliers. Therefore, it appears that all classes of hospitals in this analysis will benefit from the changes instituted by Public Law 106-554.
In this impact analysis, we dynamically model the impact of the capital prospective payment system for the periods from October 2000 through March 2001 and April 2001 through September 2001. We have used the actuarial model described in Appendix B of the August 1, 2001 final rule (65 FR 47204 through 47207) to estimate the changes in capital-related costs. Table III shows the effect of the capital prospective payment system on low capital costs hospitals and high capital costs hospitals by their capital prospective payment system transition period payment methodology (fully prospective or hold harmless). Assuming no behavioral changes, Table III displays the percentage change in payments per discharge for the periods between October 2000 through March 2001 and April 2001 through September 2001. Overall, there will be no significant impact on capital prospective payment system payments. We project low cost hospitals will experience a 0.04 percent decrease in payments per case, while high cost hospitals will experience a 0.16 percent increase in payments per case.
Table IV presents a cross-sectional summary of hospital groupings (geographic location, region, and payment classification) by capital prospective payment system transition period payment methodology generated by our actuarial model. The percentage of hospitals within a particular hospital grouping is not projected to change significantly from those shown in the Table IV of the impact section of the August 1, 2001 final rule (65 FR 47201 through 47202).
In Table V we present the results of the cross-sectional analysis using the results from our actuarial model and the aggregate impact resulting from section 301 of Public Law 106-554 that will affect capital prospective payment system payments for discharges occurring on or after April 1, 2001 and before October 1, 2001. Our comparison of payments for the periods from October 2000 through March 2001 and April 2001 through September 2001 by geographic location, region, payment classification, and type of ownership shows no significant effect (ranging from −0.2 percent to 0.2 percent) on payments for hospitals in all groupings.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications.
Although not required to do so, we have examined this interim final rule with comment period, under the criteria set forth in, Executive Order 13132 and have determined that this interim final rule with comment period will not have any negative impact on the rights, rules, and responsibilities of State, local, or tribal governments.
In accordance with the provisions of Executive Order 12866, this interim final rule with comment period was reviewed by the Office of Management and Budget.
Health facilities, Health professions, Kidney diseases, Laboratories, Medicare, Reporting and recordkeeping requirements, Rural areas, X-rays.
Administrative practice and procedure, Health facilities, Medicare, Puerto Rico, Reporting and recordkeeping requirements.
Health facilities, Kidney diseases, Medicare, Puerto Rico, Reporting and recordkeeping requirements.
Grant programs-health, Health facilities, Medicaid, Medicare, Reporting and recordkeeping requirements.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
(k) * * *
(2) Payment for CAH outpatient services is subject to the applicable Medicare Part B deductible and coinsurance amounts, except as described in § 413.70(b)(2)(iii) of this chapter, with Part B coinsurance being calculated as 20 percent of the customary (insofar as reasonable) charges of the CAH for the services.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
(s)
(1) For discharges occurring on October 1, 2000 or before April 1, 2001 the percentage increase in the market basket index for prospective payment hospitals (as defined in § 413.40(a) of this subchapter) for sole community hospitals and the increase in the market basket index minus 1.1 percentage points for other hospitals in all areas; and
(2) For discharges occurring on April 1, 2001 or before October 1, 2001 the percentage increase in the market basket index for prospective payment hospitals (as defined in § 413.40(a) of this subchapter) for sole community hospitals and the increase in the market basket index plus 1.1 percentage points for other hospitals in all areas.
3. Section 412.77 is amended by:
(a) * * *
(1) This section applies to a hospital that has been designated as a sole community hospital, as described in
(d) * * *
(1) * * *
(iv) For cost reporting periods beginning on or after October 1, 2000, the hospital-specific rate as determined under § 412.77 (calculated under the transition schedule set forth in paragraph (d)(2) of this section).
(2) * * *
(i) For Federal fiscal year 2001, the hospital-specific rate is the sum of 75 percent of the greater of the amounts specified in paragraph (d)(1)(i), (d)(1)(ii), or (d)(1)(iii) of this section, plus 25 percent of the hospital-specific rate as determined under § 412.77.
