Animal and Plant Health Inspection Service
Farm Service Agency
Forest Service
Natural Resources Conservation Service
Rural Utilities Service
Committee for Purchase From People Who Are Blind or Severely Disabled
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Employment Standards Administration
Pension and Welfare Benefits Administration
Centers for Disease Control and Prevention
Food and Drug Administration
Committee for the Implementation of Textile Agreements
Coast Guard
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Maritime Administration
National Highway Traffic Safety Administration
Research and Special Programs Administration
Surface Transportation Board
Customs Service
Internal Revenue Service
United States Mint
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.
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are adopting as a final rule, with one change, an interim rule that amended our citrus canker regulations to establish provisions under which eligible owners of commercial citrus groves may receive payments to replace commercial citrus trees removed because of citrus canker. The interim rule that provided for the payment of those funds was necessary to reduce the economic effect of the citrus canker quarantine on affected commercial citrus growers.
August 17, 2001.
Mr. Stephen Poe, Operations Officer, Program Support Staff, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1236; (301) 734-8247.
Citrus canker is a plant disease that affects plants and plant parts, including fresh fruit, of citrus and citrus relatives (Family Rutaceae). Citrus canker can cause defoliation and other serious damage to the leaves and twigs of susceptible plants. It can also cause lesions on the fruit of infected plants, which renders the fruit unmarketable, and cause infected fruit to drop from the trees before reaching maturity. The aggressive A (Asiatic) strain of citrus canker can infect susceptible plants rapidly and lead to extensive economic losses in commercial citrus-producing areas.
The regulations to prevent the interstate spread of citrus canker are contained in 7 CFR 301.75-1 through 301.75-14 (referred to below as the regulations). The regulations restrict the interstate movement of regulated articles from and through areas quarantined because of citrus canker and provide conditions under which regulated fruit may be moved into, through, and from quarantined areas for packing. The regulations currently list parts of Broward, Collier, Dade, Hendry, Hillsborough, and Manatee Counties, FL, as quarantined areas for citrus canker.
In an interim rule effective and published in the
We solicited comments concerning our proposal for 60 days ending on December 15, 2000. We received two comments by that date. They were from the Florida Lime Administrative Committee and a citrus grower cooperative.
One commenter pointed out an error in the economic information presented in the interim rule's background section. Specifically, we stated that Florida accounted for 72.72 percent of domestic lime production in 1997-1998. The commenter stated that Florida actually accounted for 100 percent of U.S. lime production during that period. The commenter is indeed correct; the National Agricultural Statistics Service's “Agricultural Statistics 2000” indicates that Florida produced 100 percent of domestically grown limes in both the 1997-1998 and 1998-1999 growing seasons. However, as Florida's share of lime production does not have an effect on the provisions of § 301.75-15, no changes to this rule are necessary as a result of that comment.
The second commenter stated that the $26 per tree payment provided for by the rule was too high and offered information to support that contention. We continue to believe that the $26 per tree payment, which is the same amount developed by the Department's Risk Management Agency for trees covered by the Florida Fruit Tree Pilot Crop Insurance Program, is appropriate, especially with the per-acre payment caps provided by the interim rule. Perhaps more importantly, however, $26 is the per-tree payment amount that the Department was directed to pay under Sec. 810(a) of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (Pub. L. 106-387). Given that our FY 2001 appropriations act specifically directs us to pay $26 per tree, subject to the per-acre caps provided in the act (which were used in the interim rule), we will not make any changes to § 301.75-15 in this final rule as a result of that comment.
The interim rule contained a requirement that claims for trees destroyed on or before the effective date of the rule (October 16, 2000) must be received within 60 days after the effective date of the rule (
In this final rule, we are also amending § 301.75-15(c) to reflect the new address of the USDA Citrus Canker Eradication Program. Further, where that paragraph in the interim rule had referred to “the effective date of this rule” and “60 days after the effective date of this rule,” we have replaced those references with the actual dates (
Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule, with the changes discussed in this document.
This final rule also affirms the information contained in the interim rule concerning Executive Orders 12372 and 12988 and the economic analysis under Executive Order 12866 and the Regulatory Flexibility Act.
This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
Pursuant to the administrative procedure provisions in 5 U.S.C. 553, we find good cause for making this rule effective less than 30 days after publication in the
In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 166, 7711, 7712, 7714, 7731, 7735, 7751, 7752, 7753, and 7754; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also issued under sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
(c)
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to all Boeing Model 767-200 series airplanes modified by supplemental type certificate SA5134NM, that requires modification of the in-flight entertainment (IFE) system. This action is necessary to prevent the inability of the flight crew to remove power from the IFE system when necessary. Inability to remove power from the IFE system during a non-normal or emergency situation could result in inability to control smoke or fumes in the airplane flight deck or cabin. This action is intended to address the identified unsafe condition.
Effective September 21, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 21, 2001.
The service information referenced in this AD may be obtained from Flight Structures, Inc., 4407 172nd Street NE., Arlington, Washington 98223. 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.
Louis Natsiopoulos, Aerospace Engineer, Systems and Equipment Branch, 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 all Boeing Model 767-200 series airplanes modified by supplemental type certificate (STC) SA5134NM was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter states that it does not operate any of the airplanes affected by the proposed AD.
One commenter requests that the FAA revise the proposed AD to require modification per procedures developed by the airplane manufacturer (Boeing) rather than by the STC holder (Flight Structures, Inc.). The commenter states that a modification developed by the airplane manufacturer is appropriate because installation of an IFE system per the subject STC does not change the power distribution from the production configuration. The commenter acknowledges the intent of the proposed AD but would prefer a solution developed by Boeing to ensure commonality among all Boeing Model 767-200 series airplanes. The commenter notes that such commonality is important for operating and maintenance procedures. The commenter also adds that, if the FAA adopts its recommendation, the compliance time for the proposed AD should be extended to allow time for Boeing to release a service bulletin and for the affected operators to do the modification.
We do not concur with the commenter's request. The IFE system—including the electrical components and wiring that provides electrical power to the system—was installed by the STC holder and is not common to all Boeing Model 767-200 series airplanes. The fact that installation of the subject IFE system was approved by STC indicates that it represents a major change from the design previously approved under the type certificate for the Model 767-200 series airplanes. As such, the STC holder, not the airplane manufacturer, is responsible for the development of corrective actions for potential unsafe conditions related to the equipment installed per the STC.
Further, contrary to what the commenter states, the installation of the IFE system by the subject STC does include wiring changes, as well as the redesignation and reassignment of several circuit breakers on the airplane. The development of an appropriate modification necessitates knowledge of the wiring and circuit breaker changes involved with installation of the system. We cannot assume that the airplane manufacturer has the necessary engineering data, since these data are proprietary to the holder of the subject STC.
Also, since the STC holder has already developed appropriate service information (as described in the proposed AD), there is no reason to extend the compliance time as requested by the commenter. No change to the final rule is necessary in this regard.
One commenter disagrees with the FAA's inference in the preamble of the proposed AD that circuit breakers are used as power switches for the IFE system, thereby causing the circuit breaker to be opened and closed frequently. The commenter states that the IFE systems on its airplanes are typically powered on all the time except when maintenance on the IFE system is necessary. The commenter notes that this is consistent with how the majority of airplane electrical systems are managed. The commenter asserts that the circuit breakers are only used to deenergize the IFE system during non-normal and emergency situations.
The commenter requests no specific change to the AD. We acknowledge the commenter's statements, but find that no change to the final rule is necessary. We have determined that it is not acceptable to rely on system circuit breakers as the sole means of removing power from the IFE system. The use of circuit breakers as switches may result in degradation of the circuit breakers to the point where they may not trip at their rated current. Also, during non-normal or emergency situations, it is essential for the crew to quickly remove power from the IFE system to identify and isolate smoke or fumes that may be caused by the components or wiring of the IFE system or to determine whether the IFE system is not the source of smoke or fumes. As stated in the proposed rule, the circuit breakers for the IFE system represent the only means of removing power from the IFE systems. In this case, these breakers are located in the electronics bay and are not readily accessible to the crew during flight. Therefore, we find it necessary to issue this AD to require modification of the IFE system so that power can be removed from it manually or automatically without affecting other systems necessary for safe flight and landing of the airplane.
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 13 Model 767-200 series airplanes modified by STC SA5134NM in the worldwide fleet. The FAA estimates that all 13 airplanes are of U.S. registry and will be affected by this AD, that it will take approximately 8 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 $300 per airplane. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $10,140, or $780 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 (c) 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 the inability of the flight crew to remove power from the in-flight entertainment (IFE) system when necessary, which, during a non-normal or emergency situation, could result in inability to control smoke or fumes in the airplane flight deck or cabin; accomplish the following:
(a) Within 18 months after the effective date of this AD, modify the IFE system to change the source of electrical power for the IFE system from the main bus to a utility bus, in accordance with Flight Structures Service Bulletin 90FS062-23-01, Revision 2, dated September 21, 2000.
(b) As of the effective date of this AD, no person may install an IFE system in accordance with STC SA5134NM, on any airplane, unless it is modified in accordance with this AD.
(c) 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.
(d) 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.
(e) The actions shall be done in accordance with Flight Structures Service Bulletin 90FS062-23-01, Revision 2, dated September 21, 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 Flight Structures, Inc., 4407 172nd Street NE, Arlington, Washington 98223. 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.
(f) This amendment becomes effective on September 21, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to all Boeing Model 747-100 and -200 series airplanes modified by supplemental type certificate ST00196SE, that requires modification of the in-flight entertainment (IFE) system and revision of the Airplane Flight Manual. This action is necessary to ensure that the flight crew is able to remove electrical power from the IFE system when necessary and is advised of appropriate procedures for such action. Inability to remove power from the IFE system during a non-normal or emergency situation could result in inability to control smoke or fumes in the airplane flight deck or cabin. This action is intended to address the identified unsafe condition.
Effective September 21, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 21, 2001.
The service information referenced in this AD may be obtained from JAMCO America, Inc., 1018 80th Street SW, Everett, Washington 98023. 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.
Stephen S. Oshiro, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2793; 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 all Boeing Model 747-100 and -200 series airplanes
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received.
The commenter asks the FAA to extend the compliance time for the proposed actions. The commenter states that it operates the 11 airplanes affected by this AD. Of these 11 airplanes modified by STC ST00196SE, 3 airplanes were further modified by a second STC, which involved installation of another entertainment system. Due to the nature of the modifications by the second STC, the commenter is unable to comply with the requirements of the proposed AD. Because it will need additional service information to fulfill the intent of the proposed AD, the commenter asks the FAA to extend the compliance time of this AD until 18 months after the issuance of such new service information.
We do not concur. First, the commenter provides no justification for an extension of the compliance time of this AD for the 8 airplanes that were not modified by a second STC. Thus, we find that no extension of the compliance time is necessary for these airplanes.
Second, with regard to the 3 airplanes that cannot be modified according to the procedures specified in this AD, the operator may request approval of an alternative method of compliance as provided by paragraph (c) of this AD. We will consider approving both the alternative method of compliance as well as an adjustment of the compliance time for the required actions. No change to the final rule is necessary.
After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 11 Model 747-100 and -200 series airplanes modified by STC ST00196SE in the worldwide fleet. None of the airplanes affected by this AD are on the U.S. Register. All airplanes included in the applicability of this AD currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.
Should an affected airplane be imported and placed on the U.S. Register in the future, it will take approximately 8 work hours per airplane to accomplish the required modification, at an average labor rate of $60 per work hour. Required parts will cost approximately $450 per airplane. Based on these figures, the cost impact of the required modification will be $930 per airplane.
Should an affected airplane be imported and placed on the U.S. Register in the future, it will take approximately 1 work hour per airplane to accomplish the required AFM revision, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the required AFM revision will be $60 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, 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 otherwise 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 (c) 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 ensure that the flight crew is able to remove electrical power from the in-flight entertainment (IFE) system when necessary and is advised of appropriate procedures for such action, accomplish the following:
(a) Within 18 months after the effective date of this AD, accomplish paragraphs (a)(1) and (a)(2) of this AD.
(1) Modify the IFE system in accordance with JAMCO America Service Bulletin 747-25-M025, dated August 30, 2000.
(2) Revise the procedures for “Electrical System Smoke or Fire” of the “Emergency Procedures” section of the FAA-approved Airplane Flight Manual (AFM) to include the following information. This may be accomplished by inserting a copy of this AD into the AFM.
(b) As of the effective date of this AD, no person shall install an IFE system in accordance with STC ST00196SE on any airplane, unless it is modified and the FAA-approved AFM is revised in accordance with this AD.
(c) 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.
(d) 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.
(e) The modification shall be done in accordance with JAMCO America Service Bulletin 747-25-M025, dated August 30, 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 JAMCO America, Inc., 1018 80th Street SW, Everett, Washington 98023. 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.
(f) This amendment becomes effective on September 21, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to all Boeing Model 767-300 series airplanes modified by supplemental type certificate ST00157SE, that requires modification of the electrical circuits that supply power to the in-flight entertainment (IFE) system. This action is necessary to prevent the inability of the flight crew to remove power from the IFE system when necessary. Inability to remove power from the IFE system during a non-normal or emergency situation could result in inability to control smoke or fumes in the airplane flight deck or cabin. This action is intended to address the identified unsafe condition.
Effective September 21, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 21, 2001.
The service information referenced in this AD may be obtained from JAMCO America, Inc., 1018 80th Street SW., Everett, Washington 98023. 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.
Stephen S. Oshiro, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2793; 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 all Boeing Model 767-300 series airplanes modified by supplemental type certificate (STC) ST00157SE was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter states that it does not operate any of the airplanes affected by the proposed AD, and thus has no comment.
One commenter requests that the FAA revise the proposed AD to require modification per procedures developed by the airplane manufacturer (Boeing) rather than by the STC holder (JAMCO America). The commenter states that a modification developed by the airplane manufacturer is appropriate because installation of an IFE system per the subject STC does not change the power distribution from the production configuration. The commenter states that it acknowledges the intent of the proposed AD, but it would prefer a solution developed by Boeing to ensure commonality among all Boeing Model 767-300 series airplanes. The commenter notes that such commonality is important for operating and maintenance procedures. The commenter also adds that, if the FAA adopts its recommendation, the compliance time for the proposed AD should be extended to allow time for Boeing to release a service bulletin and for the affected operators to do the modification.
We do not concur with the commenter's request. The IFE system—including the electrical components and wiring that provides electrical power to the system—was installed by the STC holder and is not common to all Boeing Model 767-300 series airplanes. The fact that installation of the subject IFE system was approved by STC indicates that it represents a major change from the design previously approved under the type certificate for the Model 767-300 series airplanes. As such, the STC
Further, contrary to what the commenter states, the installation of the IFE system by the subject STC does include wiring changes, as well as the redesignation and reassignment of several circuit breakers in the P37 Right Miscellaneous Equipment Panel on the airplane. The development of an appropriate modification necessitates knowledge of the wiring and circuit breaker changes involved with installation of the system. We cannot assume that the airplane manufacturer has the necessary engineering data, since these data are proprietary to the holder of the subject STC.
Also, since the STC holder has already developed appropriate service information (as described in the proposed AD), there is no reason to extend the compliance time as requested by the commenter. No change to the final rule is necessary in this regard.
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 49 Model 767-300 series airplanes modified by STC ST00157SE in the worldwide fleet. The FAA estimates that 49 airplanes of U.S. registry will be affected by this AD, that it will take approximately 3 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 $80 per airplane. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $12,740, or $260 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 (c) 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 the inability of the flight crew to remove power from the in-flight entertainment (IFE) system when necessary; which, during a non-normal or emergency situation, could result in inability to control smoke or fumes in the airplane flight deck or cabin; accomplish the following:
(a) Within 18 months after the effective date of this AD, modify the electrical circuits that supply power to the IFE system in accordance with JAMCO America Service Bulletin 767-25-M019, dated August 30, 2000.
(b) As of the effective date of this AD, no person shall install an IFE system in accordance with STC ST00157SE on any airplane, unless it is modified in accordance with this AD.
(c) 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.
(d) 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.
(e) The actions shall be done in accordance with JAMCO America Service Bulletin 767-25-M019, dated August 30, 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 JAMCO America, Inc., 1018 80th Street SW, Everett, Washington 98023. 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.
(f) This amendment becomes effective on September 21, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to all Boeing Model 767-200 series airplanes modified by supplemental type certificate SA4998NM, that requires modification of the in-flight entertainment (IFE) system to connect it to a different power source. This action is necessary to prevent the inability of the flight crew to remove power from the IFE system when necessary. Inability to remove power from the IFE system during a non-normal or emergency situation could result in inability to control smoke or fumes in the airplane flight deck or cabin. This action is intended to address the identified unsafe condition.
Effective September 21, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 21, 2001.
The service information referenced in this AD may be obtained from Flight Structures, Inc., 4407 172nd Street NE, Arlington, Washington 98223. 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.
Louis Natsiopoulos, Aerospace Engineer, Systems and Equipment Branch, 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 all Boeing Model 767-200 series airplanes modified by supplemental type certificate (STC) SA4998NM was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter states that it does not operate any of the airplanes affected by the proposed AD.
One commenter requests that the FAA revise the proposed AD to require modification per procedures developed by the airplane manufacturer (Boeing) rather than by the STC holder (Flight Structures, Inc.). The commenter states that a modification developed by the airplane manufacturer is appropriate because installation of an IFE system per the subject STC does not change the power distribution from the production configuration. The commenter acknowledges the intent of the proposed AD but would prefer a solution developed by Boeing to ensure commonality among all Boeing Model 767-200 series airplanes. The commenter notes that such commonality is important for operating and maintenance procedures. The commenter also adds that, if the FAA adopts its recommendation, the compliance time for the proposed AD should be extended to allow time for Boeing to release a service bulletin and for the affected operators to do the modification.
We do not concur with the commenter's request. The IFE system—including the electrical components and wiring that provides electrical power to the system—was installed by the STC holder and is not common to all Boeing Model 767-200 series airplanes. The fact that installation of the subject IFE system was approved by STC indicates that it represents a major change from the design previously approved under the type certificate for the Model 767-200 series airplanes. As such, the STC holder, not the airplane manufacturer, is responsible for the development of corrective actions for potential unsafe conditions related to the equipment installed per the STC.
Further, contrary to what the commenter states, the installation of the IFE system by the subject STC does include wiring changes, as well as the redesignation and reassignment of several circuit breakers on the airplane. The development of an appropriate modification necessitates knowledge of the wiring and circuit breaker changes involved with installation of the system. We cannot assume that the airplane manufacturer has the necessary engineering data, since these data are proprietary to the holder of the subject STC.
Also, since the STC holder has already developed appropriate service information (as described in the proposed AD), there is no reason to extend the compliance time as requested by the commenter. No change to the final rule is necessary in this regard.
One commenter disagrees with the FAA's inference in the preamble of the proposed AD that circuit breakers are used as power switches for the IFE system, thereby causing the circuit breaker to be opened and closed frequently. The commenter states that the IFE systems on its airplanes are typically powered on all the time except when maintenance on the IFE system is necessary. The commenter notes that this is consistent with how the majority of airplane electrical systems are managed. The commenter asserts that the circuit breakers are only used to deenergize the IFE system during non-normal and emergency situations.
The commenter requests no specific change to the AD. We acknowledge the commenter's statements, but find that no change to the final rule is necessary. We have determined that it is not acceptable to rely on system circuit breakers as the sole means of removing power from the IFE system. The use of circuit breakers as switches may result in degradation of the circuit breakers to the point where they may not trip at their rated current. Also, during non-normal or emergency situations, it is essential for the crew to quickly remove power from the IFE system to identify and isolate smoke or fumes that may be caused by the components or wiring of the IFE system or to determine whether the IFE system is not the source of smoke or fumes. As stated in the proposed rule, the circuit breakers for
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 17 Model 767-200 series airplanes modified by STC SA4998NM in the worldwide fleet. The FAA estimates that all 17 airplanes are of U.S. registry and will be affected by this AD, that it will take approximately 8 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 $300 per airplane. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $13,260, or $780 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 (c) 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 the inability of the flight crew to remove power from the in-flight entertainment (IFE) system when necessary; which, during a non-normal or emergency situation, could result in inability to control smoke or fumes in the airplane flight deck or cabin; accomplish the following:
(a) Within 18 months after the effective date of this AD, modify the in-flight entertainment system to change the power source from the main electrical bus to a utility electrical bus, in accordance with Flight Structures Service Bulletin 89FS134-23-01, Revision 2, dated September 21, 2000.
(b) As of the effective date of this AD, no person may install an IFE system in accordance with STC SA4998NM on any airplane, unless it is modified in accordance with this AD.
(c) 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.
(d) 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.
(e) The actions shall be done in accordance with Flight Structures Service Bulletin 89FS134-23-01, Revision 2, dated September 21, 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 Flight Structures, Inc., 4407 172nd Street NE., Arlington, Washington 98223. 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.
(f) This amendment becomes effective on September 21, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to all McDonnell Douglas Model DC-10-30 series airplanes modified by supplemental type certificate SA8452SW, that requires modification of the in-flight entertainment (IFE) system and revision of the Airplane Flight Manual and the Inflight Manual. This action is necessary to ensure that the airplane crew is able to remove electrical power from the IFE system when necessary and is advised of appropriate procedures for such action. Inability to remove power from the IFE system during a non-normal or emergency situation could result in inability to control smoke or fumes in the airplane flight deck or cabin. This action is intended to address the identified unsafe condition.
Effective September 21, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 21, 2001.
The service information referenced in this AD may be obtained from Continental Airlines, Inc., 600 Jefferson Street HQJAV, Houston, Texas 77002. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; at the FAA, Fort Worth Airplane Certification Office, 2601 Meacham Blvd., Fort Worth, Texas; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Ingrid Knox, Aerospace Engineer, ASW-150, FAA, Fort Worth Airplane Certification Office, 2601 Meacham Blvd., Fort Worth, Texas 76137-4298; telephone (817) 222-5139; fax (817) 222-5960.
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 all McDonnell Douglas Model DC-10-30 series airplanes modified by supplemental type certificate (STC) SA8452SW was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One commenter states that the proposed AD is not necessary because the subject IFE system was installed by an approved STC. The commenter acknowledges that there is not a single switch that can remove power from all components of the system, but notes that power may be removed from the separate components of the IFE system (
The FAA infers that the commenter is requesting that we withdraw the proposed rule. We do not concur. We have determined that it is necessary to require a modification of the IFE system to install a master power switch and relay to enable the cabin crew to remove power from the entire IFE system with a single action. This will allow the airplane crew to quickly identify and isolate smoke or fumes that may be caused by the components or wiring of the IFE system. Further, we have determined that it is necessary to revise applicable manuals to inform the flight and cabin crews how to remove power from the IFE system in a single action, to aid them in determining whether or not the IFE system is the source of smoke or fumes. We also note that we do not certify circuit breakers to be used as switches on transport category airplanes. The use of circuit breakers as switches may result in degradation of the circuit breakers to the point where they will not trip at their rated current, thus creating a potentially unsafe condition by not protecting the wiring of associated systems. No change to the final rule is necessary.
One commenter states that it has no comments specific to the proposed actions. However, the commenter states that, if the FAA issues further rulemaking that applies to other IFE systems installed on other airplane models by STC, we should start the 18-month compliance time only after the following events have occurred:
• The FAA has approved an engineering data package generated by the STC holder.
• The STC holder has made modification kits available.
We acknowledge the commenter's concern with the compliance time for further rulemaking actions. As we stated in the proposed AD, in developing an appropriate compliance time for this and similar actions on IFE systems installed by STC, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but the amount of time necessary to accomplish the proposed actions, the availability of necessary parts, and the practical aspect of accomplishing the proposed actions within an interval of time that parallels normal scheduled maintenance for the affected operators. If we issue further rulemaking on other IFE systems installed on other airplane models, we will again consider these factors, as well as any others that are relevant.
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 31 Model DC-10-30 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 31 airplanes of U.S. registry will be affected by this AD.
It will take approximately 16 work hours per airplane to accomplish the required modification, at an average labor rate of $60 per work hour. Required parts will cost approximately $2,000 per airplane. Based on these figures, the cost impact of this modification on the affected U.S. operator is estimated to be $91,760, or $2,960 per airplane.
It will take approximately 1 work hour per airplane to accomplish the required manual revisions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these manual revisions on the affected U.S. operator is estimated to be $1,860, or $60 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, 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 (c) 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 ensure that the airplane crew is able to remove electrical power from the in-flight entertainment (IFE) system when necessary and is advised of appropriate procedures for such action, accomplish the following:
(a) Within 18 months after the effective date of this AD, accomplish paragraphs (a)(1), (a)(2), and (a)(3) of this AD.
(1) Modify the IFE system to incorporate a master power switch and relay, in accordance with Continental Airlines Top Drawing 2330DA11072, Revision B, dated September 15, 2000.
(2) Revise the “Electrical Fire or Smoke Source Unknown Checklist” in the Airplane Flight Manual to alert the flight crew to the existence of the master power switch for the IFE system, in accordance with Continental Airlines Engineering Change/Repair Authorization (EC/RA) 2330-02334, dated September 15, 2000.
(3) Revise the “Fires” section, “General Procedures” paragraph, and “Smoke in the Cabin” section of the Inflight Manual to alert the flight crew and cabin crew to the existence of the master power switch for the IFE system and to inform the flight crew and cabin crew of where to find and how to operate the switch, in accordance with Continental Airlines EC/RA 2330-02335, dated September 15, 2000.
Continental Airlines Top Drawing 2330DA11072, Revision B, refers to the following Continental Airlines drawings as additional sources of information for accomplishment of the modification: 1100DB11064, Revision A, dated September 5, 2000; 2330DB11063, dated August 2, 2000; 2500DB11059, Revision A, dated August 18, 2000; 2330DB11073, Revision A, dated September 5, 2000; 2330DA11074, Revision A, dated September 5, 2000; and 2330DB11075, Revision A, dated September 5, 2000.
(b) As of the effective date of this AD, no person shall install an IFE system in accordance with STC SA8452SW on any airplane, unless it is modified and the applicable manuals are revised in accordance with this AD.
(c) 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, Fort Worth Airplane 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, Fort Worth ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Fort Worth ACO.
(d) 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.
(e) The actions shall be done in accordance with Continental Airlines Top Drawing 2330DA11072, Revision B, dated September 15, 2000; Continental Airlines Engineering Change/Repair Authorization 2330-02334, dated September 15, 2000; and Continental Airlines Engineering Change/Repair Authorization 2330-02335, dated September 15, 2000; 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 Continental Airlines, Inc., 600 Jefferson Street HQJAV, Houston, Texas 77002. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; at the FAA, Fort Worth Airplane Certification Office, 2601 Meacham Blvd., Fort Worth, Texas; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on September 21, 2001.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD) that is applicable to certain Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-120 series airplanes. This action requires measuring the gap between the bellcrank and the body of the rotary variable inductive transducers (RVITs) of the aileron and elevator, performing corrective action if necessary, and torquing the bolt that attaches the bellcrank to the RVIT shaft. This action is necessary to prevent restricted movement of the aileron or elevator, which could result in reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Effective August 27, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 27, 2001.
Comments for inclusion in the Rules Docket must be received on or before September 17, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-262-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-iarcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2001-NM-262-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in this AD may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Rob Capezzuto, Aerospace Engineer, Systems and Flight Test Branch, ACE-116A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; telephone (770) 703-6071; fax (770) 703-6097.
The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, recently notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-120 series airplanes. The DAC advises that there has been a recent instance of interference between the bellcrank of the aileron rotary variable inductive transducer (RVIT) and the head of the hinge pin that attaches the RVIT support. Restricted movement of the aileron or elevator, if not corrected, could result in reduced controllability of the airplane.
The design of the elevator and aileron RVIT bellcranks on these airplanes is similar in their potential for interference with flight control. Therefore, both the elevator and aileron RVITs are addressed in this AD.
EMBRAER has issued Alert Service Bulletin 120-31-A046, dated July 13, 2001, which describes procedures for measuring the gap between the bellcrank and the body of the elevator/aileron RVITs and torquing the bolt that attaches the bellcrank to the RVIT shaft. Corrective actions include inspecting to detect damage of the connecting rod; replacing any damaged rod with a new part having the same part number; and adjusting the gap between the bellcrank and the RVIT body. The DAC classified this alert service bulletin as mandatory and issued Brazilian emergency airworthiness directive 2001-07-01, dated July 26, 2001, to ensure the continued airworthiness of these airplanes in Brazil.
This airplane model is manufactured in Brazil and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent restricted movement of the aileron or elevator, which could result in reduced controllability of the airplane. This AD requires accomplishment of the actions specified in the alert service bulletin described previously.
This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.
Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket 2001-NM-262-AD.” The postcard will be date stamped and returned to the commenter.
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.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, 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 otherwise 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 restricted movement of the aileron or elevator, which could result in reduced controllability of the airplane, accomplish the following:
(a) Within 50 flight hours after the effective date of this AD, measure the gap between the bellcrank and the body of the rotary variable inductive transducers (RVITs) of the elevator and aileron, in accordance with EMBRAER Alert Service Bulletin 120-31-A046, dated July 13, 2001.
(1) If the gap is within the limits specified by the alert service bulletin: Prior to further flight, tighten the bolt that attaches the bellcrank to the RVIT shaft to a torque of 40-45 inch pounds, in accordance with the alert service bulletin.
(2) If the gap is not within the limits specified by the alert service bulletin: Prior to further flight, accomplish all applicable corrective actions (including inspecting to detect damage of the connecting rod; replacing any damaged rod with a new rod having the same part number; and adjusting the gap between the bellcrank and the RVIT body), and tighten the bolt that attaches the bellcrank to the RVIT shaft to a torque of 40-45 inch pounds; in accordance with the alert service bulletin.
(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, Atlanta 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, Atlanta ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Atlanta ACO.
(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 EMBRAER Alert Service Bulletin 120-31-A046, dated July 13, 2001. 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 Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia; 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 Brazilian emergency airworthiness directive 2001-07-01, dated July 26, 2001.
(e) This amendment becomes effective on August 27, 2001.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the ceiling of the Phoenix-Goodyear Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 3,000 feet above Mean Sea Level (MSL). The action enhances air traffic operational safety by allowing airspace to be charted in a manner more consistent with the nature of the operations routinely conducted at Phoenix-Goodyear Municpal Airport.
November 1, 2001.
Jeri Carson, Airspace Specialist, Airspace Branch, AWP-520.11, Air Traffic Division, Western-Pacific Region, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California 90261, telephone number (310) 725-6611.
On June 5, 2001, the FAA published a document (66 FR 30118) proposing to modify the Class D airspace at Phoenix-Goodyear Municipal Airport in Phoenix, Arizona. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal to the FAA. In the ensuing comment period, which closed on July 20, 2001, the FAA received no comments on the proposed action.
This action amends 14 CFR part 71 by lowering the ceiling of the Phoenix-Goodyear Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 3,000 feet above Mean Sea Level (MSL). The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(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) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Class D airspace areas are published in Paragraph 5000 of FAA Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, through September 15, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in that Order.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to, but not including, 3,000 feet MSL within a 3-mile radius of Phoenix-Goodyear Municipal Airport, excluding the portion within the Phoenix, Luke AFB, AZ, Class D airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA) DOT.
Final rule.
This action amends the ceiling of the Phoenix-Deer Valley Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 4,000 feet above Mean Sea Level (MSL). The action enhances air traffic operational safety by allowing airspace to be charted in a manner more consistent with the nature of the operations routinely conducted at Phoenix-Deer Valley Municipal Airport.
November 1, 2001.
Jeri Carson, Airspace Specialist, Airspace Branch, AWP-520.11, Air Traffic Division, Western-Pacific Region, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California 90261, telephone number (301) 725-6611.
On June 5, 2001, the FAA published a document (66 FR 30119) proposing to modify the Class D airspace at Phoenix-Deer Valley Municipal Airport in Phoenix, Arizona. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal to the FAA. In the ensuing comment period, which closed on July 20, 2001, the FAA received no comments on the proposed action.
This action amends 14 CFR part 71 by lowering the ceiling of the Phoenix-Deer Valley Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 4,000 feet above Mean Sea Level (MSL). The FAA has determined that this regulation only involves an established body of
Class D airspace areas are published in Paragraph 5000 of FAA Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, through September 15, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in that Order.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to, but not including, 4,000 feet MSL within a 4.4-mile radius of Phoenix-Deer Valley Municipal airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the ceiling of the Glendale Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 3,000 feet above Mean Sea Level (MSL). The action enhances air traffic operational safety by allowing airspace to be charted in a manner more consistent with the nature of the operations routinely conducted at Glendale Municipal Airport.
November 1, 2001.
Jeri Carson, Airspace Specialist, Airspace Branch, AWP-520.11, Air Traffic Division, Western-Pacific Region, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California 90261, telephone number (310) 725-6611.
On June 5, 2001, the FAA published a document (66 FR 30117) proposing to modify the Class D airspace at Glendale Municipal Airport in Glendale, Arizona. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal to the FAA. In the ensuing comment period, which closed on July 20, 2001, the FAA received no comments on the proposed action.
This action amends 14 CFR part 71 by lowering the ceiling of the Glendale Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 3,000 feet above Mean Sea Level (MSL). The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(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) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Class D airspace areas are published in Paragraph 5000 of FAA Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, through September 15, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in that Order.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to, but not including, 3,000 feet MSL within a 3-mile radius of Glendale Municipal Airport excluding that portion west of a line beginning at lat. 33°29′00″ N, long. 112°19′26″ W; to lat. 33°29′29″ N, long. 112°19′29″W; to lat. 33°33′24″ N, long. 112°18′04″ W; to lat. 33°34′32″ N, long. 112°16′43″ W; This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA) DOT.
Final rule.
This action amends the ceiling of the Chandler Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 3,000 feet above Mean Sea Level (MSL). The action enhances air traffic operational safety by allowing airspace to be charted in a manner more consistent with the nature of the operations routinely conducted at Chandler Municipal Airport.
November 1, 2001.
Jeri Carson, Airspace Specialist, Airspace Branch, AWP-520.11, Air Traffic Division, Western-Pacific Region, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California 90261, telephone number (310) 725-6611.
On June 5, 2001, the FAA published a document (66 FR 30120) proposing to modify the Class D airspace at Chandler Municipal Airport in Chandler, Arizona. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal to the FAA. In the ensuring comment period, which closed on July 20, 2001, the FAA received no comments on the proposed action.
This action amends 14 CFR part 71 by lowering the ceiling of the Chandler Municipal Airport Class D Surface Area to extend from the surface up to, but not including, 3,000 feet above Mean Sea Level (MSL). The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(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; Federal 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Class D airspace areas are published in Paragraph 5000 of FAA Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, through September 15, 2001, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in that Order.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Corp., p. 389.
That airspace extending upward from the surface to, but not including, 3,000 feet MSL within a 4-mile radius of Chandler Municipal Airport, excluding the portion within the Williams Gateway Airport, AZ, Class D airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Commodity Futures Trading Commission.
Final rule.
In accordance with certain provisions of the Commodity Futures Modernization Act of 2000 (“CFMA”), the Commodity Futures Trading Commission (“Commission” or “CFTC”) is amending its regulation, which specifies the information that various applicants for registration must file. The amendment provides for notice registration as a futures commission merchant (“FCM”) or introducing broker (“IB”), as applicable, in the case of a broker or dealer (“BD”) registered with the Securities and Exchange
Effective: September 17, 2001.
Barbara S. Gold, Assistant Chief Counsel, or Lawrence B. Patent, Associate Chief Counsel, Division of Trading and Markets, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, (202) 418-5450, electronic mail: bgold@cftc.gov, or lpatent@cftc.gov.
On December 21, 2000, the CFMA was signed into law.
New section 4f(a)(2) of the CEA now provides that any BD that is registered with the SEC
(A) the broker or dealer limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market or registered derivatives transaction execution facility to security future products;
(B) the broker or dealer files written notice with the Commission in such form as the Commission, by rule, may prescribe containing such information as the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors;
(C) the registration of the broker or dealer is not suspended pursuant to an order of the Securities and Exchange Commission; and
(D) the broker or dealer is a member of a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934.
The Commission did not similarly propose (and is not now adopting) notice registration under Rule 3.12 for the APs of those BDs notice-registered as FCMs and IBs under Rule 3.10, because the CFMA exempts these APs from registration altogether. Specifically, section 252(d) of the CFMA amends section4k of the CEA to provide that:
Any associated person of a broker or dealer that is registered with the Securities and Exchange Commission, and who limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery or any options on such a contract, on or subject to the rules of any contract market or registered derivatives transaction execution facility to security futures products, shall be exempt from [Section 4k(1)] of this Act and the rules thereunder.
Commission rules referred to herein are found at 17 CFR Ch. I (2001).
Among other things, the CFTC Proposal provided that this notice registration would be made “by following such procedures for notice registration as may be specified” by the National Futures Association (“NFA”).
Three comment letters were filed on the CFTC Proposal: one by NFA, one by the Chicago Mercantile Exchange Inc. (“CME”), and one by the Futures Industry Association (“FIA”). While all of these commenters supported the CFTC Proposal (and the Commission's contemplated notice registration delegation to NFA), two of them took exception to the corresponding CFMA-mandated proposal of the SEC that would provide for notice registration as a BD of certain registered FCMs and IBs for the limited purpose of effecting transactions in security futures products (“SEC Proposal”).
In response to these comments, the Commission notes that it has conferred with the SEC on these issues and that it continues to do so in this area as well as others concerning security futures products. Nonetheless, the Commission continues to believe that, as stated by FIA, its BD notice registration procedures (
As proposed, the Commission is amending Rule 3.10 in several ways. First, paragraph (a)(1)(i) is being revised to alert applicants for registration that there is a special, limited registration procedure under new Rule 3.10(a)(3). Second, paragraph (a)(3) is being added. Captioned “Notice registration as a futures commission merchant or introducing broker for certain securities brokers or dealers,” it adds an exception to the FCM and IB registration requirements of Rule 3.10(a) for BDs who meet the criteria of new section 4f(a)(2) of the CEA. Registration under paragraph (a)(3) is to be made “by following such procedures for notice registration as may be specified” by NFA. This registration will be effective upon the filing of the notice prescribed by NFA, as mandated by section 252(b)(2) of the CFMA. Finally, paragraph (d) is being amended to relieve these notice registrants from the annual update requirement.
The Commission similarly is amending as proposed Rule 170.15. The amendment adds a provision to exempt FCMs registered in accordance with Rule 3.10(a)(3) from the requirement to become and remain a member of a registered futures association.
The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601
As noted in the CFTC Proposal, these amendments would provide exemptive relief from provisions of the Commission's rules that otherwise will be applicable to such persons. Consequently, the Commission believes that the adoption of these rule amendments would reduce the burden of compliance by persons seeking to be registered as an FCM or IB. No comments were received in response to the Commission's specific request for comments on this issue.
This rulemaking contains information collection requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
The final rule does not contain any disclosure requirements or any consumer reporting requirements. It does, however, require the collection of certain information from BDs seeking to be notice-registered as an FCM or IB. The Commission may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a currently valid OMB control number. The Commission has received a control number for this information collection from OMB.
Section 119 of the CFMA amended section 15 of the CEA to require that the Commission, before promulgating a rule or issuing an order under the CEA, consider the costs and benefits of the Commission's action in light of five criteria.
Brokers, Commodity futures, Reporting and recordkeeping requirements.
Authority delegations (Government agencies), Commodity futures.
5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6o, 6p, 8, 9, 9a, 12, 12a, 13b, 13c, 16, 18, 19, 21, 23.
A. By revising paragraph (a)(1)(i),
B. By adding a new paragraph (a)(3), and
C. By revising the first sentence of paragraph (d).
The revisions and addition to read as follows:
(a)
(3)
(A) The broker or dealer limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market or registered derivatives transaction execution facility, to security futures products as defined in section 1a(32) of the Act;
(B) The registration of the broker or dealer is not suspended pursuant to an order of the Securities and Exchange Commission; and
(C) The broker or dealer is a member of a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934.
(ii) The registration will be effective upon the filing of the notice prescribed by the National Futures Association in accordance with the instructions thereto.
(d)
7 U.S.C. 6p, 12a and 21, unless otherwise noted.
(a) Except as provided in paragraph (b) of this section, each person required to register as a futures commission merchant must become and remain a member of at least one futures association which is registered under section 17 of the Act and which provides for the membership therein of such futures commission merchant, unless no such futures association is so registered.
(b) The requirements of paragraph (a) of this section shall not apply to a futures commission merchant registered in accordance with § 3.10(a)(3) of this chapter.
Commodity Futures Trading Commission.
Final rules.
In accordance with certain provisions of the Commodity Futures Modernization Act of 2000 (“CFMA”), the Commodity Futures Trading Commission (“Commission” or “CFTC”) has adopted, substantially as proposed, new rule which establishes procedures for granting requests for orders exempting certain brokers or dealers (“BDs”) registered with the Securities and Exchange Commission (“SEC”) from provisions of the Commodity Exchange Act (the “Act”) and/or the Commission's regulations where the Commission determines that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors. The Commission is also permitting securities industry self-regulatory organizations (“SROs”) to submit such requests for exemptive orders on behalf of their members, and it is delegating to the Director of the Division of Trading and Markets authority to grant, to conditionally grant, or to deny, any such requests for exemptive orders.
October 9, 2001.
Lawrence B. Patent, Associate Chief Counsel, or Christopher W. Cummings, Special Counsel, Division of Trading and Markets, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581, telephone number: (202) 418-5450, facsimile number: (202) 418-5536, electronic mail:
The CFMA, signed into law on December 21, 2000, effected, among other things, removal of the restriction in the Act
Section 4d of the Act provides that any person who engages in soliciting or accepting orders for the purchase or sale of any commodity for future delivery on or subject to the rules of any designated contract market or DTF—e.g., for a security futures product—must be registered with the Commission as: (1) A futures commission merchant
However, as a result of the CFMA, new section 4f(a)(2) of the Act
(A) the broker or dealer limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market or registered derivatives transaction execution facility to security futures products;
(B) the broker or dealer files written notice with the Commission in such form as the Commission, by rule, may prescribe containing such information as the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors;
(C) the registration of the broker or dealer is not suspended pursuant to an order of the Securities and Exchange Commission; and
(D) the broker or dealer is a member of a national securities association registered pursuant to section 15A(a) of the ’34 Act.
Accordingly, in a separate
New section 4f(a)(3) of the Act
(A) the floor broker or floor trader is a broker or dealer registered with the Securities and Exchange Commission;
(B) the floor broker or floor trader limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market to security futures products;
(C) the registration of the floor broker or floor trader is not suspended pursuant to an order of the Securities and Exchange Commission.
Persons registered as FCMs or IBs pursuant to the notice registration procedure of new section 4f(a)(2) and persons who are exempt from FB or FT registration pursuant to new section 4f(a)(3) are expressly exempted by new section 4f(a)(4)
In addition to the statutory exemption from enumerated sections of the Act (and the rules adopted under those sections) granted to BDs that notice-register as FCMs or IBs under new section 4f(a)(2), or that are exempt from FB or FT registration under new section 4f(a)(3), the CFMA authorizes the Commission to further exempt such BDs, by rule, regulation or order from any provision of the Act or the Commission's rules, to the extent the exemption is necessary or appropriate in the public interest and is consistent with the protection of investors. The CFMA also directs the Commission to determine, by rule or regulation, the procedures under which an order under new section 4f(a)(4)(B) shall be granted.
In response to the CFMA's directions to establish rules for requesting and granting exemptive orders, the Commission proposed the rule changes the adoption of which is announced by this
New section 4f(a)(4)(B)(i) of the Act provides that the Commission may issue
As proposed, Rule 41.41 called for applicants to supply either a written application or an electronic mail submission containing the applicant's name, main business address and phone number, information about the applicant's registration status with the SEC (and assurance that the registration is not subject to a suspension), the specific section(s) of the Act or provision(s) of Commission rules from which exemption is sought, any applicable analogous provisions of the securities laws and regulations, an explanation of the facts and circumstances under which the applicant believes that the requested exemptive relief is necessary or appropriate in the public interest, and an explanation of the extent to which the requested exemptive relief is consistent with the protection of investors. The last two items contain the standards upon which the CFMA requires the Commission to base the grant of a request for an order. The proposed rule also stated that the grant or denial of a request is within the Commission's sole discretion (as specifically provided in the CFMA).
The Commission received one comment letter in response to the Proposing Release. The commenter urged that a national securities exchange should have the right to request an exemptive order under section 4f(a)(4)(B) on behalf of the exchange's members. The commenter, itself a national securities exchange, believes it is particularly qualified to inform the Commission of the potential impact of self-regulatory organization (“SRO”) rules, Federal securities laws and Commission regulations on the exchange's members. The commenter also asserted that regulatory efficiency would be enhanced by the submission of one request for an exemptive order instead of multiple requests, and the issuance of one order, instead of multiple orders with the potential for dissimilar treatment of similarly situated requesters. The Commission agrees with the commenter's rationale and notes that, under Rule 30.10, the rule permitting petitions for exemption from any of the Commission's rules governing foreign futures and options transactions, the Commission considers petitions from a foreign regulatory agency or SRO on behalf of the agency's regulatees or the SRO's members, respectively. Accordingly, as adopted, paragraph (c) of Rule 41.41 reads “A national securities exchange or other securities industry self-regulatory organization may submit an application for an order pursuant to this section on behalf of its members.” The text of Rule 41.41 is otherwise adopted as proposed.
We note for the sake of clarity that an application for an exemptive order under Rule 41.41 that meets the procedural requirements of the new rule need not also comply with the requirements of Rule140.99 (“Requests for exemptive, no-action and interpretative letters”).
In the Proposing Release, the Commission proposed to delegate to the Director of the Division of Trading and Markets authority to grant or deny applications for exemptive orders under proposed Rule 41.41. With respect to the granting and denying of applications for exemptive orders, the Commission intended this delegation to expedite the procedure and to place consideration of exemptive orders with the staff members most directly involved in exemptive matters. The Commission stated its belief that this delegation will maximize regulatory efficiency with respect to these proposed rule changes.
No comments were received regarding the proposed delegation of authority. Accordingly, new paragraph (a)(8) of Rule 140.93 is adopted as proposed.
In addition to suggesting that a national securities exchange be permitted to request exemptive orders under new section 4f(a)(4)(B) on behalf of the exchange's members, the sole comment letter received in response to the Proposing Release also contained two other comments. The first of these comments asserted that the Commission should exempt by rule or regulation persons that perform the functions of FBs and FTs on the floor of a national securities exchange with respect to security futures from the provisions of the Act and Commission rules thereunder that are covered by comparable provisions of the '34 Act, SEC Regulations and applicable exchange rules. The commenter proposed that the following Commission rules could be thus dispensed with: Rule 1.38 (Execution of transactions); Rule 1.39 (Simultaneous buying and selling orders of different principals; execution of, for and between principals); Rule 1.62 (Contract market requirement for floor broker and floor trader registration); Rule 1.63 (Service on self-regulatory organization governing boards or committees by persons with disciplinary histories); Rule 1.64 (Composition of various self-regulatory organization governing boards and major disciplinary committees); Rule 1.69 (Voting by interested members of self-regulatory organization governing boards and various committees); Part 18 rules (Reports by traders); Rule 155.2 (Trading standards for floor brokers); Rule 155.5 (Prohibition on dual trading by floor brokers); and Rule 156 (Broker associations).
We note that the CFMA exempts from section 4j of the Act (which governs restrictions on dual trading) contract markets notice-designated as such under section 5f of the Act, which would include national securities exchanges, national securities associations or alternative trading systems.
With respect to Rules 1.63, 1.64 and 1.69, these rules concern corporate governance issues for SROs and, as such, the commenter's remarks would more effectively be made in a comment
The other comment was a request for rulemaking regarding the obligations of national securities exchanges that list security futures to comply with the Act and Commission regulations regarding contract market responsibilities. On the same date as the commenter's letter, the Commission published in the
The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires that agencies, in proposing rules, consider the impact of those rules on small businesses. The rule amendments discussed herein affect persons registered under notice-registration procedures as FCMs or as IBs, and persons who are exempt from FB or FT registration pursuant to new section 4f(a)(3). The Commission has previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its rules on such entities in accordance with the RFA.
The amendments, adoption of which is announced herein, do not impose any new burdens upon persons registered as FCMs or IBs pursuant to the notice registration procedure of new section 4f(a)(2) and persons who are exempt from FB or FT registration pursuant to new section 4f(a)(3). Rather, these amendments establish procedures for requesting additional exemptive relief from provisions of the Act and/or the Commission's regulations for such persons. Consequently, the Commission believes that these rule amendments will in many cases reduce the burden of compliance by persons notice-registered as FCMs or IBs and persons who are exempt from FB or FT registration pursuant to new section 4f(a)(3). Although the Commission specifically sought comments regarding the impact this rule may have on small entities, none were received.
New Rule 41.41 contains information collection requirements. As required by the Paperwork Reduction Act of 1995,
Section 119 of the CFMA amended section 15 of the Act to require that the Commission, before promulgating a regulation under the Act or issuing an order, consider the costs and benefits of the Commission's action in light of five criteria.
Customer protection, Reporting and recordkeeping requirements, Security futures.
Authority delegations.
7 U.S.C. 6f and 12a.
(a) Any futures commission merchant or introducing broker registered in accordance with the notice registration provisions of § 3.10 of this chapter, or any broker or dealer exempt from floor broker or floor trader registration pursuant to section 4f(a)(3) of the Act, may apply to the Commission for an order pursuant to section 4f(a)(4)(B) of the Act granting exemption to such person from any provision of the Act or the Commission's regulations other than sections 4c(b), 4c(d), 4c(e), 4c(g), 4d, 4e, 4h, 4f(b), 4f(c), 4j, 4k(1), 4p, 6d, 8(d), 8(g), and 16 of the Act and the rules thereunder.
(b) An application pursuant to this section must set forth in writing or in an electronic mail message the following information:
(1) The name, main business address and main business telephone number of the person applying for an order;
(2) The capacity in which the person is registered with the Securities and Exchange Commission and the person's CRD number (if a member of the National Association of Securities Dealers, Inc.) or equivalent self-regulatory organization identification, together with a certification, if true, that the person's registration is not suspended pursuant to an order of the Securities and Exchange Commission;
(3) The particular section(s) of the Act and/or provision(s) of the Commission's regulations with respect to which the person seeks exemption;
(4) Any provision(s) of the securities laws or rules, or of the rules of a securities self-regulatory organization analogous to the provision(s);
(5) A clear explanation of the facts and circumstances under which the
(6) A clear explanation of the extent to which the requested exemptive relief is consistent with the protection of investors.
(c) A national securities exchange or other securities industry self-regulatory organization may submit an application for an order pursuant to this section on behalf of its members.
(d) An application for an order must be submitted to the Director of the Division of Trading and Markets, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581, if in paper form, or to tm@cftc.gov if submitted via electronic mail.
(e) The Commission may, in its sole discretion, grant the application, deny the application, decline to entertain the application, or grant the application subject to one or more conditions.
7 U.S.C. 2 and 12a.
(a) * * *
(7) [Reserved]
(8) All functions reserved to the Commission in § 41.41 of this chapter. Any action taken pursuant to the delegation of authority under this paragraph (a)(8) shall be made with the concurrence of the General Counsel or, in his or her absence, a Deputy General Counsel.
Department of State
Final rule.
This rule amends existing regulations governing the au pair exchange program. These amendments create a sub-category of au pair exchange participation under which the au pair participant will provide fewer hours of child care for the host family and the required educational component that the au pair must complete increases from not less than six semester hours of academic credit or its equivalent per year to not less than twelve semester hours of academic credit or its equivalent per year. A notice of proposed rule with request for comment regarding this matter was published in the
This rule is effective August 17, 2001.
Stanley S. Colvin, Director, Office of Exchange Coordination and Designation, U.S. Department of State, 301 Fourth Street, SW, Room 852, Washington, DC 20547; telephone (202) 619-6828.
These regulations govern Department-designated au pair programs under which foreign nationals are afforded the opportunity to live with an American host family and participate directly in the home life of the host family while providing child care services and attending a U.S. post-secondary educational institution. The Department's goal in amending existing regulations is to provide an opportunity for participation by foreign nationals who wish to pursue their academic studies more vigorously. To this end, the Department now approves a reduction in the amount of child care services this au pair participant will provide to not more than 30 hours per week and an increase in the amount of academic credit the au pair will pursue to not less than twelve semester hours or its equivalent. At the suggestion of Department-designated au pair sponsors, the Department has identified this form of au pair participation as EduCare. Existing provisions for au pair participation based upon up to 45 hours of child care services and the pursuit of not less than six semester hours of academic credit or its equivalent remain unchanged.
To accomplish this dual objective, EduCare au pair participants will be placed with host families that need before and after school child care services for their school age children. Accordingly, EduCare au pair participants may not be placed with families having pre-school children unless alternative, full-time arrangements are in place for the supervision of such pre-school children. As the EduCare au pair participant will be more actively pursuing his or her academic studies, a reduction in the number of hours that the au pair will provide child care services, from not more than 45 hours per week to not more than 30 hours per week, is hereby adopted. This reduction in the number of hours of child care services provided dictates a corresponding reduction in the weekly wage paid to an EduCare au pair participant. An au pair participating in the EduCare program will be paid in accordance with the provisions of the Fair Labor Standards Act. However, as a matter of administrative convenience for both Department-designated sponsors and participating host families, the weekly wage for EduCare au pair participants be calculated as a percentage of the weekly wage paid to all other au pair participants.
Cultural exchange programs.
Accordingly, 22 CFR Part 62 is amended as follows:
8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, 112 Stat. 2681 et seq.; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O.12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168.
(a) Introduction. This section governs Department of State-designated exchange visitor programs under which foreign nationals are afforded the opportunity to live with an American host family and participate directly in the home life of the host family. All au pair participants provide child care services to the host family and attend a U.S. post-secondary educational institution. Au pair participants provide up to forty-five hours of child care services per week and pursue not less than six semester hours of academic credit or its equivalent during their year of program participation. Au pairs participating in the EduCare program provide up to thirty hours of child care
(c) * * *
(1) Limit the participation of foreign nationals in such programs to not more than one year;
(2) Limit the number of hours an EduCare au pair participant is obligated to provide child care services to not more than 10 hours per day or more than 30 hours per week and limit the number of hours all other au pair participants are obligated to provide child care services to not more than 10 hours per day or more than 45 hours per week;
(3) Require that EduCare au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than twelve semester hours of academic credit or its equivalent and that all other au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than six semester hours of academic credit or its equivalent;
(e)
(3) Place an au pair with a host family having children under the age of two, unless the au pair has at least 200 hours of documented infant child care experience. An au pair participating in the EduCare program shall not be placed with a family having pre-school children in the home unless alternative full-time arrangements for the supervision of such pre-school children are in place;
(5) Place an au pair with a host family unless a written agreement between the au pair and the host family detailing the au pair's obligation to provide child care has been signed by both the au pair and the host family prior to the au pair's departure from his or her home country. Such agreement shall clearly state whether the au pair is an EduCare program participant or not. Such agreement shall limit the obligation to provide child care services to not more than 10 hours per day or more than 45 hours per week unless the au pair is an EduCare participant. Such agreement shall limit the obligation of an EduCare participant to provide child care service to not more than 10 hours per day or more than 30 hours per week.
(j)
(1) Are compensated at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor. EduCare participants shall be compensated at a weekly rate that is 75% of the weekly rate paid to non-EduCare participants;
(2) Do not provide more than 10 hours of child care per day, or more than 45 hours of child care in any one week. EduCare participants may not provide more than 10 hours of child care per day or more than 30 hours of child care in any one week;
(3) Receive a minimum of one and one half days off per week in addition to one complete weekend off each month; and
(4) Receive two weeks of paid vacation.
(k)
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary security zone around Howland Hook Terminal in the Arthur Kill during loading operations for military equipment. This action is necessary to protect the Port of New York/New Jersey against terrorism, sabotage or other subversive acts and incidents of a similar nature during the U.S. Army's ship loading operations. This action is intended to restrict vessel traffic in a portion of the Arthur Kill.
This rule is effective from 6 a.m. on August 14, until 8 p.m. on August 18, 2001.
Documents indicated in this preamble as being available in the docket, are part of docket (CGD01-01-135) and are available for inspection or copying at Coast Guard Activities New York, 212 Coast Guard Drive, room 204, Staten Island, New York 10305, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Lieutenant M. Day, Waterways Oversight Branch, Coast Guard Activities New York, 718-354-4012.
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 that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the
Due to the date that specific information on the ship loading operations was made available to the Coast Guard, there was insufficient time to draft and publish an NPRM before its effective date. The delay encountered if normal rulemaking procedures were followed would be contrary to the public interest, as immediate action is needed to protect the Port of New York/New Jersey and the U.S. Army's ship loading operations.
This security zone is needed to ensure the security of the Port of New York/New Jersey and the military equipment loading operations on the Arthur Kill at Howland Hook Terminal, Staten Island, NY. There is a significant national security interest in protecting the U.S. Army's ship loading operations. This security zone will safeguard the Port of New York/New Jersey, against terrorism, sabotage or other subversive acts and incidents of a similar nature during the U.S. Army's ship loading operations.
The security zone includes all waters of the Arthur Kill bound by the following points: 40°38′36.1″N 074°11′10.3″W; thence to 40°38′36.9″N 074°11′13.6″W; thence to 40°38′26.3″N 074°11′29.4″W; thence to 40°38′17.5″N 074°11′37.6″W; thence to 40°38′16.7″N 074°11′35.8″W (NAD 1983); thence along the shoreline to the point of beginning. This security zone is effective from 6 a.m. on Tuesday, August 14, until 8 p.m. on Saturday, August 18, 2001. The U.S. Army only anticipates requiring the activation of this security zone during two 8-hour periods of the zones' effective dates. Exact dates and times will be made available via marine information broadcasts once the U.S. Army makes them available to the U.S. Coast Guard.
This security zone is based on the security needs for the Port of New York/New Jersey and the U.S. Army. It has been narrowly tailored to impose the least impact on maritime interests yet provide the level of security deemed necessary. This safety zone does not affect the Federal navigation channel west of Howland Hook Terminal. Entry into or movement within this security zone is prohibited unless authorized by the Coast Guard Captain of the Port, New York.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12886, 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).
The Coast Guard expects the economic impact of this final 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 minimal time that vessels will be restricted from the zone, that vessels may still transit through the Arthur Kill during the zones' activation, vessels will not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone, and extensive advance notifications which will be made.
The U.S. Army only anticipates requiring the activation of this security zone during two 8-hour periods of the zones' effective dates. Exact dates and times will be made available via marine information broadcasts once the U.S. Army makes them available to the U.S. Coast Guard.
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 rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Arthur Kill during the time this zone is activated.
This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Marine traffic will still be able to transit through the Arthur Kill during the zones' activation. Additionally, vessels will not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone. Public notifications will be made prior to the event via Marine Information Broadcasts, which are widely available to users of the Arthur Kill.
The U.S. Army only anticipates requiring the activation of this security zone during two 8-hour periods of the zones' effective dates. Exact dates and times will be made available via marine information broadcasts once the U.S. Army makes them available to the U.S. Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
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 create an environmental risk to health or risk to safety that may disproportionately affect children.
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.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. This rule fits paragraph 34(g) as it establishes a security zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
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), 6.04-1, 6.04-6, 160.5; 49 CFR 1.46.
(a)
(b)
(c)
(2) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene-patrol personnel. These personnel comprise commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U. S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
Centers for Medicare & Medicaid Services (CMS), HHS.
Interim final rule with comment; Further delay of effective date.
This document further delays the effective date of the final rule with comment period on Medicaid managed care that we published in the
In a
These delays were necessary to give newly appointed Department officials the opportunity for further review and consideration of the new regulations. During these delays, we have heard from key stakeholders in the Medicaid managed care program, including States, advocates for beneficiaries, and provider organizations. These stakeholders expressed strong (sometimes opposing) views about the regulation. In particular, concerns were expressed about revisions made in the final rule that were based on public comments we received on the September 29, 1998 proposed rule (63 FR 52022). Other commenters raised concerns about how we chose to implement those provisions in the final rule without further opportunity for public comment.
We are publishing in the August 20, 2001 issue of the
Mail written comments (one original and three copies) to the following address only:
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2001-IFC, P.O. Box 8016, Baltimore, MD 21244-8016.
To ensure that mailed comments are received in time for us to consider them, please allow for possible delays in delivering them.
If you prefer, you may deliver (by hand or courier) your written comments (one original and three copies) to one of the following addresses: Room 443-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201, or Room C5-16-03, 7500 Security Boulevard, Baltimore, MD 21244-1850.
Comments mailed to the addresses indicated as appropriate for hand or
Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission. In commenting, please refer to file code CMS-2001-IFC.
If you have comments on the information collection requirements, please mail copies directly to the following:
Deirdre Duzor, (410) 786-4626.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
Federal Emergency Management Agency, FEMA.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are suspended on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will be withdrawn by publication in the
The effective date of each community's suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you wish to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office or the NFIP servicing contractor.
Edward Pasterick, Division Director, Program Marketing and Partnership Division, Federal Insurance Administration and Mitigation Directorate, 500 C Street, SW.; Room 411, Washington, DC 20472, (202) 646-3098.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the
In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Associate Director finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.
This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.
The Associate Director has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.
This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
This rule does not involve any collection of information for purposes of
This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.
This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 64.6 are amended as follows:
Federal Emergency Management Agency, (FEMA).
Interim rule.
This interim rule lists communities where modification of the Base (1-percent-annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Map(s) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Acting Administrator for Federal Insurance and Mitigation Administration reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Matthew B. Miller, P.E., Chief, Hazards Study Branch, Hazards, Mapping and Risk Assessment Division, FEMA, 500 C Street, SW., Washington, DC 20472, (202) 646-3461 or (e-mail) matt.miller@fema.gov.
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.
The changes in BFEs are in accordance with 44 CFR 65.4.
This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.
The Acting Administrator for Federal Insurance Administration and Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.
This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.
This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Emergency Management Agency, (FEMA).
Final rule.
Modified Base (1-percent-annual-chance) Flood Elevations (BFEs) are finalized for the communities listed below. These modified elevations will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective dates for these modified BFEs are indicated on the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect for the listed communities prior to this date.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Matthew B. Miller, P.E., Chief, Hazards Study Branch, Hazards, Mapping and Risk Assessment Division, FEMA, 500 C Street, SW., Washington, DC 20472, (202) 646-3461 or (e-mail) matt.miller@fema.gov.
FEMA makes the final determinations listed below of the final determinations of modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Acting Administrator, Federal Insurance and Mitigation Administration, has resolved any appeals resulting from this notification.
The modified BFEs are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.
The modifications are made pursuant to Section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.
These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
The changes in BFEs are in accordance with 44 CFR 65.4.
This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.
The Acting Administrator, Federal Insurance and Mitigation Administration, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.
This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.
This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
The Department of Transportation published its drug and alcohol testing procedures regulations on December 19, 2000. The FMCSA is revising its conforming regulations entitled “Controlled Substances and Alcohol Use and Testing.” The purpose of this revision is to make the FMCSA's controlled substances and alcohol testing regulations consistent with DOT's revised testing procedures and to avoid duplication. Additionally, the FMCSA is amending its drug and alcohol testing regulations to update obsolete provisions and to clarify certain provisions of the rules.
The final rule is effective August 17, 2001.
Kenneth E. Rodgers, FMCSA, Transportation Specialist, 400 7th Street, SW., MC-ECE, Washington, DC 20590, 202-366-4016 (voice), 202-366-7908 (fax), or
The Department of Transportation published a comprehensive revision to the departmental drug and alcohol testing procedural rule (49 CFR part 40) (December 19, 2000, 65 FR 79462). The new part 40 makes numerous changes in the way that drug and alcohol testing will be conducted in the future. The rule in its totality became effective August 1, 2001.
Part 40 is one element of a One-DOT set of regulations designed to deter and detect the use of illegal drugs and the misuse of alcohol by employees performing safety-sensitive transportation functions. It is important that the FMCSA, which regulates the motor carrier industry, publish rules that are consistent with the revised part 40 to avoid duplication, conflict, or confusion among DOT regulatory requirements. Therefore, we are publishing amended drug and alcohol testing regulations to conform to part 40. We are also amending part 382 to clarify certain provisions of the rules in response to public comments received in this docket.
On December 19, 2000, (65 FR 79462) the Department published a final rule titled “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” This rule revised 49 CFR part 40 to improve the clarity of the organization and language of the regulation, to incorporate guidance and interpretations of the rule into its text, and to update the rule to respond to changes in technology, the testing industry, and the Department's drug and alcohol testing program.
Consequently, the FMCSA proposed to change its drug testing rules (49 CFR part 382) so that they would conform to the new requirements contained in part 40. As such, the FMCSA is deleting provisions from part 382 that are also covered in the new part 40. Employers and employees affected by part 382 have always been required to adhere to parts 40 and 382 to comply with the FMCSA's drug and alcohol testing requirements. Referring the reader directly to part 40 instead of duplicating part 40 rule text in part 382 would promote both drafting economy and consistency of interpretation. This final rule removes regulatory text from part 382 regarding return to duty testing, follow-up testing, medical review officer (MRO) notifications, inquiries from previous employers, and referral, evaluation and treatment requirements. Instead, the regulation incorporates by reference the appropriate provisions of part 40 that address these issues.
The primary purpose of this final rule is to conform part 382 to the new part 40. However, the FMCSA also proposed to update and clarify existing text references that were either outdated or in need of clarification. This included replacing references to the Federal Highway Administration with the Federal Motor Carrier Safety Administration, removing obsolete implementation dates and reporting requirements, and providing clarification of the meaning of existing requirements that were frequently the subject matter of questions from the motor carrier industry.
The FMCSA issued a notice of proposed rulemaking (NPRM) on April 30, 2001 (66 FR 21538). We received 22 comments in response to this NPRM. The final rule responds to these comments and makes appropriate modifications to the existing rules governing the FMCSA's drug and alcohol testing program.
The Department restructured part 40 in the question and answer format. Comments received were very complimentary about the reorganization of that rule, generally praising the rule as much clearer and easier to follow. As a result, the Department received the plain English award “No Gobbledygook” for its efforts.
The FMCSA received several comments suggesting that we follow suit with the Department and publish our final rule in the question and answer format. Although this is a desirable concept that we hope to implement eventually, the FMCSA was under an ambitious timetable to publish this final rule to be effective simultaneously with the effective date of part 40. Rewriting part 382 in question and answer format would have taken a considerable amount of additional time. Therefore, the FMCSA decided to publish the final rule in the current format so that it will be effective as close at possible to the August 1, 2001, effective date for part 40.
In addition to detailed paragraph-by-paragraph comments on the text of the NPRM, commenters focused on common policy issues that involved interpretations of the current regulatory text. A comment was received suggesting that we incorporate the published interpretations of part 382 into the regulations, as was done in part 40. Unlike the case with part 40, the NPRM did not incorporate all of the published regulatory guidance into the rule text for purposes of soliciting public comment. Eventually, the FMCSA will rewrite the existing Federal Motor Carrier Safety Regulations in question and answer format. This will include incorporating regulatory guidance, however, this will not be accomplished in this rulemaking proceeding. Consequently, we have incorporated regulatory guidance into the final rule only to a limited extent, i.e., when necessary to clarify confusion expressed by commenters regarding the meaning of a particular regulatory provision.
Generally, final rules must be published at least 30 days before their
Many of the comments received focused on the inherent problems that arise in regards to controlled substances and alcohol testing for owner-operators. The regulations require self-employed owner-operators to join consortiums in order to meet the requirements of part 382. Most of the comments addressed the role of a service agent in relation to owner-operators. Section 40.355(f) permits service agents to act as intermediaries in the transmission of substance abuse professional (SAP) reports to an owner-operator or other self-employed individual. Section 40.355(h) states that service agents may make decisions to test an owner-operator based upon reasonable suspicion, post-accident, return-to-duty, and follow-up determination criteria. Section 40.355(j) permits service agents to determine that an owner-operator has refused a drug or alcohol test, but only if authorized by a DOT agency regulation..
Many service agents believe that they should be permitted, with the owner-operator's consent, to serve as the designated employer representative (DER) for the purpose of drug and alcohol compliance.
This is an area of great concern to the FMCSA. We are exploring ways of dealing with this problem. For example, in section 226 of the Motor Carrier Safety Improvement Act (MCSIA) of 1999, Congress required the Secretary to conduct a study of the feasibility and merits of requiring medical review officers or employers to report to the State that issued the driver's commercial driver's license (CDL) all verified positive controlled substances test results for any driver subject to controlled substances testing in 49 CFR part 382. The study would also consider the feasibility of requiring all prospective employers, before hiring any driver, to query the State that issued the CDL on whether the State has any record of a verified positive drug test on that driver. Currently there are drivers who are found to have positive drug and/or alcohol test results who quit a job after testing positive. They may or may not receive any counseling or treatment and simply go to another motor carrier/employer without any record of the positive drug or alcohol test result. The motor carrier industry has expressed interest in having a database that would house drug and alcohol test results. The safety benefit of having records of positive drug and/or alcohol tests would be in the ability to identify these drivers who are safety risks to themselves and to the public.
In carrying out the study, Congress requires an assessment on identifying methods for safeguarding the confidentiality of verified drug test results. In addition, the study shall examine the costs, benefits, and safety impacts of requiring States to maintain records of verified positive drug test results; and whether a process should be established to allow drivers to correct errors in their records and to expunge information from their records after a reasonable period of time. A notice soliciting public comment on this study was published in the
We hope the results of this report will help significantly in addressing the issues relative to owner-operators. We recognize that the drug and alcohol program is a deterrent program and that it does not offer 100 percent guarantees that employers and employee alike will adhere to the requirements outlined in the regulations.
We received various comments that suggested C/TPAs be allowed to report positive test results on owner-operators to the FMCSA. To date, we have not allowed this practice. The FMCSA believes to the extent possible, all employers should be treated similarly regardless of size in order to promote uniformity in the program. Employers are only required to report drug and alcohol test results if they have been requested by FMCSA to submit their annual calendar year summaries. The FMCSA does not support the idea of C/TPAs reporting positive test results on owner-operators. We believe that reporting positive test results for owner-operators will not improve compliance or enforcement efforts. We reached this conclusion because a positive test result in and of itself does not indicate non-compliance with the regulations. Non-compliance only occurs when the evidence suggests that an employer allowed a driver to operate a CMV without adhering to the referral, evaluation, and treatment and return to duty testing requirements after testing positive for alcohol or a controlled substance. Additionally, an argument can be made that all aspects of the Federal Motor Carrier Safety Regulations (FMCSRs) should be strengthened to ensure owner-operators comply with the various requirements in the safety regulations. However, the FMCSA has no plausible data that suggest the problems regarding owner-operators are so great that we should establish specific requirements that target this class of employers. The FMCSA remains confident the safety systems currently in place will continue to allow us to focus our resources on problem employers to ensure corrective actions are taken to resolve problems that may arise.
The following discussion addresses the comments received on the NPRM on a section-by-section basis. Sections not specifically discussed below generated no comments and, consequently, have been adopted without further modification.
Two comments were received regarding the exceptions in section 382.103(d). Specifically, 382.103(d)(1) states that employers subject to the Federal Transit Administration's (FTA) drug and alcohol testing rules are not subject to part 382. However, although section 382.103(d)(1) references the requirements of 49 CFR parts 653 and 654, the FTA has recodified its drug and alcohol testing requirements in part 655. The FMCSA has amended the final rule to reference the correct part.
Most comments were favorable and praised the fact that we placed the definition of actual knowledge in the regulatory text. However, the comments
One comment voiced concern that including the “employer's direct observation” within the definition of actual knowledge contradicts the requirements for reasonable suspicion testing. The commenter suggested inserting language stating, “direct observation as used in this definition does not include reasonable suspicion testing.”
Direct observation, for purposes of this definition, refers to observation of actual drug and alcohol use rather than observation of behavior or physical characteristics that indicate that the driver may be under the influence of drugs or alcohol. We have adopted the commenter's request to modify the definition to distinguish between actual knowledge and the reasonable suspicion testing requirements.
Another comment described a scenario where a driver received a traffic citation for driving a CMV while under the influence of alcohol or controlled substances. The commenter noted that part 40 states that only a violation of DOT rules triggers a SAP evaluation and questioned whether a driver is subject to a SAP evaluation if the driver is cited while driving a commercial motor vehicle. Subpart B of part 382 states that no employer having actual knowledge that a driver has tested positive for an alcohol or controlled substances test shall permit the driver to perform safety-sensitive functions. Actual knowledge “includes” knowledge that the driver has received a traffic citation for driving a CMV while under the influence of alcohol or controlled substances. A CMV driver who receives a traffic citation while in a CMV is considered to have violated subpart B. In this case, the employee is subject to the referral, treatment, and evaluation requirements.
Comments regarding the definition of a driver suggested the language is inconsistent with the new employer definition and proposed that the definition be modified to delete the following reference shown in quotation marks: “who are either directly employed by or under lease to an employer or who operate a commercial motor vehicle at the direction of or with the consent of an employer.” We concur with the comments and have modified the definition to remove the language in question for consistency.
Comments were received regarding the definition of employer as it relates to an owner-operator. The comments suggested that language in the revised definition of the word “employer” which references an individual who is self-employed is confusing and can be misconstrued. The definition of employer in section 382.107 was modified to correspond with the definition in revised part 40. Employer is defined as a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance with this part. The term, as used in these regulations, refers to the entity responsible for overall implementation of DOT drug and alcohol program requirements, as well as those individuals employed by the entity who take personnel action resulting from violations of this part and any applicable DOT agency regulation. Service agents are not employers for the purpose of this part.
In spite of the change in terminology, we do not believe that the part 40 definition intended to change the circumstances under which a motor carrier is responsible for compliance with part 382 by self-employed individuals whose CMV operations it directs or controls. In published regulatory guidance, we have stated that “an owner-operator may act as both an employer and a driver at certain times, or as a driver for another employer at certain times depending on contractual arrangements and operational structure” (62 FR 16384), and that owner-operators who are not leased to motor carriers must belong to a consortium for random testing purposes (62 FR 16387). A carrier that uses owner-operators is not responsible for ensuring the owner-operator's compliance with part 382 unless it can be shown that the primary carrier has control of the owner-operator's operation of his or her CMV.
A motor carrier is not automatically responsible for an owner-operator's compliance with part 382 simply because the parties have entered into an agreement or subcontract to provide transportation services. However, inasmuch as our owner-operator leasing regulations, at 49 CFR § 376.12(c), require authorized carrier lessees to have exclusive possession, control and use of the equipment during the term of the lease, we consider an owner-operator operating a CMV under such a lease to be under the lessee carrier's control and direction for purposes of part 382 compliance. In the absence of a lease subject to part 376, there are other activities which may indicate whether a motor carrier controls or directs self-employed individuals including, but not limited to (1) establishing work schedules, (2) providing the origin, destination and/or routes for trips, (3) establishing worksite procedures, or (4) determining what drivers shall do as work progresses or assignments change. However, we decline to establish a bright line rule defining what constitutes sufficient control and direction in every case, as that determination depends on consideration of the totality of circumstances, which may vary among carriers.
A commenter stated the definition used in part 382 is inconsistent with the definition used in part 40 and suggested that part 382 defer to part 40. The commenter stated that part 382's definition of “refusal to submit” does not incorporate the entire refusal to submit definition in part 40. In response, we have modified the definition in part 382 to be consistent with part 40 and have retained the definition in part 382 so that the employer and employee clearly understand what constitutes a refusal to submit. Another commenter was concerned that certain employee actions that could be considered a refusal to test may fall outside of the parameters outlined in this definition. The commenter suggested that we should maintain the previously existing language in part 382 which reads “engaging in conduct that clearly obstructs the testing process” and use the language as a deterrent to employees engaging in such conduct. We believe the definition in part 40, which we are adopting in these rules, satisfactorily addresses the concern of the commenter by ensuring that any employee who fails to cooperate with any part of the testing process could be in violation of the regulation by refusing to submit to drug or alcohol testing.
One commenter suggested that we clarify that employers must give notice to their drivers that an alcohol or controlled substances test is required by part 382 prior to each test, rather than providing a general notice. We have already published an interpretation to that effect and, for clarification purposes, have inserted the word
The starting date for testing programs has been modified to reflect that all previously codified implementation dates have elapsed. The implementation dates for large foreign employers and small foreign employers have been removed. This section now requires all motor carriers, both domestic and foreign, to implement the testing program requirements when they begin operating commercial motor vehicles in the United States.
This section has been included to ensure consistency with 49 CFR part 40, subpart R. In an attempt to protect the public interest, and transportation employers and employees, the Department incorporated the public interest exclusion (PIE) into its regulations. The FMCSA has included this section to inform motor carriers subject to the controlled substances and alcohol testing regulations that they may not use a service agent who has had a PIE issued against it. The Department uses public interest exclusions to exclude service agents who are in serious noncompliance with the drug and alcohol testing regulations from participating in DOT's drug and alcohol testing program.
This section has been added to implement the stand-down waiver provision contained in 49 CFR part 40. Section 40.21 maintains the departmental policy of prohibiting employers from standing an employee down, that is, removing the employee from safety-sensitive service after the medical review officer (MRO) has received a laboratory report of either a confirmed positive test result, adulterated test result, or substituted test result before the result has been verified by the MRO. The new section 40.21(d) authorizes each Administrator (or his or her designee) to waive this prohibition if doing so would effectively enhance safety while protecting employee fairness and confidentiality. Therefore, the new section 382.119 stand-down waiver provision outlines the procedures for applying for a waiver to the FMCSA. The FMCSA would review petitions for a waiver and decide to grant or deny the petition based on the requirements established in section 40.21.
We received a comment stating that we should strengthen the language in the preamble as it relates to sections 40.21 and 382.119. In response, we have further clarified in the rule text that an employer is prohibited from standing employees down, except as consistent with the waiver provisions contained in section 40.21.
The FMCSA intends to grant waivers only to employers who present a sound factual basis for their request and have in place a number of provisions to protect employees' legitimate interests. The FMCSA has the authority to grant or deny a stand-down petition and will make a case-by-case decision about the merits of a stand-down petition with respect to each company that applies for a waiver.
This section appeared in the NPRM as section 382.219. It has been moved from subpart B to subpart A because it is more in the nature of a general regulatory requirement as opposed to a prohibition.
A number of commenters requested clarification concerning issues raised by this section. The common issues centered around five areas. The first area of concern was whether the self-admission program is a voluntary program. The intent of this section is to allow employers to establish programs that permit employees to self-identify drug use or alcohol abuse without DOT consequences. The decision whether to establish such a program is voluntary, and is not mandated by this rule. However, if an employer chooses to implement a self-admission program, the employer must ensure the program complies with the requirements of this part.
The second area of concern involves employees who have admitted to having a controlled substance or alcohol problem and want clarification on what is meant by the requirement that the driver make the admission of alcohol misuse or controlled substances use before performing a safety sensitive function. The FMCSA's objective is to deter employees from operating a CMV if they are using a controlled substance or misusing alcohol. If an employer has a self-admission program, the intent of that program is to allow a driver to disclose a problem and not be subject to DOT sanctions. However, the employer's program is not an excuse for an employee to abuse the good faith intent of the program. The goal is to encourage employees to disclose a drug or alcohol problem prior to reporting for duty on any given day. Once an employee has reported for duty and participated in a safety-sensitive function, it will be too late to self-disclose under the provisions of the employer's self-admission program.
The third area of contention seeks a clarification on what criteria are acceptable for employee treatment and evaluation prior to returning to a safety-sensitive function. The FMCSA will require that employers ensure the employee has obtained treatment from a drug and alcohol abuse evaluation expert prior to the employee returning to a safety-sensitive function. The expert can be an employee assistance professional, substance abuse professional, or a qualified drug and alcohol counselor. The criteria for returning to a safety-sensitive function will be determined by sound clinical and established substance abuse standards of care in clinical practice, and utilizing reliable alcohol and drug abuse assessment tools. The evaluations must be conducted face-to-face with the employee and should include a standard psycho-social history; an in-depth drug and alcohol use history (with information regarding onset, duration, frequency, and amount of use; substance(s) of use and choice; emotional and physical characteristics of use; associated health, work, family, personal, and interpersonal problems); and a current evaluation of the employee's mental status. The evaluation should provide a clinical assessment, treatment recommendations, and a treatment plan to be successfully complied with prior to the employee becoming eligible for follow-up evaluation and subsequent return to safety-sensitive functions. The regulatory text has been modified to add two new paragraphs to this section. Section 382.121(b)(4) establishes return-to-duty testing requirements and section 382.121(b)(5) permits employers to incorporate employee monitoring and non-DOT follow-up tests as part of a self-admission program.
The fourth area of concern involves the required action to be taken if an employee refuses to submit to the treatment required under the self-admission program. The FMCSA believes that an employee who has admitted to a problem with drugs or alcohol under the employer's self-admission program must comply with the requirements of the employer's self-admission program. If an employee fails to comply with any part of the program, or fails to obtain the recommended treatment as prescribed by the employee assistance professional, substance abuse professional, or drug and alcohol abuse
The fifth area of concern centers upon what is meant by adverse action. The FMCSA's intent is that the self-admission program not be used as a disciplinary tool, as it would defeat the purpose of encouraging employees to voluntarily seek treatment. Because the program is voluntary, an employer can choose not to have such a program and still abide by DOT requirements. The FMCSA has remained silent on disciplinary actions, hiring/firing decisions, or financial matters. We have been steadfast in insisting that employers establish policies that outline their drug and alcohol program in accordance with 382.601. However, if an employer establishes a self-admission program, it must not take adverse action against an employee who makes a disclosure under the provisions of the self-admission program.
As noted above, proposed sections 382.217 and 382.219 have been moved to subpart A. None of the other sections in this subpart generated comments and no other modifications have been made.
One comment received on pre-employment alcohol testing expressed concern that it is confusing to include detailed requirements on permissive pre-employment alcohol testing, as it appears to endorse employer pre-employment alcohol testing programs. This section neither endorses nor discourages an employer from conducting pre-employment alcohol testing. It simply requires an employer that chooses to conduct pre-employment alcohol testing to comply with 49 CFR part 40 and the requirements outlined in paragraph (d)(1)-(5) of this section.
We proposed to modify this section because it was brought to our attention that post-accident testing procedures were routinely being misinterpreted for requiring post-accident testing for either controlled substances or alcohol, but not both. Consequently, we tried to clarify this section by separating the provisions for alcohol and controlled substances testing into two distinct requirements in the rule text. Most comments that addressed this change were favorable. However, some commenters pointed out that situations exist where law enforcement officers do not give citations at the time of the accident and, in some cases, do so after the time limitations for conducting post-accident tests have expired. The post-accident testing rules state that employers should cease attempts to conduct post-accident tests once the allotted time has expired and document the reason why post-accident tests were not performed. We believe that reinforcing these time constraints enhances understanding of the rule text. As a result, we incorporated the appropriate time limits into sections 382.303(a)(2) and (b)(2). If the law enforcement officer does not issue a citation within the specified time frames, the employer should not attempt to conduct post-accident testing and should proceed with documenting the reason why the test was not performed. If an employer wants to pursue testing under its own program, the employer may conduct non-DOT test accordingly.
In response to a comment seeking clarification of an employer's obligation to test surviving drivers, we have changed the regulatory text of sections 382.303(a) and (b) to require each employer to test each “of its” surviving drivers for alcohol and controlled substances following an accident.
As proposed in the NPRM, we have eliminated the outdated reporting requirements that formerly appeared in sections 382.303(b)(2) and (b)(3).
The NPRM proposed revising this section to require publication of the notice of minimum annual random testing percentage rates only when the rates change. There were several comments that opposed this proposal. Commenters stated the proposal would cause employers to constantly monitor Federal Registers to ensure compliance, imposing a greater regulatory burden on employers and service agents.
The FMCSA considered the potential burden on the industry if the testing rates were only published when changed. Currently, the FMCSA has experienced difficulties in publishing the rates on a timely basis as prescribed in the regulations. This is in large part due to the lack of compliance from the industry in responding to the drug and alcohol surveys needed to determine the appropriate percentage testing rates. Often, the FMCSA has to resubmit survey requests and extend reporting deadlines in order to obtain a valid sample of participants to properly assess the testing rates. As a result, it has been difficult to publish the notice of applicable percentage testing rates prior to the beginning of each calendar year, as required by the regulations. The FMCSA contends that publishing the rates when a change is required will not pose additional burdens upon the industry. In addition to publishing the prospective testing rates in the
In an attempt to make the rules more clear and concise and easier to follow, the FMCSA has separated the specific requirements of sections 382.305(i) and (k) into separate paragraphs. Section 382.305(i)(1) describes the types of methods to be used for selecting drivers for random testing. The requirement is the same as before, but now stands alone. In newly designated section 382.305(i)(2), we require that each driver selected for random testing shall have an equal chance of being tested. This restates the existing requirement, but is intended toclarify that employers must test the drivers selected and may not choose alternate drivers for the purpose of complying with the applicable rates at the expense of ensuring that random testing is conducted properly. Section 382.305(i)(3) has been added to require that drivers be tested during the applicable testing selection periods. Some employers are not testing drivers selected during a testing period because the drivers are not available for testing on a given day, i.e., a pre-determined testing date. Therefore, the employer skips the driver and moves to the next driver on the list. This prevents the driver that was initially selected from having an equal chance of being tested. Most employers are using quarterly testing cycles to conduct their random testing. Therefore, employers should have ample time to ensure that drivers selected during a testing cycle can be tested within that testing cycle. Although events may occur that prohibit a driver from being tested during a testing cycle, we want to ensure that this is the exception, and not the normal practice.
In response to a comment expressing confusion about the meaning of the second sentence of section 382.305(j), we have eliminated the words “or any DOT alcohol or controlled substances
The final section that we modified for clarity is 382.305(k). The newly designated 382.305(k)(1) requires employers to ensure that random testing is unannounced. Correspondingly, 382.305(k)(2) requires that random testing dates be spread apart reasonably throughout the calendar year. Section 382.305(k) was separated into distinct paragraphs to clarify that the employer must address two specific requirements.
A commenter noted that 382.307(f) requires a written record of the observations leading to a controlled substance test and makes a case that documentation should also be required for alcohol testing. The FMCSA agrees with the commenter and has modified this section to require a written record for observations leading to a reasonable suspicion alcohol test.
Commenters were generally pleased that the laboratory quarterly statistical summaries had been modified to a semi-annual requirement, thus reducing the paperwork burden.
We proposed changing this section by eliminating most of the regulatory text and incorporating the requirements of part 40, subpart B. The FMCSA received one comment stating the changes in this section had no effects on the requirements in part 40; therefore, the commenter was in support of the proposed change.
We received one comment proposing that we add “civil and/or criminal” to this section to further define the requirements. We agree, and have modified this section accordingly.
We often receive inquiries regarding the need for recurring supervisory training. We received a comment suggesting that this section should be modified to require recurring training. The FMCSA requires that supervisors obtain 60 minutes of training on alcohol misuse and receive an additional 60 minutes of training on controlled substances use. This regulation does not require additional training for supervisors and we do not believe a recurring training requirement is necessary.
These final rules have been designated as non-significant under Executive Order 12866 and the Department of Transportation's Regulatory Policies and Procedures. They are non-significant because they merely make changes to conform to the revised 49 CFR part 40, which has already been subject to extensive comment and analysis, or seek to remove obsolete provisions or clarify existing law. The proposed changes would not have any incremental economic impacts. The economic impacts of the underlying part 40 changes were analyzed in connection with the part 40 rulemaking.
Because this rule has no incremental economic impacts, the FMCSA certifies, under the Regulatory Flexibility Act, that it will not have a significant economic impact on a substantial number of small entities.
This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999. The FMCSA has determined this final rule would not have a substantial direct effect on, or sufficient federalism implications for, the States, nor would it limit the policymaking discretion of the States.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FMCSA has determined that there are no new requirements for information collection associated with this final rule. All the information collection requirements of part 40 have been analyzed and approved by OMB. This rule would impose no information collection requirements that have not already been reviewed in the context of the part 40 rulemaking, so no further Paperwork Reduction Act review is necessary.
This rule would not impose a Federal mandate resulting in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1531
This action 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 would not be economically significant and would not concern an environmental risk to health or safety that would disproportionately affect children.
The FMCSA certifies that this rule has no taking implications under the Fifth Amendment or Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
The agency has analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Administrative practice and procedure, Alcohol abuse, Alcohol testing, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Reporting and recordkeeping requirements, Safety, Transportation.
49 U.S.C. 31133, 31136, 31301
The purpose of this part is to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles.
(a) This part applies to every person and to all employers of such persons who operate a commercial motor vehicle in commerce in any State, and is subject to:
(1) The commercial driver's license requirements of part 383 of this subchapter;
(2) The Licencia Federal de Conductor (Mexico) requirements; or
(3) The commercial drivers license requirements of the Canadian National Safety Code.
(b) An employer who employs himself/herself as a driver must comply with both the requirements in this part that apply to employers and the requirements in this part that apply to drivers. An employer who employs only himself/herself as a driver shall implement a random alcohol and controlled substances testing program of two or more covered employees in the random testing selection pool.
(c) The exceptions contained in § 390.3(f) of this subchapter do not apply to this part. The employers and drivers identified in § 390.3(f) of this subchapter must comply with the requirements of this part, unless otherwise specifically provided in paragraph (d) of this section.
(d)
(1) Required to comply with the alcohol and/or controlled substances testing requirements of part 655 of this title (Federal Transit Administration alcohol and controlled substances testing regulations); or
(2) Who a State must waive from the requirements of part 383 of this subchapter. These individuals include active duty military personnel; members of the reserves; and members of the national guard on active duty, including personnel on full-time national guard duty, personnel on part-time national guard training and national guard military technicians (civilians who are required to wear military uniforms), and active duty U.S. Coast Guard personnel; or
(3) Who a State has, at its discretion, exempted from the requirements of part 383 of this subchapter. These individuals may be:
(i) Operators of a farm vehicle which is:
(A) Controlled and operated by a farmer;
(B) Used to transport either agricultural products, farm machinery, farm supplies, or both to or from a farm;
(C) Not used in the operations of a common or contract motor carrier; and
(D) Used within 241 kilometers (150 miles) of the farmer's farm.
(ii) Firefighters or other persons who operate commercial motor vehicles which are necessary for the preservation of life or property or the execution of emergency governmental functions, are equipped with audible and visual signals, and are not subject to normal traffic regulation.
Each employer shall ensure that all alcohol or controlled substances testing conducted under this part complies with the procedures set forth in part 40 of this title. The provisions of part 40 of this title that address alcohol or controlled substances testing are made applicable to employers by this part.