(ii) For Federal fiscal year 2002, the hospital-specific rate is the sum of 50 percent of the greater of the amounts specified in paragraph (d)(1)(i), (d)(1)(ii), or (d)(1)(iii) of this section, plus 50 percent of the hospital-specific rate as determined under § 412.77.
(iii) For Federal fiscal year 2003, the hospital-specific rate is the sum of 25 percent of the greater of the amounts specified in paragraph (d)(1)(i), (d)(1)(ii), or (d)(1)(iii) of this section, plus 75 percent of the hospital-specific rate as determined under § 412.77.
(d)
(3)
(v) For fiscal year 2001—
(A) For discharges occurring on or after October 1, 2000 and before April 1, 2001, 1.54.
(B) For discharges occurring on or after April 1, 2001 and before October 1, 2001, the adjustment factor is determined as if “c” equaled 1.66, rather than 1.54. This payment increase will not apply to discharges occurring after fiscal year 2001 and will not be taken into account in calculating the payment amounts applicable for discharges occurring after fiscal year 2001.
(c) * * *
(1) The hospital's disproportionate patient percentage, as determined under paragraph (b)(5) of this section, is at least equal to one of the following:
(i) 15 percent, if the hospital is located in an urban area, and has 100 or more beds, or is located in a rural area and has 500 or more beds.
(ii) 30 percent for discharges occurring before April 1, 2001, and 15 percent for discharges occurring on or after April 1, 2001, if the hospital is located in a rural area and either has more than 100 beds and fewer than 500 beds or is classified as a sole community hospital under § 412.92.
(iii) 40 percent for discharges before April 1, 2001, and 15 percent for discharges occurring on or after April 1, 2001, if the hospital is located in an urban area and has fewer than 100 beds.
(iv) 45 percent for discharges before April 1, 2001, and 15 percent for discharges occurring on or after April 1 2001, if the hospital is located in a rural area and has 100 or fewer beds.
(d) * * *
(2) * * *
(ii) * * *
(A) If the hospital is classified as a rural referral center, for discharges prior to April 1, 2001, the payment adjustment factor is 4 percent plus 60 percent of the difference between the hospital's disproportionate patient percentage and 30 percent. For discharges occurring on or after April 1, 2001, the following applies:
(
(
(
(B) If the hospital is classified as a sole community hospital, for discharges prior to April 1, 2001, the payment adjustment factor is 10 percent. For discharges occurring on or after April 1, 2001, the following applies:
(
(
(
(C) If the hospital is classified as both a rural referral center and a sole community hospital, the payment adjustment factor is:
(
(
(
(
(D) If the hospital is classified as a rural hospital and is not classified as either a sole community hospital or a rural referral center, and has 100 or more beds, for discharges prior to April 1, 2001, the payment adjustment factor is 4 percent. For discharges occurring on or after April 1, 2001, the following applies:
(
(
(iii) If the hospital meets the criteria of paragraph (c)(1)(iii) of this section, the payment adjustment factor is as follows:
(A) For discharges occurring before April 1, 2001, 5 percent.
(B) For discharges occurring on or after April 1, 2001:
(
(
(iv) If the hospital meets the criteria of paragraph (c)(1)(iv) of this section, the payment adjustment factor is as follows:
(A) For discharges occurring before April 1, 2001, 5 percent.
(B) For discharges occurring on or after April 1, 2001:
(
(
(e) * * *
(4) For FY 2001:
(i) For discharges occurring on or after October 1, 2000 and before April 1, 2001, 3 percent.
(ii) For discharges occurring on or after April 1, 2001 and before October 1, 2001, 1 percent.
(a) * * *
(1) * * *
(iii) At least 60 percent of the hospital's inpatient days or discharges were attributable to individuals receiving Medicare Part A benefits during the hospital's cost reporting period or periods as follows, subject to the provisions of paragraph (a)(1)(iv) of this section:
(C) At least two of the last three most recent audited cost reporting periods for which the Secretary has a settled cost report.
(b)
(d) * * *
(3) * * *
(iii) * * * The time required by the intermediary to review the request is considered good cause for granting an extension of the time limit for the hospital to apply for that review.
Secs. 1102, 1812(d), 1814(b), 1815, 1833(a), (i), and (n), 1871, 1881, 1883, and 1886 of the Social Security Act (42 U.S.C. 1302, 1395d(d), 1395f(b), 1395g, 1395l(a), (i), and (n), 1395hh, 1395rr, 1395tt, and 1395ww).