Words or phrases used in this part are defined in §§ 386.2 and 390.5 of this subchapter, and § 40.3 of this title, except as provided in this section—
(1) Any trade, traffic or transportation within the jurisdiction of the United
(2) Trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in paragraph (1) of this definition.
(1) Has a gross combination weight rating of 11,794 or more kilograms (26,001 or more pounds) inclusive of a towed unit with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
(2) Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 or more pounds); or
(3) Is designed to transport 16 or more passengers, including the driver; or
(4) Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F).
(1)
(2)
(ii) Tire disablement without other damage even if no spare tire is available.
(iii) Headlight or taillight damage.
(iv) Damage to turn signals, horn, or windshield wipers which make them inoperative.
(1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see § 40.61(a) of this title);
(2) Fail to remain at the testing site until the testing process is complete. Provided, that an employee who leaves the testing site before the testing process commences (see § 40.63(c) of this title) a pre-employment test is not deemed to have refused to test;
(3) Fail to provide a urine specimen for any drug test required by this part or DOT agency regulations. Provided, that an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences (see § 40.63(c) of this title) for a pre-employment test is not deemed to have refused to test;
(4) In the case of a directly observed or monitored collection in a drug test, fails to permit the observation or monitoring of the driver's provision of a specimen (see §§ 40.67(l) and 40.69(g) of this title);
(5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see § 40.193(d)(2) of this title);
(6) Fail or declines to take a second test the employer or collector has directed the driver to take;
(7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under § 40.193(d) of this title. In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment;
(8) Fail to cooperate with any part of the testing process (e.g., refuse to empty
(9) Is reported by the MRO as having a verified adulterated or substituted test result.
(1) All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by §§ 392.7 and 392.8 of this subchapter or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor vehicle in operation;
(4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of § 393.76 of this subchapter);
(5) All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
(1) In drug testing, a test to eliminate “negative” urine specimens from further analysis or to identify a specimen that requires additional testing for the presence of drugs.
(2) In alcohol testing, an analytical procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen.
(a) Except as provided in paragraph (b) of this section, this part preempts any State or local law, rule, regulation, or order to the extent that:
(1) Compliance with both the State or local requirement in this part is not possible; or
(2) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this part.
(b) This part shall not be construed to preempt provisions of State criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees, employers, or the general public.
Except as expressly provided in this part, nothing in this part shall be construed to affect the authority of employers, or the rights of drivers, with respect to the use of alcohol, or the use of controlled substances, including authority and rights with respect to testing and rehabilitation.
Before performing each alcohol or controlled substances test under this part, each employer shall notify a driver that the alcohol or controlled substances test is required by this part. No employer shall falsely represent that a test is administered under this part.
(a) All domestic-domiciled employers must implement the requirements of this part on the date the employer begins commercial motor vehicle operations.
(b) All foreign-domiciled employers must implement the requirements of this part on the date the employer begins commercial motor vehicle operations in the United States.
No employer shall use the services of a service agent who is subject to public interest exclusion in accordance with 49 CFR part 40, Subpart R.
(a) Employers are prohibited from standing employees down, except consistent with a waiver from the Federal Motor Carrier Safety Administration as required under this section.
(b) An employer subject to this part who seeks a waiver from the prohibition against standing down an employee before the MRO has completed the verification process shall follow the procedures in 49 CFR 40.21. The employer must send a written request, which includes all of the information required by that section to the Federal Motor Carrier Safety Administrator (or the Administrator's designee), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590.
(c) The final decision whether to grant or deny the application for a waiver will be made by the Administrator or the Administrator's designee.
(d) After a decision is signed by the Administrator or the Administrator's designee, the employer will be sent a copy of the decision, which will include the terms and conditions for the waiver or the reason for denying the application for a waiver.
(e) Questions regarding waiver applications should be directed to the Office of Enforcement and Compliance, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. The telephone number is (202) 366-5720.
(a) Employees who admit to alcohol misuse or controlled substances use are not subject to the referral, evaluation and treatment requirements of this part and part 40 of this title, provided that:
(1) The admission is in accordance with a written employer-established voluntary self-identification program or policy that meets the requirements of paragraph (b) of this section;
(2) The driver does not self-identify in order to avoid testing under the requirements of this part;
(3) The driver makes the admission of alcohol misuse or controlled substances use prior to performing a safety sensitive function (i.e., prior to reporting for duty); and
(4) The driver does not perform a safety sensitive function until the employer is satisfied that the employee has been evaluated and has successfully completed education or treatment requirements in accordance with the self-identification program guidelines.
(b) A qualified voluntary self-identification program or policy must contain the following elements:
(1) It must prohibit the employer from taking adverse action against an employee making a voluntary admission of alcohol misuse or controlled substances use within the parameters of the program or policy and paragraph (a) of this section;
(2) It must allow the employee sufficient opportunity to seek evaluation, education or treatment to establish control over the employee's drug or alcohol problem;
(3) It must permit the employee to return to safety sensitive duties only upon successful completion of an educational or treatment program, as determined by a drug and alcohol abuse evaluation expert, i.e., employee assistance professional, substance abuse professional, or qualified drug and alcohol counselor;
(4) It must ensure that:
(i) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty test with a result indicating an alcohol concentration of less than 0.02; and/or
(ii) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty controlled substance test with a verified negative test result for controlled substances use; and
(5) It may incorporate employee monitoring and include non-DOT follow-up testing.
No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to perform safety-sensitive functions.
No driver shall use alcohol while performing safety-sensitive functions. No employer having actual knowledge that a driver is using alcohol while performing safety-sensitive functions shall permit the driver to perform or continue to perform safety-sensitive functions.
No driver shall perform safety-sensitive functions within four hours after using alcohol. No employer having actual knowledge that a driver has used alcohol within four hours shall permit a driver to perform or continue to perform safety-sensitive functions.
No driver required to take a post-accident alcohol test under § 382.303 shall use alcohol for eight hours following the accident, or until he/she undergoes a post-accident alcohol test, whichever occurs first.
No driver shall refuse to submit to a post-accident alcohol or controlled substances test required under § 382.303, a random alcohol or controlled substances test required under § 382.305, a reasonable suspicion alcohol or controlled substances test required under § 382.307, or a follow-up alcohol or controlled substances test required under § 382.311. No employer shall permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions.
(a) No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance, except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § 382.107, who has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle.
(b) No employer having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety-sensitive function.
(c) An employer may require a driver to inform the employer of any therapeutic drug use.
No driver shall report for duty, remain on duty or perform a safety-sensitive function, if the driver tests positive or has adulterated or substituted a test specimen for controlled substances. No employer having actual knowledge that a driver has tested positive or has adulterated or substituted a test specimen for controlled substances shall permit the driver to perform or continue to perform safety-sensitive functions.
(a) Prior to the first time a driver performs safety-sensitive functions for an employer, the driver shall undergo testing for controlled substances as a condition prior to being used, unless the employer uses the exception in paragraph (b) of this section. No employer shall allow a driver, who the employer intends to hire or use, to perform safety-sensitive functions unless the employer has received a controlled substances test result from the MRO or C/TPA indicating a verified negative test result for that driver.
(b) An employer is not required to administer a controlled substances test required by paragraph (a) of this section if:
(1) The driver has participated in a controlled substances testing program that meets the requirements of this part within the previous 30 days; and
(2) While participating in that program, either:
(i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
(ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
(3) The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of this part or the controlled substances use rule of another DOT agency within the previous six months.
(c)(1) An employer who exercises the exception in paragraph (b) of this section shall contact the controlled substances testing program(s) in which the driver participates or participated and shall obtain and retain from the testing program(s) the following information:
(i) Name(s) and address(es) of the program(s).
(ii) Verification that the driver participates or participated in the program(s).
(iii) Verification that the program(s) conforms to part 40 of this title.
(iv) Verification that the driver is qualified under the rules of this part, including that the driver has not refused to be tested for controlled substances.
(v) The date the driver was last tested for controlled substances.
(vi) The results of any tests taken within the previous six months and any other violations of subpart B of this part.
(2) An employer who uses, but does not employ a driver more than once a year to operate commercial motor vehicles must obtain the information in paragraph (c)(1) of this section at least once every six months. The records prepared under this paragraph shall be maintained in accordance with
(d) An employer may, but is not required to, conduct pre-employment alcohol testing under this part. If an employer chooses to conduct pre-employment alcohol testing, it must comply with the following requirements:
(1) It must conduct a pre-employment alcohol test before the first performance of safety-sensitive functions by every covered employee (whether a new employee or someone who has transferred to a position involving the performance of safety-sensitive functions).
(2) It must treat all safety-sensitive employees performing safety-sensitive functions the same for the purpose of pre-employment alcohol testing (i.e., it must not test some covered employees and not others).
(3) It must conduct the pre-employment tests after making a contingent offer of employment or transfer, subject to the employee passing the pre-employment alcohol test.
(4) It must conduct all pre-employment alcohol tests using the alcohol testing procedures of 49 CFR part 40 of this title.
(5) It must not allow a covered employee to begin performing safety-sensitive functions unless the result of the employee's test indicates an alcohol concentration of less than 0.04.
(a) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol for each of its surviving drivers:
(1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or
(2) Who receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:
(i) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(b) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for controlled substances for each of its surviving drivers:
(1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or
(2) Who receives a citation within thirty-two hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:
(i) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(c) The following table notes when a post-accident test is required to be conducted by paragraphs (a)(1), (a)(2), (b)(1), and (b)(2) of this section:
(d)(1)
(2)
(e) A driver who is subject to post-accident testing shall remain readily available for such testing or may be deemed by the employer to have refused to submit to testing. Nothing in this section shall be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.
(f) An employer shall provide drivers with necessary post-accident information, procedures and instructions, prior to the driver operating a commercial motor vehicle, so that drivers will be able to comply with the requirements of this section.
(g)(1) The results of a breath or blood test for the use of alcohol, conducted by Federal, State, or local officials having independent authority for the test, shall be considered to meet the requirements of this section, provided such tests conform to the applicable Federal, State or local alcohol testing requirements, and that the results of the tests are obtained by the employer.
(2) The results of a urine test for the use of controlled substances, conducted by Federal, State, or local officials having independent authority for the test, shall be considered to meet the requirements of this section, provided
(h)
(1) An occurrence involving only boarding or alighting from a stationary motor vehicle; or
(2) An occurrence involving only the loading or unloading of cargo; or
(3) An occurrence in the course of the operation of a passenger car or a multipurpose passenger vehicle (as defined in § 571.3 of this title) by an employer unless the motor vehicle is transporting passengers for hire or hazardous materials of a type and quantity that require the motor vehicle to be marked or placarded in accordance with § 177.823 of this title.
(a) Every employer shall comply with the requirements of this section. Every driver shall submit to random alcohol and controlled substance testing as required in this section.
(b)(1) Except as provided in paragraphs (c) through (e) of this section, the minimum annual percentage rate for random alcohol testing shall be 10 percent of the average number of driver positions.
(2) Except as provided in paragraphs (f) through (h) of this section, the minimum annual percentage rate for random controlled substances testing shall be 50 percent of the average number of driver positions.
(c) The FMCSA Administrator's decision to increase or decrease the minimum annual percentage rate for alcohol testing is based on the reported violation rate for the entire industry. All information used for this determination is drawn from the alcohol management information system reports required by § 382.403. In order to ensure reliability of the data, the FMCSA Administrator considers the quality and completeness of the reported data, may obtain additional information or reports from employers, and may make appropriate modifications in calculating the industry violation rate. In the event of a change in the annual percentage rate, the FMCSA Administrator will publish in the
(d)(1) When the minimum annual percentage rate for random alcohol testing is 25 percent or more, the FMCSA Administrator may lower this rate to 10 percent of all driver positions if the FMCSA Administrator determines that the data received under the reporting requirements of § 382.403 for two consecutive calendar years indicate that the violation rate is less than 0.5 percent.
(2) When the minimum annual percentage rate for random alcohol testing is 50 percent, the FMCSA Administrator may lower this rate to 25 percent of all driver positions if the FMCSA Administrator determines that the data received under the reporting requirements of § 382.403 for two consecutive calendar years indicate that the violation rate is less than 1.0 percent but equal to or greater than 0.5 percent.
(e)(1) When the minimum annual percentage rate for random alcohol testing is 10 percent, and the data received under the reporting requirements of § 382.403 for that calendar year indicate that the violation rate is equal to or greater than 0.5 percent, but less than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage rate for random alcohol testing to 25 percent for all driver positions.
(2) When the minimum annual percentage rate for random alcohol testing is 25 percent or less, and the data received under the reporting requirements of § 382.403 for that calendar year indicate that the violation rate is equal to or greater than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage rate for random alcohol testing to 50 percent for all driver positions.
(f) The FMCSA Administrator's decision to increase or decrease the minimum annual percentage rate for controlled substances testing is based on the reported positive rate for the entire industry. All information used for this determination is drawn from the controlled substances management information system reports required by § 382.403. In order to ensure reliability of the data, the FMCSA Administrator considers the quality and completeness of the reported data, may obtain additional information or reports from employers, and may make appropriate modifications in calculating the industry positive rate. In the event of a change in the annual percentage rate, the FMCSA Administrator will publish in the
(g) When the minimum annual percentage rate for random controlled substances testing is 50 percent, the FMCSA Administrator may lower this rate to 25 percent of all driver positions if the FMCSA Administrator determines that the data received under the reporting requirements of § 382.403 for two consecutive calendar years indicate that the positive rate is less than 1.0 percent.
(h) When the minimum annual percentage rate for random controlled substances testing is 25 percent, and the data received under the reporting requirements of § 382.403 for any calendar year indicate that the reported positive rate is equal to or greater than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage rate for random controlled substances testing to 50 percent of all driver positions.
(i)(1) The selection of drivers for random alcohol and controlled substances testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with drivers' Social Security numbers, payroll identification numbers, or other comparable identifying numbers.
(2) Each driver selected for random alcohol and controlled substances testing under the selection process used, shall have an equal chance of being tested each time selections are made.
(3) Each driver selected for testing shall be testing during the selection period.
(j) The employer shall randomly select a sufficient number of drivers for testing during each calendar year to equal an annual rate not less than the minimum annual percentage rate for random alcohol and controlled substances testing determined by the FMCSA Administrator. If the employer conducts random testing for alcohol and/or controlled substances through a C/TPA, the number of drivers to be tested may be calculated for each individual employer or may be based on the total number of drivers covered by the C/TPA who are subject to random alcohol and/or controlled substances testing at the same minimum annual percentage rate under this part.
(k)(1) Each employer shall ensure that random alcohol and controlled substances tests conducted under this part are unannounced.
(2) Each employer shall ensure that the dates for administering random alcohol and controlled substances tests conducted under this part are spread
(l) Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the employer shall instead ensure that the driver ceases to perform the safety-sensitive function and proceeds to the testing site as soon as possible.
(m) A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.
(n) If a given driver is subject to random alcohol or controlled substances testing under the random alcohol or controlled substances testing rules of more than one DOT agency for the same employer, the driver shall be subject to random alcohol and/or controlled substances testing at the annual percentage rate established for the calendar year by the DOT agency regulating more than 50 percent of the driver's function.
(o) If an employer is required to conduct random alcohol or controlled substances testing under the alcohol or controlled substances testing rules of more than one DOT agency, the employer may—
(1) Establish separate pools for random selection, with each pool containing the DOT-covered employees who are subject to testing at the same required minimum annual percentage rate; or
(2) Randomly select such employees for testing at the highest minimum annual percentage rate established for the calendar year by any DOT agency to which the employer is subject.
(a) An employer shall require a driver to submit to an alcohol test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning alcohol. The employer's determination that reasonable suspicion exists to require the driver to undergo an alcohol test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver.
(b) An employer shall require a driver to submit to a controlled substances test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning controlled substances. The employer's determination that reasonable suspicion exists to require the driver to undergo a controlled substances test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. The observations may include indications of the chronic and withdrawal effects of controlled substances.
(c) The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or company official who is trained in accordance with § 382.603. The person who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the driver.
(d) Alcohol testing is authorized by this section only if the observations required by paragraph (a) of this section are made during, just preceding, or just after the period of the work day that the driver is required to be in compliance with this part. A driver may be directed by the employer to only undergo reasonable suspicion testing while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.
(e)(1) If an alcohol test required by this section is not administered within two hours following the determination under paragraph (a) of this section, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by this section is not administered within eight hours following the determination under paragraph (a) of this section, the employer shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test.
(2) Notwithstanding the absence of a reasonable suspicion alcohol test under this section, no driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while the driver is under the influence of or impaired by alcohol, as shown by the behavioral, speech, and performance indicators of alcohol misuse, nor shall an employer permit the driver to perform or continue to perform safety-sensitive functions, until:
(i) An alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or
(ii) Twenty four hours have elapsed following the determination under paragraph (a) of this section that there is reasonable suspicion to believe that the driver has violated the prohibitions in this part concerning the use of alcohol.
(3) Except as provided in paragraph (e)(2) of this section, no employer shall take any action under this part against a driver based solely on the driver's behavior and appearance, with respect to alcohol use, in the absence of an alcohol test. This does not prohibit an employer with independent authority of this part from taking any action otherwise consistent with law.
(f) A written record shall be made of the observations leading to an alcohol or controlled substances reasonable suspicion test, and signed by the supervisor or company official who made the observations, within 24 hours of the observed behavior or before the results of the alcohol or controlled substances tests are released, whichever is earlier.
The requirements for return-to-duty testing must be performed in accordance with 49 CFR part 40, Subpart O.
The requirements for follow-up testing must be performed in accordance with 49 CFR part 40, Subpart O.
(a)
(b)
(1)
(i) Records of driver alcohol test results indicating an alcohol concentration of 0.02 or greater,
(ii) Records of driver verified positive controlled substances test results,
(iii) Documentation of refusals to take required alcohol and/or controlled substances tests,
(iv) Driver evaluation and referrals,
(v) Calibration documentation,
(vi) Records related to the administration of the alcohol and controlled substances testing programs, and
(vii) A copy of each annual calendar year summary required by § 382.403.
(2)
(3)
(4)
(c)
(1) Records related to the collection process:
(i) Collection logbooks, if used;
(ii) Documents relating to the random selection process;
(iii) Calibration documentation for evidential breath testing devices;
(iv) Documentation of breath alcohol technician training;
(v) Documents generated in connection with decisions to administer reasonable suspicion alcohol or controlled substances tests;
(vi) Documents generated in connection with decisions on post-accident tests;
(vii) Documents verifying existence of a medical explanation of the inability of a driver to provide adequate breath or to provide a urine specimen for testing; and
(viii) Consolidated annual calendar year summaries as required by § 382.403.
(2) Records related to a driver's test results:
(i) The employer's copy of the alcohol test form, including the results of the test;
(ii) The employer's copy of the controlled substances test chain of custody and control form;
(iii) Documents sent by the MRO to the employer, including those required by part 40, subpart G, of this title;
(iv) Documents related to the refusal of any driver to submit to an alcohol or controlled substances test required by this part;
(v) Documents presented by a driver to dispute the result of an alcohol or controlled substances test administered under this part; and
(vi) Documents generated in connection with verifications of prior employers' alcohol or controlled substances test results that the employer:
(A) Must obtain in connection with the exception contained in § 382.301, and
(B) Must obtain as required by § 382.413.
(3) Records related to other violations of this part.
(4) Records related to evaluations:
(i) Records pertaining to a determination by a substance abuse professional concerning a driver's need for assistance; and
(ii) Records concerning a driver's compliance with recommendations of the substance abuse professional.
(5) Records related to education and training:
(i) Materials on alcohol misuse and controlled substance use awareness, including a copy of the employer's policy on alcohol misuse and controlled substance use;
(ii) Documentation of compliance with the requirements of § 382.601, including the driver's signed receipt of education materials;
(iii) Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for alcohol and/or controlled substances testing based on reasonable suspicion;
(iv) Documentation of training for breath alcohol technicians as required by § 40.213(a) of this title; and
(v) Certification that any training conducted under this part complies with the requirements for such training.
(6) Administrative records related to alcohol and controlled substances testing:
(i) Agreements with collection site facilities, laboratories, breath alcohol technicians, screening test technicians, medical review officers, consortia, and third party service providers;
(ii) Names and positions of officials and their role in the employer's alcohol and controlled substances testing program(s);
(iii) Semi-annual laboratory statistical summaries of urinalysis required by § 40.111(a) of this title; and
(iv) The employer's alcohol and controlled substances testing policy and procedures.
(d)
(e)
(2) The information collection requirements of this part are found in the following sections: Sections 382.105, 382.113, 382.301, 382.303, 382.305, 382.307, 382.401, 382.403, 382.405, 382.409, 382.411, 382.601, 382.603.
(a) An employer shall prepare and maintain a summary of the results of its alcohol and controlled substances testing programs performed under this part during the previous calendar year, when requested by the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers.
(b) If an employer is notified, during the month of January, of a request by the Federal Motor Carrier Safety Administration to report the employer's annual calendar year summary information, the employer shall prepare and submit the report to the FMCSA by March 15 of that year. The employer shall ensure that the annual summary report is accurate and received by March 15 at the location that the FMCSA specifies in its request. The report shall be in the form and manner prescribed by the FMCSA in its request. When the report is submitted to the FMCSA by mail or electronic transmission, the information requested shall be typed, except for the signature of the certifying official. Each employer shall ensure the accuracy and timeliness of each report submitted by the employer or a consortium.
(c)
(1) Number of drivers subject to this part;
(2) Number of drivers subject to testing under the alcohol misuse or controlled substances use rules of more than one DOT agency, identified by each agency;
(3) Number of urine specimens collected by type of test (e.g., pre-employment, random, reasonable suspicion, post-accident);
(4) Number of positives verified by a MRO by type of test, and type of controlled substance;
(5) Number of negative controlled substance tests verified by a MRO by type of test;
(6) Number of persons denied a position as a driver following a pre-employment verified positive controlled substances test and/or a pre-employment alcohol test that indicates an alcohol concentration of 0.04 or greater;
(7) Number of drivers with tests verified positive by a medical review officer for multiple controlled substances;
(8) Number of drivers who refused to submit to an alcohol or controlled substances test required under this subpart, including those who submitted substituted or adulterated specimens;
(9)(i) Number of supervisors who have received required alcohol training during the reporting period; and
(ii) Number of supervisors who have received required controlled substances training during the reporting period;
(10)(i) Number of screening alcohol tests by type of test; and
(ii) Number of confirmation alcohol tests, by type of test;
(11) Number of confirmation alcohol tests indicating an alcohol concentration of 0.02 or greater but less than 0.04, by type of test;
(12) Number of confirmation alcohol tests indicating an alcohol concentration of 0.04 or greater, by type of test;
(13) Number of drivers who were returned to duty (having complied with the recommendations of a substance abuse professional as described in § 382.503 and part 40, subpart O of this title), in this reporting period, who previously:
(i) Had a verified positive controlled substance test result, or
(ii) Engaged in prohibited alcohol misuse under the provisions of this part;
(14) Number of drivers who were administered alcohol and drug tests at the same time, with both a verified positive drug test result and an alcohol test result indicating an alcohol concentration of 0.04 or greater; and
(15) Number of drivers who were found to have violated any non-testing prohibitions of subpart B of this part, and any action taken in response to the violation.
(d)
(1) Number of drivers subject to this part;
(2) Number of drivers subject to testing under the alcohol misuse or controlled substance use rules of more than one DOT agency, identified by each agency;
(3) Number of urine specimens collected by type of test (e.g., pre-employment, random, reasonable suspicion, post-accident);
(4) Number of negatives verified by a medical review officer by type of test;
(5) Number of drivers who refused to submit to an alcohol or controlled substances test required under this subpart, including those who submitted substituted or adulterated specimens;
(6)(i) Number of supervisors who have received required alcohol training during the reporting period; and
(ii) Number of supervisors who have received required controlled substances training during the reporting period;
(7) Number of screen alcohol tests by type of test; and
(8) Number of drivers who were returned to duty (having complied with the recommendations of a substance abuse professional as described in § 382.503 and part 40, subpart O, of this title), in this reporting period, who previously:
(i) Had a verified positive controlled substance test result, or
(ii) Engaged in prohibited alcohol misuse under the provisions of this part.
(e) Each employer that is subject to more than one DOT agency alcohol or controlled substances rule shall identify each driver covered by the regulations of more than one DOT agency. The identification will be by the total number of covered functions. Prior to conducting any alcohol or controlled substances test on a driver subject to the rules of more than one DOT agency, the employer shall determine which DOT agency rule or rules authorizes or requires the test. The test result information shall be directed to the appropriate DOT agency or agencies.
(f) A C/TPA may prepare annual calendar year summaries and reports on behalf of individual employers for purposes of compliance with this section. However, each employer shall sign and submit such a report and shall remain responsible for ensuring the accuracy and timeliness of each report prepared on its behalf by a C/TPA.
(a) Except as required by law or expressly authorized or required in this section, no employer shall release driver information that is contained in records required to be maintained under § 382.401.
(b) A driver is entitled, upon written request, to obtain copies of any records pertaining to the driver's use of alcohol or controlled substances, including any records pertaining to his or her alcohol or controlled substances tests. The employer shall promptly provide the records requested by the driver. Access to a driver's records shall not be contingent upon payment for records other than those specifically requested.
(c) Each employer shall permit access to all facilities utilized in complying with the requirements of this part to the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers.
(d) Each employer shall make available copies of all results for employer alcohol and/or controlled substances testing conducted under this part and any other information pertaining to the employer's alcohol misuse and/or controlled substances use prevention program, when requested by the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers.
(e) When requested by the National Transportation Safety Board as part of an accident investigation, employers shall disclose information related to the employer's administration of a post-accident alcohol and/or controlled substance test administered following the accident under investigation.
(f) Records shall be made available to a subsequent employer upon receipt of a written request from a driver. Disclosure by the subsequent employer is permitted only as expressly authorized by the terms of the driver's request.
(g) An employer may disclose information required to be maintained under this part pertaining to a driver to the decision maker in a lawsuit, grievance, or administrative proceeding initiated by or on behalf of the individual, and arising from a positive DOT drug or alcohol test or a refusal to test (including, but not limited to, adulterated or substituted test results) of this part (including, but not limited to, a worker's compensation, unemployment compensation, or other proceeding relating to a benefit sought
(h) An employer shall release information regarding a driver's records as directed by the specific written consent of the driver authorizing release of the information to an identified person. Release of such information by the person receiving the information is permitted only in accordance with the terms of the employee's specific written consent as outlined in § 40.321(b) of this title.
Medical review officers shall report the results of controlled substances tests to employers in accordance with the requirements of part 40, Subpart G, of this title.
(a) A medical review officer or third party administrator shall maintain all dated records and notifications, identified by individual, for a minimum of five years for verified positive controlled substances test results.
(b) A medical review officer or third party administrator shall maintain all dated records and notifications, identified by individual, for a minimum of one year for negative and canceled controlled substances test results.
(c) No person may obtain the individual controlled substances test results retained by a medical review officer or third party administrator, and no medical review officer or third party administrator shall release the individual controlled substances test results of any driver to any person, without first obtaining a specific, written authorization from the tested driver. Nothing in this paragraph (c) shall prohibit a medical review officer or third party administrator from releasing, to the employer or to officials of the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the controlled substances testing program under this part, the information delineated in part 40, Subpart G, of this title.
(a) An employer shall notify a driver of the results of a pre-employment controlled substances test conducted under this part, if the driver requests such results within 60 calendar days of being notified of the disposition of the employment application. An employer shall notify a driver of the results of random, reasonable suspicion and post-accident tests for controlled substances conducted under this part if the test results are verified positive. The employer shall also inform the driver which controlled substance or substances were verified as positive.
(b) The designated employer representative shall make reasonable efforts to contact and request each driver who submitted a specimen under the employer's program, regardless of the driver's employment status, to contact and discuss the results of the controlled substances test with a medical review officer who has been unable to contact the driver.
(c) The designated employer representative shall immediately notify the medical review officer that the driver has been notified to contact the medical review officer within 72 hours.
Employers shall request alcohol and controlled substances information from previous employers in accordance with the requirements of § 40.25 of this title.
(a) Except as provided in subpart F of this part, no driver shall perform safety-sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by subpart B of this part or an alcohol or controlled substances rule of another DOT agency.
(b) No employer shall permit any driver to perform safety-sensitive functions; including driving a commercial motor vehicle, if the employer has determined that the driver has violated this section.
(c) For purposes of this subpart, commercial motor vehicle means a commercial motor vehicle in commerce as defined in § 382.107, and a commercial motor vehicle in interstate commerce as defined in part 390 of this subchapter.
No driver who has engaged in conduct prohibited by subpart B of this part shall perform safety-sensitive functions, including driving a commercial motor vehicle, unless the driver has met the requirements of part 40, subpart O, of this title. No employer shall permit a driver who has engaged in conduct prohibited by subpart B of this part to perform safety-sensitive functions, including driving a commercial motor vehicle, unless the driver has met the requirements of part 40, subpart O, of this title.
(a) No driver tested under the provisions of subpart C of this part who is found to have an alcohol concentration of 0.02 or greater but less than 0.04 shall perform or continue to perform safety-sensitive functions for an employer, including driving a commercial motor vehicle, nor shall an employer permit the driver to perform or continue to perform safety-sensitive functions, until the start of the driver's next regularly scheduled duty period, but not less than 24 hours following administration of the test.
(b) Except as provided in paragraph (a) of this section, no employer shall take any action under this part against a driver based solely on test results showing an alcohol concentration less than 0.04. This does not prohibit an employer with authority independent of this part from taking any action otherwise consistent with law.
Any employer or driver who violates the requirements of this part shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b). In addition, any employer or driver who violates the requirements of 49 CFR part 40 shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b).
(a)
(1) The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this part and to each driver subsequently hired or transferred into a position requiring driving a commercial motor vehicle.
(2) Each employer shall provide written notice to representatives of employee organizations of the availability of this information.
(b)
(1) The identity of the person designated by the employer to answer driver questions about the materials;
(2) The categories of drivers who are subject to the provisions of this part;
(3) Sufficient information about the safety-sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with this part;
(4) Specific information concerning driver conduct that is prohibited by this part;
(5) The circumstances under which a driver will be tested for alcohol and/or controlled substances under this part, including post-accident testing under § 382.303(d);
(6) The procedures that will be used to test for the presence of alcohol and controlled substances, protect the driver and the integrity of the testing processes, safeguard the validity of the test results, and ensure that those results are attributed to the correct driver, including post-accident information, procedures and instructions required by § 382.303(d);
(7) The requirement that a driver submit to alcohol and controlled substances tests administered in accordance with this part;
(8) An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences;
(9) The consequences for drivers found to have violated subpart B of this part, including the requirement that the driver be removed immediately from safety-sensitive functions, and the procedures under part 40, subpart O, of this title;
(10) The consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04;
(11) Information concerning the effects of alcohol and controlled substances use on an individual's health, work, and personal life; signs and symptoms of an alcohol or a controlled substances problem (the driver's or a co-worker's); and available methods of intervening when an alcohol or a controlled substances problem is suspected, including confrontation, referral to any employee assistance program and or referral to management.
(c)
(d)
Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing under § 382.307. The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances. Recurrent training for supervisory personnel is not required.
The requirements for referral, evaluation, and treatment must be performed in accordance with 49 CFR part 40, Subpart O.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule; response to petitions for reconsideration.
In October 2000, NHTSA published a final rule establishing a new Federal motor vehicle safety standard that will require passenger cars with trunks to be equipped with a release latch inside the trunk compartment. Four organizations filed petitions for reconsideration of this rule.
In response to these petitions, the agency is making several substantive changes to the final rule. It is excluding hatchbacks and station wagons. It is also excluding sub-compartments that are formed within the trunk compartment when a convertible power top folds down into the trunk. The agency is changing the definition of “trunk lid” to explicitly exclude the lids of interior storage compartments. The agency is revising the definition of “trunk compartment” to include standard equipment in the determination of the size of the trunk compartment. The agency is amending the standard to require that interior trunk releases on passenger cars with front trunk compartments unlatch the primary, but not the secondary, latch if the passenger car is moving when the trunk release is actuated. The agency is providing an additional year of lead-time for passenger cars with front trunk compartments.
The agency is also denying requests: To exclude passenger cars with trunk lids that contact the three-year-old child dummy (used to determine whether a trunk compartment is large enough to be subject to the standard) before latching, or provide those cars with an additional year of lead-time; to require that the ignition be in the “off” position for an automatic trunk release system to operate; to require that an automatic trunk release system may unlatch the trunk lid only when a person inside the trunk compartment is moving; and to allow means for temporary disabling of automatic trunk release systems.
Finally, the agency is adding a requirement that manufacturers irrevocably select which compliance option, manual or automatic, they will employ.
Effective date: The effective date for the amendments in this final rule is September 1, 2001.
Petitions for reconsideration deadline: If you wish to petition for reconsideration of this final rule, you must submit it so that we receive your petition not later than October 1, 2001.
Petitions for reconsideration should refer to the docket number and be submitted to: Administrator, Room 5220, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
For technical and policy questions: Kenneth O. Hardie, Office of Crash Avoidance Standards, NHTSA, 400 Seventh Street,
For legal questions: Dion Casey, Office of Chief Counsel, NHTSA, 400 Seventh Street, SW, Washington, D.C. 20590 (Telephone: 202-366-2992) (Fax: 202-366-3820).
On October 20, 2000, NHTSA published a final rule establishing a new Federal motor vehicle safety standard (FMVSS No. 401, Interior Trunk Release) to address the problem of trunk entrapment. (65 FR 63014). Trunk entrapment can occur accidentally, such as when a child playing a game climbs into a trunk and pulls down the trunk lid, and intentionally, such as when a criminal forces a person into the trunk. The agency estimated that 21 people have died in 11 incidents of accidental trunk entrapment from 1987 to 1999. Eleven of these were children who died in three separate incidents when they locked themselves in the trunk of an automobile during a three-week period in July and August of 1998. The standard provides persons who find themselves trapped inside a passenger car trunk a chance to get out of the trunk alive.
Standard No. 401 requires all new passenger cars with trunks to be equipped with an interior trunk release inside the trunk compartment, beginning September 1, 2001. Manufacturers may comply with the standard by installing a manual release latch or an automatic release system which detects the presence of a person in the trunk and automatically unlatches the trunk lid.
To aid readers in understanding this document, we have set out the short standard, as published, in its entirety:
§ 571.401—Standard No. 401; Interior trunk release.
S1. Purpose and scope. This standard establishes the requirement for providing a trunk release mechanism that makes it possible for a person trapped inside the trunk compartment of a passenger car to escape from the compartment.
S2. Application. This standard applies to passenger cars that have a trunk compartment.
S3. Definitions.
Trunk compartment means a space that:
(a) Is intended to be used for carrying luggage,
(b) Is wholly separated from the occupant compartment of a passenger car by a permanently attached partition or by a fixed or fold-down seat back and/or partition,
(c) Has a trunk lid, and
(d) Is large enough so that the three-year-old child dummy described in Subpart C of Part 572 can be placed inside the trunk compartment and, with the test dummy in the trunk compartment, the trunk lid can be closed and latched. (Note: For purposes of this standard, the Part 572 Subpart C test dummy need not be equipped with the accelerometers specified in Part 572.21.)
Trunk lid means a movable body panel that provides access from outside a motor vehicle to a trunk compartment.
S4. Requirements.
S4.1 Each passenger car with a trunk compartment must have an automatic or manual release mechanism inside the trunk compartment that unlatches the trunk lid.
S4.2(a) Each manual release mechanism installed pursuant to S4.1 of this section must include a feature, like lighting or phosphorescence, that allows the release mechanism to be easily seen inside the closed trunk.
(b) Each automatic release mechanism installed pursuant to S4.1 of this section must unlatch the trunk lid within 5 minutes of when the lid is closed with a person inside the trunk compartment.
S4.3 Actuation of each release mechanism required by S4.1 of this section must completely release the trunk lid from all latching positions of the trunk lid latch, notwithstanding the requirements of any other standards in part 571 of this title.
NHTSA received petitions for reconsideration of the final rule from General Motors North America (GM), and Porsche Cars North America, Inc. (Porsche). The agency also received requests for interpretation of the final rule from Volkswagen of America (VW) and the Alliance of Automobile Manufacturers (Alliance), whose members are the BMW Group, Daimler Chrysler, Fiat, Ford Motor Company, GM, Isuzu, Mazda, Mitsubishi Motors, Nissan, Porsche, Toyota, VW, and Volvo. VW and the Alliance requested that if NHTSA disagreed with their interpretations of the final rule, the agency treat the letters as petitions for reconsideration. The Alliance also filed a letter which contained comments supporting the GM and Porsche petitions for reconsideration.
In their letters, VW and the Alliance requested that NHTSA issue a letter of interpretation to confirm their understanding of Standard No. 401 as not applying to hatchback models. VW and the Alliance requested that NHTSA determine that the hinged rear door (“hatch”) of hatchback models is a “back door” rather than a “trunk lid.” VW and the Alliance requested that if the agency disagreed with their understanding of the standard, that the agency treat their letters as petitions for reconsideration.
S3 of Standard No. 401 defines “trunk compartment” as a space that:
(a) is intended to be used for carrying luggage,
(b) is wholly separated from the occupant compartment of a passenger car by a permanently attached partition or by a fixed or fold-down seat back and/or partition,
(c) has a trunk lid, and
(d) is large enough so that the three-year-old child dummy described in Subpart C of Part 572 can be placed inside the trunk compartment and, with the test dummy in the trunk compartment, the trunk lid can be closed and latched.
The issue presented by VW and the Alliance is whether the hatch on hatchback
NHTSA intended the terms “back door” and “trunk lid” to be mutually exclusive. The agency made this distinction when it extended the door lock and retention requirements of Standard No. 206, which originally covered only side doors, to back doors, including the hatch on hatchback models. (60 FR 50124, September 28, 1995). NHTSA did not intend for trunk lids to have to meet the lock and retention requirements, so the agency specifically excluded trunk lids from the definition of “back door.”
NHTSA intended to echo the distinction between a “back door” and a “trunk lid” in the final rule establishing Standard No. 401. In the preamble of that final rule, the agency stated that “the requirements in * * * Standard No. 206 only apply if the moveable panel is not a trunk lid, and the requirements in this standard [No. 401] only apply if the moveable panel is a trunk lid.” (65 FR 63019).
Despite this distinction, however, the hatch on some hatchback models may meet both the definition of “back door” and the definition of “trunk lid” in the October 2000 final rule. For example, a hatch may satisfy the latter part of the definition of a “back door,” i.e., a “door on the back end of a motor vehicle through which passengers can enter or depart the vehicle, or cargo can be loaded or unloaded.” It is possible that some hatches may also satisfy the definition of a “trunk lid,” i.e., “a moveable body panel that provides access from outside a motor vehicle to a trunk compartment.” A “trunk compartment” is, in turn, defined as a space that “is intended to be used for carrying luggage,” “is wholly separated from the occupant compartment * * * by a permanently attached partition or by a fixed or fold-down seat back and/or partition,” “has a trunk lid [the hatch],” and is large enough to fit the three-year-old child dummy.
NHTSA recognizes that it may have used conflicting language in the NPRM and the final rule establishing Standard No. 401. In the NPRM, NHTSA said that the standard would not apply to the hatch on hatchback models. The agency stated that its proposed definition of “trunk lid” would mean that “the requirement for an interior release would not apply to vehicles that do not typically have trunk lids, like hatchback cars, station wagons, pickup trucks, sport utility vehicles, and vans.” (64 FR 70675).
However, in the final rule, the agency stated:
Concerning the applicability of this Standard to hatchbacks, if a movable body panel, that provides access to a space wholly partitioned from the occupant compartment, encloses that space upon closing a permanently attached lid such as a hatchback lid, then the closing lid is considered a trunk lid for the purposes of this rule. (65 FR 63017).
In addition, in response to comments from the Ford Motor Company recommending that Standard No. 401 specifically exclude vehicles with hinged back doors, such as vans, SUVs, station wagons, and hatchbacks, that must comply with the latch requirements of Standard No. 206, the agency stated:
Contrary to Ford's assertions, S3 of Standard No. 206 expressly provides that the term “back door” does not include a “trunk lid.” Thus, the requirements in S4.4.2 of Standard No. 206 only apply if the movable panel is not a trunk lid, and the requirements in this standard only apply if the movable panel is a trunk lid. (65 FR 63019).
The agency does not wish to apply Standard No. 401 to any hatchbacks. The agency notes that the Expert Panel on Trunk Entrapment, which was formed prior to the Standard No. 401 NPRM to study the problem of trunk entrapment, did not address hatchbacks, nor were there any data presented to the panel indicating that persons have died as a result of their being inadvertently or intentionally locked in the rear of hatchbacks. Absent such evidence, NHTSA is excluding them from Standard No. 401. However, the agency will reconsider the applicability of Standard No. 401 to some or all hatchbacks if data indicate that trunk entrapment deaths are occurring in them.
The agency is amending Standard No. 401 by excluding vehicles with a back door from the standard, adding a definition of “back door,” and changing the definition of “trunk lid,” as follows:
S2. Application. This standard applies to passenger cars that have a trunk compartment. This standard does not apply to passenger cars with a back door.
Back door means a door or door system on the back end of a passenger car through which cargo can be loaded or unloaded. The term includes the hinged back door on a hatchback or a station wagon.
Trunk lid means a moveable body panel that is not designed or intended as a passenger car entry point for passengers and that provides access from outside a passenger car to a trunk compartment. The term does not include a back door or the lid of a storage compartment located inside the passenger compartment of a passenger car.
VW and the Alliance also asked the agency to confirm their understanding that Standard No. 401 does not apply to station wagon models equipped with luggage compartment covers. In its letter, VW stated:
Volkswagen and Audi station wagon models provide a luggage compartment cover, which operates like a roll-out shade or a net that the customer can use to provide privacy or retention for the luggage area. The luggage compartment cover can be released and rolled back even when the back door is closed and is made of soft material that can be moved aside by anyone who may be inside the luggage compartment when the cover is closed. It is Volkswagen's interpretation that such station wagon luggage compartment covers do not form an enclosed space, which would require an interior release for the back door of its station wagon models.
In its letter, the Alliance stated:
Station wagon models have open luggage compartment areas with direct access from the luggage compartment into the occupant seating area and therefore clearly do not have trunk compartments as defined in FMVSS 401. However, some station wagon models are provided with luggage cover accessories which operate like a roller shade or a netting and which are made of soft materials that can be moved aside to provide access from the covered luggage area to the passenger compartment.
For purposes of Standard No. 401, NHTSA has concluded that the rear door on station wagon models is not, and should not be treated as, a trunk lid. This conclusion is based primarily on the regulatory text in the final rule. Being full of openings, a net would clearly not “
This conclusion is consistent with the Standard No. 401 NPRM. In the NPRM, NHTSA proposed to exclude the rear door of station wagon models. The agency stated that its proposed definition of “trunk lid” would mean that “the requirement for an internal release would not apply to vehicles that do not typically have trunk lids, like
Thus, the agency is amending Standard No. 401 by adding a definition of “back door,” changing the definition of “trunk lid,” and excluding vehicles with a back door from the standard as noted above in the section on hatchback models.
The Alliance expressed concern regarding the applicability of Standard No. 401 to interior storage compartments in convertibles. The Alliance stated:
It is conceivable that if a convertible top is down, a vehicle interior compartment door could be opened from outside the vehicle. In some vehicles, the interior storage compartment could accommodate a 3-year-old dummy.
For example, the Toyota MR2-Spyder, a two-seat convertible, has two interior storage compartments, one behind each of the seats. In this vehicle, in order to open the compartment doors, the driver's seat and/or passenger's seat would have to be inclined forward. Otherwise, the seat in front of the interior compartment would block the compartment door. The Alliance argued that, in this case, even if a trunk release were required and installed in the interior compartment, the compartment doors would not open enough to allow egress from the compartment, unless the seats are inclined forward. Thus, the Alliance asked the agency to confirm that Standard No. 401 does not apply to interior storage compartments.
NHTSA agrees with this interpretation. The agency does not consider interior storage compartments to be “trunk compartments.” The lids of interior storage compartments do not provide access from outside a motor vehicle to a trunk compartment. The agency did not intend for interior storage compartments to be subject to the requirements of Standard No. 401. To address this, the agency is revising the definition of “trunk lid” to read as follows:
Trunk lid means a moveable body panel that is not designed or intended as a vehicle entry point for passengers and that provides access from outside a motor vehicle to a trunk compartment. It does not mean the lid of a storage compartment located inside the passenger compartment of the vehicle.
The Alliance stated that some convertible models are equipped with a power top that folds down into the vehicle trunk, thereby partitioning the trunk space into sub-compartments. There may be sufficient room for a three-year-old child to become trapped in such a sub-compartment when the top is stowed. However, for this to happen, the child would have to access a sub-compartment during the short time when the power top is actively being stowed. Further, stowing the power top requires the vehicle key to be actuated and a button to be continuously pressed, indicating that an adult is present. In addition, for the sub-compartment to be accessible during this time, a child would have to be in the trunk compartment already. Based upon these circumstances, the Alliance asked NHTSA to confirm its understanding that the interior trunk release need not be accessible to children trapped in the sub-compartments created by stowing a convertible power top in the vehicle's trunk compartment.
The Alliance's understanding is correct. The agency believes that it is highly unlikely that a child could become trapped in such a sub-compartment under the circumstances described in the Alliance letter. Thus, the interior trunk release in convertible models with power tops that stow in the trunk compartment need not be accessible to a child trapped in the sub-compartments created by stowing the power top.