E. Revising paragraph (d)(2).
(c) * * *
(4)
(iii) In the case of a psychiatric hospital or unit, rehabilitation hospital or unit, or long-term care hospital, the target amount is the lower of the amounts specified in paragraph (c)(4)(iii)(A) or (c)(4)(iii)(B) of this section.
(A) The hospital-specific target amount.
(
(
(B) One of the following for the applicable cost reporting period—
(
(
(d) * * *
(2)
(i) For cost reporting periods beginning on or after October 1, 1997, if a hospital's allowable net inpatient operating costs do not exceed the hospital's ceiling, payment to the hospital will be determined on the basis of the lower of the—
(A) Net inpatient operating costs plus 15 percent of the difference between inpatient operating costs and the ceiling; or
(B) Net inpatient operating costs plus 2 percent of the ceiling.
(ii) For psychiatric hospitals and units, for cost reporting periods beginning on or after October 1, 2000 and before October 1, 2001, if a hospital's allowable net inpatient operating costs do not exceed the hospital's ceiling, payment to the hospital will be determined on the basis of the lower of the—
(A) Net inpatient operating costs plus 15 percent of the difference between inpatient operating costs and the ceiling; or
(B) Net inpatient costs plus 3 percent of the ceiling.
(b) * * *
(2) * * *
(ii) Payment to a CAH under paragraph (b)(2) of this section does not include any costs of physician services or other professional services to CAH outpatients and, other than for clinical diagnostic laboratory tests, is subject to the Part B deductible and coinsurance amounts as determined under §§ 410.152(k), 410.160, and 410.161 of this chapter.
(iii) Payment for outpatient clinical diagnostic laboratory tests is not subject to the Medicare Part B deductible and coinsurance amounts. Payment to a CAH for clinical diagnostic laboratory tests will be made on a reasonable cost basis under this section only if the individuals are outpatients of the CAH, as defined in § 410.2 of this chapter, at the time the specimens are collected. Clinical diagnostic laboratory tests performed for persons who are not patients of the CAH when the specimens are collected will be made in accordance with the provisions of sections 1833(a)(1)(D) and 1833(a)(2)(D) of the Social Security Act.
(3) * * *
(ii) * * *
(B) For professional services otherwise payable to the physician or other practitioner, 115 percent of the amounts that otherwise would be paid for the services if the CAH had not elected payment under this method.
(iii) Payment to a CAH, other than for clinical diagnostic laboratory tests, is subject to the Part B deductible and coinsurance amounts, as determined under §§ 410.152(k), 410.160, and 410.161 of this chapter.
(h) * * *
(3) For cost reporting periods beginning during fiscal year 2000, by 45 percent.
(4) For cost reporting periods beginning during a subsequent fiscal year, by 30 percent.
(d) * * *
(4)
(c)
(1) For portions of cost reporting periods occurring on or after January 1, 2000 and before January 1, 2001, a hospital that operates and receives payment for a nursing or allied health education program under § 413.85 may receive an additional payment amount associated with Medicare+Choice utilization. The hospital may receive the additional payment amount, which is calculated in accordance with the provisions of paragraph (d) of this section, if both of the conditions specified in paragraphs (c)(1)(i) and (c)(1)(ii) of this section are met.
(i) The hospital must have received Medicare reasonable cost payment for an approved nursing or allied health education program under § 413.85 in its cost reporting period(s) ending in the fiscal year that is 2 years prior to the current calendar year. (For example, if the current year is calendar year 2000, the fiscal year that is 2 years prior to calendar year 2000 is FY 1998.) For a hospital that first establishes a nursing or allied health education program after FY 1998 and receives reasonable cost payment for the program as specified under § 413.85 after FY 1998, the hospital is eligible to receive an additional payment amount in a calendar year that is 2 years after the respective fiscal year so long as the hospital also meets the condition under paragraph (c)(1(ii) of this section.
(ii) The hospital must be receiving reasonable cost payment for an approved nursing or allied health education program under § 413.85 in the current calendar year.