The trunk compartment of a convertible model with a power top that stows in the trunk still must have an interior trunk release. A person may become trapped in the trunk compartment while the power top is up. The agency is only stating that the interior trunk release in such a model need not be accessible to a child trapped in the sub-compartments created in the trunk compartment by stowing the power top.
To address this, the agency is revising the definition of “trunk compartment” to add the following at the end:
(b) does not include a sub-compartment within the trunk compartment.
Standard No. 401 requires a trunk compartment to have an interior trunk release mechanism if the trunk compartment “[i]s large enough so that the three-year-old child dummy described in Subpart C of Part 572 can be placed inside the trunk compartment and, with the test dummy in the trunk compartment, the trunk lid can be closed and latched.”
In its letter, the Alliance stated:
Alliance member companies have evaluated this space requirement on some vehicles and found cases where the trunk lid could not close and latch if the trunk lid is rested on the dummy in the trunk compartment. However, if the trunk lid were “slammed” or pushed down, squeezing the dummy into the compartment with the lid, the trunk lid could be latched. If a child was actually in this situation, we believe no movement would be afforded to allow the child to operate a trunk release nor would the child be expected to be able to “slam” down the trunk lid onto themselves.
The Alliance asked the agency to confirm its understanding that trunk lids that contact the dummy before latching are not required to have an interior release mechanism.
NHTSA disagrees with this understanding. The agency notes that while the three-year-old child dummy used in the evaluation of the size of the trunk compartment is not pliable, children are. A child may bend and squeeze him/herself into a space in which a dummy would not be able to fit due to its inflexibility. Moreover, although a child in such a trunk compartment may not be able to pull down and close the trunk lid, a second child may be able to push the trunk lid down, trapping the first child in the trunk compartment. In addition, many vehicles manufactured by members of the Alliance have closure assisting devices as part of the trunk latch design. These provide the closure force that is necessary to perform latching, without the need for slamming. Thus, the agency believes that if the trunk lid can be closed with the three-year-old child dummy in the trunk compartment, the trunk lid is required to have an interior release.
The Alliance's argument that a child trapped in such a small trunk would not have enough room to operate a manual trunk release is not persuasive because the standard allows vehicles to be equipped with automatic trunk releases as well as manual releases.
Since NHTSA disagreed with this portion of the Alliance letter, the agency treated it as a petition for reconsideration. That part of the Alliance petition is denied.
S4.3 of Standard No. 401 requires the trunk release mechanism to “completely release the trunk lid from all latching positions of the trunk lid latch,
Porsche manufactures several passenger car models with front opening hoods. In its petition for reconsideration, Porsche maintained that having a trunk release mechanism that unlocks or opens a front opening hood from all latching positions or latches while the vehicle is in motion results in risk of injuring the driver, passenger, and other motorists whether the release functions as intended or inadvertently. Thus, Porsche requested that the agency “modify S4.3 of the final rule to indicate that, for front-opening hoods, only the primary latch need be completely released.”
Porsche requested that if NHTSA denied this recommendation, the agency provide manufacturers the option of disabling the interior trunk release system when the passenger car is in motion. Porsche stated that it currently deactivates the standard electro-mechanical hood release on its passenger cars when they have obtained a speed of 5 km/h ± 2 km/h.
NHTSA is granting Porsche's request to amend Standard No. 401 to indicate that for front opening hoods, only the primary latch need be completely released. As NHTSA stated in the preamble to the final rule, the agency believes that allowing a trapped person to get out of the trunk is paramount. However, NHTSA recognizes the significant additional risk of completely releasing a front opening hood while the passenger car is in motion. The release of both the primary and secondary latches when the passenger car is in motion could result in the hood flying open and obstructing the driver's forward view through the windshield. In addition, if the driver were to apply the brakes in such a situation, the trapped person could be ejected from the trunk compartment.
The agency agrees with Porsche that if only the primary latch is released when the passenger car is in motion, the hazard of collision and possible ejection of the trapped person would be greatly reduced. In addition, release of the primary latch would at least provide the trapped person with access to outside air and increase the possibility of the trapped person being noticed by others.
The agency notes that this change would not favor victims of intentional entrapment. Such victims would not be able to completely release the trunk lid and escape, at least not while the passenger car was in motion. To address this, the agency is requiring that the trunk lid open completely when the passenger car is stationary or moving at a speed of less than 3 km/h.
Thus, the agency is adding a paragraph (b) to S4.3 of Standard No. 401, to read as follows:
S4.3(b) For passenger cars with a front trunk compartment that has a front opening hood required to have a secondary latch position, actuation of the release mechanism required by paragraph S4.1 of this standard when the passenger car is in motion (at a speed of 3 km/h or more) must release the primary latch position, but not the secondary latch position. At all other times, actuation of the release mechanism required by paragraph S4.1 of this standard must completely release the trunk lid from all latching positions of the trunk lid latch. The passenger cars described in this paragraph are excluded from the requirements of this standard until September 1, 2002.
The agency notes that the amended text requires actuation of the release mechanism when the passenger car is stationary or moving at a speed of less than 3 km/h to release the latch completely from all latch positions, regardless of the previous state of the latches or whether the primary latch has been released during passenger car movement. Since NHTSA is granting this request, the agency does not have to address Porsche's request to provide manufacturers the option of disabling the interior trunk release system when the vehicle is in motion.
The agency realizes that this amendment adds some complexity to the design of trunk release systems for passenger cars with a trunk compartment located in the front. It also imposes an additional performance requirement associated with the speed of the passenger car. However, the agency has not estimated the costs of this additional burden. The agency believes that very few passenger cars have a trunk compartment located in the front. Moreover, the agency notes that Porsche stated that it currently deactivates the standard electro-mechanical hood release on its passenger cars when they have obtained a speed of 5 km/h ± 2 km/h. Thus, the requirement that the front hood lid only release the primary latch when the passenger car has obtained a speed of 3 km/h should not be a substantial burden.
Standard No. 401 permits passenger car manufacturers to install an automatic trunk release system which detects the presence of a person in the trunk and automatically unlatches the trunk lid. S4.2(b) of the standard requires such systems to “unlatch the trunk lid within 5 minutes of when the lid is closed with a person inside the trunk compartment.” The standard does not specify that the automatic trunk release system must operate only when the passenger car is stationary.
In its petition for reconsideration, GM stated that it has designed an automatic trunk release system that senses a combination of motion and a difference in temperature in the trunk compartment,
GM also stated that motion sensors could not be used if automatic trunk release systems are required to operate while the passenger car is stationary for a short time, such as when the passenger car is in gear but stopped at a stop light. GM said that there are two reasons for this:
First, motion is imminent when the ignition is on, and an unwanted trunk release could occur. [We take this to mean the trunk lid could open right before the vehicle resumes motion.] Second, the vehicle's ability to measure the speed at which it is moving has poor resolution at very low speeds. Therefore, a vehicle that is inching forward in a parking lot or at a stop light will not register motion, but the motion sensor in the trunk will register the motion of the cargo that is moving as a result of the vehicle's motion.
GM claimed that its testing has demonstrated that a truck passing a stopped passenger car can generate movement inside the trunk compartment of the stopped car that could mimic human-like motion. In addition, GM stated that persons moving inside the passenger compartment can cause motion to be registered inside the trunk compartment
Either of these occurrences could cause the trunk lid to open while the passenger car is in motion. GM also stated that it is not aware of any child trunk entrapment incident involving a passenger car that was in motion shortly after the child become trapped.
For these reasons, GM's automatic trunk release system is designed to operate only when the passenger car is stationary and the ignition is off. GM stated:
GM believes that requiring a passive [automatic] system to work when the vehicle is in motion or when motion is imminent will impose a significant and unwarranted design restriction that may preclude manufacturers from introducing passive systems. GM believes that such a restriction is not necessary to achieve the purposes of FMVSS 401, and that the final rule should allow manufacturers the flexibility to determine optimal design solutions, including the use of motion detectors in passive trunk release systems.
To address this issue, GM recommended that language such as “a stationary vehicle with the key off” be added to S4.2(b) of Standard No. 401.
NHTSA is denying GM's request to amend S4.2(b) so that automatic trunk release systems do not have to operate while the passenger car is in motion. NHTSA understands GM's concerns with respect to inanimate objects moving in the trunk compartment causing the trunk lid to open while the passenger car is in motion. However, the agency has concluded that the conditions suggested by GM are not suitable.
GM stated that it was not aware of a child entrapment incident involving a passenger car that was in motion shortly after the child became entrapped. NHTSA is aware of at least two possible such incidents. An Associated Press account of the five children who died in Utah in August 1998, reported that a relative of two of the five children who died in the trunk compartment drove the vehicle around the neighborhood searching for the children, unaware that their bodies were in the vehicle's trunk compartment. The newspaper account stated that this situation was similar to another incident in New Mexico, where four children died in July 1998 after climbing into the trunk compartment of a vehicle. Relatives searching for the children drove the vehicle for nearly an hour before finding their bodies in the trunk compartment.
In neither case is it clear how long the children had been trapped in the trunk compartments before their relatives began driving the car. Consequently, NHTSA considers the 5 minute time limit in S4.2(b) a reasonable safety requirement for all automatic trunk release systems, whether or not the passenger car is moving.
NHTSA also believes that the suggested requirement that the key that controls activation of the passenger car's engine be in the “off” position before the automatic trunk release system will operate could preclude possible escape from the trunk compartment by trapped persons. Individuals trapped in the trunk compartment (as a result of criminal entrapment or inadvertent trunk locking) would be unable to escape if the key or controlling device were intentionally or inadvertently left by the driver in some position other than the “off” position. Thus, the agency is denying the GM request to amend the standard to require that the key be in the “off” position for the automatic trunk release system to operate.
GM also stated that its automatic trunk release system cannot detect a person in the trunk compartment if that person remains stationary. The system requires some motion to activate the trunk release. If automatic systems are required to open the trunk when a person, whether stationary or moving, is inside the trunk compartment for five minutes, the GM system will be precluded. Thus, GM recommended that language be added to S4.2(b) requiring automatic trunk release systems to unlatch the trunk lid only when the trapped person is moving and attempting to escape.
GM suggested revising S4.2(b) as follows:
S4.2(b) Each automatic release mechanism installed pursuant to S4.1 of this section must unlatch the trunk lid within 5 minutes when all of the following conditions are met:
(1) the vehicle is stationary;
(2) the key that controls activation of the vehicle's engine is in the “off” position;
(3) the lid is closed; and
(4) a person inside the trunk compartment is simulating an attempt to escape by continually reaching for two or more of the interior sides of the trunk by gross arm(s) and/or leg(s) motion for three minutes.
NHTSA is denying GM's request to amend the standard by requiring that an automatic trunk release system may unlatch the trunk lid only when a person inside the trunk compartment is moving. The agency has determined that such a requirement would result in an ineffective system. According to GM's study, and a child psychologist who testified before the Expert Panel on Trunk Entrapment, many children who become trapped in trunk compartments simply “shut down” and passively wait for rescue. An automatic trunk release system that depends on the occupant continually moving around for three minutes appears to require greater effort by the trapped person than a manual trunk release system, which simply requires the trapped person to pull a lever.
NHTSA wishes to accommodate as broad an array of technologies as possible. The agency agrees with GM that an automatic trunk release system offers some conceptual advantages for helping trapped persons escape from the trunk, especially young children who may have trouble activating a manual trunk release system. However, the conditions suggested by GM for activation of its automatic system would result in trunk release systems that would not effectively accomplish the safety purpose of Standard No. 401. In the near term, GM may equip its vehicles with a manual trunk release system until some of the difficulties associated with automatic trunk release systems can be worked out. NHTSA will work with GM and other manufacturers to understand the capabilities and limitations of current automatic trunk release systems and attempt to develop performance criteria that would ensure that those systems effectively accomplish the safety purpose of the standard and would be feasible for current automatic systems.
GM also stated that drivers may occasionally want to disable the automatic trunk release system so that the motion of the passenger car or items in the trunk will not cause the trunk to open. GM would like to provide a means of temporarily disabling the system without affecting the safety benefits of the system. Accordingly, GM requested that the agency add an additional paragraph to Standard No. 401 as follows:
S4.2(c) An automatic release mechanism may be capable of being deactivated only if all of the following conditions are met:
(1) the key that controls activation of the vehicle's engine is in the “on” position;
(2) the deactivation switch is located away from the driver's position or the deactivation process requires multiple deliberate actions;
(3) the system is automatically reactivated when the trunk is opened; and
(4) the system can manually be reactivated from inside the trunk or otherwise can unlatch the trunk.
NHTSA is denying GM's request to amend the standard to allow for temporary disabling of automatic trunk
The Alliance noted that in the preamble to the Standard No. 401 final rule, NHTSA stated its intention to require manufacturers to conduct the evaluation to determine whether the three-year-old child dummy can fit inside the trunk compartment with all standard equipment in the trunk compartment (e.g., spare tire, wheel jack, tools, etc.). In fact, the agency stated in the preamble that “[s]uch an evaluation must be conducted with all standard equipment in the trunk (i.e., spare tire, wheel jack, tools, etc.).” (65 FR 63018). However, this test specification was inadvertently omitted from the regulatory text. The Alliance petitioned NHTSA to revise the regulatory text to include this specification.
The agency is granting this request. The agency is revising paragraph (d) in the definition of “trunk compartment” to read as follows:
(d) Is large enough so that the three-year-old child dummy described in Subpart C of Part 572 can be placed inside the trunk compartment, and the trunk lid can be closed and latched, with all removable equipment furnished by the passenger car manufacturer stowed in the trunk compartment in accordance with label(s) on the passenger car or information in the passenger car owner's manual, or, if no information is provided, as located when the passenger car is delivered. (Note: For purposes of this standard, the Part 572 Subpart C test dummy need not be equipped with the accelerometers specified in Part 572.21.)
Standard No. 401 allows manufacturers the option of installing a manual or automatic trunk release. Over the past five years, when NHTSA has allowed such a compliance option in a Federal motor vehicle safety standard, the agency has required that manufacturers irrevocably elect which option they will use to comply with the standard. Thus, when NHTSA officials conduct compliance testing of vehicles, they will know which requirements the vehicle must meet. For example, S6.1 of Standard No. 201, “Occupant Protection in Interior Impact,” allows manufacturers different compliance options. It also requires manufacturers to irrevocably select which compliance option they will employ at the time they certify their vehicles.
This requirement was inadvertently omitted from the final rule establishing Standard No. 401. Accordingly, the agency is revising S4.1 to read as follows:
S4.1 Each passenger car with a trunk compartment must have an automatic or manual release mechanism inside the trunk compartment that unlatches the trunk lid. Each trunk release shall conform, at the manufacturer's option, to either S4.2(a) and S4.3, or S4.2(b) and S4.3. The manufacturer shall select the option by the time it certifies the vehicle and may not thereafter select a different option for the vehicle.
Standard No. 401 applies to new passenger cars manufactured on or after September 1, 2001. In its letter, the Alliance requested an additional year (until September 1, 2002) of lead-time if NHTSA interprets the standard as applying to hatchback or station wagon models, interior storage compartments, sub-compartments within the trunk compartment, or vehicles with trunk lids that contact the three-year-old child dummy before latching. As a result of the amendments discussed above, the standard does not apply to hatchback or station wagon models, interior storage compartments, or sub-compartments within the trunk compartment. Thus, the agency need not address the issue of additional lead-time for these vehicles.
The standard does apply to passenger cars with trunk lids that can be closed despite contacting the dummy before latching. The agency notes that the NPRM and final rule preambles did not state or imply that trunk compartments with trunk lids that contact the dummy before latching would be excluded from the standard. Nor was this issue addressed in any comments to the NPRM. The agency is unaware of any technical challenges that such trunk compartments pose to the development and manufacture of interior trunk release mechanisms. Therefore, the Alliance's request for additional lead-time beyond the September 1, 2001 effective date of the standard is denied.
Porsche requested that the agency grant additional lead-time of at least one year from the date the agency grants or denies its recommended changes with regard to passenger cars with front opening trunk lids.
In response to the Porsche petition, NHTSA is amending the standard to allow passenger cars with front opening trunk lids to unlatch only the primary latch position when the passenger car is in motion. The agency notes that this amendment adds some complexity to the design of trunk release systems for passenger cars with trunk compartments located in the front. It also imposes an additional performance requirement associated with the speed of the passenger car. Because this amendment represents an increase in burden to manufacturers of passenger cars with trunk compartments located in the front, NHTSA has decided to extend the effective date for these passenger cars by one year. Thus, the effective date for passenger cars with trunk compartments which are located at the front and have a front opening hood required to have a secondary latch position is September 1, 2002.
GM stated that if NHTSA adopted GM's requested changes, GM would be able to meet Standard No. 401's current effective date of September 1, 2001. However, GM said that if the agency did not adopt GM's requested changes, it would need additional development, tooling, and validation time to incorporate complying systems. Thus, GM requested that the agency grant an additional year of lead-time for passenger cars equipped with automatic trunk release systems. In subsequent communications with the agency, GM withdrew that request.
The agency realizes that manufacturers may have experienced some difficulties in designing an automatic trunk release system that complies with the standard. As noted above, NHTSA will work with GM and other manufacturers to understand the capabilities and limitations of current automatic trunk release systems and attempt to develop performance criteria that would ensure that those systems effectively accomplish the safety purpose of the standard and would be feasible for current automatic systems. NHTSA does not wish to discourage the use of automatic systems because the agency believes that automatic systems may have some advantages over manual systems in certain situations. For example, young children may have some trouble operating a manual release, especially if they are frightened and disoriented, as one would expect a young child trapped in a trunk to be. Also, as stated above, many children who become trapped in trunk compartments simply “shut down” and
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “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 rulemaking document was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. The only additional burden it imposes is on manufacturers of vehicles with trunk compartments located at the front of the vehicle. These vehicles must release only the primary latch when the interior trunk release mechanism is actuated while the vehicle is in motion.
The agency has no evidence that this requirement will significantly increase the costs of complying with Standard No. 401 for such vehicles. Further, the agency believes that very few vehicles have trunk compartments located at the front of the vehicle. Moreover, the agency notes that Porsche, in its petition for reconsideration, stated that it currently deactivates the standard electro-mechanical hood release on its vehicles when the vehicle has obtained a speed of 5 km/h ± 2 km/h. Thus, the requirement that the front hood lid only release the primary latch when the vehicle has obtained a speed of 3 km/h should not be a substantial burden. The agency believes that this impact is so minimal as to not warrant the preparation of a full regulatory evaluation.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
As noted above, the agency has not estimated the costs associated with this rulemaking. The sole additional requirement imposed by this rulemaking is on vehicles with trunk compartments located at the front. The agency believes that very few such vehicles are manufactured. Moreover, the only manufacturer of such vehicles that the agency is aware of is Porsche, which does not qualify as a small entity. Based on this analysis, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.
Executive Order 13132 requires NHTSA 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.” Under Executive Order 13132, the agency may not issue a regulation with 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, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with 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 agency has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132. NHTSA has determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Accordingly, a Federalism Assessment has not been prepared.
This final rule will not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
This rule does not have any requirements that are considered to be information collection requirements as defined by the Office of Management and Budget (OMB) in 5 CFR part 1320.
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) directs us to use voluntary consensus standards in our regulatory activities unless doing 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, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
There are no voluntary consensus standards available at this time. NHTSA will consider any such SAE recommended practices if they become available.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This final rule will not have any such impacts on those parties. As noted above, the agency has not estimated expects the costs associated with this rule. However, the agency believes that they will be minimal, as the only additional burden imposed by this final rule will affect very few vehicles. Consequently, no Unfunded Mandates assessment has been prepared.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Imports, Motor vehicle safety, Motor vehicles, Rubber products, tires.
In consideration of the foregoing, NHTSA is amending 49 CFR chapter V as follows:
1. The authority citation for part 571 continues to read as follows:
49 U.S.C. 322, 21411, 21415, 21417, and 21466; delegation of authority at 49 CFR 1.50.
2. Section 571.401 is revised to read as follows:
S1.
S2.
S3.
(1) Is intended to be used for carrying luggage or cargo,
(2) Is wholly separated from the occupant compartment of a passenger car by a permanently attached partition or by a fixed or fold-down seat back and/or partition,
(3) Has a trunk lid, and
(4) Is large enough so that the three-year-old child dummy described in Subpart C of Part 572 can be placed inside the trunk compartment, and the trunk lid can be closed and latched with all removable equipment furnished by the passenger car manufacturer stowed in accordance with label(s) on the passenger car or information in the passenger car owner's manual, or, if no information is provided, as located when the passenger car is delivered. (Note: For purposes of this standard, the Part 572 Subpart C test dummy need not be equipped with the accelerometers specified in § 572.21.)
(b) Does not include a sub-compartment within the trunk compartment.
S4.
S4.1 Each passenger car with a trunk compartment must have an automatic or manual release mechanism inside the trunk compartment that unlatches the trunk lid. Each trunk release shall conform, at the manufacturer's option, to either S4.2(a) and S4.3, or S4.2(b) and S4.3. The manufacturer shall select the option by the time it certifies the vehicle and may not thereafter select a different option for the vehicle.
S4.2(a) Each manual release mechanism installed pursuant to S4.1 of this standard must include a feature, like lighting or phosphorescence, that allows the release mechanism to be easily seen inside the closed trunk compartment.
(b) Each automatic release mechanism installed pursuant to S4.1 of this section must unlatch the trunk lid within 5 minutes of when the trunk lid is closed with a person inside the trunk compartment.
S4.3(a) Except as provided in paragraph S4.3(b), actuation of the release mechanism required by S4.1 of this standard must completely release the trunk lid from all latching positions of the trunk lid latch.
(b) For passenger cars with a front trunk compartment that has a front opening hood required to have a secondary latch position, actuation of the release mechanism required by paragraph S4.1 of this standard when the passenger car is in motion (at a speed of 3 km/h or more) must release the primary latch position, but not the secondary latch position. At all other times, actuation of the release mechanism required by paragraph S4.1 of this standard must completely release the trunk lid from all latching positions of the trunk lid latch. The passenger cars described in this paragraph are excluded from the requirements of this standard until September 1, 2002.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure; commercial quota harvested for Connecticut.
NMFS announces that the summer flounder commercial quota available to the State of Connecticut has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in Connecticut for the remainder of calendar year 2001, unless additional quota becomes available through a transfer. Regulations governing the summer flounder fishery require publication of this notification to advise the State of Connecticut that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no commercial quota is available for landing summer flounder in Connecticut.
Effective 0001 hours, August 17, 2001, through 2400 hours, December 31, 2001.
Paul H. Jones, Fishery Policy Analyst, (978) 281-9273.
Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100.
The initial total commercial quota for summer flounder for the 2001 calendar year was set equal to 10,747,535 lb (4,875,000 kg)(66 FR 16151, March 23, 2001). The percent allocated to vessels landing summer flounder in Connecticut is 2.25708 percent, or 242,580 lb (110,032 kg). This allocation was adjusted due to an underage in 2000, as provided in § 648.100(e)(4), for a final allocation of 247,037 lb (112,054 kg).
Section 648.101 (b) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor state commercial quotas and to determine when a state’s commercial quota is harvested. NMFS then publishes notification in the
The regulations at § 648.4 (b) provide that Federal permit holders agree as a condition of the permit not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, August 17, 2001, further landings of summer flounder in Connecticut by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2001 calendar year, unless additional quota becomes available through a transfer and is announced in the
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public workshop and availability of the framework document for commercial unitary air conditioner and heat pump efficiency standards.
The Department of Energy (DOE or Department) will hold an informal public workshop to discuss and receive comments on issues it will address and initiate the data collection process for the commercial unitary air conditioner and heat pump efficiency standards. The data collected will be used in considering the adoption of American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE)/Illuminating Engineering Society of North America (IESNA) Standard 90.1-1999 or initiating amended energy conservation standards for commercial unitary air conditioners and heat pumps. This effort is based on the recommendations as addressed in the May 2001, National Energy Policy report which supports the appliance standards program for covered products, setting higher standards where technologically feasible and economically justified. The Department also encourages written comments on these subjects. To facilitate this process, the Department has prepared a Framework Document, a draft of which was made available on June 18, 2001.
The public workshop will be held on Wednesday, September 12, 2001, from 9:00 a.m. to 5:00 p.m. Written comments should be submitted by October 12, 2001.
The workshop will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue, SW, Washington, DC 20585. (Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. If you are a foreign national and wish to participate in the workshop, please inform DOE of this fact as soon as possible by contacting Ms. Brenda Edwards-Jones at (202) 586-2945 so that the necessary procedures can be completed.)
On June 18, 2001, the draft Framework Document was placed on the DOE website at: http://www.eren.doe.gov/buildings/codes_standards/index.htm
Written comments are welcome, especially following the workshop. Please submit written comments to: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Energy Conservation Program for Consumer Products: Energy Conservation Standards for Commercial Unitary Air Conditioners and Heat Pumps, Docket Number: EE-RM/STD-01-375, EE-41, 1000 Independence Avenue, SW, Washington, DC 20585-0121. Telephone: (202) 586-2945; Telefax: (202) 586-4617. You should label comments both on the envelope and on the documents and submit them for DOE receipt by October 12, 2001. Please submit one signed copy and a computer diskette (WordPerfect 8) or 10 copies (no telefacsimiles). The Department will also accept electronically-mailed comments, e-mailed to Brenda.Edwards-Jones@ee.doe.gov, but you must supplement such comments with a signed hard copy.
Copies of the transcript of the public workshop, the public comments received, the Framework Document, and this notice may be read at the Freedom of Information Reading Room, U.S. Department of Energy, Forrestal Building, Room 1E-190, 1000 Independence Avenue, SW, Washington, DC 20585, (202) 586-3142, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, EE-41, 1000 Independence Avenue, SW, Washington, DC 20585-0121, (202) 586-0371, email: bryan.berringer@ee.doe.gov, or Francine Pinto, U.S. Department of Energy, Office of General Counsel, GC-72, 1000 Independence Avenue, SW, Washington, DC 20585-0103, (202) 586-7432, email: francine.pinto@hq.doe.gov
The May 2001, National Energy Policy report by the National Energy Policy Development Group (NEPD Group) recommends support for the appliance standards program for covered products, setting higher standards where technologically feasible and economically justified. The Energy Policy and Conservation Act, Pub. L. 94-163, as amended by the Energy Policy Act of 1992 (EPACT), Pub. L. 102-486, establishes energy efficiency standards for certain commercial heating and air conditioning equipment which includes commercial unitary air conditioners and heat pumps. On October 29, 1999, the efficiency standards found in American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE)/Illuminating Engineering Society of North America (IESNA) Standard 90.1-1999 (ASHRAE/IESNA Standard 90.1-1999) were amended for these products. On March 1, 2000, the Department published a notice of preliminary screening analysis to decide which of the ASHRAE/IESNA Standard 90.1-1999 standards should be adopted immediately and which to analyze further. 65 FR 10984. On January 12, 2001, the Department published a final rule adopting the ASHRAE/IESNA Standard 90.1-1999 level for 18 product categories and made a decision to further evaluate other products. 66 FR 3336. In the final rule, DOE determined that further analysis was warranted for commercial unitary air conditioners and heat pumps. This conclusion was based on DOE's screening analysis. The Department is considering more stringent standards than those adopted by ASHRAE/IESNA Standard 90.1-1999.
Today's notice, the subject Framework Document, and workshop
The Department has prepared the Framework Document to explain and discuss the process, analyses, and issues concerning the development of such standards. For many of the issues and analyses, the Framework Document sets forth approaches that the Department is considering.
The main focus of the workshop will be to discuss the analyses and issues contained in various sections of the Framework Document. For each item listed, the Department will make a presentation with discussion to follow. In addition, the Department will also make a brief presentation on the rulemaking process for commercial unitary air conditioners and heat pumps. The Department encourages those who wish to participate in the workshop to obtain the Framework Document and be prepared to discuss its contents. However, workshop participants need not limit their discussions to these topics. The Department is also interested in receiving views concerning other issues that participants believe would affect energy conservation standards for commercial unitary air conditioners and heat pumps. The Department also welcomes all interested parties, whether or not they participate in the workshop, to submit in writing by October 12, 2001, comments and information on the matters addressed in the Framework Document and on other matters relevant to consideration of standards for commercial unitary air conditioners and heat pumps.
The workshop will be conducted in an informal, conference style. A court reporter will be present to record the minutes of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by the U.S. antitrust laws.
After the workshop and expiration of the period for submitting written statements, the Department will begin collecting data and conducting the analyses as discussed at the workshop and in consideration of the comments received.
If you would like to participate in the workshop, receive workshop materials, or be added to the DOE mailing list to receive future notices and information regarding commercial unitary air conditioners and heat pumps, please contact Ms. Brenda Edwards-Jones at (202) 586-2945.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to all Fokker Model F.28 series airplanes. This proposal would require replacing the main landing gear (MLG) torque link dampers with modified and reidentified dampers. This action is necessary to prevent degradation of the dampers, which could result in MLG high amplitude oscillation in a lateral torsional mode, and consequent MLG damage or separation of the MLG from the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by September 17, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-208-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2001-NM-208-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Fokker Services B.V., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-208-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate,
The Rijksluchtvaartdienst (RLD), which is the airworthiness authority for the Netherlands, notified the FAA that an unsafe condition may exist on all Fokker Model F.28 series airplanes. The RLD advises that it has received a report of an incident involving a main landing gear (MLG) separation after landing on a Fokker F.28 Mark 0100 series airplane. Investigation revealed that performance degradation of a damper resulted in loss of damping capability. Further investigation revealed that the degradation was due to a combination of damper anomalies, i.e., a broken retainer ring, and a shim between housing and the cap, which was too thick. However, performance degradation of dampers is not detectable during normal operations. Such performance degradation of a damper, if not corrected, could result in MLG high amplitude oscillation in a lateral torsional mode, and consequent MLG damage or separation of the MLG from the airplane.
Fokker Services B.V. has issued Fokker Service Bulletin SBF28/32-157 (for Model F.28 Mark 1000 through 4000 series airplanes) and Fokker Service Bulletin SBF100-32-114 (for Model F.28 Mark 0070/0100 series airplanes), both dated October 1, 1999, which describe procedures for replacing MLG torque link dampers having part number (P/N) 23700-1 or -3 with modified and reidentified dampers having P/N 23700-5. Dampers having P/N 23700-5 have stronger retainers to achieve an improved fatigue life, modified poppet springs for improved performance, and deletion of shims between housing and cap and increased torque value on assembly nuts, to ensure proper damping characteristics. Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. The RLD classified these service bulletins as mandatory and issued Dutch airworthiness directive 1999-138, dated October 29, 1999, in order to assure the continued airworthiness of these airplanes in the Netherlands.
These airplane models are manufactured in the Netherlands and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the RLD has kept the FAA informed of the situation described above. The FAA has examined the findings of the RLD, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.
The FAA estimates that 147 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 6 work hours per airplane to accomplish the proposed replacement, and that the average labor rate is $60 per work hour. Required parts would cost approximately $1,910 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $333,690, or $2,270 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed 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 proposed herein would 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 proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
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 (c) 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 separation of the main landing gear (MLG) from the airplane, due to performance degradation of the torque link damper; accomplish the following:
(a) Replace MLG torque link dampers having part numbers (P/N) 23700-1 or -3 with dampers having P/N 23700-5, in accordance with the Accomplishment Instructions of Fokker Services SBF28/32-157 (for Models F.28 Mark 1000 through 4000 series airplanes) and Fokker Service Bulletin SBF100-32-114 (for Model F.28 Mark 0070/0100 series airplanes), both dated October 1, 1999, as applicable; at the times specified in the following table:
(b) As of the effective date of this AD, no person shall install torque link damper having P/N 23700-1 or -3, on any airplane.
(c) 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.
(d) 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.
The subject of this AD is addressed in Dutch airworthiness directive 1999-138, dated October 29, 1999.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Short Brothers Model SD3 series airplanes. This proposal would require an inspection to find discrepancies of the hydraulic pipelines of the 7P panel and adjacent electrical wiring harnesses, and corrective action, if necessary. This action is necessary to find and fix such discrepancies, which could result in electrical arcing between the hydraulic lines and adjacent wiring and a potential fire. This action is intended to address the identified unsafe condition.
Comments must be received by September 17, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-175-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2001-NM-175-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Short Brothers, Airworthiness & Engineering Quality, P.O. Box 241, Airport Road, Belfast BT3 9DZ, Northern Ireland. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-175-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-175-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified the FAA that an unsafe condition may exist on certain Short Brothers Model SD3 series airplanes. The CAA advises that investigation of these airplanes by the manufacturer revealed that, in certain areas, clearance between the hydraulic lines and electrical wiring must be ensured. Inadequate clearance may lead to chafing of the cables and damage to the hydraulic pipelines. This condition, if not corrected, could result in electrical arcing between the hydraulic lines and adjacent wiring and a potential fire.
The manufacturer has issued Shorts Service Bulletins SD3 SHERPA-24-5; SD330-24-29; SD360-24-25; and SD360 SHERPA-24-4; all dated April 30, 2001. The service bulletins describe procedures for an inspection to find discrepancies of the hydraulic pipelines of the 7P panel and adjacent electrical wiring harnesses, and corrective action, if necessary. The discrepancies include inadequate clearance between certain hydraulic pipelines of the 7P panel and adjacent electrical wiring harnesses, chafing between the electrical wires and hydraulic line, or damage to the hydraulic pipelines or wiring harnesses. The corrective action includes rerouting for adequate clearance, clipping or sleeving of the wiring harness and/or replacement of damaged pipelines with new pipelines. Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.
The CAA classified these service bulletins as mandatory and issued British airworthiness directives 006-04-2001, 007-04-2001, 008-04-2001, and 009-04-2001, in order to assure the continued airworthiness of these airplanes in the United Kingdom.
These airplane models are manufactured in the United Kingdom and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.
The referenced service bulletins do not define the type of inspection to be used to find discrepancies of the hydraulic pipelines of the 7P panel and adjacent electrical wiring harnesses. However, the FAA has determined that a detailed visual inspection would be required to find such discrepancies. A note has been added that defines a detailed visual inspection.
The FAA estimates that 75 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $4,500, or $60 per airplane.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed 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 proposed herein would 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 proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been otherwise 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 find and fix discrepancies of the hydraulic pipelines of the 7P panel and adjacent electrical wiring harnesses, which could result in electrical arcing between the hydraulic lines and adjacent wiring and a potential fire, accomplish the following:
(a) Within 90 days after the effective date of this AD, do a detailed visual inspection to find discrepancies (inadequate clearance, chafing, or damage) of the hydraulic pipelines of the 7P panel and adjacent electrical wiring harnesses, per the Accomplishment Instructions of Shorts Service Bulletins SD3 SHERPA-24-5, SD330-24-29, SD360-24-25, or SD360 SHERPA-24-4, all dated April 30, 2001; as applicable. Before further flight, fix any discrepancies found, per the applicable service bulletin.
For the purposes of this AD, a detailed visual inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(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.
The subject of this AD is addressed in British airworthiness directives 006-04-2001, 007-04-2001, 008-04-2001, and 009-04-2001.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to all Saab Model SAAB SF340A and SAAB 340B series airplanes. This proposal would require modifying or replacing flight data recorders (FDR) of a certain model. This action is prompted by reports of a number of incidents in which flight data has been lost from the FDR. This action is necessary to prevent loss of flight data from the FDR, which could hamper discovery of the cause of an accident, preventing the Federal Aviation Administration from developing and mandating actions to prevent additional accidents caused by the same unsafe condition.
Comments must be received by September 17, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-110-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2001-NM-110-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
Information pertaining to the proposed AD may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Rosanne Ryburn, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2139; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-110-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket Number 2001-NM-110-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports of a number of incidents of loss of flight data on SAAB Model SF340A and SAAB 340B series airplanes equipped with Loral F800 flight data recorders (FDRs). These FDRs are subject to rapid tape movements or jitter, which causes loss or distortion of flight data transmitted to them. Investigation of accidents involving airplanes equipped with these FDRs has revealed that, in a number of cases, the loss of flight data has prevented determination of the cause of the accident.
This action is necessary to prevent the loss of flight data from the Loral F800 FDRs. Such loss of data does not directly affect the safety of the airplane on which the FDR is located. However, should an airplane equipped with a malfunctioning FDR also have an unrelated unsafe condition that results in an incident or accident, the data retrieved from the FDR may be distorted or missing. This lack of reliable data could hamper discovery of the unsafe condition that caused the incident or accident and prevent the FAA from developing and mandating actions to prevent additional incidents or accidents caused by that same unsafe condition. Therefore, the FAA has determined that the proposed AD is necessary.
It should be noted that the purpose of this proposed AD is not to enhance the safety of Model SAAB SF340A and SAAB 340B series airplanes, but rather to restore the level of safety provided by the originally approved FDR. Therefore, this AD is the appropriate regulatory vehicle to achieve this purpose.
These airplane models are manufactured in Sweden and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.
The proposed AD would require inspection of the FDR to determine whether it is a Loral F800 having a certain part number. If it is found that the FDR is a Loral F800 having the certain part number, the FDR must be modified or replaced.
The FAA estimates that 267 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 1 hour to inspect the FDR to determine whether it is a Loral F800 model having a certain part number, and the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed inspection on U.S. operators is estimated to be $16,020, or $60 per airplane.
Since the manufacturer of the FDR has not yet developed a specific modification commensurate with the requirements of this proposed AD, the FAA is unable to provide information as to the number of work hours or the cost of parts that may be required to accomplish the proposed modification. As indicated earlier in this preamble, the FAA specifically invites the submission of comments and other data regarding this economic aspect of the proposed AD.
The regulations proposed herein would 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 proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability
To prevent loss of flight data from the flight data recorder (FDR), which could hamper discovery of the cause of an accident, preventing the FAA from developing and mandating actions to prevent additional accidents caused by the same unsafe condition, accomplish the following:
(a) Within 6 months after the effective date of this AD: Inspect the FDR to determine whether it is a Loral F800 model having part number (P/N) 17M800-261, and if the FDR is a Loral F800 model having P/N 17M800-261, modify the FDR or replace it with a different model, in accordance with a method approved by the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate.
(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. 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.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Saab Model SAAB SF340A and SAAB 340B series airplanes. This proposal would require a one-time review of records to determine whether an airplane has been repainted since its delivery from the factory; and a one-time inspection to detect damage associated with improper preparation for the repainting, and corrective action, if necessary. This action is prompted by mandatory continuing airworthiness information from a foreign civil airworthiness authority. This action is necessary to detect and correct damage to the aluminum skin of the airplane, which could result in a weakening of the structure of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by September 17, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket Number 2001-NM-91-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2001-NM-91-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for Windows or ASCII text.
The service information referenced in the proposed rule may be obtained from Saab Aircraft AB, SAAB Aircraft Product Support, S-581.88, Linköping, Sweden. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-91-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket Number 2001-NM-91-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Luftfartsverket (LFV), which is the airworthiness authority for Sweden, notified the FAA that an unsafe condition may exist on Saab Model SAAB SF340A and SAAB 340B series airplanes. The LFV advises that, on a number of airplanes that were repainted after being delivered from the factory, the preparation for such repainting was performed using unapproved methods, including sanding the aluminum skin down to bare metal. These unapproved methods may have damaged the skin by removing its anodized and primed protective coat, causing pitting corrosion, or reducing the thickness of the skin to less than the minimum allowable. This condition, if not corrected, could result in damage to the aluminum skin of the airplane, with consequent weakening of the structure of the airplane.
Saab has issued Service Bulletin 340-51-020, Revision 01, dated May 16, 2001, which describes procedures for a one-time inspection of repainted airplanes for damage caused by use of unapproved methods during preparation for repainting. Such damage includes removal of the skin's protective coating of bonding primer, pitting corrosion of the skin, or reduction of the thickness of the skin to less than the minimum allowable. The service bulletin also describes corrective action to be taken, if it is found that an unapproved method was used. The LFV classified this service bulletin as mandatory and issued Swedish airworthiness directive 1-161 R1, dated March 5, 2001, in order to assure the continued airworthiness of these airplanes in Sweden.
Operators should note that, although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions that are detected during the inspection, this proposed rule would require the repair of those conditions to be accomplished by a method approved by the FAA or the LFV (or its designated agent).
These airplane models are manufactured in Sweden and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LFV has kept the FAA informed of the situation described above. The FAA has examined the findings of the LFV, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed rule would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.
The FAA estimates that 288 airplanes of U.S. registry would be affected by this proposed rule.
It would take 1 work hour per airplane to accomplish the proposed review of records, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed review of records on U.S. operators is estimated to be $17,280, or $60 per airplane.
For those airplanes which have been repainted, it would take 20 to 45 work hours per airplane to accomplish the proposed inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed inspection on U.S. operators is estimated to be $1,200 to $2,700 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed 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 proposed herein would 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 proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
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 (c) 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 detect and correct damage to the aluminum skin of the airplane, which could result in a weakening of the structure of the airplane, accomplish the following:
(a) Within 200 flight hours or 1 year after the effective date of this AD, whichever occurs first: Perform a review of records to determine whether an airplane subject to this AD has been repainted since its delivery from the factory. If the airplane has not been repainted, no further action is needed.
(b) If an airplane has been repainted since its delivery from the factory: Within 200 flight hours or 1 year after the effective date of this AD, whichever occurs first, perform chemical stripping of local areas of the skin and inspection to detect damage to (or removal of) the protective coat of bonding primer, in accordance with Saab Service Bulletin 340-51-020, Revision 01, dated May 16, 2001.
(1) If no damage to the protective coat of bonding primer is detected: Prior to further flight, repaint the stripped areas, in accordance with the service bulletin.
(2) If damage to (or removal of) the protective coat of bonding primer is detected: Prior to further flight, perform additional chemical stripping and inspection of the skin for pitting corrosion, in accordance with the service bulletin.
(i) If pitting corrosion is detected: Prior to further flight, perform corrective action in a manner approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, or the Luftfartsverket (or its designated agent).
(ii) If no pitting corrosion is detected: Prior to further flight, measure the thickness of the skin of the airplane, in accordance with the service bulletin.
(A) If a reduction in skin thickness is detected: Prior to further flight, perform corrective action in a manner approved by the Manager, International Branch, ANM-116, or the Luftfartsverket (or its designated agent).
(B) If no reduction in skin thickness is detected: Prior to further flight, check records to determine whether the airplane was repainted using an approved paint system.
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(c) 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. 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.
(d) 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.
The subject of this AD is addressed in Swedish airworthiness directive 1-161R1, dated May 5, 2001.
Federal Aviation Administration (FAA), DOT.
Notice of Proposed Rulemaking.
This action proposes to revise the Class D and Class E Airspace Area Descriptions at Medford, OR. A legal name change from Medford-Jackson Airport to Rogue Valley International-Medford Airport and a revision to Class E airspace areas made this action necessary. Additional Class E5 700-foot airspace is required to contain IFR approaches to the airport when the Air Traffic Control Tower is closed. The intended effect of this proposal is to correct the official Airport name and provide adequate controlled airspace for Instrument Flight Rules (IFR) operations at Rogue Valley International-Medford Airport, Medford, OR.
Comments must be received on or before October 1, 2001.
Send comments on the proposal in triplicate to: Manager, Airspace Branch, ANM-520, Federal Aviation Administration, Docket No. 00-ANM-30, 1601 Lind Avenue SW, Renton, Washington 98055-4056.
An informal docket may also be examined during normal business hours in the office of the Manager, Air Traffic Division, Airspace Branch, at the address listed above.
Brian Durham, AND-520.7, Federal Aviation Administration, Docket No. 00-ANM-30, 1601 Lind Avenue SW, Renton, Washington 980554056: telephone number: (425) 227-2527.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit, with those comments, as self-addressed stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 00-ANM-30.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in the light of comments received. All comments submitted will be available for examination at the address listed above both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
Any person may obtain a copy of this NPRM by submitting a request to the Federal Aviation Administration, Airspace Branch, ANM-520, 1601 Lind Avenue SW, Renton, Washington 98055-4056. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRM's should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.
The FAA is considering an amendment to Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by revising the Class D and Class E legal
The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class D surface airspace areas are published paragraph 5000, Class E airspace ares designated as surface areas are published in Paragraph 6002, Class E airspace consisting of airspace extending upward from the surface designated as an extension of Class D airspace area are published in Paragraph 6004, and Class E airspace areas extending upward from 700-feet or more above the surface of the earth are published in Paragraph 6006, of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by references in 14 CFR 71.1. The Class D & E airspace designations listed in this document would be published subsequently in the order.
The FAA has determined that this proposed regulation only involves and established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (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 11013; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, is amended as follows:
That airspace extending upwards from the surface to and including 3,800 feet MSL within a 4.1-mile radius of the Rogue Valley International-Medford airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Within a 4.1-mile radius of Rogue Valley International-Medford airport. This Class E airspace is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface within 1.8 miles west and 2.7 miles east of the Medford ILS localizer north course extending from the 4.1-mile radius to 2.7 miles north of the Pumie LOM and within 2.7 miles each side of the Rogue Valley VORTAC 352° radial extending from the Rogue Valley VORTAC to 11 miles north of the VORTAC, and within 4 miles each side of the Rogue Valley VORTAC 164° radial extending from the 4.1-mile radius to 19.3 miles south of the Rogue Valley International-Medford Airport. This Class E airspace is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface bounded by a line from lat. 42°45′00″N., long. 123°10′54″W.; to lat. 42°48′54″N., long. 122°57′06″W.; to lat. 42°44′00″N., long. 122°44′36″W.; to lat. 42°04′00″N., long. 122°30′00″W.; to lat. 41°56′30″N., long. 123°00′00″W.; to the point of origin; that airspace extending upward from 1,200 feet above the surface bounded by a line from lat. 43°00′00″N., long. 123°30′00″W.; to lat. 42°00′00″N., long. 122°10′30″W.; to lat. 41°43′40″N., long. 123°14′36″W.; to lat. 43°00′00″N., long. 123°10′00″W.; to the point of origin; excluding that airspace within Federal Airway areas, and the Klamath Falls, OR and Grants Pass, OR Class E airspace areas.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish the Class E airspace at Kanab, UT. Newly developed Area navigation (RNAV) Standard Instrument Approach Procedures (SIAP) and Departure Procedure (DP) at the Kanab Municipal Airport have made this proposal necessary. Class E 700-feet, and 1,200-feet controlled airspace, above the surface of the earth is required to contain aircraft executing the RNAV SIAPs and DP at Kanab Municipal Airport. The intended effect of this proposal is to provide adequate controlled airspace for Instrument Flight Rules (IFR) operations at Kanab Municipal Airport, Kanab, UT.
Comments must be received on or before October 1, 2001.
Send comments on the proposal in triplicate to: Manager, Airspace Branch, ANM-520, Federal Aviation Administration, Docket No. 01-ANM-04, 1601 Lind Avenue SW, Renton, Washington 98055-4056.
An informal docket may also be examined during normal business hours in the office of the Manager, Air Traffic Division, Airspace Branch, at the address listed above.
Brian Durham, ANM-520.7, Federal Aviation Administration, Docket No. 01-ANM-04, 1601 Lind Avenue SW, Renton, Washington 98055-4056: telephone number: (425) 227-2527.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit, with those comments, a self-addressed stamped postcard on which the following statement is made: “Comments to Airspace Docket No. 01-ANM-04.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in the light of comments received. All comments submitted will be available for examination at the address listed above both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
Any person may obtain a copy of this NPRM by submitting a request to the Federal Aviation Administration, Airspace Branch, ANM-520, 1601 Lind Avenue SW, Renton, Washington 98055-4056. Communications must identify the docket number of this NPRM. Persons interested in being placed on a mailing list for future NPRM's should also request a copy of Advisory Circular No. 11-2A, which describes the application procedure.
The FAA is considering an amendment to Title 14 Code of Federal Regulations, part 71 (14 CFR part 71) by establishing Class E airspace at Kanab, UT. Newly developed RNAV approach and departure procedures at the Kanab Municipal Airport have made this proposal necessary. Class E 700-feet, and 1,200 feet controlled airspace, above the surface of the earth is required to contain aircraft executing the RNAV SIAP and DP, at Kanab Municipal Airport. The FAA establishes Class E airspace where necessary to contain aircraft transitioning between the terminal and en route environments. The intended effect of this proposal is designed to provide for the safe and efficient use of the navigable airspace. This proposal would promote safe flight operations under IFR at the Kanab Municipal Airport and between the terminal and en route transition stages.
The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. Class E airspace areas extending upward from 700 feet or more above the surface of the earth, are published in Paragraph 6005, of FAA Order 7400.9H dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (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 11013; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9H, Airspace Designations and Reporting Points, dated September 1, 2000, and effective September 16, 2000, is amended as follows:
That airspace extending upward from 700 feet above the surface within the 8-mile radius of the Kanab Municipal Airport; and that airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 36°32′10″N., long. 112°00′00″W., to lat. 36°32′10″N., long. 112°52′00″W., to lat. 37°15′00″N., long. 112°52′00″W., to lat. 37°15′00″N., long. 112°16′00″W., to lat. 37°09′00″N., long. 112°15′00″W., to lat. 37°09′00″N., long. 111°50′00″W., to lat. 36°45′00″N., long. 112°00′00″W.; thence to the point of origin; and excluding that airspace within Federal airways.
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of Availability; reopening of opportunity for public comment.
Notice is hereby given that NOAA is reopening its request for comments on the draft report “Fair Market Value Analysis for a Submarine Cable Permit in National Marine Sanctuaries.” However, in re-opening the comment period, NOAA has removed the recommended fee amount from the report and, rather, seeks comment on the methodology presented in the report or suggestions of other appropriate methodologies for determining the fair market value for the presence of a submarine cable in a national marine sanctuary. NOAA is reopening the public comment period for 45 days.
Comments must be received by October 1, 2001.
Address all comments regarding this notice to Helen Golde, Chief, Conservation Policy and Planning Branch, Office of National Marine Sanctuaries, 1305 East-West Highway, 11th Floor, Silver Spring, MD 20910, Attention: Fair Market Value Analysis. Comments may also be submitted by email to: submarine.cables@noaa.gov, subject line “Fair Market Value Analysis.” The report is available for download at
Matt Brookhart, (301) 713-3125 x140.
Section 310 of the National Marine Sanctuaries Act, 16 U.S.C. 1441, authorizes the issuance of special use permits to establish conditions of access to and use of any sanctuary resource or to promote public use and understanding of a sanctuary resource. Section 310 also authorizes the assessment of fees for issuance of special use permits, including a fee that represents the fair market value of the use of sanctuary resources. NOAA's National Marine Sanctuary Program has issued two special use permits for the presence of submarine fiber optic cables in two national marine sanctuaries, one in the Olympic Coast Sanctuary National Marine Sanctuary (NMS) and the second in the Stellwagen Bank NMS.
NOAA has committed that the process for determining the fair market value of any special use permit issued for the presence of submarine cables will allow for input from the permit holders as well as other stakeholders and interested persons.
An interim final version of a report, “Fair Market Value Analysis for Submarine Cable Permit in National Marine Sanctuaries,” was completed in December 2000. The report presents an assessment of fair market value for the presence of a submarine cable in a National Marine Sanctuary. The content of this report is based on dozens of industry and government sources and draws on the collaboration with and review by numerous experts in the business, legal and technical arenas. NOAA published a notice in the
Since the initial comment period, NOAA has updated the report by making a number of editorial and clarifying changes, and including some updated information. Further, NOAA has removed the recommended fee amount and now seeks comments on the methodology described in the report or suggestion of an appropriate alternative methodology.
Once the current comment period closes, NOAA will evaluate the comments and make any necessary revisions to the methodology used in determining fair market value. NOAA will then work with the existing special use permit holders, utilizing such methodology, to assess the fair market value fee for their permits. NOAA will publish a final notice that summarizes all comments and presents a final fee methodology to be applied to any future cable projects within national marine sanctuaries that may be authorized pursuant to a special use permit.
In a separate process, NOAA will continue developing its policy on submarine cables within national marine sanctuaries, following up on the August 23, 2000, Advance Notice of Proposed Rulemaking (ANPR) on Installing and Maintaining Commercial Submarine Cables in National Marine Sanctuaries (65 FR 51264). The ANPR included a draft set of proposed principles for laying submarine cables in the marine and coastal environment. Through this separate process, NOAA will consider whether to issue regulations or a policy statement on submarine cables within sanctuaries including whether the issuance of special use permits is necessary or appropriate.
Social Security Administration (SSA).
Proposed rules.
We propose to make revisions to our rules relating to the filing of an application for social security benefits. These changes will explain that SSA-approved Internet applications completed on SSA's website and submitted to SSA are prescribed applications for filing social security benefits. We propose to add cross-references to several sections to describe what makes an application a claim; and we plan to update the list of Related forms with other forms that are currently used in the application process. These proposed rules will inform the public that they have the option of filing an Internet application on SSA's website for all types of social security benefits.
We will consider your comments if we receive them no later than October 16, 2001.
Submit comments in writing to the Commissioner of Social Security, PO Box 17703, Baltimore, MD 21235-7703, send by telefax to (410) 966-2830, send by E-mail to
Lola Doyle, Social Insurance Specialist, Office of Program Benefits, Social Security Administration, 3-R-1 Operations Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-5899 or TTY (410) 966-5609 for information about these rules. For information on eligibility or claiming benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778 or visit our Internet website, SSA Online at
An individual must file an application in order to receive benefits under title II of the Social Security Act (the Act). In part 404 of our regulations, we establish rules for filing a claim for old-age, disability, dependents', and survivors' insurance benefits, which define the criteria for determining when an application is a claim for benefits. Similarly, we include the names of places where you can file an application, and explain what makes an application form acceptable as a claim for benefits. Our rules state that individuals must either sign the application or have someone who can act on their behalf sign for them. Except in limited situations, individuals must be alive at the time the application is filed.
In part 404, we further state that a claim filed with the Railroad Retirement Board for an annuity on one of its forms is an application for title II benefits, unless the individual states otherwise. We state that a claim filed with the Department of Veterans Affairs on one of its forms for survivors' dependency and indemnity compensation is also an application for social security dependents' and survivors' benefits (except for the lump sum death payment).
The types of applications currently prescribed by SSA are described in part 422. SSA's application process has evolved from its primary use of the traditional pre-printed application form for claims-taking to SSA employees who input information provided by the applicant into a computer terminal for processing. Computer printouts of the data are generated for the applicant to review the information and to sign the application.
SSA is committed to providing the public with the option to conduct business electronically by adding more Internet services on SSA's website, SSA Online
Toward this objective, we developed an Internet retirement insurance benefit application for national implementation in the fall of 2000. Statistics confirm that Internet usage has increased among older Americans and as a result, they have requested that more online services be made available to them. Internet applications for other benefit categories will be developed in the future. As applications become available on SSA's website, we will incorporate an explanation of SSA's approved signature method for each application as part of the Internet application process.
The main purpose of the proposed revisions is to inform the public that they have the option of filing an Internet application on SSA's website for all types of social security benefits. The proposed revisions include updating the list of Related forms in § 422.505(b) to reflect only those forms that are currently in use in the application process. The proposed revisions add cross-references to related sections to ensure that all necessary information for filing an application is available to the public. Finally, the proposed revisions make the regulations more readable, thus enabling the public to better understand the contents of the sections.
The following is a summary of the proposed revisions and our reasons for proposing these changes.
We are proposing to add a cross-reference in § 404.610(a) to related § 422.505(a), which explains the types of prescribed applications to be used by the public when filing for social security benefits. In § 404.610(b), we are proposing to add a cross-reference to related § 404.614, which lists the places where a social security application may be filed. We are also proposing to revise the language in the section for clarity. In § 404.611 we are proposing to revise the heading as part of reformatting the section. In addition, we are proposing to add a cross-reference in § 404.611(a) to related § 422.505(a), which, as noted above, explains the types of prescribed applications. We are proposing to change the heading in § 404.611(b) as part of the new format and to revise the text to make the section clearer. Similarly, in § 404.611(c) we are proposing a change in the heading and the text as part of the format change. We are proposing changing the heading in § 422.505 and revising the language in § 422.505(a) to make the contents of the section clearer. We are also proposing to revise § 422.505(a) to include language to state that Internet applications on SSA's website are prescribed applications. In § 422.505(b) we are proposing to revise the list of Related forms to delete the forms which are obsolete.
Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. We invite your comments on how to make these proposed rules easier to understand. For example:
• Have we organized the material to suit your needs?
• Are the requirements in the rules clearly stated?
• Do the rules contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings,
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rules easier to understand?
The electronic file of this document is available on the Internet at
We have consulted with the Office of Management and Budget (OMB) and determined that these proposed regulations do not meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were not subject to OMB review.
We certify that these proposed regulations would not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
These proposed regulations would impose no additional reporting or recordkeeping requirements requiring OMB clearance. The SSA forms completed by the public listed in section 422.505 have previously been cleared by the Office of Management and Budget as necessary.
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
Administrative practice and procedure, Freedom of Information, Organization and functions (government agencies), Social Security.
For the reasons set forth in the preamble, we are proposing to amend part 404, subpart G, and part 422, subpart F of chapter III of title 20 of the Code of Federal Regulations as set forth below.
1. The authority citation for subpart G of part 404 continues to read as follows:
Secs. 202(i), (j), (o), (p), and (r), 205(a), 216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act (42 U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2), 423(b), 428(a), and 902(a)(5)).
2. Section 404.610 is revised to read as follows:
We will consider your application a claim for benefits if it generally meets all of the following conditions:
(a) You must file on a prescribed form as stated in § 404.611. See § 422.505(a) of this chapter for the types of prescribed applications you can file.
(b) You must complete and file the application with us, as stated in § 404.611 and § 404.614.
(c) You, or someone described in § 404.612 who may sign an application for you, must sign the application.
(d) You must be alive at the time you file (unless one of the limited exceptions in § 404.615 applies).
3. Section 404.611 is revised to read as follows:
(a)
(b)
(c)
4. The authority citation for subpart F of part 422 continues to read as follows:
Secs. 205 and 702(a)(5) of the Social Security Act (42 U.S.C. 405 and 902(a)(5)). Section 422.512 is also issued under 30 U.S.C. 901
5. Section 422.505 is revised to read as follows:
(a)
(b)
SSA-3—Husband's Certification. (For use in connection with Application for Wife's Insurance Benefits, Form SSA-2.)
SSA-11—Application to be Selected as Payee. (For use when the individual proposing to be substituted for current payee files application to receive payment of benefits on behalf of himself, a disabled child or child under age 22, a student beneficiary, or an incompetent beneficiary.)
SSA-21—Supplement to Claim of Person Outside of the United States. (To be completed by or on behalf of a person who is, was, or will be outside the United States.)
SSA-25—Certificate of Election for Reduced Wife's Benefits. (For use by a wife age 62 through 64 who has an entitled child in her care and elects to receive reduced benefits for months during which she will not have a child in her care.)
SSA-721—Statement of Death by Funeral Director. (This form may be used as evidence of death (see § 404.704 of this chapter).)
SSA-760—Certificate of Support (Parent's, Husband's, or Widower's).
SSA-766—Statement of Self-Employment Income. (For use by a claimant to establish insured status based on self-employment income in the current year.)
SSA-787—Medical Officer's Statement. (For use in requesting medical evidence of a beneficiary's capacity to manage benefits from an institution.)
SSA-824—Report on Individual With Mental Impairment. (For use in obtaining medical evidence from medical sources when the claimant has been treated for a mental impairment.)
SSA-827—Authorization for Source to Release Information to the Social Security Administration (SSA). (To be completed by a disability claimant to authorize release of medical information.)
SSA-1002—Statement of Agricultural Employer. (For use by an employer to provide evidence of annual wage payments for agricultural work.)
SSA-1323—Report on Individual With Childhood Impairment. (For use in obtaining information from schools or agencies on how an impairment affects the individual's progress in school and to get the results and dates of any psychometric testing.)
SSA-1372—Student's Statement Regarding School Attendance. (For use in connection with a request for payment of child's insurance benefits for a child who is age 18 through 19 and a full-time student.)
SSA-1388—Report of Student Beneficiary at End of School Year. (For use in confirming continuing eligibility to benefits or indicating the need for suspension or termination action.)
SSA-1724—Claim for Amounts Due in the Case of a Deceased Beneficiary. (For use in requesting amounts payable under title II to a deceased beneficiary.)
SSA-3368—Disability Report—Adult. (For use in recording information about the claimant's condition, sources of medical evidence, and other information needed to process the claim to a decision.)
SSA-3369—Work History Report. (For use in recording work history information.)
SSA-3826-F4—Medical Report—General. (For use in helping disability claimants in obtaining medical records from their doctors or other medical sources.)
SSA-3827—Medical Report—Individual with Childhood Impairment. (For use in requesting information to determine if an individual's impairment meets the requirements for payments of childhood disability benefits.)
SSA-4111—Certificate of Election for Reduced Widow(er)'s Benefits. (For use by applicants for certain reduced widow's or widower's benefits.)
SSA-7156—Farm Self-Employment Questionnaire. (For use in connection with claims for benefits based on farm income to determine whether the income is covered under the Social Security Act.)
SSA-7160—Employment Relationship Questionnaire. (For use by an individual and the alleged employer to determine the individual's employment status.)
SSA-7163—Questionnaire About Employment or Self-Employment Outside United States. (To be completed by or on behalf of a beneficiary who is, was, or will be employed or self-employed outside the United States.)
National Reconnaissance Office, DOD.
Proposed rule.
The National Reconnaissance Office (NRO) is proposing to exempt Privacy Act systems of records. The systems of records are QNRO-10, Inspector General Investigative Records and QNRO-15, Facility Security Files. The exemptions are intended to increase the value of the system of records for law enforcement purposes, to comply with prohibitions against the disclosure of certain kinds of information, and to protect the privacy of individuals identified in the systems of records.
Comments must be received by October 16, 2001 to be considered by the agency.
National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Ms. Barbara Freimann at (703) 808-5029.
The Director of Administration and Management, Office of the Secretary of Defense, hereby determines that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (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 this Executive order.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that the Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that the Privacy Act rules for the Department of Defense do not have federalism
Privacy.
1. The authority citation for 32 CFR part 326 continues to read as follows:
Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).
2. Section 326.17 is proposed to be amended by adding paragraphs (f) and (g) to read as follows:
(f)
(1)
(2)
(3)
(ii) From subsection (c)(4) and (d), because notification would alert a subject to the fact that an open investigation on that individual is taking place, and might weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy.
(iii) From subsection (e)(1) because the nature of the criminal and/or civil investigative function creates unique problems in prescribing a specific parameter in a particular case with respect to what information is relevant or necessary. Also, due to NRO IG's close liaison and working relationships with other Federal, state, local and foreign country law enforcement agencies, information may be received which may relate to a case under the investigative jurisdiction of another agency. The maintenance of this information may be necessary to provide leads for appropriate law enforcement purposes and to establish patterns of activity which may relate to the jurisdiction of other cooperating agencies.
(iv) From subsection (e)(2) because collecting information to the fullest extent possible directly from the subject individual may or may not be practical in a criminal and/or civil investigation.
(v) From subsection (e)(3) because supplying an individual with a form containing a Privacy Act Statement would tend to inhibit cooperation by many individuals involved in a criminal and/or civil investigation. The effect would be somewhat adverse to established investigative methods and techniques.
(vi) From subsection (e)(4) (G) through (I) because this system of records is exempt from the access provisions of subsection (d).
(vii) From subsection (e)(5) because the requirement that records be maintained with attention to accuracy, relevance, timeliness, and completeness would unfairly hamper the investigative process. It is the nature of law enforcement for investigations to uncover the commission of illegal acts at diverse stages. It is frequently impossible to determine initially what information is accurate, relevant, timely, and least of all complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation brings new details to light.
(viii) From subsection (e)(8) because the notice requirements of this provision could present a serious impediment to law enforcement by revealing investigative techniques, procedures, and existence of confidential investigations.
(ix) From subsection (f) because the agency's rules are inapplicable to those portions of the system that are exempt and would place the burden on the agency of either confirming or denying the existence of a record pertaining to a requesting individual might in itself provide an answer to that individual relating to an on-going investigation. The conduct of a successful investigation leading to the indictment of a criminal offender precludes the applicability of established agency rules relating to verification of record, disclosure of the record to that individual, and record amendment procedures for this record system.
(x) From subsection (g) because this system of records should be exempt to the extent that the civil remedies relate to provisions of 5 U.S.C. 552a from which this rule exempts the system.
(4)
(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(5)
(6)
(ii) From subsections (d) and (f) because providing access to investigatory records and the right to contest the contents of those records and force changes to be made to the information contained therein would seriously interfere with and thwart the orderly and unbiased conduct of the investigation and impede case preparation. Providing access rights normally afforded under the Privacy Act would provide the subject with valuable information that would allow interference with or compromise of witnesses or render witnesses reluctant
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the early stages of an investigation. In some cases, it is only after the information is evaluated in light of other evidence that its relevance and necessity will be clear.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for investigatory purposes and is exempt from the access provisions of subsections (d) and (f).
(v) From subsection (e)(4)(I) because to the extent that this provision is construed to require more detailed disclosure than the broad, generic information currently published in the system notice, an exemption from this provision is necessary to protect the confidentiality of sources of information and to protect privacy and physical safety of witnesses and informants. NRO will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, the NRO will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NRO's Privacy Regulation, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential criminal or civil violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered, the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available. The controlling principle behind this limited access is to allow disclosures except those indicated above. The decisions to release information from these systems will be made on a case-by-case basis.
(g)
(1)
(ii) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
(iii) Therefore, portions of this system of records may be exempt pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
(2)
(3)
(ii) From subsections (d)(1) through (d)(4), and (f) because providing access to investigatory records and the right to contest the contents of those records and force changes to be made to the information contained therein would seriously interfere with and thwart the orderly and unbiased conduct of the investigation and impede case preparation. Providing access rights normally afforded under the Privacy Act would provide the subject with valuable information that would allow interference with or compromise of witnesses or render witnesses reluctant to cooperate; lead to suppression, alteration, or destruction of evidence; enable individuals to conceal their wrongdoing or mislead the course of the investigation; and result in the secreting of or other disposition of assets that would make them difficult or impossible to reach in order to satisfy any Government claim growing out of the investigation or proceeding.
(iii) From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the early stages of an investigation. In some cases, it is only after the information is evaluated in light of other evidence that its relevance and necessity will be clear.
(iv) From subsections (e)(4)(G) and (H) because this system of records is compiled for investigatory purposes and is exempt from the access provisions of subsections (d) and (f).
(v) From subsection (e)(4)(I) because to the extent that this provision is construed to require more detailed disclosure than the broad, generic information currently published in the system notice, an exemption from this provision is necessary to protect the confidentiality of sources of information and to protect privacy and physical safety of witnesses and informants. NRO will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.
(vi) Consistent with the legislative purpose of the Privacy Act of 1974, the NRO will grant access to nonexempt material in the records being maintained. Disclosure will be governed by NRO's Privacy Regulation, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential criminal or civil violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered; the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available. The controlling principle behind this limited access is to allow disclosures except those indicated above. The decisions to release information from these systems will be made on a case-by-case basis.
Department of the Navy, DoD.
Proposed rule.
The Department of the Navy is proposing to exempt those records contained in these Privacy Act/FOIA systems of records when an exemption has been previously claimed for the records in another Privacy Act system of records. The exemption is intended to preserve the exempt status of the record when the purposes underlying the exemption for the original records are still valid and necessary to protect the contents of the records.
Comments must be received on or before October 16, 2001 to be considered by this agency.
Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (N09B10), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545 or DSN 325-6545.
Executive Order 12866, “Regulatory Planning and Review”. The Director of Administration and Management, Office of the Secretary of Defense, hereby determines that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (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 this Executive order.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that the Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.
The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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.
Privacy.
1. The authority citation for 32 CFR part 701, Subpart G continues to read as follows:
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
2. Section 701.118 is amended by adding paragraphs (v) and (w) as follows:
(v)
(1) N05211-1, Privacy Act Files and Tracking System.
(2)
(3)
(4) Consistent with the legislative purpose of the Privacy Act of 1974, the Department of the Navy will grant access to nonexempt material in the records being maintained. Disclosure will be governed by the Department of the Navy’s Privacy Regulation, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential criminal violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered, the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available. The controlling principle behind this limited access is to allow disclosures except those indicated above. The decisions to release information from these systems will be made on a case-by-case basis.
(w)
(1) N05720-1, FOIA Request Files and Tracking System.
(2)
(3)
(4) Consistent with the legislative purpose of the Privacy Act of 1974, the Department of the Navy will grant access to nonexempt material in the records being maintained. Disclosure will be governed by the Department of the Navy's Privacy Regulation, but will be limited to the extent that the identity of confidential sources will not be compromised; subjects of an investigation of an actual or potential criminal violation will not be alerted to the investigation; the physical safety of witnesses, informants and law enforcement personnel will not be endangered, the privacy of third parties will not be violated; and that the disclosure would not otherwise impede effective law enforcement. Whenever possible, information of the above nature will be deleted from the requested documents and the balance made available. The controlling principle behind this limited access is to allow disclosures except those indicated above. The decisions to release information from these systems will be made on a case-by-case basis.
Environmental Protection Agency.
Proposed rule; extension of comment period.
In response to several commenters' request for more time to respond to issues, the Environmental Protection Agency is extending the comment period on its proposed amendments to NESHAP: Final Standards for Hazardous Air Pollutants Waste Combustors. On July 3, 2001 (66 FR 35126), EPA proposed potential revisions to several compliance, testing, and monitoring provisions of the final rule that established emissions standards for hazardous waste burning cement kilns, lightweight aggregate kilns, and incinerators. The comment period announced in the proposed rule was scheduled to end on August 17. Today's action extends the comment period for 60 days. Stakeholders, however, have not requested an extension of the comment period for two other actions (see 66 FR 35087 and 66 FR 35124) also published in the
The comment period for this NPRM is extended from the original closing date of August 17, 2001 to October 16, 2001.
If you wish to comment on the NPRM, you must send an original and two copies of the comments referencing docket number F-2001-RC5P-FFFFF to: RCRA Information Center (RIC), Office of Solid Waste (5305G), U.S. Environmental Protection Agency Headquarters (EPA HQ), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002; or, (2) if using special delivery, such as overnight express service: RIC, Crystal Gateway One, 1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202. You may also submit comments electronically following the directions in the
You may view public comments and supporting materials in the RIC. The RIC is open from 9 am to 4 pm Monday through Friday, excluding Federal holidays. To review docket materials, we recommend that you make an appointment by calling 703-603-9230. You may copy up to 100 pages from any regulatory document at no charge. Additional copies cost $ 0.15 per page.
For general information, call the RCRA Call Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). Callers within the Washington Metropolitan Area must dial 703-412-9810 or TDD 703-412-3323 (hearing impaired). The RCRA Call Center is open Monday-Friday, 9 am to 4 pm, Eastern Standard Time. For more information on this extension notice, contact Rhonda Minnick at 703-308-8871,
On September 30, 1999, the NESHAP: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors was promulgated (64 FR 52828). On July 3, 2001, EPA proposed potential revisions to several compliance, testing, and monitoring provisions of the final rule (66 FR 35126). On July 24, 2001, the Court of Appeals for the District of Columbia decided Cement Kiln Recycling Coalition, et al., v. EPA, et al., (D.C. Cir. No. 99-1457 (and consolidated cases)). This case decided several issues related to the September 30, 1999 final rule. In response to several commenters' requests for more time to respond to issues in the proposed rule considering the recent court decision, EPA is extending the proposed rule's comment period. This document extends the comment period for 60 days. Stakeholders, however, have not requested an extension of the comment period for two other actions (see 66 FR 35087 and 66 FR 35124) also published in the
Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control, Hazardous waste, Insurance, Packaging and containers, Reporting and recordkeeping requirements, Security measures, Surety bonds.
Environmental protection, Air pollution control, Hazardous waste, Insurance, Packaging and containers, Reporting and recordkeeping requirements, Security measures, Surety bonds, Water supply.
Environmental protection, Energy, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Reporting and recordkeeping requirements, Water pollution control, Water supply.
Environmental Protection Agency (EPA).
Proposed rule.
Indiana has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for Final authorization, and is proposing to authorize the State's changes through this proposed final action.
Written comments must be received on or before September 17, 2001.
Send written comments to Gary Westefer, Indiana Regulatory Specialist, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please refer to Docket Number IN ARA18. We must receive your comments by September 17, 2001. You can view and copy Indiana's application from 9:00 am to 4:00 pm at the following addresses: Indiana Department of Environmental Management, 100 North Senate, Indianapolis, Indiana (mailing address P.O. Box 6015, Indianapolis, Indiana 46206) contact Lynn West (317) 232-3593, and EPA Region 5, contact Gary Westefer at the following address.
Gary Westefer, Indiana Regulatory Specialist, U.S. EPA Region 5, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7450.
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
We conclude that Indiana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Indiana Final authorization to operate its hazardous waste program with the changes described in the authorization application. Indiana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Indiana, including issuing permits, until the State is granted authorization to do so.
The effect of this decision is that a facility in Indiana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Indiana has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Do inspections, and require monitoring, tests, analyses or reports;
• Enforce RCRA requirements and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.
This action does not impose additional requirements on the regulated community because the regulations for which Indiana is being authorized by today's action are already effective, and are not changed by today's action.
If EPA receives comments that oppose this authorization, we will address all public comments in a later
Indiana initially received Final authorization on January 31, 1986, effective January 31, 1986 (51 FR 3955) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on October 31, 1986, effective December 31, 1986 (51 FR 39752); January 5, 1988, effective January 19, 1988 (53 FR 128); July 13, 1989, effective September 11, 1989 (54 FR 29557); July 23, 1991, effective September 23, 1991 (56 FR 33717); July 24, 1991, effective September 23, 1991 (56 FR 33866); July 29, 1991, effective September 27, 1991 (56 FR 35831); July 30, 1991, effective September 30, 1991 (56 FR 36010); August 20, 1996, effective October 21, 1996 (61 FR 43018); September 1, 1999, effective November 30, 1999 (64 FR 47692), and January 4, 2001 effective January 4, 2001 (66 FR 733).
On March 16, 2001, Indiana submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Indiana's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we propose to grant Indiana Final authorization for the following program changes:
Indiana has excluded the non-delegable Federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3 in their Incorporation by Reference at 3.1-12-2 and 3.1-13-2(4). EPA will continue to implement those requirements.
Indiana will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart P for this authorization of Indiana's program changes until a later date.
The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This 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 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks.
Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, 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 this rule, 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.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).
Fish and Wildlife Service, Interior.
Final rule; re-opening of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the re-opening of the comment period for the final rule on the Sacramento splittail (
We will accept public comments until October 1, 2001.
1. You may submit written comments and information by mail to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, California 95825.
2. You may send comments by electronic mail (e-mail) to: fw1splittail@fws.gov. See the Public Comments Solicited section below for file format and other information about electronic filing.
3. You may hand-deliver comments to our Sacramento Fish and Wildlife Office, during normal business hours, at the address given above.
Comments and materials received will be available for inspection, by appointment, during normal business hours at the address under (1) above.
For general information, Stephanie Brady, at the above address (telephone 916/414-6600; facsimile 916/414-6713).
The Sacramento splittail (hereafter splittail) represents the only extant species in its genus in North America. For a detailed description of the species, see the Recovery Plan for the Sacramento/San Joaquin Delta Native Fishes (Service 1996) and references within that plan.
Splittail are endemic to certain waterways in California's Central Valley, where they were once widely distributed (Moyle 1976). Sacramento splittail occur in Suisun Bay, Suisun Marsh, the San Francisco Bay-Sacramento-San Joaquin River Estuary (Estuary), the Estuary's tributaries (primarily the Sacramento and San Joaquin rivers), the Napa River and Marsh, and the Petaluma River and Marsh. The Sacramento splittail no longer occurs throughout a significant portion of its former range.
Pursuant to the Endangered Species Act of 1973, as amended (Act), the splittail was listed as a threatened species on February 8, 1999 (64 FR 5963). In this previous listing determination, the Service found that changes in water flows and water quality resulting from export of water from the Sacramento and San Joaquin rivers, periodic prolonged drought, loss of shallow water habitat, and the effect of agricultural and industrial pollutants were significant factors in the species decline.
Subsequent to the publication of the final rule, plaintiffs in the cases
The approach used by the Service to analyze the best scientifically and commercially available splittail data differs from methods employed previously. Within the context of gaining insights into the “status” of a species' abundance, the fundamental statistical issue is one of temporal pattern recognition. Two central statistical questions are posed: (1) Are there any permutations of the data for which the independent variable of
Two recent attempts to statistically examine trends in splittail abundance (Meng and Moyle 1995; Sommer
However, even if one were committed to the Mann-Whitney U-test approach owing to considerations of prior precedence (e.g., a final rule on a species listing) and maintaining direct comparability between different studies across time, there are at least two ways the Mann-Whitney U-testing done by Meng and Moyle (1995) and by Sommer
Two objectives are addressed below: (1) To present updated and statistically improved Mann-Whitney U-testing results through the application of stratified analyses, exact p-values; and (2) to present a statistical pattern recognition analysis that does not try to force the inherently continuous temporal abundance data into statistically arbitrarily defined categories established as “before” and “after” some chosen temporal cut point used to separate data.
The Mann-Whitney U-testing conducted by Meng and Moyle (1995) was based on measures of total abundance (i.e., all age classes), for sets of data that covered the time span of 1980-1992. The Mann-Whitney U-testing conducted by Sommer
The analyses presented here focus on five sets of splittail abundance data, (1) CDFG fall midwater trawl, (2) UCD Suisun Marsh Survey, (3) USFWS Chipps Island Survey, (4) CDFG Bay Study midwater trawl, and (5) CDFG Bay Study otter trawl. These sources of data have been described in detail in the draft Sacramento splittail “White Paper” (Moyle
Additionally, here, the abundance data within each data set are also standardized to a 0.0-1.0 scale, by dividing all abundance measures within a particular data set by the maximum value for that data set. The “standardized” scores were summed across data sets to produce a new composite score data set reflecting the entirety of the various different survey programs. For example, if all the
The analyses presented here also focus on the abundance data for non-age 0 splittail. From the perspective of species persistence, age 0 fish(YOY fish) do not really “count” biologically until they become recruited into the “adult” population. A species can produce an unlimited supply of age 0 individuals and still fail to persist if few or none of those individuals successfully recruit into the adult population. Thus, from a species persistence perspective, it is the temporal pattern in abundance of non-age 0 splittail that is the pertinent biological, and therefore statistical, issue.
The analyses presented here are for stratified Mann-Whitney U-testing. The stratification factor used is the intensity of flooding of the Yolo Bypass, as a surrogate measure of water year that is specifically relevant to splittail biology, e.g., Sommer
Finally, the outcomes of stratified Mann-Whitney U-testing are presented for both the Meng and Moyle (1995) cut point of 1984-85 and for the Sommer et al. (1997) cut point of 1986-87.
The raw data utilized for stratified Mann-Whitney U-testing are contained in the Administrative Record for this project, and are available upon request (see Addresses section). The exact two-tailed p-values for the various data sets and cut point are presented in Table 1 below. Two-tailed p-values are presented for the sake of consistency and easy comparison with the statistical treatments presented by Meng and Moyle (1995) and Sommer
The abundance data from the UCD Suisun Marsh Survey and the USFWS Chipps Island Survey provide statistically significant evidence for declines in mean abundance of adult splittail between the “before” and “after” temporal categories. All of the CDFG data sets (fall midwater trawl, bay midwater trawl, and bay otter trawl) yielded non-significant Mann-Whitney U-test p-values and provide no statistically confirmable evidence for declines in mean abundance of adult splittail before and after the cut point dates (see Table 1 below).
Because each set of survey data is related to overall abundance of adult splittail in a unique, and probably at least partially non-overlapping manner (see draft splittail “White Paper”), the composite score data set is likely the most useful set of data for decision making. The one-tailed stratified Mann-Whitney U-test exact p-values for the composite scores were 0.24 and 0.40 respectively (Table 1). This outcome corresponds to a 60 to76 percent chance that the 17 to18 percent decline in mean composite scores for adult splittail since 1986 and 1984 respectively are biologically real.
Another factor meriting serious consideration when evaluating the Mann-Whitney U-test statistical outcomes is the fact that the available data sets have inherently low statistical power due to small sample sizes and high variability. For example, considering the “composite” abundance scores, and the 1984-85 cut point, the power of this data set to detect a “true” decline of 18 percent (i.e., one-tailed test) is only 14.5 percent (i.e., the type-II error rate associated with the test is excessive at 85.5 percent). In other words, while we have a 24 percent chance (Table 1) of falsely concluding that the apparent 18 percent decline is real, we have an 85.5 percent chance of falsely concluding that the apparent 18 percent decline is not real. Thus, despite the lack of a statistically significant Mann-Whitney test for the composite abundance scores, overall the statistical odds are still very strongly in favor of concluding that the apparent 18 percent decline is biologically real.
The power analysis presented above was conducted using Statistica (StatSoft Corp.) software (Steiger 1999) for calculating power of a two-sample t-test, the parametric analog of a Mann-Whitney U-test. Because t-tests are categorically more powerful than U-tests (e.g., Siegel 1956:126), the power analysis presented above slightly over-estimates the true power of the U-test.
Note that the 1-tailed p-values are not simply one-half of the 2-tailed p-values because the exact permutation distribution of “U” is often asymmetric for small, unbalanced data sets. This is one of the reasons why standard textbook tabled critical values of “U” can be substantively inaccurate.
If a species were experiencing a constant linear rate of increase or decline over time, a simple linear plot of the data would reveal a temporal pattern that could be described by regressing measures of abundance against time. The slope of such a regression would quantify the rate of change in abundance. Taking a similar statistical approach with the splittail abundance data would be the more conventional way to address the issue of temporal pattern recognition. Such an approach is relatively data intensive, so here the regression approach is applied first to the longest running set of abundance data, the CDFG fall midwater trawl.
There are no linear regressions of the raw data that produce a distinctive pattern recognition. Because splittail abundance (especially age 0 abundance) may be related loosely to events, such as floods, that are periodic, polynomial regression was viewed as an approach worth examining. However, no significant polynomial pattern in the raw data for CDFG fall midwater trawl was evident (Figure 1 below).
Because splittail are a relatively long lived species, with a maximum life span of about nine years (Moyle
This approach resulted in a highly significant polynomial fit to the data. Using a fourth order polynomial fit to nine year moving averages of splittail abundance, time explained 78.7 percent of variation in abundance measures and the regression fit recognized a highly cyclic temporal pattern (Figure 2 below).
There are only enough data to illustrate one full iteration of the cyclicity. That iteration is from trough to trough (only one peak is included in the limited data set). To evaluate overall trends in cyclic data, the proper comparison is from peak to peak and/or from trough to trough in the oscillation cycles. The single trough to trough oscillation evident in Figure 2 suggests a nominal 72.4 percent increase between the nine year average centered on 1973 and the nine year average centered between 1991-92. However, that nominal increase is not enough to raise the second trough above the upper 95 percent confidence boundary of the first trough (see the horizontal line in Figure 2). Thus, statistically, the two troughs are not significantly different.
Conducting a similar regression analysis of the non-age 0 data for the CDFG fall midwater trawl data set yields a similarly strong polynomial fit, this time to a 3rd order regression model (Figure 3 below).
The temporal pattern recognized is again highly cyclic, and time explains 82.5 percent of the variation in abundance data for non-age 0 (“adult”) splittail. Because even the CDFG fall midwater trawl survey did not separate catch data into age classes until about 1975, there is not enough data to illustrate either a complete trough to trough or peak to peak iteration of the oscillation cycle. However, if the two “flat” data points at the end of the data set are indeed the top of a second peak, then the nominal change from the nine-year moving average centered on 1984 and the putative peak centered on 1994-95, is about negative18 percent, and the second peak would be low enough to be below the lower 95 percent confidence interval of the first peak (see horizontal dashed line in Figure 3) indicating a statistically significant decline between peaks. None of the other sets of abundance data yet cover a long enough time span to allow productive use of polynomial regression pattern recognition.
Updated, and improved Mann-Whitney U-testing of a composite scores data set, that equally incorporates data from five different splittail survey programs, suggests a 60 to 76 percent chance that the observed 17 to 18 percent decrease in average composite scores post-1986 and post-1984, respectively, are biologically real (as opposed to statistical artifacts). Statistical power analysis reveals that due to extraordinary low power, the odds (85.5 percent) of type II error (falsely rejecting the declining trend in the data) are much greater than the odds (24 percent) of type I error (falsely accepting the declining trend in the data).
Temporal pattern recognition via polynomial regression reveals that splittail abundance data, transformed to nine year moving averages, strongly fit 3rd and 4th order polynomial models and are highly cyclic. One regression highly influenced by age 0 data exhibited a nominal 74.2 percent trough to trough increase in splittail abundance, but that increase was not enough to be statistically significant, as data sets including age 0 fish are highly variable. Another regression, of non-age 0 fish, putatively suggests a significant nominal 18 percent peak to peak decline for the same CDFG fall MWT data that did not test out significantly via the statistically low power Mann-Whitney U-test approach. If the observed pattern holds true as more data are collected, it would suggest a decline on the order of about 20 percent over about a 10 year period (e.g., a mean exponential annual rate of decline of about 2.2 percent).
Perhaps the most important conclusion to note from the polynomial regression analyses is that although time can be shown to explain a very high proportion of the variability in splittail abundance, on the order of 80 percent, the splittail populations have not been monitored long enough through time (relative to the species life span) to make a statistically strong argument one way or the other regarding the presence or absence of directional temporal trends.
In addition to the aforementioned analysis, the Service, in response to comments received by California Division of Water Resources (CDWR) and California Department of Fish and Game (CDFG) analyzed the data presented in their comments using a simple exponential decay model (i.e., N
The Service recognizes that projections based on a simple exponential decay model represent a fairly crude first cut at a “population depletion” analysis. However, given, the relatively undeveloped state of available data series, the Service believes that simple models currently provide the best available, albeit approximate, guidance.
We will accept written comments during this re-opened comment period, and comments should be submitted to the Sacramento Fish and Wildlife Office as found in the
You may send comments by electronic mail (e-mail) to: fw1splittail@fws.gov. If you submit comments by e-mail, please submit them as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: [
The primary authors of this notice are Joseph Skorupa and Stephanie Brady (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
Under the Endangered Species Act (ESA), the Secretary of Commerce (Secretary) is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. This proposed ESA 4(d) rule would apply the take prohibitions enumerated in section 9(a)(1) of the ESA in most circumstances to California Central Valley Chinook, California Coastal Chinook and Northern California steelhead that do not currently have 4(d) protective regulations in place. However, for these three threatened ESUs, NMFS is proposing 10 categories of activities for which the take prohibitions would not apply. NMFS believes that these activities contribute to conserving the listed salmonids or are governed by certain programs that adequately limit impacts on the ESUs. For the threatened Central California Coast coho salmon ESU, a 4(d) rule is currently in place which generally applies the take prohibitions enumerated in section 9(a)(1) of the ESA to this ESU. For this ESU, NMFS is proposing to amend its existing regulations to allow the same 10 limits on the application of the take prohibitions which are proposed for the chinook and steelhead ESUs described here.
Comments on this proposed rule must be received at the appropriate address (see
Written comments and requests for information should be sent to the Assistant Regional Administrator, Protected Resources Division, NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. Comments will not be accepted if submitted via e-mail or Internet. For copies of guidance documents see Appendix A to 50 CFR 223.203.
Craig Wingert at 562-980-4021, Miles Croom at 707-575-6068, Diane Windham at 916-930-3601, or Chris Mobley at 301-713-1401.
On September 16, 1999, NMFS published a final rule listing the California Central Valley (CCV) Spring-run Chinook and California Coastal (CC) Chinook ESUs (
On October 31, 1996, NMFS listed the Central California Coast (CCC) coho salmon (
Section 4(d) of the ESA provides that whenever a species is listed as threatened, the Secretary of Commerce (Secretary) shall issue such regulations as he deems necessary and advisable to provide for the conservation of the species. Such protective regulations may include any or all of the prohibitions that apply automatically to protect endangered species under ESA section 9(a). Those section 9(a) prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as endangered, unless with written authorization for incidental take. It is also illegal under section 9 of the ESA to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Section 11 of the ESA provides for civil and criminal penalties for violation of section 9 or of regulations issued under the ESA.
Whether take prohibitions or other protective regulations are necessary or advisable is in large part dependent upon the biological status of the species and potential impacts of various activities on the species. The salmon and steelhead ESUs that are covered by this proposed rule have survived for thousands of years through cycles in ocean conditions and weather; therefore, NMFS has concluded that they are at risk of extinction primarily because their populations have been reduced by human “take”. These ESUs have declined in abundance due to take of fish from harvest, past and ongoing destruction or damage to freshwater and estuarine habitats, hatchery practices, hydropower development, and other causes. Two reports prepared by NMFS (NMFS 1996 and 1998) reviewed the factors which have contributed to the decline of west coast steelhead and chinook populations, including these ESUs, and both conclude that all of the factors identified in section 4(a)(1) of the ESA have played some role in their decline. The reports identify destruction and modification of habitat, over-utilization, and hatchery effects as significant reasons for the species’ declines. While the most influential factors differ from species to species and among ESUs depending on their geographic location, loss and degradation of habitat conditions, harvest impacts, and in some instances hatchery impacts are factors that have affected all of the ESUs. Accordingly, NMFS is proposing in most circumstances to apply the section 9 take prohibitions to the threatened ESUs covered in this proposed rule, in order to provide for their conservation.
Although the primary purpose of state, local and other non-Federal programs is generally to further some activity such as maintaining roads, controlling development, ensuring clean water or harvesting trees, rather than conserving salmon or steelhead, some entities have modified one or more of these programs to protect and conserve listed salmonids and protect their habitat. NMFS believes that with appropriate safeguards, many state, local and other non-Federal activities can be specifically tailored to minimize impacts on listed salmonid ESUs such that additional Federal protections are unnecessary for their conservation.
NMFS, therefore, is proposing a mechanism for the salmon and steelhead ESUs covered by this proposed rule whereby state, local and other non-Federal entities can be assured that certain activities they conduct or permit are consistent with ESA requirements and avoid or minimize the risk of take of listed fish. When such a program provides sufficient conservation for these listed salmonid ESUs, NMFS does not find it necessary and advisable to apply take prohibitions to activities governed by those programs. In those circumstances, as described in more detail herein, additional Federal ESA regulation through the section 9(a) take
NMFS has not previously proposed any ESA 4(d) protective regulations for the CCV spring chinook salmon, CC chinook salmon or NC steelhead ESUs which are addressed in this proposed rule. However, when the CCC coho salmon ESU was listed in 1996, NMFS did adopt a 4(d) protective regulation which applied the section 9(a) take prohibitions to that ESU, but did not incorporate the take limitations which were recently adopted for 14 other threatened salmonids ESUs (65 FR 42422) and are proposed in this rule. To ensure that the 4(d) rule for the CCC coho salmon ESU is consistent with existing or proposed 4(d)rules for threatened salmonids which have overlapping distributions (i.e., CCC steelhead, NC steelhead, and CC chinook ESUs), NMFS proposes to modify the existing 4(d) rule for CCC coho salmon by incorporating the take limitations which are described in this proposed rule.