(2) For portions of cost reporting periods occurring on or after January 1, 2001, in addition to meeting the conditions specified in paragraphs (c)(1)(i) and (c)(1)(ii) of this section, the hospital must have had a Medicare+Choice utilization greater
(d)
(3)
(e)
(1)
(i) Medicare payments received for approved nursing or allied health education programs based on data from the settled cost reports for the period(s) ending in the fiscal year that is 2 years prior to the current calendar year; and
(ii) Inpatient days for that same cost reporting period.
(iii) Medicare+Choice inpatient days for that same cost reporting period.
(2)
(3)
(i) Nursing and allied health education program payments made to all hospitals for all cost reporting periods ending in the fiscal year that is 2 years prior to the current calendar year;
(ii) Inpatient days from those same cost reporting periods; and
(iii) Medicare+Choice inpatient days for those same cost reporting periods.
(4)
(5)
(6)
(f)
(1) Subject to paragraph (f)(3) of this section, each calendar year, HCFA will calculate a Medicare+Choice nursing and allied health payment “pool” according to the following steps:
(i) * * *
(ii) Multiply the ratio calculated in paragraph (f)(1)(i) of this section by projected total Medicare nursing and allied health education reasonable cost payments made to all hospitals in the current calendar year.
(2) The resulting product of the steps under paragraphs (f)(1)(i) and (f)(1)(ii) of this section is the Medicare+Choice nursing and allied health payment “pool” for the current calendar year.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
Except for recently closed facilities as described in § 485.610(a)(2), or health clinics or health centers as described in § 485.610(a)(3), the facility is a hospital that has a provider agreement to participate in the Medicare program as a hospital at the time the hospital applies for designation as a CAH.
Office of Assistant Secretary for Public and Indian Housing, HUD.
Proposed rule.
This proposed rule would implement section 301 of the American Homeownership and Economic Opportunity Act of 2000. Section 301 amends the statute authorizing the “homeownership option” under the Housing Choice Voucher Program. Under section 301, a Public Housing Agency (PHA) may, in lieu of paying a monthly homeownership assistance payment on behalf of a family, provide homeownership assistance for the family in the form of a single grant to be used toward the downpayment required in connection with the purchase of the home. Implementation of these downpayment assistance grants is anticipated for Federal Fiscal Year 2002. In addition to implementation of section 301, this proposed rule also would clarify and streamline several regulatory requirements applicable to both downpayment grants and monthly homeownership assistance payments provided under the homeownership option.
Interested persons are invited to submit comments regarding this proposed rule to the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500. Communications should refer to the above docket number and title. Facsimile (FAX) comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.
Gerald J. Benoit, Office of Public and Indian Housing, Department of Housing and Urban Development, Room 4210, 451 Seventh Street, SW, Washington, DC 20410; telephone (202) 708-0477. (This is not a toll-free number.) Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
On September 12, 2000 (65 FR 55134), HUD published its final rule implementing the “homeownership option” under section 8(y) of the United States Housing Act of 1937 (42 U.S.C. 1437
Section 301 of the American Homeownership and Economic Assistance Act of 2000 (Public Law 106-569, 114 Stat. 2944, 2952, approved December 27, 2000) amends section 8(y) to authorize an alternative form of assistance under the homeownership option—assistance in the form of a single downpayment assistance grant. Under section 301, a PHA may, in lieu of paying a monthly homeownership assistance payment on behalf of a family, provide homeownership assistance for the family in the form of a single grant to be used toward the downpayment required in connection with the purchase of the home.
Implementation of these downpayment assistance grants is anticipated for Federal Fiscal Year 2002.
This proposed rule would amend HUD's regulations for the homeownership option to implement the downpayment assistance authority provided by section 301. In addition to the implementation of section 301, HUD proposes, through this proposed rule, to clarify and streamline several regulatory requirements applicable to both downpayment grants and monthly homeownership assistance payments provided under the homeownership option.
This proposed rule would implement section 301 by establishing a new § 982.643, which describes the requirements applicable to downpayment assistance grants. Conforming changes would also be made to § 982.4 (which establishes the definitions applicable to the Housing Choice Voucher Program) and § 982.625 (which contains general requirements applicable to the homeownership option).