NMFS believes that the section 9(a) take prohibitions, which are applicable for endangered species, are necessary and advisable for conservation of the threatened salmon and steelhead ESUs covered by this proposed rule, but that take of listed fish in these ESUs need not be prohibited when it results from the activities described herein if specified conservation standards or criteria are met. Such activities are those which are conducted in a way that contributes to conserving the threatened ESUs, or are governed by a program that limits impacts on the threatened ESUs to an extent that makes added protection through Federal regulation unnecessary and unadvisable for their conservation. NMFS, therefore, proposes to apply ESA section 9(a) prohibitions to the CCV spring chinook, CC chinook, and NC steelhead ESUs, but not to apply the take prohibitions to the 10 programs, or take limitations, described in this proposed rule that meet the necessary level of protection and conservation. In addition, NMFS is proposing to apply the same 10 take limitations described herein to the CCC coho salmon ESU which currently has all the section 9(a) take prohibitions in place. As an alternative to utilizing the 10 limitations on the take prohibitions described in this proposed rule, responsible entities may choose to seek an ESA section 10 permit from NMFS.
NMFS has identified several programs for which it is not necessary and advisable to impose take prohibitions because they contribute to conserving the threatened ESUs or are governed by a program that adequately limits impacts on listed salmonids. Under specified conditions and in appropriate geographic areas, these include: (1) activities conducted in accord with ESA incidental take authorization; (2) ongoing scientific research activities, for a period of 6 months; (3) emergency actions related to injured, stranded, or dead salmonids; (4) fishery management activities; (5) hatchery and genetic management programs; (6) scientific research activities permitted or conducted by the State of California; (7) state, local, and private habitat restoration activities that are part of approved watershed conservation plans; (8) properly screened water diversion devices (i.e., screening devices per NMFS’ guidelines or equivalent configurations); (9) routine road maintenance activities; and (10) municipal, residential, commercial, and industrial (MRCI) development activities. These take limitations are described in more detail in following sections. In most instances, these take limitations and criteria are for future programs where NMFS will limit the application of the ESA section 9(a)(1) take prohibitions. More comprehensive descriptions of each limit are contained in “A Citizen’s Guide to the 4(d) Rule” (NMFS, 2000) which can be obtained at the NMFS Southwest Region’ web site (
NMFS emphasizes that these take limits are not prescriptive regulations. The fact that an activity is not conducted within the specified criteria for a take limit does not necessarily mean that the activity violates the ESA or this regulation. Many activities do not affect the threatened ESUs covered by this proposed rule, and, therefore, do not need to be conducted within any of the ten limits listed previously to avoid section 9 take violations. Nevertheless, an entity can be certain it is not at risk of violating the section 9 take prohibitions or at risk of enforcement actions if it conducts its activities in accordance with the take limits since the take prohibitions would not be applied to programs or activities conducted within the limits. Jurisdictions, entities, and individuals are encouraged to evaluate their practices and activities to determine the likelihood of whether take is occurring. NMFS can provide ESA coverage through section 4(d) rules, section 10 research, enhancement, and incidental take permits, or through section 7 consultation with Federal agencies. If take is likely to occur, then the jurisdiction, entity or individual should modify its practices to avoid the take of these threatened salmonid ESUs or seek protection from potential ESA liability through section 7, section 10, or section 4(d) procedures.
Jurisdictions, entities, and individuals are not required to seek coverage under an ESA 4(d) limit from NMFS. In order to reduce its liability, a jurisdiction, entity, or individual may also informally comply with a limit by choosing to modify its programs to be consistent with the evaluation considerations described in the individual limits. Finally, a jurisdiction, entity, or individual may seek to qualify its plans or ordinances for inclusion under a take limit by obtaining a 4(d) take limit authorization from the NMFS Southwest Region Administrator.
NMFS will continue to work collaboratively with all affected governmental entities to recognize existing management programs that conserve and meet the biological requirements of listed salmonids, and to strengthen other programs toward the conservation of listed salmonids. Any final rule resulting from this proposal may be amended to add new limits on the take prohibitions, or to amend or delete adopted take limits as circumstances warrant.
Following is a section entitled “Notice of Availability” which lists four documents referred to in this proposed regulation. The purpose of making these documents available to the public is to inform governmental entities and other interested parties of the technical components expected to be addressed in programs submitted for NMFS’ review. These technical documents provide guidance to entities as they consider whether to submit a program for an ESA 4(d) limit. The documents represent several kinds of guidance, and are not
For example, NMFS’ technical report entitled: “Viable Salmonid Populations (VSP) and the Recovery of ESUs”, which is referenced in the fishery and harvest management take limits, provides a framework for identifying populations and their status as a component of developing adequate harvest or hatchery management plans. The proposed rule indicates that Fishery Management and Evaluation Plans (FMEPs) and Hatchery and Genetic Management Plans (HGMPs) utilize the concepts of ‘viable’ and ‘critical’ salmonid population thresholds, consistent with the concepts contained in NMFS’s VSP technical report. The California Department of Fish and Game, therefore, is put on notice about the technical analysis needed to develop an FMEP or HGMP that NMFS can approve as being within the take limit criteria. Similarly, NMFS’ fish screening criteria explicitly recognize that they are general in nature and that site constraints or particular circumstances may require adjustments in design, which must be developed with a NMFS staff member, or authorized officer, to address site specific considerations and conditions. Finally, research involving electrofishing comes within the scientific research limit only if conducted in accordance with NMFS’ guidelines for electrofishing. The guidelines recognize that other techniques may be appropriate in particular circumstances, and NMFS can recognize those as appropriate during the approval process.
The Oregon Department of Transportation’s (ODOT) road maintenance program for governing routine maintenance activities is an existing program currently being implemented that NMFS has found adequate for threatened ESU conservation, and, therefore, has been established as a take limitation in a previous ESA 4(d) rule (65 FR 42422). Other jurisdictions may come within the road maintenance limit if they use the ODOT program or provide other practices found by NMFS to be more or equally as protective of salmonids.
In sum, where the rule cites a document, a program’s consistency with the guidance is “sufficient” to demonstrate that the program meets the particular purpose for which the guidance is cited. However, the entity or individual wishing a program to be accepted as within a particular limit has the latitude to show that its variant or approach is, in the circumstances where it will apply and affect listed fish, equivalent or better.
NMFS will continue to review the applicability and technical content of its own documents as they are used in the future and make revisions, corrections, or additions as needed. NMFS will accept comments on revisions of any of the referenced state programs. If any of these documents are revised and NMFS relies on the revised version to provide guidance in continued implementation of the rule, NMFS will publish in the
The following is a list of documents cited in the regulatory text of this proposed rule. Copies of these documents may be obtained upon request (see Appendix A to 50 CFR 223.203).
1. Oregon Department of Transportation (ODOT) Maintenance Management System Water Quality and Habitat Guide (July, 1999).
2. Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act (NMFS, 2000a).
3. Fish Screening Criteria for Anadromous Salmonids, National Marine Fisheries Service, Southwest Region, 1997.
4. Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. (June 2000).
Copies of all references, reports, related documents and the ESA 4(d) rule supplementary document entitled: “A Citizen’s Guide to the 4(d) Rule” (NMFS, 2000) are also available upon request (see
The limits on the take prohibitions in this proposed rule do not relieve Federal agencies of their duty under section 7 of the ESA to consult with NMFS if actions they fund, authorize, or carry out may affect the ESUs covered by this proposed rule or any other listed species. To the extent that actions subject to section 7 consultation are consistent with a circumstance for which NMFS has limited the take prohibitions, a letter of concurrence from NMFS will greatly simplify the consultation process, provided the program is still consistent with the terms of the limit.
The threatened salmonid ESUs addressed in this proposed rule are in danger of becoming extinct in the foreseeable future. They have been depleted by over-fishing, past and ongoing freshwater and estuarine habitat destruction, hydropower development, hatchery practices, and other causes. It is, therefore, necessary and advisable to put into place ESA section 9(a)(1) prohibitions to aid in their conservation. Section 9(a)(1) prohibitions make it illegal for any person subject to the United States’ jurisdiction to “take” these species without written authorization. “Take” is defined to occur when a person engages in activities that harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a species or attempt to do any of these. Impacts on a protected species’ habitat may harm members of that species and, therefore, constitute a “take” under the ESA. Such acts may include significant habitat modification or degradation that actually kills or injures listed fish by significantly impairing essential behavioral patterns including breeding, spawning, rearing, migrating, feeding or sheltering (64 FR 60727, November 8, 1999).
On July 1, 1994 (59 FR 34272), NMFS and the U.S. Fish and Wildlife Service (FWS) published a policy committing both agencies to identify, to the extent possible, those activities that would or would not violate section 9 of the ESA. The intent of this policy is to increase public awareness about ESA compliance and focus public attention on those actions needed to protect species.
Based on available information, NMFS believes the categories of activities listed here are those activities which as a general rule may be most likely to result in injury or harm to listed salmonids. NMFS wishes to emphasize at the outset that whether injury or harm results from a particular activity is entirely dependent upon the facts and circumstances of each case. The mere fact that an activity may fall within one of these categories does not at all mean that the specific activity is causing harm or injury. These types of activities are, however, those that may be most likely to cause harm and thus violate this rule. NMFS’ ESA enforcement will, therefore, focus on these categories of activities.
Activities listed in A thru J here are as cited in NMFS’ harm rule (64 FR 60727, November 8, 1999).
A. Constructing or maintaining barriers that eliminate or impede a listed species’ access to habitat or ability to migrate.
B. Discharging pollutants, such as oil, toxic chemicals, radioactivity, carcinogens, mutagens, teratogens or organic nutrient-laden water including sewage water into a listed species’ habitat.
C. Removing, poisoning, or contaminating plants, fish, wildlife, or other biota required by the listed species for feeding, sheltering, or other essential behavioral patterns.
D. Removing or altering rocks, soil, gravel, vegetation or other physical structures that are essential to the integrity and function of a listed species’ habitat.
E. Removing water or otherwise altering stream flow when it significantly impairs spawning, migration, feeding or other essential behavioral patterns.
F. Releasing non-indigenous or artificially propagated species into a listed species’ habitat or where they may access the habitat of listed species.
G. Constructing or operating dams or water diversion structures with inadequate fish screens or fish passage facilities in a listed species’ habitat.
H. Constructing, maintaining, or using inadequate bridges, roads, or trails on stream banks or unstable hill slopes adjacent to or above a listed species’ habitat.
I. Conducting timber harvest, grazing, mining, earth-moving, or other operations which result in substantially increased sediment input into streams.
J. Conducting land-use activities in riparian areas and areas susceptible to mass wasting and surface erosion, which may disturb soil and increase sediment delivered to streams, such as logging, grazing, farming, and road construction.
K. Illegal fishing. Harvest in violation of fishing regulations will be a top enforcement concern.
L. Various streambed disturbances may trample eggs or trap adult fish preparing to spawn. The disturbance could be mechanical disruption caused by constructing push-up dams, removing gravel, mining, or other work in a stream channel. It may also take the form of egg trampling or smothering by livestock in the streambed or by vehicles or equipment being driven across or down the streambed (as well as any similar physical disruptions).
M. Interstate and foreign commerce dealing in listed salmonids and importing or exporting listed salmonids may harm the fish unless it can be shown through an ESA permit— that they were harvested in a manner that complies with ESA requirements.
N. Altering lands or waters in a manner that promotes unusual concentrations of predators.
O. Shoreline and riparian disturbances (whether in the riverine, estuarine, marine, or floodplain environment) may retard or prevent the development of certain habitat characteristics upon which the fish depend (e.g., removing riparian trees reduces vital shade and cover, floodplain gravel mining, development, and armoring shorelines reduces the input of critical spawning substrates, and bulkhead construction can eliminate shallow water rearing areas).
P. Filling or isolating side channels, ponds, and intermittent waters (e.g., installing tide gates and impassable culverts) can destroy habitats that the fish depend upon for refuge areas during high flows.
The list provides examples of the types of activities that could have a high risk of causing take, but it is by no means exhaustive. It is intended to help people avoid violating the ESA and to encourage efforts to save the threatened ESUs addressed in this proposed rule. Determination of whether take has actually occurred depends on the circumstances of a particular case.
Many activities that may kill or injure salmonids such as fill and removal authorities, National Pollutant Discharge Elimination System or other water quality permitting, and pesticide use are regulated by state and/or Federal processes. For those types of activities, NMFS would not concentrate enforcement efforts on those who operate in conformity with current permits. Rather, if the regulatory program does not provide adequate salmonid protection, NMFS intends to work with the responsible agency to make necessary changes in the program.
For instance, concentrations of pesticides may affect salmonid behavior and reproductive success. Current EPA label requirements were developed in the absence of information about some of these subtle but real impacts on aquatic species such as salmonids. Where new information indicates that pesticide label requirements are not adequately protective of salmonids, NMFS will work with EPA through the section 7 consultation process to develop more protective use restrictions and, thereby, provide the best possible guidance to all users. Similarly, where water quality standards or state authorizations lead to pollution loads that may cause take, NMFS intends to work with the state water quality agencies and EPA to bring those standards or permitting programs to a point that does protect salmonids.
Persons or entities concluding that their activity is likely to injure or kill protected fish are encouraged to immediately adjust that activity to avoid take (or adequately limit any impacts on the species) and seek NMFS’ authorization for incidental take under: (a) an ESA section 10 incidental take permit; (b) an ESA section 7 consultation; or (c) a limit on the take prohibitions provided in this proposed rule. The public is encouraged to contact NMFS (see
Impacts on listed salmonids resulting from actions in compliance with a permit issued by NMFS pursuant to section 10 of the ESA would not constitute a violation of this proposed rule if finalized. Section 10 permits may be issued for research activities, enhancement of a species’ survival, or to authorize incidental take occurring in the course of an otherwise lawful activity. NMFS consults on a broad range of activities conducted, funded, or authorized by Federal agencies. These include fisheries harvest, hatchery operations, silviculture activities, grazing, mining, road construction, dam construction and operation, discharge of fill material, and stream channelization and diversion. Federally funded or approved activities that affect listed salmonids and for which ESA section 7 consultations have been completed will not constitute violations of this proposed rule provided the activities are conducted in accord with all reasonable and prudent measures and terms and conditions contained in any biological opinion or incidental take statement issued by NMFS.
This proposed rule references scientific concepts that NMFS proposes to use in determining whether particular programs would not be subject to the ESA section 9 take prohibitions. One of these concepts allows for identifying populations that may warrant individual management within established ESUs for some activities or programs. The second concept involves identifying relevant biological parameters to evaluate the status of these populations and identifying “critical thresholds” and “viable thresholds” for these populations. NMFS has developed a scientific and policy paper entitled “Viable Salmonid Populations and the Recovery of ESUs” (NMFS, 2000b) that addresses the biological concepts surrounding viable salmonid populations in more detail. This paper will provide additional guidance for entities evaluating their
NMFS proposes to define populations following Ricker’s (1972) definition of “stock”: a population is a group of fish of the same species spawning in a particular lake or stream (or portion thereof) at a particular season which to a substantial degree do not interbreed with fish from any other group spawning in a different place or in the same place at a different season. This definition is widely accepted and applied in the field of fishery management. An independent population is an aggregation of one or more local breeding units that are closely linked by exchange of individuals among themselves, but are sufficiently isolated from other independent populations that exchanges of individuals among populations do not appreciably affect the population dynamics or extinction risk of the populations over a 100-year time frame. Such populations will generally be smaller than the whole ESU, and will generally inhabit geographic ranges on the scale of whole river basins or major sub-basins that are relatively isolated from outside migration. Using this definition, it is biologically meaningful to evaluate and discuss the extinction risk of one population independently of other populations within the same ESU.
Several types of information may be used to identify independent salmonid populations within existing ESUs, including: (1) geographic indicators; (2) estimates of adult dispersal; (3) abundance correlations; (4) habitat characteristics; (5) genetic markers; and (6) quantitative traits. States and other groups involved in salmonid management have defined groups of fish for management purposes based on some or all of this information, and many of the definitions already used by managers are similar to the population definitions proposed here. Further, while the types of information identified above may be useful in defining independent populations within ESUs, other methods may exist for identifying biologically meaningful population units consistent with the definitions adopted here. Therefore, NMFS will evaluate proposed population boundaries on a case-by-case basis to determine if such boundaries are biologically supportable and consistent with the population definition in this proposed rule.
NMFS believes it important to identify population units within established ESUs for several reasons. Identifying and assessing impacts on such units will enable greater consideration of the important biological diversity contained within each ESU, a factor considered in NMFS’ ESU policy (Waples, 1991). Further, assessing impacts on a population level is typically a more practical undertaking given the scale and complexity of ESUs. Finally, assessing impacts on a population level will help ensure consistent treatment of listed salmonids across a diverse geographic and jurisdictional range.
NMFS proposes to evaluate population status through four primary biological parameters: (1) Abundance; (2) productivity; (3) population substructure; and (4) genetic diversity. A discussion of the relevance of these parameters to salmonid population status may be found in a variety of scientific documents (e.g., Nehlsen
Population abundance is important to evaluate due to potential impacts associated with genetic and demographic risks. Genetic risks associated with low population size include inbreeding depression and loss of genetic diversity. Demographic risks associated with low population size include random effects associated with stochastic environmental events. Population size may be assessed and estimated from dam and weir counts, redd counts, spawner surveys, and other means. Viable abundance levels may be determined, based on historic abundance levels or habitat capacity of the population.
Population productivity may be thought of as the population’s ability to increase or maintain its abundance. It is important to assess productivity since negative trends in productivity over sustained periods may lead to genetic and demographic impacts associated with small population sizes. However, trends in other parameters such as survival between life stages, age structure, and fecundity may also be useful in assessing productivity. In general, viable population trends should be positive unless the population is already at or above viable abundance levels. In that case, neutral or negative population trends may be acceptable so long as such declines will not lead the population to decline below viable abundance levels in the foreseeable future.
Population structure reflects the number, size and distribution of remaining habitat patches and the condition of migration corridors that provide linkages among these habitat types. Population structure affects evolutionary processes and may impact the ability of populations to respond to environmental changes or stochastic events. Habitat deficiencies, such as loss of migration corridors between habitat types, can lead to a high risk of extinction and may not become readily apparent through evaluating population sizes or productivity. Determining whether viable population structure exists may require comparison of existing and historic habitat conditions.
Population diversity is important because variation among populations is likely to buffer them against short term environmental change and stochastic events. Population diversity may be assessed by examining life history traits such as age, and run and spawn timing distributions. Further, more direct analysis of genetic diversity through DNA analysis may provide an indication of diversity. Viable population diversity will likely be determined through comparisons to historic information or comparisons to other populations existing in relatively undisturbed conditions. Ultimately, population diversity must be sufficient to buffer the population against normal environmental variation.
In applying the concepts discussed in this section to harvest and artificial propagation activities, NMFS relies on two functional thresholds of population status: (1) Critical population threshold, and (2) viable population threshold. The critical population threshold refers to a minimal functional level below which a population’s risk of extinction increases exponentially in response to any additional genetic or demographic risks.
The viable population threshold refers to a condition where the population is self-sustaining, and not at risk of becoming endangered in the foreseeable future. This threshold reflects the desired condition of individual populations and of their contribution to recovery of the ESU as a whole. Activities should not preclude populations from attaining this condition.
This proposed rule limits application of the take prohibitions for certain categories of activities that are conducted in a way that will help attain or protect properly functioning habitat. Properly functioning habitat conditions
Section 4(d) of the ESA requires that regulations be adopted as are “necessary and advisable to provide for the conservation of” the listed species. In discussing the limits on the take prohibitions, NMFS does not generally distinguish “incidental” from “direct” take because that distinction is not relevant under section 4(d). The biological impact of take on the ESU is the same, whether a particular number of listed fish are lost as a result of incidental impacts or directed impacts. Hence the following descriptions of harvest and artificial propagation programs for which NMFS does not find it necessary and advisable to impose take prohibitions do not, as a general rule, make the distinction between incidental or direct take. Rather, these descriptions and criteria focus on the impacts of all take associated with a particular activity on the biological status of the listed ESU. (The distinction is retained in the discussion of scientific research targeting listed fish, because the limit on take prohibitions applies in that situation only to research by agency personnel or agency contractors.)
In the regulatory language in this proposed rule, the limits on applicability of the take prohibitions to specific ESUs are accomplished through citation to the Code of Federal Regulations’ (CFRs’) enumeration of threatened marine and anadromous species, 50 CFR 223.102. For the convenience of readers of this document, 50 CFR 223.102 refers to the threatened salmonid ESUs covered in this proposed rule through the following designations:
(a)(3) Central California Coast coho salmon
(a)(20) Central Valley spring-run chinook salmon
(a)(21) California Coastal chinook salmon
(a)(22) Northern California steelhead
In making a determination that it is not necessary and advisable to impose take prohibitions on certain programs or activities that are adequately covered by one of the take limits in this proposed rule, NMFS recognizes that new information may require a reevaluation of that conclusion at any time. For any of the limits on the take prohibitions described in this proposed rule, NMFS will evaluate on a regular basis the effectiveness of the program in protecting and achieving a level of salmonid productivity and/or of habitat function consistent with conservation of the listed salmonids. If the program is deficient, NMFS will identify ways in which it needs to be altered or strengthened. For habitat-related limits on the take prohibitions, changes may be required if the program is not achieving desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the ESU.
If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the
This proposed rule applies only to listed salmonids under NMFS’ jurisdiction. However, as it evaluates any program against the criteria in this rule to determine whether the program is covered under a limitation on take prohibitions, NMFS will coordinate closely with the appropriate FWS office.
This limit on the ESA section 9 take prohibitions recognizes that those holding permits under section 10 of the ESA or coming within other exceptions under the ESA are free of the take prohibitions so long as they are acting in accord with the permit or applicable law. Examples of activities for which a section 10 permit may be issued are research or land management activities associated with a habitat conservation plan.
This limit on the take prohibitions would not restrict ongoing scientific research activities affecting listed CCV Spring-run chinook; CC chinook; and NC steelhead for up to 6 months after its effective date, provided that an application for a permit for scientific purposes or to enhance the conservation or survival of the species is received by the Assistant Administrator for Fisheries, NOAA (AA), within 30 days from the effective date of a final rule. This take limit would not be applied to the CCC coho salmon because the ESA section 9 take prohibitions have been in place for this ESU since 1996; therefore, sufficient time has elapsed for entities to obtain section 10 scientific research permits. The ESA section 9 take prohibitions would extend to these activities upon the AA's rejection of the application as insufficient, upon issuance or denial of a permit, or 6 months from effective date of any final rule, whichever occurs earliest. It is in the interest of salmonid conservation not to disrupt ongoing research and conservation projects, some of which are of long-term duration. This limit on the take prohibitions assures there will be no unnecessary disruption of those activities, yet provides NMFS with tools to halt the activity through denial of a permit if the research is judged to have unacceptable impacts on a listed ESU. For these reasons, NMFS does not find imposition of additional Federal protections in the form of take prohibitions necessary and advisable.
This limit on the take prohibitions applies to all four threatened ESUs covered by this proposed rule and would relieve certain agency and official personnel or their designees from the take prohibition when they are acting to aid an injured or stranded
This take limit would apply to all four threatened ESUs covered by this proposed rule. NMFS believes that fisheries for non-listed salmonids and resident game fish species can be managed in a manner that protects listed salmon and steelhead ESUs and allows them to recover. Therefore, this proposed rule provides a mechanism whereby NMFS may limit application of take prohibitions to such fisheries when a state fishery management agency develops and implements, in accordance with a letter of concurrence, a NMFS-approved FMEP. Some benefits of this approach are long-term management planning, more public involvement, a more streamlined administrative process, and more certainty that there will be fishing opportunities in the future.
Prior to determining that a state’s new or amended FMEP is sufficient to eliminate the need for added Federal ESA protection, NMFS must find that the plan is effective in addressing the criteria described in the following section. If NMFS finds that an FMEP meets those criteria, it will approve the plan following public review and comment on the FMEP and after making any revisions resulting from such review and comment. NMFS will communicate its approval to the state fishery agency with a letter of concurrence which will set forth the terms of the FMEP’s implementation and the duties of the parties pursuant to the FMEP, including monitoring and reporting requirements.
NMFS recognizes the importance of providing meaningful opportunities for public review of FMEPs. Therefore, prior to approving new or amended FMEPs, NMFS will make such plans available for public review and comment for a period of not less than 30 days. Notice of the availability of these plans will be published in the
NMFS will approve an FMEP only if it meets the following criteria, which are designed to minimize and adequately limit take and promote the conservation of all life stages of threatened salmonids. Specifically, the FMEP must:
(1) Provide a clear statement of the scope of the proposed action. The statement must include a description of the proposed action, a description of the area of impact, a statement of the management objectives and performance indicators for the proposed action, and anticipated effects of the proposed action on management objectives (including recovery goals) for affected populations. This information will provide objectives and indicators by which to assess management strategies, design monitoring and evaluation programs, measure management performance, and coordinate with other resource management actions in the ESU.
(2) Identify populations within affected listed ESUs, taking into account: (A) spatial and temporal distribution; (B) genetic and phenotypic diversity; and (C) other appropriate identifiable unique biological and life history traits, as discussed under Issue 2. Populations may be aggregated for management purposes when dictated by information scarcity, if consistent with survival and recovery of the listed ESU. In identifying management units, the plan shall describe the reasons for using such units in lieu of population units and describe how such units are defined such that they are consistent with the principles discussed under Issue 2.
(3) Utilize the concepts of viable and critical salmonid population thresholds, consistent with the concepts contained in NMFS’ “Viable Salmon Populations and the Recovery of ESUs” technical report (NMFS, 2000b), for any population or management unit intended to be managed separately within the ESU.
Proposed management actions must recognize the significant differences in risk associated with these two thresholds and respond accordingly in order to minimize the risks to the long-term sustainability of the population(s). Harvest actions impacting populations that are functioning at or above the viable threshold must be designed to maintain the population or management unit at or above that level. For populations shown with a high degree of confidence to be above critical levels but not yet viable, harvest management must not appreciably slow the population’s achievement of viable function. Harvest actions impacting populations that are functioning at or below critical threshold must not appreciably increase the genetic and demographic risks facing the population and must be designed to permit the population’s achievement of viable function, unless the plan demonstrates that such an action will not appreciably reduce the likelihood of survival and recovery of the ESU as a whole despite any increased risks to the individual population.
(4) Set escapement objectives or maximum exploitation rates for each management unit or population based on its status, and a harvest program that assures not exceeding those rates or objectives. Maximum exploitation rates must not appreciably reduce the likelihood of survival and recovery of the listed ESU. Management of fisheries where artificially propagated fish predominate must not compromise the management objectives for commingled naturally spawned populations (those supported primarily by natural production) by reducing the likelihood that those populations will maintain or attain viable functional status, or by appreciably slowing attainment of viable function.
(5) Display a biologically based rationale demonstrating that the harvest management strategy will not appreciably reduce the likelihood of survival and recovery of the listed ESU. The effects must be assessed over the entire period of time the proposed harvest management strategy would affect the population, including effects reasonably certain to occur after the proposed action ceases.
(6) Include effective monitoring and evaluation programs to assess compliance, effectiveness, and parameter validation. At a minimum, harvest monitoring programs must collect catch and effort data, information on escapements, and information on biological characteristics such as age, fecundity, size and sex data, and migration timing.
(7) Provide for the evaluation of monitoring data and any needed revisions of assumptions, management strategies, or FMEP objectives based on monitoring data that is collected.
(8) Provide for effective enforcement and education. Coordination among involved jurisdictions is an important element in ensuring regulatory effectiveness and coverage.
(9) Include restrictions on resident and anadromous species fisheries that
This take limit would apply to all four threatened ESUs covered by this proposed rule. NMFS believes that artificial propagation, or hatchery programs can be managed in a manner that conserves and recovers listed salmon and steelhead ESUs, including the use of listed salmonids as hatchery broodstock, as long as the programs are managed in accordance with specific criteria. Under such circumstances, NMFS believes it is not necessary and advisable to prohibit the take of listed ESUs in conjunction with these programs. This limit on the take prohibitions proposes a mechanism whereby state or Federal hatchery managers may obtain assurance that a hatchery and genetic management program adequately protects and conserves threatened salmon and steelhead ESUs. In addition, the proposed rule provides a mechanism whereby NMFS may limit the application of take prohibitions to broodstock collection.
Under this take limit, the state or Federal agency develops a Hatchery and Genetic Management Plan (HGMP) containing specific management measures that will minimize and adequately limit impacts on listed fish and promote the conservation of the listed ESU. Following an opportunity for public comment and upon NMFS’ approval of the HGMP, NMFS would provide the state or Federal agency with a letter of concurrence specifying implementation requirements, including monitoring and reporting. NMFS believes that with an approved HGMP in place, additional Federal ESA protection through imposition of take prohibitions on artificial propagation activities is unnecessary.
NMFS will evaluate the effectiveness of state or Federal HGMPs by addressing the criteria described in the following section. If NMFS determines that the evaluation criteria have been adequately addressed in the state HGMP, then it will approve the plan following public comment and any necessary modification, and provide the state agency with a concurrence letter specifying implementation, monitoring and reporting requirements. For Federally operated or funded hatcheries, an ESA section 7 consultation with the Federal agency will achieve this purpose and that ensure implementation, monitoring and reporting requirements are met.
NMFS recognizes the importance of providing meaningful opportunities for public review of draft HGMPs. Therefore, prior to approving new or amended HGMPs, NMFS will make such plans available for public review and comment for a period of not less than 30 days. Notice of the availability of such draft plans will be published in the
NMFS will evaluate salmonid HGMPs on the basis of criteria that are designed to minimize and adequately limit take and promote the conservation of the listed species. The criteria by which draft HGMPs will be evaluated include the following:
(1)
(2) The HGMP utilizes the concepts of viable and critical salmonid population threshold, consistent with the concepts contained in NMFS’ technical document report entitled: “Viable Salmonid Populations and the Recovery of ESUs” (NMFS, 2000b). Listed salmon or steelhead may be taken for broodstock purposes only if: (A) the donor population is currently at or above viable thresholds and the collection will not impair the population’s function, (B) the donor population is not currently viable but the sole current objective of the collection program is to enhance the propagation or survival of the listed ESU; or (C) the donor population is shown with a high degree of confidence to be above critical threshold but not yet viable, and the collection will not appreciably slow the attainment of viable status for that population.
(3) The HGMP considers the health, abundance and trends in the donor population in establishing broodstock collection priorities. The primary purpose of broodstock collection of listed salmon or steelhead is to reestablish indigenous populations for conservation purposes. Such programs include restoration of similar, at-risk populations within the same ESU and reintroduction of at-risk populations to underseeded habitat. After salmonid ESU conservation needs are met and when consistent with survival and recovery of the listed ESU, broodstock collection programs may be authorized by NMFS for secondary purposes such as to sustain tribal, recreational or other fisheries.
(4) The HGMP includes protocols to address fish health, broodstock collection, broodstock spawning, rearing and release of juveniles, deposition of hatchery adults, and catastrophic risk management.
(5) The HGMP evaluates, minimizes and accounts for the artificial propagation program’s genetic and ecological effects on natural populations, including disease transfer, competition, predation, and genetic introgression caused by straying of hatchery fish.
(6) The HGMP describes interrelationships and interdependencies with fisheries management. The combination of artificial propagation programs and harvest management must be designed to provide as many benefits and as few biological risks as possible for the listed ESUs. HGMPs for programs whose purpose is to sustain fisheries must not compromise the ability of FMEPs or other management plans to achieve management objectives for associated listed populations.
(7) Adequate artificial propagation facilities exist to properly rear progeny of naturally spawned and listed broodstock to maintain population health, maintain population diversity, and to avoid hatchery-influenced selection or domestication.
(8) Adequate monitoring and evaluation exist to detect and evaluate the success of the hatchery program and any risks potentially impairing recovery of the listed ESU.
NMFS’ “Interim Policy on Artificial Propagation of Pacific Salmon Under the Endangered Species Act,” (58 FR 17573, April 5, 1993) provides guidance on the treatment of hatchery stocks in the event of a listing. Under this policy, “progeny of fish from listed species that are propagated artificially are considered part of the listed species and are protected under the ESA.” According to the interim policy, the progeny of such hatchery/naturally spawned crosses or naturally spawned-
In its final listing decisions for the CCV Spring-run chinook salmon, CC chinook salmon and NC steelhead ESUs that are covered by this proposed rule, NMFS determined that it was not necessary to consider the artificially propagated progeny of intentional hatchery/naturally spawned and naturally spawned/naturally spawned crosses to be listed fish (except in cases where NMFS has listed the hatchery population as well) when the collection and use of listed fish as broodstock was part of an approved conservation plan such as an HGMP. NMFS believes it may be desirable to incorporate naturally spawned (i.e., listed) fish into hatchery populations in these ESUs to ensure that their genetic and life history characteristics do not diverge significantly from the naturally spawned populations; however, prior to any intentional use of threatened salmon or steelhead for hatchery broodstock, an approved HGMP must be in place to ensure that native, naturally spawned populations are conserved.
This take limit applies to all four threatened ESUs covered by this proposed rule. In carrying out their fishery management responsibilities, the California Department of Fish and Game (CDFG) conducts or permits a wide range of scientific research activities on various fisheries, including monitoring and other studies which occur within the geographic areas occupied by the four threatened salmon and steelhead ESUs considered in this proposed rule. NMFS finds these activities: (1) vital for improving our understanding of the status and risks facing these threatened ESUs, as well as non-listed salmonids and other species that occur within these geographic areas; and (2) provide critical information for assessing the effectiveness of current and future management practices. In general, NMFS concludes such activities will help to conserve the threatened ESUs considered in this proposed rule by furthering our understanding of their (and other species) life history and biological requirements, and that state biologists and cooperating agencies carefully consider the benefits and risks of proposed research before approving or undertaking such projects. For these reasons, NMFS concludes that it is not necessary or advisable to impose additional protections on such research through imposition of Federal ESA section 9 take prohibitions.
Research activities that involve the planned sacrifice or manipulation of salmonids or that will necessarily result in the injury or death of salmonids in the threatened ESUs considered in this proposed rule will come within this limitation only if the state submits an annual report listing all scientific research activities involving such activities planned for the coming year to NMFS for review and approval. Such reports shall contain: (1) an estimate of the total take of threatened salmonids anticipated from such research; (2) a description of study designs, including a justification for taking the salmonids; (3) a description of the techniques to be used; and (4) a point of contact. For this type of research to come within the take limitation, it must be conducted by employees or contractors of the CDFG or be part of a coordinated monitoring and research program overseen by that agency. Any research using electrofishing gear in waters known or expected to contain listed salmonids from the threatened ESUs considered in this proposed rule will come within this take limitation only if it complies with “Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a). Otherwise, electrofishing research that will affect listed salmonids will require an ESA section 10 research permit from NMFS prior to commencing operations.
CDFG must also annually provide NMFS with the results of their scientific research activities which are directed at the threatened ESUs considered in this proposed rule, including a report of the amount of direct take resulting from the research and a summary of the results of such research.
Research activities conducted by CDFG, or authorized by the CDFG for non-state entities, that may result in incidental take of listed salmonids can be covered under this limit in the following manner. CDFG must submit to NMFS annually, for its review and approval, a report listing all scientific research activities it conducts or permits that may incidentally take listed salmonids from the threatened ESUs covered by this rule for the coming year. In this annual report, CDFG must also report the amount of incidental take of listed salmonids occurring in the previous year’s scientific research activities, and provide a summary of the results of such research. Interested parties may request a copy of these annual reports from NMFS (see
This take limit applies to all four threatened ESUs covered by this proposed rule. NMFS considers a “habitat restoration activity” to be an activity whose primary purpose is to restore natural aquatic or riparian habitat processes or conditions; it is an activity which would not be undertaken but for its restoration purpose.
Certain habitat restoration activities are likely to contribute to conserving listed salmonids without significant risks, and NMFS concludes that it is not necessary and advisable to impose take prohibitions on those activities when conducted in accordance with appropriate standards and guidelines. Projects planned and carried out based on at least a watershed-scale analysis and conservation plan, and, where practicable, a sub-basin or basin-scale analysis and plan, are likely to be the most beneficial. NMFS strongly encourages local efforts to conduct watershed assessments to identify what problems are impairing watershed function, and to plan for watershed restoration or conservation based on that assessment. Without the overview a watershed-level approach provides, habitat efforts are likely to focus on “fixes” that may prove short-lived, or even detrimental, because the underlying processes that are causing a particular problem have not been addressed.
This proposed rule, therefore, provides that ESA section 9(a) take prohibitions will not apply to habitat restoration activities that are part of, and conducted pursuant to, a watershed conservation plan that the State of California has certified is consistent with State watershed conservation plan guidelines. For this take limitation to apply to habitat restoration activities contained in a watershed conservation plan, NMFS must first find the State of California’s watershed conservation plan guidelines will generate plans that: (1) take into account the potential direct, indirect, and cumulative impacts of proposed activities on the threatened salmonids affected by the plan activities; (2) will not reduce the likelihood of either survival or recovery of listed species in the wild; (3) will ensure that any taking of threatened salmonids is incidental to the plan activities; (4) minimize and mitigate any adverse impacts from plan activities; (5) provide effective monitoring and adaptive management; (6) use the best available science and technology, including watershed analysis; (7) provide for public and scientific review
Before approving any watershed conservation plan guidelines, NMFS will publish a notice in the
This take limit applies to all four threatened ESUs covered by this proposed rule. A widely recognized cause of mortality among anadromous fish is operation of water diversions without adequate screening. Juveniles may be entrained or attracted into diversions where they later die from a variety of causes, including stranding. Adult and juvenile migration may be impaired by diversion structures, including push-up dams. Juveniles are often injured and killed through entrainment in pumping facilities or impingement on inadequate screens, where water pressure and mechanical forces are often lethal.
State laws and Federal programs have recognized these problems in varying ways, and have encouraged or required adequate screening of diversions to prevent much of the anadromous fish loss attributable to this cause. Nonetheless, many diversions are not adequately screened and remain a threat, particularly to juvenile salmonids, and elimination of that source of injury or death is essential to the conservation of listed salmonids.
For these reasons, this proposed rule encourages all water diverters to move quickly to provide adequate screening or other protections for their diversions by not applying ESA section 9 take prohibitions to any diversion that is screened, maintained, and operated in accordance with NMFS’ Southwest Region Fish Screening Criteria for Anadromous Salmonids (see
On a case-by-case basis, this take limitation may be applied in situations where NMFS’ engineering staff (or a NMFS-authorized officer) have approved a juvenile fish screen design, construction plan, and schedule that a water diverter proposes for screen installation. Such a plan must also describe interim operations measures that will reduce the likelihood of taking the threatened salmonids considered by this proposed rule. NMFS may require a commitment of compensatory mitigation if implementation of the plan is terminated prior to its completion. If the NMFS-approved plan and schedule are not met, or if a schedule modification is made that is not pre-approved, the water diversion would be subject to the section 9 take prohibitions.
Under this take limitation, the proposed take prohibitions would not apply to physical impacts to listed salmonids covered by this rule due to entrainment or similar impacts of the act of diverting, provided the diversion facility has been screened according to NMFS criteria and is being properly maintained. However, this limit does not cover impacts or take resulting from reduced flows resulting from operation of the diversion or impacts caused by construction and/or installation of the diversion structure. Such activities and impacts would be subject to the proposed take prohibitions.
This take limit applies to all four threatened ESUs covered by this proposed rule. Routine road maintenance activities, in certain specified circumstances, can be conducted in a manner that will not further degrade or otherwise restrict attainment of properly functioning conditions for threatened salmonids. Specifically, NMFS determined in its July 2000 4(d) rule (65 FR 42422) that routine road maintenance activities conducted in accordance with the Oregon Department of Transportation’s (ODOT) Maintenance Management System Water Quality and Habitat Guide (June, 1999) will contribute to the attainment of properly functioning habitat conditions, and therefore, the conservation of threatened salmonids. Because the ODOT road maintenance program was found to contribute to the attainment of properly functioning habitat conditions and thereby limit impacts on threatened salmonids and their habitat, NMFS concluded in its July 2000 4(d) rule (65 FR 42422) that application of the section 9 take prohibitions to these activities was unnecessary for the conservation of the threatened ESUs covered by that rule.
Under the take limitation in this proposed rule, NMFS does not find it necessary or advisable to apply the ESA section 9 take prohibitions to routine road maintenance activities in California provided that: (1) they are conducted by the employees or agents of the state or any county, city, or port under a program that complies with a program that is substantially similar to that contained in the ODOT Guide and has been determined by NMFS to meet or exceed the protections provided by the ODOT guide, or that (2) they are conducted by employees or agents of the State or any county, city, or port in a manner that has been found by NMFS to contribute to properly functioning habitat conditions for the threatened salmonid ESUs considered in this proposed rule.
NMFS’ determination and approval that any state, city, county, or port program is equivalent to the ODOT road maintenance program, and, therefore, qualifies under this take limit, will be in the form of a written approval by the NMFS Southwest Regional Administrator. Any jurisdiction desiring its road maintenance program activities to qualify under this limit based on equivalence to the ODOT program must have adopted road maintenance guidelines equivalent to or better than that of the ODOT program and commit in writing to apply those management practices.
NMFS’ determination and approval that any state, city, county, or port program contributes to the attainment and maintenance of properly functioning habitat conditions, and, therefore, qualifies under this take limit, will be in the form of a written approval from the Southwest Regional Administrator. NMFS’ determination in this case will be based on an assessment of the extent to which the program contributes to attaining and maintaining properly functioning habitat conditions. For the purposes of this assessment, NMFS will define properly functioning habitat conditions as the sustained presence of natural habitat-forming
Prior to approving any state, city, county or port program under this take limit, NMFS will publish a notification in the
This take limit will apply to all four threatened ESUs covered by this proposed rule. MRCI development and redevelopment have a significant potential to injure or kill threatened salmonids or degrade salmonid habitat in a variety of ways. NMFS believes that with appropriate safeguards, new MRCI development and redevelopment can be specifically tailored to minimize impacts on listed salmonids to an extent that makes additional Federal ESA protections unnecessary for the conservation of threatened salmonids. In this rule, NMFS has proposed a mechanism whereby jurisdictions can be assured that development and redevelopment authorized within their areas avoids or minimizes impacts and the risk of taking threatened salmonids, and is thereby consistent with the requirements of the ESA. Both developers and jurisdictions controlling development would benefit from assurances that their approvals and development actions contribute to the conservation of threatened salmonids.
Under this take limitation, NMFS proposes that the ESA section 9 take prohibitions will not be applied to MRCI development and redevelopment governed by and conducted in accord with city, county, or regional government ordinances or plans that have been found to adequately protect the threatened species considered in this proposed rule. In making a determination whether city, county, or regional government ordinances or plans adequately conserve threatened salmonids covered under this proposed rule, NMFS will assess and evaluate whether the ordinances or plans will contribute to maintaining and restoring properly functioning habitat conditions. For this assessment, NMFS will define properly functioning habitat conditions as the sustained presence of natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. In order to contribute to properly functioning habitat conditions, activities that affect salmonid habitat must not impair habitat that is already properly functioning, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward a properly functioning condition.
When making an assessment as to whether or not a MRCI development or redevelopment ordinance or plan adequately conserves threatened salmonids, NMFS will individually apply 12 evaluation considerations. Many of these principles are derived from Spence, An Ecosystem Approach to Salmonid Conservation (NMFS, 1996) and citations therein. NMFS recognizes that some of these principles require integrated planning for placement of buildings, transportation or storm water management and that these 12 considerations will have to be applied in the context within which the development is addressed in the ordinance or plan. The 12 evaluation considerations are as follows:
(1) The MRCI development or redevelopment ordinance or plan ensures that development will not take place in inappropriate areas such as unstable slopes, wetlands, areas of high habitat value, and similarly constrained sites.
(2) The MRCI development or redevelopment ordinance or plan adequately avoids stormwater discharge impacts to water quality and quantity or to stream flow patterns (i.e., hydrograph) in the watershed, including peak and base flows in perennial streams. Stormwater management programs should require development activities to avoid impairing water quality and quantity, and should preserve or enhance flow patterns so that they mimic historic stream flow patterns (e.g. peak flows, base flows, durations of flow, volumes and velocities. This can be accomplished by reducing impervious surfaces and maintaining natural vegetation cover and soils to the maximum extent possible.
(3) The MRCI development or redevelopment ordinance or plan provides adequate protective riparian area management requirements in order to attain or maintain properly functioning habitat conditions adjacent to all rivers, streams, intermittent streams, and estuaries. Where necessary, compensatory mitigation is provided to offset unavoidable impacts to properly functioning habitat conditions in riparian habitat areas resulting from MRCI development or redevelopment.
Limiting development activities in riparian areas helps protect or restore the condition and quality of soil and ensure that a diversity of vegetation is well distributed within a riparian area. Such conditions contribute to natural vegetation succession and help protect the water quality and flow conditions necessary to meet salmonid habitat requirements. The available scientific evidence indicates that the essential habitat functions of the riparian zone are affected to varying degrees by stream side development activities that occur within a distance equal to the height of the tallest tree that can grow on that site. This distance, however, can vary substantially and should be determined on a site-specific basis which takes into account the conditions of the site and the type of habitat that may be affected by the development.