The proposed rule provides that a PHA may provide one of two types of homeownership assistance for a family:
If a family receives a downpayment assistance grant, a PHA may not make monthly homeownership assistance payments for the family. The PHA may choose to offer either or both forms of homeownership assistance under its program, or choose not to offer either form of assistance. However, the PHA must offer either form of homeownership assistance if necessary as a reasonable accommodation for a person with disabilities in accordance with § 982.601(b)(3). Either form of homeownership assistance may be paid either to a family, or to a mortgage lender on behalf of the family.
To receive a downpayment assistance grant, the proposed rule provides that a family must meet all of the eligibility requirements for participation in the homeownership option. In addition, the proposed rule provides that a family must already have been receiving tenant-based voucher rental assistance for a period of at least one-year to receive a downpayment grant. The House Committee Report on the American Homeownership and Economic Opportunity Act provides that the homeownership-related amendments to the Housing Choice Voucher Program are intended “to assist those
HUD specifically invites public comment on whether eligibility for downpayment assistance grants should be limited in another way or expanded and, if so, how. All public comments will be considered in the development of the final rule.
Proposed § 982.625(e)(4) and (e)(6) would specify those regulatory requirements applicable to the basic homeownership option that would apply to downpayment assistance grants. A downpayment grant is a one-time assistance payment. Accordingly, those regulatory provisions that establish ongoing homeownership assistance requirements or procedures would not apply to downpayment assistance grants (in general, §§ 982.633 through 982.641). With the exception of those requirements specifically noted in proposed § 982.625(e)(4) and (e)(6), all requirements applicable to the Housing Choice Voucher program apply to downpayment assistance grants.
Section 301 provides that the maximum downpayment grant “may not exceed the amount that is equal to the sum of the assistance payments that would be made during the first year of assistance on behalf of the family, based on the income of the family at the time the grant is to be made.” Under § 982.635(a), the monthly homeownership assistance payment paid by the PHA on behalf of the family is equal to the lower of (1) the payment standard minus the total tenant payment, or (2) the family's monthly homeownership expenses minus the total tenant payment. The proposed rule provides that the maximum amount of the downpayment grant will be calculated using only the first prong of the test described in § 982.635(a). Specifically, proposed § 982.643(b) provides that a downpayment assistance grant may not exceed twelve times the payment standard minus the total tenant payment (as calculated in accordance with § 5.628). Homeownership expenses will not be considered in making this determination.
The statutory language of section 301 does not require that homeownership expenses be considered in determining the maximum grant amount. As noted earlier in this preamble, section 301 provides that the maximum downpayment grant must be calculated based on the family's income “at the time the grant is to be made.” However, many homeownership expenses (such as principal and interest on initial mortgage debt, the amount of real estate taxes, and the costs of major repairs and replacements) cannot be estimated until after the family has contracted to purchase the home. Since the family is approved for downpayment assistance before it enters into the contract of sale, actual homeownership expenses is unknown and, therefore, cannot be calculated “at the time the grant is to be made.”
Requiring the inclusion of homeownership expenses in the calculation of the maximum grant amount might also adversely affect the family's ability to obtain suitable financing, and unduly complicate program administration. The actual amount of homeownership expenses is not known at the time the family applies for financing. Lenders will be reluctant to provide a mortgage loan without knowing the actual amount that the family will have available for the downpayment. Further, HUD expects that, in the majority of cases, homeownership expenses will exceed the payment standard. Accordingly, it is likely that the maximum grant amount for a family will ultimately be based on the payment standard, regardless of whether homeownership expenses are also factored into the calculation.
In the case of a family that purchases a home outside of the initial PHA's jurisdiction, the maximum downpayment grant shall be calculated using the receiving PHA payment standard and policies.
The proposed rule provides that the downpayment assistance grant must be paid at the closing of the family's purchase of the home. The downpayment assistance grant must be applied toward the purchase price of the home. No amount of the downpayment grant may be used for payment of other fees and charges related to the acquisition of the home (such as closing costs).
For each downpayment assistance grant made by the PHA, HUD would pay the PHA a one-time administrative fee in accordance with § 982.152. Specifically, the administrative fee for downpayment assistance would be treated as an “extraordinary cost” under § 982.152(a)(1)(iii)(C). The administrative fee would be established through HUD field notice, in accordance with the existing procedures for the establishment of such fees. HUD proposes that the administrative fee for downpayment assistance initially be set at $250.