(4) The MRCI development or redevelopment ordinance or plan avoids stream crossings by road, utilities and other linear development whenever possible, and where such crossings must be provided, impacts are minimized. Where crossings are unavoidable, ordinances or plans should consider minimizing their impacts by indicating a preference for bridges rather than culverts, and design both bridges and culverts to pass at least the 100-year flow level and debris associated with a 100-year flood event. In addition, the ordinance or plan should indicate that crossings and culverts meet NMFS’ Southwest Region Guidelines for Salmonid Passage at Stream Crossings, May 2000. The ordinance or plan should also assure that all crossings are regularly monitored and maintained.
(5) The MRCI development or redevelopment ordinance or plan should adequately protect historic stream meander patterns and channel migration zones, and avoid hardening stream banks and shorelines wherever possible. Development activities should be designed to protect conditions that allow for gradual bank erosion, flooding, and channel meandering within the zone where meandering would naturally
(6) The MRCI development or redevelopment ordinance or plan should adequately protect wetlands, wetland buffers, and wetland function. Protection of wetlands and the vegetation surrounding them will avoid or minimize soil, vegetation, and hydrology disturbances which can affect wetland succession and function, and, therefore, salmonid habitat and food availability.
(7) The MRCI development or redevelopment ordinance or plan adequately preserves the hydrologic capacity of permanent and intermittent streams to pass peak flows. Preserving hydrologic capacity provides conditions on the landscape necessary for maintaining essential habitat processes such as water quantity and quality, stream bank and channel stability, groundwater flows, and riparian vegetation succession.
(8) The MRCI development or redevelopment ordinance or plan includes adequate provisions for landscaping with native vegetation to reduce the need for watering and the application of herbicides, pesticides, and fertilizer. These provisions will maintain essential habitat processes by helping to conserve water and reduce demands on instream flows that compete with fish needs. In addition, they will reduce the amount of chemicals that contribute to water pollution.
(9) The MRCI development or redevelopment ordinance or plan includes provisions that prevent run-off during and after construction, thereby preventing sediment and pollutant discharges to streams and other water bodies that support salmonids. These provisions may include detention of flow, stabilizing soils, protecting slopes, stabilizing channels and outlets, protecting drain inlets, controlling pollutants, and maintaining best management practices.
(10) The MRCI development or redevelopment ordinance or plan ensures that water supply demands can be met without impacting instream flows needed for salmonids, and that any new water diversions are sited and screened in a manner that prevent injury and death of salmonids.
(11) The MRCI development or redevelopment ordinance or plan includes mechanisms to ensure that funding, enforcement, implementation monitoring, and reporting occur as the ordinance or plan is implemented, and that the ordinance or plan is re-evaluated at least once every 5 years.
(12) The MRCI development or redevelopment ordinance or plan demonstrates that it is in compliance with all other state and Federal environmental and natural resource laws and permits.
NMFS’ determination that city, county, or regional jurisdictional MRCI development or redevelopment ordinances or plans contribute to the attainment and maintenance of properly functioning habitat conditions, and thereby fall within this take limitation, will be in the form of a written approval from the Southwest Regional Administrator. As a condition of approval and to continue within this take limitation, city, county, or regional jurisdictions with approved ordinances or plans must provide NMFS with annual reports regarding the implementation and effectiveness of the ordinances or plans. NMFS will review these reports and evaluate approved ordinances or plans for their effectiveness in maintaining and achieving habitat conditions and function that provide for the conservation of threatened salmonids. As necessary, NMFS will work with the jurisdiction to modify ordinances or plans to achieve the desired habitat conditions.
Prior to approving a city, county, or regional government ordinance or plan for development or redevelopment under this take limitation, NMFS will publish a notification in the
NMFS is soliciting comments, information, and/or recommendations on any aspect of this proposed rule from all concerned parties (see
In a forthcoming
A list of references cited in this proposed rule is available upon request (see
When an agency proposes regulations, the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires the agency to prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) that describes the impact of the proposed rule on small businesses, nonprofit enterprises, local governments, and other small entities, unless the agency is able to certify that the action will not have a significant impact on a substantial number of small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. The RFA was designed to ensure that agencies carefully assess whether aspects of a proposed regulatory scheme (record keeping, safety requirements, etc.) can be tailored to be less burdensome for small businesses while still achieving the agency’s statutory responsibilities.
In accordance with the requirements of the RFA, therefore, NMFS has prepared an IRFA for this proposed ESA 4(d) rule. The IRFA is available upon request (see
This proposed ESA 4(d) rule has no specific requirements for regulatory compliance; instead, it essentially sets an enforceable performance standard (i.e., do not take listed fish) that applies to all entities and individuals within the ESU unless that activity is within a carefully circumscribed set of activities on which NMFS proposes not to impose the take prohibitions. Hence, the universe of entities reasonably expected to be directly or indirectly impacted by the prohibition is potentially broad.
The number of entities potentially affected by imposition of the ESA section 9 take prohibitions contained in the proposed rule is large and covers a large geographic which includes the Sacramento River basin in California’s central valley, as well as coastal watersheds ranging from just north of the Russian River to Redwood Creek.
NMFS examined the potential impact of the regulation on a sector-by-sector basis. Unavailable or inadequate data leaves a high degree of uncertainty surrounding both the numbers of entities likely to be affected, and the characteristics of any impacts on particular entities. The problem is complicated by differences among entities even in the same sector as to the nature and size of their current operations, contiguity to waterways, individual strategies for dealing with the take prohibitions, etc. Finally, many of the activities that would be subject to the take prohibitions in the proposed rule are already subject to the take prohibitions imposed by existing 4(d) rules that protect other salmonid ESUs utilizing the same habitat. Thus, determining the incremental cost of this rule would require information concerning regulated entities’ response to previous 4(d) rules, some of which have been in effect for only a year.
Examination of the geographical aspects of overlapping ESUs, and consideration of differences in the distribution of the different ESUs within river systems revealed three subareas composing the geographic extent of the four ESUs combined. Subarea 1 consists of that area within which the only change due to the proposed rule would be to allow more take limitations than are presently allowed by the existing 4(d) rule for the threatened Central California coast coho salmon ESU. The section 9 take prohibitions are already in place for this ESU and would not be changed by the proposed rule.
Subarea 2 consists of that area where the proposed take prohibitions for the Northern California steelhead and California coastal chinook ESUs would be superimposed on the existing take prohibitions for portions of two threatened coho salmon ESUs (Central California coast and Southern Oregon/Northern California coho ESUs). Since steelhead are more widely distributed than coho salmon within watersheds in this region, the proposed take prohibitions are expected to have some impact on a wide variety of activities.
Subarea 3 consists of that area where the proposed take prohibitions for Central Valley spring chinook and California coastal chinook would be superimposed on existing take prohibitions for threatened steelhead and endangered winter-run chinook salmon ESUs. In this region only a small variety of activities involving deliberate take of chinook salmon is expected to be affected.
The largest economic impacts from the proposed rule, therefore, are expected to occur in subarea 2 which lies almost entirely in Humboldt, Trinity, Lake, and Mendocino counties. These four counties account for only 5% of the population and 4% of the personal income from all the counties that occur within the geographic range of the four ESUs covered by this proposed rule.
There are no record keeping or reporting requirements associated with imposition of the take prohibition; therefore, it is not possible to simplify or tailor record keeping or reporting to be less burdensome for small entities. However, some programs for which NMFS may in the future find it is unnecessary to prohibit take because they fall under one of the proposed take limitations would involve recordkeeping and/or reporting to support that continuing determination. NMFS has attempted to minimize any burden associated with these programs.
In formulating this proposed rule, NMFS considered several alternative approaches which are described in the IRFA. These included: (1) Enacting a “global” ESA 4(d) protective regulation for threatened species through which NMFS would automatically apply the section 9 take prohibitions to all threatened species at the time of listing; (2) enacting ESA 4(d) protective regulations that include the take prohibitions, but contain no take limits, or only a few limits, on the application of the take prohibitions for relatively uncontroversial activities such as fish rescue/salvage; (3) enacting ESA 4(d) regulations which include the take prohibitions in combination with detailed prescriptive requirements applicable to one or more sectors of activity; (4) enacting ESA 4(d) protective regulations similar to the existing interim 4(d) protective regulations for Southern Oregon/Northern California coast coho salmon which includes four additional limitations on the extension of the take prohibitions, for harvest plans, hatchery plans, scientific research, and habitat restoration projects, when in conformance with specified criteria; (5) enacting ESA 4(d) regulations similar to the interim rule for Southern Oregon/Northern California coast coho, but with recognition of more programs and circumstances in which application of take prohibitions is neither necessary or advisable, and (6) enacting no ESA 4(d) protective regulations for the threatened salmonid ESUs. This latter approach would leave the threatened ESUs without any protection other than provided by ESA section 7 consultations for actions with some Federal nexus, and would not be consistent with NMFS’ obligation to enact such protective regulations that are “necessary and advisable to provide for the conservation of” threatened salmon and steelhead.
The approach taken in this proposed rule is alternative 5 which would impose the section 9 take prohibition and also create 10 limits to the take prohibitions for specific circumstances or categories of activity (see discussion of take limitations in this proposed rule). This approach is fundamentally the same as that taken in NMFS’s July 2000 4(d) rule for 14 threatened salmonids (65 FR 42422). For several of these activity categories (i.e., recreational harvest, artificial propagation, habitat restoration, road maintenance, and municipal, residential, commercial and industrial development) the regulation is structured so that it allows plans or programs developed after promulgation of the rule to be submitted to NMFS for review and approval under criteria described in the rule.
All of the other alternatives which provide take prohibitions for the threatened ESUs, may result in unnecessary impacts on economic activity of small entities, given NMFS’ judgment that more limited protections would suffice to conserve the species. NMFS believes the proposed rule provides the greatest latitude for individual entities and regulatory agencies to tailor activities and programs to fit individual circumstances while avoiding or minimizing take of threatened salmonids. At present, NMFS concludes that there are no legally viable alternative rules that would have less impact on small entities and still fulfill the agency’s obligations to protect these threatened salmonid ESUs.
If the proposed rule or any of the other alternatives described in the IRFA will impact your economic activity, please comment on whether there is a preferable alternative (including any alternatives not described herein) that would meet the statutory requirements
Pursuant to E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has prepared a draft Regulatory Impact Review (RIR) which considers costs and benefits of the ESA 4(d) regulatory alternatives that were considered, including the approach taken in this proposed rule. Copies of the draft RIR are available for review and comment upon request (see
Costs and benefits of the proposed rule and other alternative rule making approaches include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits where estimates cannot be meaningfully made for impacts that are essential to consider. The benefit provided by the proposed rule, as well as each of the 4(d) alternatives considered by NMFS which affords sufficient protection for the threatened ESUs, is its contribution to the recovery of the threatened ESUs. No precise measure of the benefit of recovery is available. NMFS is requesting comments and information (e.g. data sets, studies) that will enable quantification of the benefits of the proposed rule.
Many of the costs of recovering the ESUs addressed by the proposed rule (or alternatives that afford equal protection) are shared jointly with other listed ESUs that have overlapping geographic distributions and must also be recovered. It is not possible to determine what share of these joint costs is attributable to adoption of the take prohibitions which are in the proposed rule and the alternatives. NMFS is requesting comments and information (e.g. data sets, studies) that will enable disentangling and quantification of the costs of the proposed rule.
Because the proposed rule would limit application of the section 9 take prohibition to those State or local programs or activities that fall within defined take limit criteria, those programs will contribute to the conservation of the threatened ESUs covered by the rule and NMFS’ involvement will be more collaborative and less often require enforcement actions. This approach has the greatest probability that compliance burdens will be equally shared, that economic incentives will be employed in appropriate cases, and that practical standards adapted to the particular characteristics of the State or region will aid citizens in reducing the risks of take in an efficient way. For these reasons, it is likely that the proposed rule will minimize the cost to the public of avoiding or minimizing take over the long term among the alternatives considered.
In order to assess the economic effect of this rule, NMFS is seeking to assess the economic effects of the imposition of the take prohibitions contained in the July 2000 4(d) rule. This rule became effective on September 8, 2000, and January 8, 2001 for the steelhead and salmon ESUs respectively, covered by that rule.
In the absence of 4(d) rules, NMFS provided ESA coverage through section 10 research, enhancement, and incidental take permits with private entities, or through section 7 consultation with Federal agencies. Since implementation of the July 2000 4(d) rule NMFS has received plans from various entities in Oregon, Washington, Idaho and California for approval under the limits to the take prohibitions. States can now send a list of research activities they expect to authorize for the following year instead of sending individual section 10 applications. During promulgation of the July 2000 rule NMFS did not have a complete understanding of the economic impacts entities would incur as a result of imposition of the take prohibitions. To gain some insight as to how entities may have changed their activities in response to implementation of the take prohibitions, we have summarized the numbers of plans submitted and their status under the July 4(d) rule in the following table. While portions of these plans were developed independently of the July 4(d) rule, they may have been modified in order to qualify for the take limits of the rule, as opposed to undergoing ESA section 7 or 10 procedures. Authorization under the rescue/salvage limit, City of Portland, Oregon Parks and Recreation Department’s Pest Management Program and Washington’s Forest Practices became effective September 8, 2000, and January 8, 2001, for the steelhead and salmon ESUs respectively, and are not listed in the table. Oregon Department of Transportation’s (ODOT’s) Routine Road Maintenance program also became effective with the effective dates, but other entities can qualify for ESA coverage under this limit if they use ODOT’s program or an equivalent program.
Entities that are now subject to the July 4(d) rule fall into 4 categories: (1) Those entities who have sought or are actively seeking ESA coverage via the July 4(d) rule limits; (2) those who are not sure if their activities will harm
NMFS believes that among the alternative regulatory approaches that were considered, the approach taken in this proposed rule will be the least costly.
E.O. 13084 requires that if NMFS issues a regulation that significantly or uniquely affects the communities of Indian tribal governments and imposes substantial direct compliance costs on those communities, NMFS must consult with those governments or the Federal government must provide the funds necessary to pay the direct compliance costs incurred by the tribal governments. This proposed rule does not impose substantial direct compliance costs on the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this proposed rule.
Nonetheless, NMFS intends to inform potentially affected tribal governments and solicit their input on the proposed rule. NMFS will continue to give careful consideration to all written and oral comments received on the proposed rule and will continue its coordination and discussions with interested tribes as the agency moves forward toward a final 4(d) rule.
E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this proposed rule. In fact, this proposed rule provides a mechanism by which NMFS may defer to state and local government programs, where they provide necessary protections for threatened salmonids.
NMFS’ July 2000 4(d) rule for 14 threatened salmonids (65 FR 42422), including three steelhead ESUs in California, was the first instance in California where the agency defined some reasonably broad categories of activities, both public and private, for which take prohibitions were not considered necessary and advisable when specified criteria were met. Since that rule was promulgated, NMFS has engaged in discussions with various State and local agencies and other organizations in California wishing to pursue development of programs that would qualify under the various take limits contained in that final rule. In addition, NMFS has sought working relationships with other governmental and non-governmental organizations, and endeavored to promote use of the 4(d) rule. Because some of the threatened ESUs addressed in this proposed rule overlap with the ESUs addressed in the July 2000 4(d) rule (65 FR 42422), working relationships have already been established with many agencies and organizations that will be affected by this proposed rule.
In addition to these efforts, NMFS staff have given presentations to interagency forums, community groups, and others, and served on a number of interagency advisory groups or task forces considering conservation measures. Many cities, counties and other local governments have sought guidance and consideration of their planning efforts from NMFS, and staff have met with them whenever possible. Lastly, NMFS staff have continued coordination with CDFG aimed at developing recreational fisheries and artificial propagation management plans and other programs that will be protective of threatened salmonids and ultimately may be recognized within the July 2000 rule or this 4(d) rule.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. This proposed rule contains additional collection-of-information requirements subject to review and approval by OMB under control number 0648-0399. These requirements have been submitted to OMB for approval.
The public reporting burden per response for these collections of information is estimated to average 5 hours for a submission on screening of a water diversion or for a report on salmonids assisted, disposed of, or salvaged; 20 hours to prepare a road maintenance agreement; 30 hours for an urban ordinance development package; and 10 hours for an urban development annual report.
This proposed rule also contains a collection-of-information requirement associated with habitat restoration activities conducted under watershed plans that has received PRA approval from OMB under control number 0648-0230. The public reporting burden for the approval of Watershed Plans is estimated to average 10 hours.
These estimates include any time required for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.
Public comment is sought regarding whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection, including the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS (see
NMFS prepared Environmental Assessments (EAs), as defined under the authority of the National Environmental Policy Act (NEPA) of 1969, addressing each threatened ESU covered by this proposed rule. Based on a review and evaluation of the information contained in the EA, NMFS has determined that the proposal to promulgate protective regulations for four threatened salmonid ESUs, including the creation of limitations on the applicability of the prohibition on taking any of those salmonids, would not be a major Federal action that would significantly affect the quality of the human environment within the meaning of section 102(2)(c) of NEPA of 1969. NMFS believes these EAs examined appropriate alternatives, and that preparation of an Environmental Impact Statement is not required. Copies of the EAs are available on request (see
Endangered and threatened species, Exports, Imports, Marine mammals, Transportation.
16 U.S.C. 1531-1543; subpart B, § 223.12 also issued under 16 U.S.C. 1361
Available guidance documents cited in the regulatory text are listed in Appendix A to this section.
(a)
(b)
(14) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(20) through (a)(22) do not apply to activities specified in an application for a permit for scientific purposes or to enhance the conservation or survival of the species, provided that the application has been received by the Assistant Administrator for Fisheries, NOAA (AA), no later than [90 days after date of publication of the final rule in the FEDERAL REGISTER]. The prohibitions of paragraph (a) of this section apply to these activities upon the AA’s rejection of the application as insufficient, upon issuance or denial of a permit, or [8 months after date of publication of the final rule in the FEDERAL REGISTER], whichever occurs earliest.
(15) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(3), and (a)(20) through (a)(22) do not apply to any employee or designee of NMFS, the United States Fish and Wildlife Service, any Federal land management agency, the California Department of Fish and Game (CDFG), or of any other governmental entity that has co-management authority for the listed salmonids, when the employee or designee, acting in the course of his or her official duties, takes a threatened salmonid without a permit if such action is necessary to:
(i) Aid a sick, injured, or stranded salmonid,
(ii) Dispose of a dead salmonid, or
(iii) Salvage a dead salmonid which may be useful for scientific study.
(iv) Each agency acting under this limit on the take prohibitions of paragraph (a) of this section is to report to NMFS the numbers of fish handled and their status, on an annual basis. A designee of the listed entities is any individual the Federal or state fishery agency or other co-manager has authorized in writing to perform the listed functions.
(16) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(3), and (a)(20) through (a)(22) do not apply to fishery harvest activities provided that:
(i) Fisheries are managed in accordance with a NMFS-approved Fishery Management and Evaluation Plan (FMEP) and implemented in accordance with a letter of concurrence from NMFS. NMFS will approve an FMEP only if it clearly defines its intended scope and area of impact and sets forth the management objectives and performance indicators for the plan. The plan must adequately address the following criteria:
(A) Define populations within affected listed ESUs, taking into account spatial and temporal distribution, genetic and phenotypic diversity, and other appropriate identifiably unique biological and life history traits. Populations may be aggregated for management purposes when dictated by information scarcity, if consistent with survival and recovery of the listed ESU. In identifying management units, the plan shall describe the reasons for using such units in lieu of population units, describe how the management units are defined, given biological and life history traits, so as to maximize consideration of the important biological diversity contained within the listed ESU, respond to the scale and complexity of the ESU, and help ensure consistent treatment of listed salmonids across a diverse geographic and jurisdictional range.
(B) Utilize the concepts of “viable” and “critical” salmonid population thresholds, consistent with the concepts contained in NMFS’s technical report entitled “Viable Salmonid Populations and the Recovery of ESUs” (NMFS, 2000b). This report provides a framework for identifying the biological requirements of listed salmonids, assessing the effects of management and conservation actions, and ensuring that such actions provide for the survival and recovery of listed species. Proposed management actions must recognize the significant differences in risk associated with viable and critical population threshold states and respond accordingly to minimize the long-term risks to population persistence. Harvest actions impacting populations that are functioning at or above the viable threshold must be designed to maintain the population or management unit at or above that level. For populations shown with a high degree of confidence to be above critical levels but not yet at viable levels, harvest management must not appreciably slow the population’s achievement of viable function. Harvest actions impacting populations that are functioning at or below critical threshold must not be allowed to appreciably increase genetic and demographic risks facing the population and must be designed to permit the population’s achievement of viable function, unless the plan demonstrates that the likelihood of survival and recovery of the entire ESU in the wild would not be appreciably reduced by greater risks to that individual population.
(C) Set escapement objectives or maximum exploitation rates for each management unit or population based on its status and on a harvest program that assures that those rates or objectives are not exceeded. Maximum exploitation rates must not appreciably reduce the likelihood of survival and recovery of the ESU. Management of fisheries where artificially propagated fish predominate must not compromise the management objectives for commingled naturally spawned populations.
(D) Display a biologically based rationale demonstrating that the harvest management strategy will not appreciably reduce the likelihood of survival and recovery of the ESU in the wild, over the entire period of time the proposed harvest management strategy affects the population, including effects reasonably certain to occur after the proposed actions cease.
(E) Include effective monitoring and evaluation programs to assess compliance, effectiveness, and
(F) Provide for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed.
(G) Provide for effective enforcement and education. Coordination among involved jurisdictions is an important element in ensuring regulatory effectiveness and coverage.
(H) Include restrictions on resident and anadromous species fisheries that minimize any take of listed species, including time, size, gear, and area restrictions.
(I) Be consistent with plans and conditions established within any Federal court proceeding with continuing jurisdiction over tribal harvest allocations.
(ii) The state monitors the amount of take of listed salmonids occurring in its fisheries and provides to NMFS on a regular basis, as defined in NMFS’ letter of concurrence for the FMEP, a report summarizing this information, as well as the implementation and effectiveness of the FMEP. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the FMEP.
(iii) The state confers with NMFS on its fishing regulation changes affecting listed ESUs to ensure consistency with the approved FMEP. Prior to approving a new or amended FMEP, NMFS will publish notification in the
(iv) NMFS provides written concurrence of the FMEP which specifies the implementation and reporting requirements. NMFS’ approval of a plan shall be a written approval by the NMFS’ Southwest Regional Administrator. On a regular basis, NMFS will evaluate the effectiveness of the program in protecting and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If the program is deficient, NMFS will identify ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the
(v) The prohibitions of paragraph (a) of this section relating to threatened species listed in § 223.102 (a)(20) do not apply to fishery harvest activities managed solely by the State of California until [180 days after date of publication of the final rule in the FEDERAL REGISTER].
(17) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(3) and (a)(20) through (a)(22) do not apply to activity associated with artificial propagation programs provided that:
(i) A state or Federal Hatchery and Genetics Management Plan (HGMP) has been approved by NMFS as meeting the following criteria:
(A) The HGMP has clearly stated goals, performance objectives, and performance indicators that indicate the purpose of the program, its intended results, and measurements of its performance in meeting those results. Goals shall address whether the program is intended to meet conservation objectives, contribute to the ultimate sustainability of natural spawning populations, and/or is intended to augment tribal, recreational, or commercial fisheries. Objectives should enumerate the results desired from the program that will be used to measure the program’s success or failure.
(B) The HGMP utilizes the concepts of viable and critical salmonid population threshold, consistent with the concepts contained in NMFS’ technical report entitled: “Viable Salmonid Populations and Recovery of ESUs” (NMFS, 2000b). Listed salmonids may be purposefully taken for broodstock purposes only if the donor population is currently at or above the viable threshold and the collection will not impair its function; if the donor population is not currently viable but the sole objective of the current collection program is to enhance the propagation or survival of the listed ESU; or if the donor population is shown with a high degree of confidence to be above critical threshold although not yet functioning at viable levels, and the collection will not appreciably slow the attainment of viable status for that population.
(C) Broodstock collection programs reflect appropriate priorities taking into account health, abundances, and trends in the donor population. The primary purpose of broodstock collection programs of listed species is to re-establish indigenous salmonid populations for conservation purposes. Such programs include restoration of similar, at-risk populations within the same ESU, and reintroduction of at-risk populations to underseeded habitat. After the species’ conservation needs are met and when consistent with survival and recovery of the ESU, broodstock collection programs may be authorized by NMFS for secondary purposes such as to sustain tribal, recreational, and commercial fisheries.
(D) The HGMP includes protocols to address fish health, broodstock collection, broodstock spawning, rearing and release of juveniles, deposition of hatchery adults, and catastrophic risk management.
(E) The HGMP evaluates, minimizes, and accounts for the propagation program’s genetic and ecological effects on natural populations, including disease transfer, competition, predation, and genetic introgression caused by the straying of hatchery fish.
(F) The HGMP describes interrelationships and interdependencies with fisheries management. The combination of artificial propagation programs and harvest management must be designed to provide as many benefits and as few biological risks as possible for the listed species. For those programs of which the purpose is to sustain fisheries, HGMPs must not compromise the ability of FMEPs or other management plans to conserve listed salmonids.
(G) The HGMP provides for adequate artificial propagation facilities to properly rear progeny of naturally spawned broodstock, to maintain population health and diversity, and to avoid hatchery-influenced selection or domestication.
(H) The HGMP provides for adequate monitoring and evaluation to detect and evaluate the success of the hatchery program and any risks potentially impairing the recovery of the listed ESU.
(I) The HGMP provides for evaluating monitoring data and making any revisions of assumptions, management strategies, or objectives that data show are needed;
(J) NMFS provides written concurrence of the HGMP which specifies the implementation and reporting requirements. For federally operated or funded hatcheries, the ESA
(ii) The state monitors the amount of take of listed salmonids occurring in its hatchery program and provides to NMFS on a regular basis a report summarizing this information, and the implementation and effectiveness of the HGMP as defined in NMFS’ letter of concurrence. The state shall provide NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the HGMP.
(iii) The state confers with NMFS on a regular basis regarding intended collections of listed broodstock to ensure consistency with the approved HGMP.
(iv) Prior to final approval of an HGMP, NMFS will publish notification in the
(v) NMFS’ approval of an HGMP shall be a written approval by NMFS’ Southwest Regional Administrator.
(vi) On a regular basis, NMFS will evaluate the effectiveness of the HGMP in protecting and achieving a level of salmonid productivity commensurate with the conservation of the listed salmonids. If the HGMP is not effective, NMFS will identify to the responsible agency ways in which the program needs to be altered or strengthened. If the responsible agency does not make changes to respond adequately to the new information, NMFS will publish notification in the
(vii) The prohibitions of paragraph (a) of this section relating to threatened species listed in § 223.102 (a)(20) do not apply to artificial propagation programs managed solely by the State of California until [180 days after date of publication of the final rule in the FEDERAL REGISTER].
(18) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(3) and (a)(20) through (a)(22) do not apply to scientific research activities provided that:
(i) Scientific research activities involving purposeful take are conducted by employees or contractors of CDFG or as a part of a monitoring and research program overseen by or coordinated with CDFG.
(ii) CDFG provides for NMFS’ review and approval a list of all scientific research activities involving direct take planned for the coming year, including an estimate of the total direct take that is anticipated, a description of the study design, including a justification for taking the species and a description of the techniques to be used, and a point of contact.
(iii) CDFG annually provides to NMFS the results of scientific research activities directed at threatened salmonids, including a report of the direct take resulting from the studies and a summary of the results of such studies.
(iv) Scientific research activities that may incidentally take threatened salmonids are either conducted by CDFG personnel, or are in accord with a permit issued by the CDFG.
(v) CDFG provides NMFS annually, for its review and approval, a report listing all scientific research activities it conducts or permits that may incidentally take threatened salmonids during the coming year. Such reports shall also contain the amount of incidental take of threatened salmonids occurring in the previous year's scientific research activities and a summary of the results of such research.
(vi) Electrofishing in any body of water known or suspected to contain threatened salmonids is conducted in accordance with NMFS’ Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act (NMFS 2000a).
(vii) NMFS’ approval of a research program shall be a written approval by NMFS’ Southwest Regional Administrator.
(19) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(3) and (a)(20) through (a)(22) do not apply to habitat restoration activities, as defined in paragraph (b)(19)(iv), provided that the activity is part of a watershed conservation plan, and:
(i) The watershed conservation plan has been certified by the State of California to be consistent with the state’s watershed conservation plan guidelines.
(ii) The State’s watershed conservation plan guidelines have been found by NMFS to provide for plans that:
(A) Take into account the potential severity of direct, indirect, and cumulative impacts of proposed activities in light of the status of affected species that are listed as threatened.
(B) Will not reduce the likelihood of either survival or recovery of listed species in the wild.
(C) Ensure that any taking will be incidental.
(D) Minimize and mitigate any adverse impacts.
(E) Provide for effective monitoring and adaptive management.
(F) Use the best available science and technology, including watershed analysis.
(G) Provide for public and scientific review and input.
(H) Include any measures that NMFS determines are necessary or appropriate.
(I) Include provisions that clearly identify those activities that are part of plan implementation.
(J) Control risk to listed species by ensuring funding and implementation of the above plan components.
(iii) NMFS will periodically review State certifications of watershed conservation plans to ensure adherence to approved watershed conservation plan guidelines.
(iv)
(v) Prior to approving state watershed conservation plan guidelines under paragraph (b)(19)(ii) of this section, NMFS will publish notification in the
(20) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102(a)(3) and (a)(20) through (a)(22) do not apply to the physical diversion of water from a stream or lake, provided that:
(i) NMFS’ engineering staff or any resource agency or tribe NMFS designates (authorized officer) has agreed in writing that the diversion facility is screened, maintained, and operated in compliance with NMFS’ Southwest Region “Fish Screening Criteria for Anadromous Salmonids, January 1997” or with any subsequent revision.
(ii) The owner or manager of the diversion allows any NMFS engineer or authorized officer access to the diversion facility for purposes of inspection and determination of continued compliance with the criteria.
(iii) On a case-by-case basis, NMFS or an Authorized Officer will review and may approve a juvenile fish screen design and construction plan and schedule that the water diverter proposes for screen installation. The plan and schedule will describe interim operation measures to avoid take of threatened salmonids. NMFS may require a commitment of compensatory mitigation if implementation of the plan and schedule is terminated prior to completion. If the plan and schedule are not met, or if a schedule modification is made that is not approved by NMFS or the Authorized Officer, or if the screen installation deviates from the approved design, the water diversion will be subject to take prohibitions and mitigation.
(iv) This limit on the prohibitions of paragraph (a) of this section does not include any impacts or take caused by reduced flows resulting from the diversion or impacts caused during installation of the diversion device. These impacts are subject to the prohibition on take of listed salmonids.
(21) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(3) and (a)(20) through (a)(22) do not apply to routine road maintenance activities provided that:
(i) The activity results from routine road maintenance conducted by employees or agents of the State of California, or any county, city or port in California, that complies with a program substantially similar to that contained in the Oregon Department of Transportation’s (ODOT) Transportation Maintenance Management System Water Quality and Habitat Guide (July, 1999) or that is determined to meet or exceed the protections provided by the ODOT Guide; or by employees or agents of the State of California or any county, city or port in California that complies with a routine road maintenance program that meets proper functioning habitat conditions as described further in paragraph (a)(21)(ii) of this section. NMFS’ approval of state, city, county, or port programs that are equivalent to the ODOT program, or of any amendments, shall be a written approval by NMFS’ Southwest Regional Administrator. Any jurisdiction desiring its routine road maintenance activities to be considered within this limit must first commit in writing to apply management practices that result in protections equivalent to or better than those provided by the ODOT Guide, detailing how it will assure adequate training, tracking, and reporting, and describing in detail any dust abatement practices it requests to be covered.
(ii) NMFS finds the routine road maintenance activities of the State of California, or any city, county, or port, to be consistent with the conservation of threatened salmonids’ habitat when it contributes to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the sustained presence of natural habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. Actions that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the threatened ESUs. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than one year, NMFS will publish notification in the
(iii) Prior to implementing any changes to a program within this limit the jurisdiction provides NMFS a copy of the proposed change for review and approval as to being within this limit.
(iv) Prior to approving any State of California, city, county, or port program as being within this limit, or approving any substantive change in a program as being within this limit, NMFS will publish notification in the
(v) Pesticide and herbicide spraying is not included within this limit, even if in accord with the ODOT guidance.
(22) The prohibitions of paragraph (a) of this section relating to threatened species of salmonids listed in § 223.102 (a)(3) and (a)(20) through (a)(22) do not apply to municipal, residential, commercial, and industrial (MRCI) development (including redevelopment) activities provided that:
(i) Such development occurs pursuant to city, county, or regional government ordinances or plans that NMFS has determined are adequately protective of threatened species by maintaining or restoring properly functioning habitat conditions. NMFS approval or determinations about any MRCI development ordinances or plans shall be a written approval by the NMFS Southwest Regional Administrator. NMFS will apply the following 12 evaluation considerations when reviewing MRCI development ordinances or plans to assess whether they adequately conserve threatened salmonids by maintaining and restoring properly functioning habitat conditions:
(A) The MRCI development ordinance or plan ensures that development will avoid inappropriate areas such as unstable slopes, wetlands, areas of high habitat value, and similarly constrained sites.
(B) The MRCI development ordinance or plan adequately avoids stormwater discharge impacts to water quality and quantity or to the hydrograph of the watershed, including peak and base flows of perennial streams.
(C) The MRCI development ordinance or plan provides adequately protective riparian area management requirements to attain or maintain PFC around all rivers, estuaries, streams, lakes, deepwater habitats, and intermittent streams. Compensatory mitigation is provided, where necessary, to offset unavoidable damage to properly functioning habitat conditions caused by MRCI development impacts to riparian management areas.
(D) The MRCI development ordinance or plan avoids stream crossings by roads, utilities, and other linear development wherever possible, and, where crossings must be provided, minimizes impacts through choice of mode, sizing, and placement.
(E) The MRCI development ordinance or plan adequately protects historical stream meander patterns and channel migration zones and avoids hardening of stream banks and shorelines.
(F) The MRCI development ordinance or plan adequately protects wetlands and wetland functions, including isolated wetlands.
(G) The MRCI development ordinance or plan adequately preserves the
(H) The MRCI development ordinance or plan includes adequate provisions for landscaping with native vegetation to reduce need for watering and application of herbicides, pesticides, and fertilizer.
(I) The MRCI development ordinance or plan includes adequate provisions to prevent erosion and sediment run-off during construction.
(J) The MRCI development ordinance or plan ensures that water supply demands can be met without impacting flows needed for threatened salmonids either directly or through groundwater withdrawals and that any new water diversions are positioned and screened in a way that prevents injury or death of salmonids.
(K) The MRCI development ordinance or plan provides necessary enforcement, funding, reporting, and implementation mechanisms and formal plan evaluations at intervals that do not exceed 5 years.
(L) The MRCI development ordinance and plan complies with all other state and Federal environmental and natural resource laws and permits.
(ii) The city, county or regional government provides NMFS with annual reports regarding implementation and effectiveness of the ordinances, including: any water quality monitoring information the jurisdiction has available; aerial photography (or some other graphic display) of each MRCI development or MRCI expansion area at sufficient detail to demonstrate the width and vegetation condition of riparian set-backs; information to demonstrate the success of stormwater management and other conservation measures; and a summary of any flood damage, maintenance problems, or other issues.
(iii) NMFS finds the MRCI development activity to be consistent with the conservation of threatened salmonids’ habitat when it contributes to the attainment and maintenance of properly functioning habitat conditions. For this purpose, NMFS defines properly functioning habitat conditions as the sustained presence of a watershed’s habitat-forming processes that are necessary for the long-term survival of salmonids through the full range of environmental variation. To contribute to the attainment and maintenance of properly functioning habitat conditions, activities that affect salmonid habitat must not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward achieving properly functioning habitat conditions. Periodically, NMFS will evaluate an approved program for its effectiveness in maintaining and achieving habitat function that provides for conservation of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program needs to be altered or strengthened. Changes may be identified if the program is not protecting desired habitat functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to conserve the threatened species. If any jurisdiction within the limit does not make changes to respond adequately to the new information in the shortest amount of time feasible, but not longer than 1 year, NMFS will publish notification in the
(iv) Prior to approving any city, county, or regional government ordinances or plans as being within this limit, or approving any substantive change in an ordinance or plan as being within this limit, NMFS will publish notification in the
(c)
The following is a list of documents cited in the regulatory text. Copies of these documents may be obtained upon request from the Northwest or Southwest Regional Administrators (see Table 1 in § 600.502 of this title).
1. Oregon Department of Transportation (ODOT) Maintenance Management System Water Quality and Habitat Guide (July, 1999).
2. Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act.
3. Fish Screening Criteria for Anadromous Salmonids, National Marine Fisheries Service, Southwest Region, 1997.
4. Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. (June 2000).
Animal and Plant Health Inspection Service, USDA.
Notice and request for comments.
In accordance with legislation implementing the results of the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade, we are informing the public of international standard-setting activities of the Office International des Epizooties, the Secretariat of the International Plant Protection Convention, and the North American Plant Protection Organization, and we are soliciting public comment on the standards to be considered.
Please send four copies of your comments (an original and three copies) to: Docket No. 01-046-1, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238.
Please state that your comment refers to Docket No. 01-046-1.
You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.
APHIS documents published in the
For general information on the topics covered in this notice, contact Mr. John Greifer, Director, Trade Support Team, International Services, APHIS, room 1132, South Building, 14th Street and Independence Avenue SW., Washington, DC 20250; (202) 720-7677. For specific information regarding standard-setting activities of the Office International des Epizooties, contact Dr. Michael David, Chief, Sanitary International Standards Team, VS, APHIS, 4700 River Road Unit 33, Riverdale, MD 20737-1231; (301) 734-8093. For specific information regarding the standard-setting activities of the International Plant Protection Convention or the North American Plant Protection Organization, contact Mr. Narcy Klag, Program Manager, Phytosanitary Issues Management, PPQ, APHIS, 4700 River Road Unit 60, Riverdale, MD 20737-1236; (301) 734-8469.
The World Trade Organization (WTO) was established as the common international institutional framework for governing trade relations among its members in matters related to the Uruguay Round Agreements. The WTO is the successor organization to the General Agreement on Tariffs and Trade. U.S. membership in the WTO was approved by Congress when it enacted the Uruguay Round Agreements Act (Pub. L. 103-465), which was signed into law by the President on December 8, 1994. The WTO Agreements, which established the WTO, entered into force with respect to the United States on January 1, 1995. The Uruguay Round Agreements Act amended title IV of the Trade Agreements Act of 1979 (19 U.S.C. 2531
“International standard” is defined in 19 U.S.C. 2578b as any standard, guideline, or recommendation: (1) Adopted by the Codex Alimentarius Commission (Codex) regarding food safety; (2) developed under the auspices of the Office International des Epizooties (OIE) regarding animal health and zoonoses; (3) developed under the auspices of the Secretariat of the International Plant Protection Convention (IPPC) in cooperation with the North American Plant Protection Organization (NAPPO) regarding plant health; or (4) established by or developed under any other international organization agreed to by the member countries of the North American Free Trade Agreement (NAFTA) or the member countries of the WTO.
The President, pursuant to Proclamation No. 6780 of March 23, 1995 (60 FR 15845), designated the Secretary of Agriculture as the official responsible for informing the public of the SPS standard-setting activities of Codex, OIE, IPPC, and NAPPO. This responsibility was delegated to the United States Department of Agriculture's (USDA's) Food Safety and Inspection Service (FSIS) for Codex activities and Animal and Plant Health Inspection Service (APHIS) for OIE, IPPC, and NAPPO activities.
FSIS is responsible for publishing an annual notice in the
APHIS is responsible for publishing notice of OIE, IPPC, and NAPPO activities related to international standards and for representing the
Following are descriptions of the OIE, IPPC, and NAPPO organizations and the standard-setting agenda for each of these institutions. We have described the agenda that each of these organizations will address at their annual general sessions, including standards that may be presented for adoption or consideration, as well as other initiatives that may be underway at the OIE, IPPC, and NAPPO.
The agendas for these meetings are subject to change, and the draft standards identified in this notice may not be sufficiently developed and ready for adoption as indicated. Also, while it is the intent of the United States to support adoption of international standards and to participate actively and fully in their development, it should be recognized that the U.S. position on a specific draft standard will depend on the acceptability of the final draft. Given the dynamic and interactive nature of the standard-setting process, we encourage any persons who are interested in the most current details about a specific draft standard or the U.S. position on a particular standard-setting issue, or in providing comments on a specific standard that may be under development, to contact APHIS. Contact information is provided at the beginning of this notice under
The OIE was established in Paris, France, in 1924 with the signing of an international agreement by 28 countries. It is currently composed of 157 member nations, each of which is represented by a delegate who, in most cases, is the chief veterinary officer of that country. The WTO has recognized the OIE as the international forum for setting animal health standards, reporting global animal situations and disease status, and presenting guidelines and recommendations on sanitary measures relating to animal health.
The OIE facilitates intergovernmental cooperation to prevent the spread of contagious diseases in animals by sharing scientific research among its members. The major functions of the OIE are to collect and disseminate information on the distribution and occurrence of animal diseases and to ensure that scientifically justified standards govern international trade in animals and animal products. The OIE aims to achieve this through the development and revision of international standards for diagnostic tests, vaccines, and the safe international trade of animals and animal products.
The OIE provides annual reports on the global distribution of animal diseases, recognizes the free status of member countries for certain diseases, categorizes animal diseases with respect to their international significance, publishes bulletins on global disease status, and provides animal disease control guidelines to member countries.
The various OIE commissions and working groups undertake the initial analysis and preparation of draft standards, which are then circulated to member countries for consultation (review and comment). Draft standards are revised accordingly and then presented to the OIE General Session, which meets annually every May, for review and adoption. Adoption, as a general rule, is based on consensus of the OIE membership.
The next OIE General Session is scheduled for the third or fourth week of May 2002 in Paris, France. The Deputy Administrator for APHIS' Veterinary Services is the official U.S. delegate to the OIE. The Deputy Administrator intends to participate in the proceedings and will discuss or comment on APHIS' position on any standard up for adoption.
Revisions to the following chapters of the OIE International Animal Health Code are expected to be presented for adoption at the next General Session in May 2002:
1.
2.
3.
4.
5.
As a matter of process, these chapters are drafted (or revised) by ad hoc groups composed of technical experts nominated by the OIE Code Commission by virtue of their subject-area expertise (not their national affiliation). Once the ad hoc expert group completes its task of drafting a new chapter or revising an existing one, it is then distributed to member countries for review and comment. Typically, the OIE distributes the proposed or revised Code chapters to its member countries by late October of each year. The draft standard is revised by the Code Commission on the basis of relevant scientific comments received from member countries.
The United States (i.e., USDA/APHIS) intends to review and comment on all draft chapter revisions once it receives them from the OIE, most likely in late October or early November 2001. USDA/APHIS intends to distribute these drafts to the U.S. livestock industry, veterinary experts in various U.S. academic institutions, and other
Generally, if a country has concerns with a particular draft standard, and supports those concerns with sound technical information, the Commission will revise that standard accordingly and present the revised draft for adoption at the General Session in May. In the event that a country's concerns regarding a draft standard are not taken into account, that country may refuse to support the standard when it comes up for adoption at the General Session. However, each member country is obligated to review, comment, and make decisions regarding the adoption of standards strictly on their scientific merits.
In the next few years, the Code Commission is expected to establish ad hoc groups of experts to update and/or develop the standards for the following diseases:
1.
2.
3.
4.
The United States will consider its position on this new standard after it reviews a prepared draft.
In addition, the Code Commission anticipates establishing guidelines for the following issues:
1.
2.
3.
Every year at the General Session, two technical items are presented. At the May 2001 General Session, the following technical items were presented:
1.
2.
The information in this notice includes all the information currently available to us on OIE standards currently under development or consideration. Information on OIE standards is available on the OIE web page at
The IPPC is a multilateral convention adopted in 1952 for the purpose of securing common and effective action to prevent the spread and introduction of pests of plants and plant products and to promote appropriate measures for their control. Under the IPPC, the understanding of plant protection has been, and continues to be, broad, encompassing the protection of both cultivated and noncultivated plants from direct or indirect injury by plant pests. Activities addressed by the IPPC include the development and establishment of international plant health standards, the harmonization of phytosanitary activities through emerging standards, the facilitation of the exchange of official and scientific information among countries, and the furnishing of technical assistance to developing countries that are signatories to the IPPC.
The IPPC is placed under the authority of the FAO, and the members of the Secretariat of the IPPC are appointed by the FAO. The IPPC is implemented by national plant protection organizations in cooperation with regional plant protection organizations, the Interim Commission on Phytosanitary Measures (ICPM), and the Secretariat of the IPPC. The United States plays a major role in all standard-setting activities under the IPPC and has representation on FAO's highest governing body, the FAO Conference.
The United States became a contracting party to the IPPC in 1972 and has been actively involved in furthering the work of the IPPC ever since. The IPPC was amended in 1979, and the amended version entered into force in 1991 after two-thirds of the
The IPPC has been, and continues to be, administered at the national level by plant quarantine officials whose primary objective is to safeguard plant resources from injurious pests.
In the United States, the national plant protection organization is APHIS' Plant Protection and Quarantine (PPQ) program. The steps for developing a standard under the revised IPPC are described below.