When issuing a voucher used for a downpayment assistance grant to a family, the PHA should consider the amount of available reserves. In calculating the per-unit costs for purposes of voucher renewal funding, downpayment assistance shall not be counted.
Section 8(y) of the United States Housing Act of 1937, provides that a family may not receive homeownership assistance unless the family demonstrates that gross monthly income is at least two times the voucher “payment standard” or an “other amount” established by the Secretary (section 8(y)(1)(B), 42 U.S.C. 1437(y)(1)(B)). HUD has implemented the statutory minimum income requirements at § 982.627(c)(1). Specifically, the regulation currently provides for a uniform national minimum income requirement that is equal to 2,000 hours of annual full-time work at the Federal minimum wage.
Some PHAs have expressed a concern that the current minimum income is too low for their area and that few, if any, families with incomes that low would qualify for a mortgage. These PHAs argue that this unrealistically raises the expectations of many families and results in an unnecessary administrative burden for PHAs who must process a large number of applications that have no realistic chance of leading to homeownership. On the other hand, HUD wants to make sure that PHA-specific income limits do not prevent use of the homeownership option by families who can qualify for a mortgage from a reputable lending institution.
To balance these respective concerns, this proposed rule would provide PHAs with the flexibility to establish a
The homeownership option regulations at § 982.628(a)(2) provide that a home is eligible for purchase under the homeownership option if, at the time the PHA determines that the family is eligible to purchase the home with homeownership assistance, the home is either existing or under construction. Under the existing regulations, homeownership assistance may not be provided for the purchase of a unit that is not yet under construction. However, HUD has become aware of concerns that this restriction may limit the participation in the homeownership option of families that also participate in certain other Federal homeownership programs. (For instance, the Rural Housing Service Mutual Self-Help Housing Loan program requires the family to assist in the construction of the unit. Typically, under these “sweat equity” homeownership programs, the family must commit to purchase the unit before construction of the home begins.) To address these concerns, and increase participation in the homeownership option, HUD is considering the feasibility of expanding the list of eligible units at the final rule stage to include certain new homes not yet under construction. However, there are several issues that will need to be considered before implementation of such a change—including whether HUD may provide homeownership assistance for the purchase of these units in a manner that is consistent with the statutory environmental review requirements of the National Environmental Policy Act (42 U.S.C. 4321) and related Federal authorities, and does not impose an undue administrative burden. HUD anticipates that these issues will be resolved by the final rule stage and that the final rule will reflect whether expansion of eligibility is feasible or not.
As noted, § 982.628 describes the units eligible for purchase under the homeownership option. Although manufactured housing is not specifically mentioned in § 982.628, the preamble to HUD's September 12, 2000 final rule made clear that a manufactured home and the real property upon which the manufactured home sits are eligible for purchase under the homeownership option (see 65 FR 55134 at 55147, first column). For purposes of clarity, this proposed rule would amend § 982.628 to explicitly reference the eligibility of manufactured homes. The proposed rule would also authorize the provision of homeownership assistance for the purchase of a manufactured home where the family will not own fee title to the real property on which the home is located in certain circumstances. However, the manufactured home must have a permanent foundation. Further, the family must have the right to occupy the manufactured home site for a period of at least thirty years.
The homeownership option regulations at § 982.640 provide for the recapture of a percentage of the homeownership assistance provided to the family upon the sale of refinancing of the home. The recapture provisions were included in the regulation to protect program integrity by preventing windfalls to individual families and program abuses. PHAs, lenders, and other potential program participants, however, have expressed concerns that the recapture provisions are not an important safeguard given the structure and likely use of this subsidy program, will unduly complicate administration of the homeownership option, and will discourage participation in the homeownership option by PHAs, lenders and families. Accordingly, HUD has determined that removal of the recapture provisions is appropriate.
The Office of Management and Budget (OMB) reviewed this rule under Executive Order 12866,
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule does not impose any Federal mandates on any State, local, or tribal governments or the private sector within the meaning of Unfunded Mandates Reform Act of 1995.
A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4223). The Finding of No Significant Impact is available for public inspection between the hours of 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410.
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) (the RFA), has reviewed and approved this proposed rule and in so doing certifies that this rule will not have a significant economic impact on a substantial number of small entities. The reasons for HUD's determination are as follows:
(1)
(2)
Notwithstanding HUD's determination that this rule will not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule is exclusively concerned with homeownership voucher assistance. This proposed rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
The Catalog of Domestic Assistance Number for the Housing Choice Voucher Program is 14.871.
Grant programs—housing and community development, Housing, Rent subsidies, Reporting and recordkeeping requirements.
Accordingly, for the reasons described in the preamble, HUD proposes to amend 24 CFR part 982 as follows:
1. The authority citation for 24 CFR part 982 continues to read as follows:
42 U.S.C. 1437f and 3535(d).
2. In § 982.4(b), add the definition of “
(b) * * *
3. Add § 982.625(e) to read as follows:
(e)
(i) Monthly homeownership assistance payments; or
(ii) A single downpayment assistance grant.
(2) The PHA may choose to offer either or both forms of homeownership assistance under its program, or choose not to offer either form of assistance. However, the PHA must offer either form of homeownership assistance if necessary as a reasonable accommodation for a person with disabilities in accordance with § 982.601(b)(3)).
(3) Paragraphs (e)(4), (e)(5), and (e)(6) of this section specify what regulatory provisions (under the heading “homeownership option”) are applicable to either or both forms of homeownership assistance (except as otherwise specifically provided):
(4)
(i) Section 982.625 (General);
(ii) Section 982.626 (Initial requirements);
(iii) Section 982.627 (Eligibility requirements for families);
(iv) Section 982.628 (Eligible units);
(v) Section 982.629 (Additional PHA requirements for family search and purchase);
(vi) Section 982.630 (Homeownership counseling);
(vii) Section 982.631 (Home inspections and contract of sale);
(viii) Section 982.632 (Financing purchase of home; affordability of purchase);
(ix) Section 982.636 (Portability) (However, paragraphs (a) and (e) of § 982.636 do not apply to downpayment assistance grants); and
(x) Section 982.641 (Applicability of other requirements).
(5)
(i) Section 982.633 (Continued assistance requirements; family obligations);
(ii) Section 982.634 (Maximum term of homeownership assistance);
(iii) Section 982.635 (Amount and distribution of monthly homeownership assistance payment);
(iv) Section 982.637 (Move with continued tenant-based assistance);
(v) Section 982.638 (Denial or termination of assistance for family); and
(vi) Section 982.639 (Administrative fees).
(6)
4. Revise § 982.627(c)(3) to read as follows:
(c) * * *
(3) A PHA may establish a minimum income requirement that is higher than the Federal minimum wage multiplied by 2,000 hours, based on factors such as housing costs and the practices of participating lenders. However, a family that does not meet the higher standard established by the PHA shall be considered to satisfy the minimum income requirement if:
(i) The family meets the minimum income requirement as described in paragraphs (c)(1) and (c)(2) of this section;
(ii) The family demonstrates that it has been pre-qualified or pre-approved for financing;
(iii) The pre-qualified or pre-approved financing meets any PHA established requirements under § 982.632 for financing the purchase of the home
(iv) The pre-qualified or pre-approved financing amount is sufficient to purchase decent, safe, and sanitary housing of a modest nature in the PHA's jurisdiction.
5. Amend § 982.628 as follows:
a. Revise paragraph (a)(3);
b. Redesignate paragraph (b) as paragraph (c); and
c. Add new paragraph (b) to read as follows.
(a) * * *
(3) The unit is either a one unit property (including a manufactured home) or a single dwelling unit in a cooperative or condominium.
(b)
(1) The manufactured home is located on a permanent foundation; and
(2) The family has the right to occupy the manufactured home site for at least thirty years.
6. In § 982.635(e), revise the first sentence to read as follows:
(e)
7. Remove § 982.640.
8. Add § 982.643 to read as follows:
(a)
(2) The family must have already been receiving Section 8 tenant-based rental assistance for a period of at least one year to receive a downpayment assistance grant under this section.
(3) A member of a family that has received a downpayment assistance grant may not receive monthly homeownership assistance payments from any PHA. A member of a family that has received homeownership assistance payments may not receive a downpayment assistance grant from any PHA.
(b)
(c)
(d)