Each member country is represented on the ICPM by a single delegate. Although experts and advisers may accompany the delegate to meetings of the ICPM, only the delegate (or an authorized alternate) may represent each member country in considering a standard up for approval. Parties involved in a vote by the ICPM are to make every effort to reach agreement on all matters by consensus. Only after all efforts to reach a consensus have been exhausted may a decision on a standard be passed by a vote of two-thirds of delegates present and voting.
Technical experts from the United States have participated directly in working groups and indirectly as reviewers of all IPPC draft standards. In addition, documents and positions developed by APHIS and NAPPO have served as the bases for many of the standards adopted to date. This notice describes each of the IPPC standards currently under consideration or up for adoption. The full text of each standard will be available on the APHIS Internet website at
The next ICPM meeting is scheduled for March 11-13, 2002. The Deputy Administrator for APHIS' PPQ program is the U.S. delegate to the ICPM. The Deputy Administrator intends to participate in the proceedings and will discuss or comment on APHIS' position on any standard up for adoption. The provisional agenda for the meeting is as follows:
1. Opening of the session.
2. Adoption of the agenda.
3. Report by the chairperson.
4. Report by the Secretariat.
5. Adoption of international standards (see section below entitled “IPPC Standards Up for Adoption in 2002” for details).
6. Items arising from the Third Session of the ICPM (see section below entitled “New Standard Setting Initiatives” for details).
7. Work program for harmonization.
8. Status of the 1997 revised IPPC.
9. Other business.
10. Date and venue of the next meeting.
11. Adoption of the report.
It is expected that the following standards will be sufficiently developed to be considered by the ICPM for adoption at its March 2002 meeting. The United States, represented by APHIS' Deputy Administrator for PPQ, will participate in the consideration of these standards. The U.S. position on each of these issues will be developed prior to the ICPM session and will be based on APHIS' analysis, information from other U.S. Government agencies, and relevant scientific information from interested stakeholders. The standards that are most likely to be considered for adoption include:
1.
2.
3.
4.
At this time, it appears likely that only the above standards will be presented for adoption at the next ICPM meeting in April 2002. The United States intends to support adoption of these standards at the April 2002 ICPM meeting.
A number of expert working group meetings or other technical consultations will take place during 2001 and early 2002 on the topics listed below. These standard-setting initiatives are not expected to be completed prior to March 2002 and, therefore, will not be ready for adoption at the 2002 ICPM session. Nonetheless, APHIS intends to participate actively and fully in each of these working groups. The U.S. position on each of the topics to be addressed by these various working groups will be developed prior to these working group meetings and will be based on APHIS' technical analysis, information from other U.S. Government agencies, and relevant scientific information from interested stakeholders.
1.
2.
3.
4.
5.
6.
7.
8.
For more detailed information on the above topics, which will be addressed by various working groups established by the ICPM, contact Mr. Narcy Klag (
Also, APHIS posts draft standards on its website (
NAPPO, a regional plant protection organization created in 1976 under the IPPC, coordinates the efforts among Canada, the United States, and Mexico to protect their plant resources from the entry, establishment, and spread of harmful plant pests, while facilitating intra- and inter-regional trade.
NAPPO conducts its business through panels and annual meetings held among the three member countries. The NAPPO Executive Committee charges individual panels with the responsibility for drawing up proposals for NAPPO positions, policies, and standards. These panels are made up of representatives from each member country who have scientific expertise related to the policy or standard being considered.
Proposals drawn up by the individual panels are circulated for review to government and industry officials in Canada, Mexico, and the United States, who may suggest revisions. In the United States, draft standards are circulated to industry, States, and various government agencies for consideration and comment. The draft standards are posted on the Internet at http://www.aphis.usda.gov/ppq/standards. Interested persons may submit comments via this website. Once revisions are made, the proposal is sent to the NAPPO working group and the NAPPO standards panel for technical reviews and then to the Executive Committee for final approval, which is granted by consensus.
The annual NAPPO meeting is scheduled for October 16-18, 2001, in Banff, Alberta, Canada. The Executive Committee meeting will take place on October 14, 2001, and a special session will be held on October 15, 2001, where industry groups can bring issues to the attention of the Executive Committee. The Deputy Administrator for APHIS' PPQ program is the U.S. member of the Executive Committee. The Deputy Administrator intends to participate in the proceedings and will discuss or comment on APHIS' position on any standard up for adoption in the event that there is no consensus on whether to adopt that standard.
The work plan for the year was established after the October 2000 Annual Meeting in San Diego, CA. The Deputy Administrator for PPQ participated in establishing this NAPPO work plan (see panel assignments below).
Below is a summary of current panel assignments as they relate to the ongoing development of NAPPO standards. USDA/APHIS intends to participate actively and fully in the work of each of these panels. The U.S. position on each topic will be guided and informed by the best scientific information available on each of these topics. Information regarding the following NAPPO panel topics, assignments, and activities, and updates on meeting times and locations, may be obtained from the NAPPO home page at
The panel will also collaborate with the NAPPO Pest Risk Analysis Panel to contribute to the development of
The PPQ Deputy Administrator, as the official U.S. delegate to NAPPO, intends to participate in the adoption of those regional plant health standards, including the work described above, once they are completed and ready for such consideration.
The information in this notice includes all the information available to us on NAPPO standards currently under development or consideration. For updates on meeting times and for information on the working panels that becomes available following publication of this notice, check the NAPPO web page at
Those wishing to provide comments on any of the topics being addressed by any of the NAPPO panels may do so at any time by responding to this notice (see
Farm Service Agency, USDA.
Notice of intent to make monies available to the State of California for grower losses due to Pierce's disease.
Section 203 of the Agricultural Risk Protection Act of 2000, Pub. Law 106-224, addresses losses caused to growers for losses due to Pierce's disease. As set out in this notice, it appears specifically that it was the intent of Congress that $7 million be made available to the State of California to cover such losses in that State. In this notice, it is proposed that the payment be made to the State should the State agree to undertake the disposition of the funds to growers under such standards as the State might develop.
Sharon Biastock, telephone (202) 720-6336.
Comments on this notice must be received by September 17, 2001 to be assured of consideration.
Submit written comments to:
Sharon Biastock, Production, Emergencies and Compliance Division, Farm Service Agency (FSA), STOP 0517, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250-0540, telephone (202) 720-6336; e-mail address: sharon_biastock@wdc.fsa.usda.gov.
Section 203(e) of the Agricultural Risk Protection Act of 2000 (ARPA), Public Law No. 106-224, provided in a subsection entitled “Grower Compensation” that of amounts made available under section 261(a)(2) of that
In order to assure that any funds for these losses are used to compensate grape growers for vine losses it is proposed in this notice that, as set forth in the Manager's Report accompanying this provision, that $7,140,000 be made available to the State of California for losses resulting from Pierce's disease infection spread by the Glassy-wing sharpshooter. These funds would be made available directly to the State and the State would decide how it would distribute funds among affected growers. All comments favorable or unfavorable to this disposition should be addressed to the person above by the indicated date.
By statute, the funds under section 203 must be expended by September 30, 2001. Accordingly, it does not appear feasible to do anything but make the payment to the State of California. The State would be allowed to deduct from the sums made available to growers those sums needed to administer the program. If the State was unwilling to take on the burden of disposing of the funds then the fund would go unexpended. As provided under section 804 of the 2001 Appropriations Act, any payments received by producers as a result of disbursements under section 203 of ARPA (that is, any disbursement resulting from the payment contemplated by this notice) would count against that person's eligibility under the program administered by CCC under section 804.
Forest Service, USDA.
Notice of meeting.
The Giant Sequoia National Monument Scientific Advisory Board (Scientific Advisory Board) will meet in Sequoia National Park, California, September 5 and 6, 2001. The purpose of the meeting is to hear comments from the public; affirm advisories drafted at the July meeting; review issues from the Giant Sequoia National Monument planning team; and initiate discussions for developing Advisories on issues.
The meeting will be held September 5 and 6, from 8 a.m. to 5 p.m. One half-day of the meeting is reserved for a field visit to parts of Sequoia National Park and Giant Sequoia National Monument.
The meeting will be held at Wuksachi Lodge, 64720 Wuksachi Way, Sequoia National Park, California.
To receive further information, contact Arthur L. Gaffrey, 559-784-1500.
The meeting is open to the public. If you are planning to attend either day, please contact Arthur L. Gaffrey to ensure adequate seating. Guidelines for the public participation portion of the Scientific Advisory Board's meeting are as follows: The public will be allowed to address the Scientific Advisory Board during the first 30 minutes of the meeting on September 5; when registering participants must provide a written copy of their presentation for inclusion in the meeting minutes; oral presentations may be no more than 5 minutes in length, depending on the number of people wishing to address the Scientific Advisory Board, priority for presentations will be given to persons who did not make a presentation at the July meeting; and all presentations must be related to the science surrounding the development of the Management Plan for the Giant Sequoia National Monument. Some members of the Scientific Advisory Board may participate in the meeting via telephone. In that event, arrangements will be made to enable the public to listen to all the members participating in the meeting.
A field visit to parts of the Sequoia National Park and Giant Sequoia National Monument is planned for part of the meeting. The field visit is also open to the public. Anyone wishing to attend the field visit must provide his or her own transportation. Carpooling is encouraged. Written comments for the Scientific Advisory Board may be submitted to Forest Supervisor Arthur L. Gaffrey, Sequoia National Forest, 900 West Grand Avenue, Porterville, California 93257.
A final agenda can be obtained by contacting Arthur L. Gaffrey or by visiting the Giant Sequoia National Monument web site at www.r5.fs.fed.us/giant_sequoia.
Natural Resources Conservation Service, USDA
Announcement of availability of funds and request for applications for a Cooperative Agreement for the development of a farm nutrient budgeting tool that addresses manure, organic by-products, and commercial fertilizers.
The Natural Resources Conservation Service (NRCS) announces the availability of FY 2001 funds under the Conservation Technical Assistance program. Applications are being solicited for a Cooperative Agreement to develop a farm nutrient budgeting tool that addresses manure, organic by-products, and commercial fertilizers. Funding for this agreement is authorized by Section 714 of the FY 2001 Agricultural Appropriations Act, Public Law 106-387. Animal Feeding Operations (AFO) has come under scrutiny due to the potential adverse impact AFO can have on water quality if not managed properly. AFO operators are developing nutrient management plans to address the use of commercial fertilizers, manure, and other organic by-products for crop production which minimizes adverse impact on water quality. Due to the technical complexities involved in developing nutrient management plans, a simplified approach needs to be developed that will allow AFO operators to explore science-based planning alternatives.
1. A page is 8.5 inches by 11 inches; one side only, with 1-inch margins at the top, bottom, and one side.
2. Use a font that is 12-point or larger, or no smaller than 10-point (characters per inch). The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. In addition to the narrative supporting, information in relation to the selection criteria, which is readable, executable from a CD-ROM, or located on a web site, will be allowed. Furthermore, the information will not be counted against the four-page limitation.
An application will be rejected if Part III does not comply with the page limit restrictions or the minimum font size.
1. The development of nitrogen, phosphorus, and potassium nutrient budgets at the farm level for manure, organic by-products and commercial fertilizers; land grant university fertilizer requirements; and determination of manure nutrients generated on-farm for each major animal sector. (40)
2. The functionality, ease of use, and the comprehensiveness of documentation provided by the proposed tool. (40)
3. The qualifications, knowledge, and experience of individuals identified in the proposal as they relate to nutrient management and science-based tool development; and the capability of proposed staffing to complete the proposal within the period of the cooperative agreement.
The maximum score for all the above criteria is 100 points.
NRCS reserves the right to negotiate with the Project Director and/or the submitting entity regarding project revisions (e.g. reductions in scope of work), funding level, or period of support prior to award. A proposal may be withdrawn at anytime before a final funding decision is made. A copy of each proposal that is not selected for funding (including those that are withdrawn) will be retained by NRCS for one year.
To file a complaint of discrimination to USDA, write USDA Director, Office of Civil Rights, Room 326-W, Whitten Building, 14th and Independence Avenue, SW, Washington, DC 20250-9410, or call (202) 720-5964 (voice and TDD).
USDA is an equal opportunity provider and employer.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletion from Procurement List.
The Committee is proposing to add to the Procurement List commodities and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete commodity previously furnished by such agencies.
September 17, 2001.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Louis R. Bartalot (703) 603-7740.
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on
If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice for each commodity or service will be required to procure the commodities and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the commodities and services to the Government.
2. The action will result in authorizing small entities to furnish the commodities and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46—48c) in connection with the commodities and services proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following commodities and services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action will result in authorizing small entities to furnish the commodities and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the commodities and services proposed for deletion from the Procurement List.
The following commodity is proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
September 17, 2001.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Louis R. Bartalot (703) 603-7740.
On June 15 and June 29, 2001, the Committee for Purchase From People Who Are Blind or Severely Disabled published notices (66 FR 32598 and 34612) of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the services and impact of the additions on the current or most recent contractors, the Committee has determined that the services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. The action will not have a severe economic impact on current contractors for the services.
3. The action will result in authorizing small entities to furnish the services to the Government.
4. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-
Accordingly, the following services are added to the Procurement List:
This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the Nebraska Advisory Committee to the Commission will convene at 10:00 a.m. and adjourn at 1:00 p.m. on August 24, 2001, at the Doubletree Hotel, 1616 Dodge, Omaha, Nebraska 68102. The purpose of the meeting is to plan future activities.
Persons desiring additional information, or planning a presentation to the Committee, should contact Melvin L. Jenkins, Director of the Central Regional Office, 913-551-1400 (TDD 913-551-1414). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Import Administration, International Trade Administration, Department of Commerce.
Notice of amended preliminary antidumping duty determination of sales at less than fair value and postponement of final determination: certain folding gift boxes from the People's Republic of China.
August 17, 2001.
Thomas Schauer or George Callen, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0410 and (202) 482-0180, 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 to the provisions codified at 19 CFR part 351 (2000).
The Department of Commerce (the Department) is amending the preliminary determination of sales at less than fair value in the antidumping duty investigation of certain folding gift boxes from the People's Republic of China (PRC) to reflect the correction of significant ministerial errors made in the margin calculations regarding Max Fortune Industrial Ltd. (Max Fortune) and Red Point Paper Products Co., Ltd. (Red Point), in that determination, pursuant to 19 CFR 351.224(g)(1) and (g)(2). A ministerial error is defined as an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial. See 19 CFR 351.224(f). A significant ministerial error is defined as an error, the correction of which, singly or in combination with other errors, would result in (1) a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination; or (2) a difference between a weighted-average dumping margin of zero or
The products covered by this investigation are certain folding gift boxes. Certain folding gift boxes are a type of folding or knock-down carton manufactured from paper or paperboard. Certain folding gift boxes are produced from a variety of recycled and virgin paper or paperboard materials, including, but not limited to, clay-coated paper or paperboard and kraft (bleached or unbleached) paper or paperboard. The scope of the investigation excludes gift boxes manufactured from paper or paperboard of a thickness of more than 0.8 millimeters, corrugated paperboard, or paper mache. The scope of the investigation also excludes those gift boxes for which no side of the box, when assembled, is at least nine inches in length.
Certain folding gift boxes are typically decorated with a holiday motif using various processes, including printing, embossing, debossing, and foil stamping, but may also be plain white or printed with a single color. The subject merchandise includes certain folding gift boxes, with or without handles, whether finished or unfinished, and whether in one-piece or multi-piece configuration. One-piece gift boxes are die-cut or otherwise formed so that the top, bottom, and sides form a single, contiguous unit. Two-piece gift boxes are those with a
Imports of the subject merchandise are classified under
On July 30, 2001, the Department issued its affirmative preliminary determination in this proceeding. See
On August 6, 2001, the Department received timely allegations of ministerial errors in the
The Department has reviewed its preliminary calculations and agrees that the errors which Red Point and Max Fortune alleged are ministerial errors do constitute ministerial errors within the meaning of 19 CFR 351.224(f). Furthermore, we determine these are ministerial errors which rise to the level of “significant errors” pursuant to 19 CFR 351.224(g)(1) and (g)(2), and we are amending the
The collection of bonds or cash deposits and suspension of liquidation will be revised accordingly and parties will be notified of this determination, in accordance with section 733(d) and (f) of the Act.
As a result of our correction of ministerial errors, we have determined that the following weighted-average dumping margins apply. In accordance with section 733(d) of the Act, we are directing the Customs Service to suspend liquidation of all imports of subject merchandise from the PRC, except for subject merchandise produced and exported by Max Fortune (which has a
The PRC-wide rate has not been amended, and applies to all entries of the subject merchandise except for entries from exporters/producers that are identified individually above.
Section 735(a)(2)(A) 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. 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 August 8, 2001, Red Point requested that the Department postpone its final determination until November 12, 2001 (which is not later than 135 days after the date of the publication of the preliminary determination in the
In accordance with section 733(f) of the Act, we have notified the ITC of our amended preliminary determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of the preliminary determination or 45 days after our final determination whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation, of the subject merchandise.
Because of the aforementioned postponement of the final
If this investigation proceeds normally, we will make our final determination no later than November 13, 2001.
This determination is issued and published in accordance with sections 733(f), 735(a)(2), and 777(i)(1) of the Act and 19 CFR 351.210(b)(2).
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit for preliminary results of antidumping new shipper review.
August 17, 2001.
John Conniff at (202) 482-1009 or Chris Brady at (202) 482-4406, Office of AD/CVD Enforcement, Group II, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave, NW., Washington, DC 20230.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR part 351 (2001).
On January 30, 2001, the Department received a request from Groupstars Chemical, Co., Ltd., to conduct a new shipper review of the antidumping order on potassium permanganate from the People's Republic of China. On March 8, 2001, the Department published its initiation of this new shipper review covering the period of January 1, 2000, through December 31, 2000 (66 FR 13895). The preliminary results are currently due no later than August 27, 2001.
Section 351.214(i)(1) of the Department's regulations requires the Department to make a preliminary determination within 180 days after the date on which the new shipper review was initiated. However, if the Secretary concludes that a new shipper review is extraordinarily complicated, under § 351.214(i)(2) of the Department's regulations the Secretary may extend the 180-day period to 300 days.
Due to the issue discussed in the memorandum to Bernard T. Carreau, we have determined that this new shipper review is extraordinarily complicated. Therefore, the Department is extending the time limit for completion of the preliminary results until no later than December 25, 2001.
This extension is in accordance with section 751(a)(2)(B)(iv) of the Act and § 351.214(i)(2) of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
Notice of initiation and preliminary results of changed circumstances review of the antidumping duty order, and intent to revoke order in part.
In accordance with 19 CFR 351.225(c), Sensormatic Electronics Corporation (Sensormatic) filed a request for a clarification of the scope of the antidumping duty order on certain stainless steel sheet and strip in coils from Germany with respect to the specialty stainless steel strip product described in the “Scope of Changed Circumstances Review” section, below. Alternatively, Sensormatic requested the Department conduct a changed circumstances review of the antidumping duty order and revoke the order with regard to the specific product at issue, in accordance with 19 CFR 351.216(b). Domestic producers of the like product have expressed no interest in continuation of the order with respect to this particular stainless steel product.
In response to Sensormatic's request, the Department of Commerce (the
August 17, 2001.
Robert M. James, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0649.
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, as amended (the Tariff Act), by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations as codified at 19 CFR part 351 (2000).
The Department published the antidumping duty order on stainless steel sheet and strip in coils from Germany on July 27, 1999.
On July 5, 2001, domestic producers of the like product (Allegheny Ludlum Corporation, Armco, Inc., J&L Specialty Steel, Inc., Washington Steel Division of Bethlehem Steel Corporation, United Steelworkers of America, AFL-CIO/CLC, Butler Armco Independent Union, and Zanesville Armco Independent Organization) informed the Department that, consistent with the position stated during the less-than-fair-value investigation, they have no objection to Sensormatic's request.
The products covered by this order are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTS) at subheadings: 7219.13.00.30, 7219.13.00.50, 7219.13.00.70, 7219.13.00.80, 7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05, 7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05, 7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36, 7219.33.00.38, 7219.33.00.42, 7219.33.00.44, 7219.34.00.05, 7219.34.00.20, 7219.34.00.25, 7219.34.00.30, 7219.34.00.35, 7219.35.00.05, 7219.35.00.15, 7219.35.00.30, 7219.35.00.35, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.12.10.00, 7220.12.50.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.20.70.05, 7220.20.70.10, 7220.20.70.15, 7220.20.70.60, 7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. Although the HTS subheadings are provided for convenience and Customs purposes, the Department's written description of the scope of this order is dispositive.
Excluded from the scope of this order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
Flapper valve steel is also excluded from the scope of the order. This product is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (
The product subject to this changed circumstances antidumping duty administrative review is a permanent magnet iron-chromium-cobalt stainless steel strip containing, by weight, 13 percent chromium, 6 percent cobalt, 71 percent iron, 6 percent nickel and 4 percent molybdenum. The product is supplied in widths up to 1.27 cm (12.7 mm), inclusive, with a thickness between 45 and 75 microns, inclusive. This product exhibits magnetic remanence between 400 and 780 nWb, and coercivity of between 60 and 100 oersteds. This product is currently supplied under the trade name “SemiVac 90.”
Pursuant to sections 751(d)(1) and 782(h)(2) of the Tariff Act, the Department may revoke an antidumping or countervailing duty order, in whole or in part, based on a review under section 751(b) of the Tariff Act (
In accordance with sections 751(d)(1) and 782(h)(2) of the Tariff Act, and 19 CFR 351.216 and 351.222(g), domestic producers of the like product, Allegheny Ludlum Corporation, Armco, Inc., J&L Specialty Steel, Inc., Washington Steel Division of Bethlehem Steel Corporation, United Steelworkers of America, AFL-CIO/CLC, Butler Armco Independent Union, and Zanesville Armco Independent Organization, have made affirmative statements that no further interest exists in continuing the order with respect to the permanent magnet iron-chromium-cobalt stainless steel strip product known as SemiVac 90 described above (
Therefore, we are hereby notifying the public of our intent to revoke in part the antidumping duty order with respect to imports of the specialty magnet stainless steel strip product from Germany, currently supplied as SemiVac 90, meeting the specifications outlined above.
If the final revocation in part occurs, we intend to instruct the U.S. Customs Service to liquidate without regard to antidumping duties, as applicable, and to refund any estimated antidumping duties collected for all unliquidated entries of certain stainless steel strip products meeting the specifications indicated above, not subject to final results of administrative review as of the date of publication in the
Interested parties are invited to comment on these preliminary results. Parties who submit argument in this proceeding are requested to submit with the argument (i) a statement of the issue, and (ii) a brief summary of the argument. Parties to the proceedings may request a hearing within 14 days of publication of this notice. Any hearing, if requested, will be held no later than two days after the deadline for the submission of rebuttal briefs, or the first workday thereafter. Case briefs may be submitted by interested parties not later than 14 days after the date of publication of this notice. Rebuttal briefs and rebuttals to written comments, limited to the issues raised in those comments, may be filed not later than five days after the deadline for submission of case briefs. All written comments shall be submitted in accordance with 19 CFR 351.303 and shall be served on all interested parties on the Department's service list in accordance with 19 CFR 351.303. Persons interested in attending the hearing should contact the Department for the date and time of the hearing.
The Department intends to publish in the
This notice is published in accordance with section 751(b)(1) of the Tariff Act and 19 CFR 351.216 and 351.222.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary affirmative countervailing duty determination and preliminary affirmative critical circumstances determination.
August 17, 2001.
Eric B. Greynolds at (202) 482-6071 or Stephanie Moore (202) 482-3692, Office of AD/CVD Enforcement VI, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
The petition in this investigation was filed by the Coalition for Fair Lumber Imports Executive Committee, the United Brotherhood of Carpenters and Joiners, and the Paper, Allied-Industrial, Chemical and Energy Workers International Union. The Coalition for Fair Lumber Imports Executive Committee is comprised of Hood Industries, International Paper Company, Moose River Lumber Company, New South Incorporated, Plum Creek Timber Company, Polatch Corporation, Seneca Sawmill Company, Shearer Lumber Products, Shuqualak Lumber Company, Sierra Pacific Industries, Swift Lumber Incorporated, Temple-Inland Forest Products, and Tolleson Lumber Company, Incorporated. On April 20, 2001, the petition was amended to include the following four companies individually as petitioners: Moose River Lumber Co., Shearer Lumber Products, Shuqualak Lumber Co. and Tolleson Lumber Co., Inc. These parties are collectively referred to as the petitioners.
Since the publication of the notice of initiation in the
On May 10, 2001, the Natural Resources Defense Council, the Defenders of Wildlife, the Northwest Ecosystem Alliance, along with the Grand Council of the Cree and the Interior Alliance, submitted new subsidy allegations. Supplementary information on these allegations was filed on June 1, 2001, and on June 15, 2001, the Nishnawbe Aski Nation submitted an additional subsidy allegation.
On June 5, 2001, petitioners also submitted additional subsidy allegations. Based upon the information on the record, we have decided to initiate investigations on only certain of the new subsidy allegations made by petitioners.
On June 5, 2001, we issued a partial extension of the due date for this preliminary determination from June 27, 2001 to July 27, 2001.
On July 23, 2001, we extended the due date of this preliminary determination by an additional 13 days to August 9, 2001.
On July 27, 2001, we amended our
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 CVD regulations are to the regulations codified at 19 CFR part 351 (2001).
The products covered by this investigation are softwood lumber, flooring and siding (softwood lumber products). Softwood lumber products include all products classified under headings 4407.1000, 4409.1010, 4409.1090, and 4409.1020, respectively, of the Harmonized Tariff Schedule of the United States (HTSUS), and any softwood lumber, flooring and siding described below. These softwood lumber products include:
(1) Coniferous wood, sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding six millimeters;
(2) Coniferous wood siding (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed;
(3) Other coniferous wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges or faces (other than wood mouldings and wood dowel rods) whether or not planed, sanded or finger-jointed; and
(4) Coniferous wood flooring (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rabbeted, chamfered, V-jointed, beaded, molded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed.
Although the HTSUS subheadings are provided for convenience and U.S. Customs purposes, the written description of the merchandise under investigation is dispositive.
In the
In our review of the comments, we found that certain products, raised by several respondents, are acknowledged by petitioners as being outside the scope of the investigation. Those products fall into the following two groups:
A. Products made of lumber, but in which the lumber has been processed into another product, and are classified as such in the HTSUS:
1. Trusses;
2. I-Joist beams;
3. Pallets;
4. Fence pickets;
5. Bed frames;
6. Garage doors;
7. Large edge-glued lumber panels, used in furniture or door manufacturing, classified under HTSUS item 4421;
8. Properly classified complete door frames;
9. Properly classified complete window frames;
10. Properly classified furniture.
B. Products that are outside the scope, but only if they meet certain requirements:
1.
2.
3.
4.
5.
6.
We have preliminarily determined that the products listed in groups (A) and (B) above are outside the scope of this investigation. With regard to all other products, we have determined that, because of the large number of requests, the even larger number of products, and, in some instances, deficiencies in the information currently on the record, it is not practicable for the Department to complete the analysis of each request by the issuance of the notice of preliminary determination. Therefore, we have requested additional information. (
In our notice of initiation, we asked for comments on a system to process the expected large number of exclusion requests. This request had the purpose of ensuring that the Department had the opportunity to process the highest number of requests, but did not in any way imply that companies could not submit a request for exclusion in accordance with the CVD Regulations, at any time prior to the preliminary determination.
We received comments from respondents and petitioners. The GOC proposed a system of streamlined procedures. Under this system, applications for exclusion would be pre-approved by the GOC and submitted to the Department grouped into categories with identical relevant facts, accompanied by a set of government certifications. The Department could then consider the criteria and the process for categorizing the companies to determine whether the group as a whole should be excluded. On the other side, petitioners argued that the Department does not have the authority under the URAA to grant exclusions in an aggregate case. The petitioners also emphasized that, should the Department decide to entertain company exclusion requests, (1) the required certifications must categorically indicate freedom from subsidization of the requester, its affiliates, and, if the requester is not a lumber producer, its lumber suppliers; and (2) the Department must have verified that the excluded company's output is free from subsidization. In addition, petitioners argued that the production/sales of any excluded company must be removed from the denominator before calculating a country-wide rate. Respondents argued to the contrary that the statute requires the country-wide rate to be based on “industry-wide” data.
On July 27, 2001, the Department amended its initiation and exempted the Maritimes from investigation, a decision which affected hundreds of Canadian lumber producers.
On August 8, 2001, the GOC submitted 95 company-specific applications for exclusion. The applications are grouped under six headings: two cover 78 independent re-manufacturers, three cover 13 lumber producers, purchasing logs at arm's length, from private lands, or from U.S. suppliers, and the last group covers 4 companies asking for exclusion based on receipt of
While the original intent of the GOC was to make it possible for the Department to review the criteria on a group-wide basis, rather than by individual applications, we found that this approach would not allow for a thorough analysis of this submission primarily for two reasons: (1) Within the groups there were underlying issues requiring specific information that was not provided (for instance, a number of companies within all groups indicated that they had affiliates, and yet certifications were not provided in most instances for those companies); and (2) we found inaccuracies in the documentation submitted (for instance, company certifications that did not cover the entire period of investigation and government certifications not covering all the programs under investigation). Therefore, the analysis required an examination of each individual request.
Because of the time constraints, we focused on the groups that were the most manageable. We looked at the applications of the lumber mills that purchased logs in arm's-length transactions, from private lands, and that used U.S. origin logs only. We found only one company, Frontier Lumber, that meets the requirements for exclusion. For all other applications, either the requester had affiliated companies for which proper certification was not provided, or the requester did not specifically indicate whether or not it had operated as a non-producing exporter during the period of investigation, or the company certification was incomplete. A complete analysis of the requests is provided in the August 9, 2001 Memorandum to Bernard T. Carreau from Maria MacKay and Gayle Longest on Company Exclusion Requests in the Countervailing Duty Investigation on Softwood Lumber from Canada, which is on public file in the CRU.
Those companies included in the August 8, 2001, request that were not preliminarily excluded from the investigation as a result of today's preliminary determination, as well as any additional companies that will have submitted proper exclusion requests before the August 31, 2001, deadline will be given the opportunity to address deficiencies in their request to determine whether they should be excluded in the final determination. We intend to continue working closely with both the individual requesters and the GOC on this issue as the investigation proceeds.
Because Canada is a “Subsidies Agreement country” within the meaning of section 701(b) of the Act, the International Trade Commission (ITC) is required to determine whether imports of the subject merchandise from Canada materially injure or threaten material injury to a U.S. industry. On May 23, 2001, the ITC's preliminary determination finding that there is a reasonable indication that an industry in the United States is being threatened with material injury by reason of
On August 8, 2001, petitioners submitted a letter requesting alignment of the final determination in this investigation with the final determination in the companion antidumping duty investigation. Therefore, in accordance with section 705(a)(1) of the Act, we are aligning the final determination in this investigation with the final determination in the antidumping duty investigation of certain softwood lumber products from Canada.
The period of investigation (POI) for which we are measuring subsidies is April 1, 2000, through March 31, 2001, which is the most recently completed fiscal year of the GOC.
The petition contains allegations of critical circumstances, as defined by section 703(e) of the Act, with respect to imports of certain softwood lumber products from Canada.
In a submission dated July 27, 2001, respondents argued that the statutory prerequisites for the Department to make a critical circumstances determination are not present. The respondents contend, among other things, that: (i) There are no subsidies inconsistent with the Subsidies Agreement; (ii) the alleged Ontario program was terminated in 1995; (iii) the alleged programs are not specific; (iv) any benefit that could be calculated for the alleged Quebec programs would be
In accordance with 19 CFR 351.206(c)(2)(i), because the petitioners submitted a critical circumstances allegation more than 20 days before the scheduled date of the preliminary determination, the Department must issue a preliminary critical circumstances determination not later than the date of the preliminary determination.
Section 703(e)(1) of the Act provides that the Department, upon receipt of a timely allegation of critical circumstances, will determine whether there is a reasonable basis to believe or suspect that:
(A) The alleged countervailable subsidy is inconsistent with the Subsidies Agreement, and
(B) There have been massive imports of the subject merchandise over a relatively short period.
The purpose of the critical circumstances provisions is to ensure that massive imports following the filing of a petition do not “undermine seriously the remedial effect of the countervailing duty order to be issued * * *”
The purpose of the Department's preliminary critical circumstances determination is to preserve the possibility of this retroactive relief where there is reasonable cause to believe or suspect that such relief may be warranted by taking the limited step of suspending liquidation of entries during the period ninety days prior to the preliminary determination. Section 703(e)(2) of the Act and 19 CFR 351.206(a). The Department's analysis is limited to the two factors set forth in section 703(e)(1). For purposes of a final determination whether retroactive relief is warranted, other factors are considered by the ITC in its final determination.
We note that the focus of the first statutory criterion is the nature of the alleged countervailable subsidy,
Although respondents do not contest that export subsidies are inconsistent with the Agreement, they argue that an affirmative preliminary determination of critical circumstances requires that the benefit from such programs be above
The Department has examined critical circumstances in only two other preliminary CVD determinations under the current Act.
The cases relied upon by respondents pre-date the URAA, which amended the critical circumstances provisions and included, for the first time, the definition of a countervailable subsidy discussed above. The Department believes that the approach taken in the pre-URAA cases would represent an inappropriate interpretation of the current statute. To follow the approach taken in that line of cases, we would have to go beyond the definition of countervailable subsidy and read into the current preliminary critical circumstances provisions a requirement that could frustrate the purpose of preserving the possibility of retroactive relief through the limited step of suspending liquidation pending the outcome of the full investigation.
In accordance with the statute and regulations, subsequent to the issuance of our preliminary determination, we will have an opportunity to verify the information concerning these subsidy programs and the parties will have an opportunity to present written briefs and have a public hearing to further examine the issue of critical circumstances. However, at this preliminary stage, based upon the available information, the Department has a reasonable basis to believe or suspect that there are alleged countervailable subsidies inconsistent with the Subsidies Agreement. Therefore, the first prong of section 703(e)(1) of the Act is satisfied.
In determining whether there are “massive imports” over a “relatively short period,” pursuant to section 703(e)(1)(B) of the Act, the Department normally compares the import volume of the subject merchandise for three months immediately preceding the filing of the petition (
Section 351.206(h)(1) of the CVD regulations provides that, in determining whether imports of the subject merchandise have been “massive,” the Department normally will examine: (i) The volume and value of the imports; (ii) seasonal trends; and (iii) the share of domestic consumption accounted for by the imports. As noted above, the Department's analysis is limited to whether there were massive imports. Some factors that respondents urge the Department to consider are not relevant to that inquiry and, therefore, have not been factored into this analysis. Whether those factors may be relevant to the ITC's final inquiry is, of course, a matter for the ITC to determine.
In addition, § 351.206(h)(2) of the CVD regulations provides that an increase in imports of 15 percent or more during the “relatively short period” of time may be considered “massive.” Section 351.206(i) of the CVD regulations defines “relatively short period” as normally being the period beginning on the date the proceeding begins (
Based upon U.S. Census import data and an examination of the information on the record of the investigation, we find that there is a seasonal element that affects imports of lumber from Canada.
As discussed above, on July 27, 2001, the Department amended its notice of initiation of the CVD investigation to exempt the Maritime Provinces (New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland) from this investigation. We compared the import volume during the period January through March 2001 (the base period) with the seasonally adjusted import volume during the period April 2001 through June 2001 (the comparison period), and found that, relative to the first quarter, lumber imports from Canada, net of the Maritime Provinces, increased by 23.34 percent in the comparison period.
Therefore, pursuant to section 703(e) of the Act and §§ 351.206(h) and (i) of the CVD Regulations, we preliminarily determine that there have been massive imports of lumber from Canada over a relatively short period of time. Therefore, we find that the second prong of the statute has been satisfied.
As a result of this analysis, we find that both prongs of the statute regarding critical circumstances have been met. Therefore, we preliminarily determine that critical circumstances exist.
We will make a final determination concerning critical circumstances when we make our final determination of countervailable subsidies.
In the
Under § 351.524(d)(2) of the CVD Regulations, we will presume the allocation period for non-recurring subsidies to be the average useful life (AUL) of renewable physical assets for the industry concerned, as listed in the Internal Revenue Service's (IRS) 1977 Class Life Asset Depreciation Range System, as updated by the Department of the Treasury. The presumption will apply unless a party claims and establishes that these tables do not reasonably reflect the AUL of the renewable physical assets for the company or industry under investigation, and the party can establish that the difference between the company-specific or country-wide AUL for the industry under investigation is significant.
In this investigation, the Department is considering non-recurring subsidies. Regarding non-recurring subsidies, we have allocated, where applicable, all of the non-recurring subsidies provided to the producers/exporters of subject merchandise over the AUL listed in the IRS tables for the softwood lumber industry. Therefore, in accordance with § 351.524(d)(2) of the CVD Regulations, the Department is using an allocation period of 10 years. No interested party has challenged the 10 year AUL derived from the IRS tables.
Because this investigation is conducted on an aggregated basis (except as otherwise discussed below), for those programs requiring a Canadian dollar-denominated discount rate or the application of a Canadian dollar-denominated, long-term benchmark interest rate, we used for our preliminary determination the national-average interest rates on commercial long-term, Canadian dollar-denominated loans as reported by the GOC. The information reported by the GOC was for fixed-rate long-term debt.
Some of the investigated programs provided long-term loans to the softwood lumber industry with variable interest rates instead of fixed interest rates. Because we were unable to gather information on variable interest rates charged on commercial loans in Canada, we have used as our benchmark for those loans the rate applicable to long-term fixed interest rate loans for the POI as reported by the GOC.
The major subsidy allegations in this investigation are the timber management systems maintained by the provinces. Petitioners have alleged that the stumpage fees paid to harvest and cut timber by softwood lumber producers, which are set by the provincial governments, confer a countervailable benefit on the production and exportation of the subject merchandise. This type of subsidy constitutes the provision of a good or a service under section 771(5)(D)(iii) of the Act. Under § 351.524(c)(1) of the CVD Regulations, subsidies conferred by the government provision of a good or service provide recurring benefits. Therefore, any benefits conferred by the provinces' administered stumpage programs have been expensed in the year of receipt.
The Department is also investigating a number of other programs which provide grants to producers and exporters of softwood lumber. Under § 351.524 of the CVD Regulations, benefits from grants can either be classified as providing recurring or non-recurring benefits. Recurring benefits are expensed in the year of receipt, while grants providing non-recurring benefits are allocated over time corresponding to the AUL of the industry under investigation. However, under § 351.524(b) of the CVD Regulations, grants which provide non-recurring benefits will also be expensed in the year of receipt if the amount of the grant under the investigated program is less than 0.5 percent of relevant sales during the year in which the grant was approved (referred to as the 0.5 percent test). Except where specifically noted in this preliminary determination, the grants provided under the investigated programs were less than 0.5 percent of the relevant sales of softwood lumber, and, thus, were expensed in the year of receipt.
In this preliminary determination, we are investigating programs administered both by the GOC as well as by the individual provinces. For the programs administered by the GOC, we divided the aggregate benefit conferred by each of the federal programs by the total value of Canadian softwood lumber sales. For programs administered by the relevant provinces, we calculated the program subsidy rate by dividing the aggregate benefit conferred by each specific provincial program by the total sales of softwood lumber from that province (or total export sales of softwood lumber if the provincial program was an export subsidy). We did not, as requested by respondents, calculate province-specific rates. To calculate the overall subsidy conferred on the subject merchandise from all investigated countervailable subsidy programs, we weight-averaged each provincial subsidy program by the provinces' relative shares of total U.S. exports of the investigated subject merchandise, which, as explained above, does not include exports from the Maritime Provinces.
As noted above, one company, Frontier Lumber, qualified for a company exclusion. Our normal practice would be to deduct that company's sales from our sales denominator in calculating the Canada-wide subsidy rate. However, given the size of the company's sales, we have not made an adjustment because any adjustment would have no effect on the calculated subsidy rate for any of the investigated programs.
Petitioners have alleged that the stumpage programs administered by the provinces of British Columbia, Quebec, Ontario, Alberta, Manitoba, and Saskatchewan provide Canadian softwood lumber producers with countervailable benefits.
Petitioners have also made the same allegation with respect to the Yukon Territory, Northwest Territories, and timber sold on federal land. However, we have not examined these stumpage programs in this determination because the amount of exports from the two Territories and from federal land is insignificant. Thus, these programs would have no measurable effect on any subsidy rate calculated for this investigation. We will revisit this issue for the final determination.
In order to confer a countervailable benefit, a program must be provided to a specific enterprise or industry or group of enterprises or industries, it
Subsidies contingent upon export performance or the use of domestic goods over imported goods are by definition deemed to be specific in accordance with section 771(5A) of the Act. For other subsidies, in accordance with section 771(5A)(D)(i) of the Act, if the law enacting the program expressly limits the subsidy program to an enterprise or industry, the program is
Where there are reasons to believe that a subsidy may be specific as a matter of fact, the subsidy is specific if one or more of the following factors exists:
(I) The actual recipients of the subsidy, whether considered on an enterprise or industry basis, are limited in number.
(II) An enterprise or industry is a predominant user of the subsidy.
(III) An enterprise or industry receives a disproportionately large amount of the subsidy.
(IV) The manner in which the authority providing the subsidy has exercised discretion in the decision to grant the subsidy indicates that an enterprise or industry is favored over others.
The statute states that any reference under section 771(5A)(D) to an enterprise or industry includes a group of enterprises or industries. In accordance with § 351.502(a) of the CVD Regulations, the Department, in analyzing whether a subsidy is
Congress, in the SAA explained how the Department's specificity analysis should be conducted.
To determine whether the provincial stumpage programs are specific under the law, we examined the programs based upon the criteria set forth under section 771(5A)(D)(iii) of the Act. Information on the programs is contained in the provincial government responses.
A review of the responses from the provincial governments shows that there are two different types of companies which benefit from the investigated stumpage programs: (1) Sawmills and (2) pulp and paper mills.
Because there are only two industries, sawmills and pulp mills, that use provincial stumpage programs, we preliminarily determine that the provincial stumpage programs are specific under section 771(5A)(D)(iii)(I) of the Act.
In addition to being specific, a countervailable subsidy program must provide a financial contribution. Section 771(5)(D)(iii) of the Act states that the provision of a good or service (other than general infrastructure) by a government constitutes a financial contribution under the statute. We preliminarily determine that the provision of stumpage by the provincial governments constitutes the provision of a good or service under section 771(5)(D)(iii) of the Act. Thus, we preliminarily determine that the provincial governments have provided a financial contribution as defined under section 771(5)(D) of the Act to Canadian softwood lumber producers.
After determining that the provincial stumpage programs are specific under section 771(5A)(D)(iii) of the Act, and that these programs provide a financial contribution in the form of the provision of a good or service under section 771(5)(D)(iii) of the Act, we must then determine whether this specific financial contribution provides a benefit.
Under section 771(5)(E)(iv) of the Act, a benefit is conferred by a government when the government provides the good or service for less than adequate remuneration. Section 771(5)(E) further states that the adequacy of remuneration
The word “remuneration” is defined as “[payment] for goods provided, services rendered, or losses incurred.” American Heritage Dictionary. The question presented is what constitutes “adequate” payment for a good or service. To discern the meaning of the word “adequate,” we must look to the wording of this particular provision of the statute, the corresponding provision in the WTO Subsidies Agreement upon which the statute is based, and the larger context in which this provision appears.
In interpreting the phrase “less than adequate” remuneration, we must also bear in mind the purpose of section 771(5)(E). The purpose is to determine whether the recipient of the financial contribution—in this case a good or service—has received a benefit. A benefit is something that is favorable or advantageous. A review of section 771(5)(E) shows that the term “benefit” is used to mean something better than the recipient could otherwise obtain in the market, e.g., a government interest rate lower than the commercial rate for a comparable loan. Section 771(5)(E)(iii). Therefore, we also
This interpretation of the term “adequate remuneration” is further consistent with the larger context in which this provision appears both in the statute and the Subsidies Agreement. In addition to the case where goods or services are provided for less than adequate remuneration, section 771(5)(E) of the Act refers to three other instances of a countervailable benefit and provides guidance on how to measure those benefits. In the case of an equity infusion, paragraph (i) provides that a benefit exists “* * * if the investment decision is inconsistent with the usual investment practice of private investors, * * *, in the country in which the equity infusion is made.” In the case of a loan, paragraph (ii) provides that a benefit exists “* * * if there is a difference between the amount the recipient of the loan pays on the loan and the amount the recipient would pay on a comparable commercial loan that the recipient could actually obtain on the market.” In the case of a loan guarantee, paragraph (iii) provides that a benefit exists “* * * if there is a difference, * * *, between the amount the recipient of the guarantee pays on the guaranteed loan and the amount the recipient would pay for a comparable commercial loan if there were no guarantee by the authority.” These provisions reflect almost verbatim the language of paragraphs (a), (b), and (c) of Article 14 of the Subsidies Agreement.
The point of comparison for measuring the benefit from these types of subsidies is the marketplace free of government interference. References in the statute and the Subsidies Agreement to the “usual investment practice of private investors,” “commercial loans” that can actually be obtained “on the market,” and a “comparable commercial loan if there were no guarantee by the authority” support this conclusion. It follows from this central principle—common to all the other provisions under the benefit section, both in the statute and the Subsidies Agreement—that the adequacy of remuneration must be measured by reference to the marketplace free of government interference.
Additional support for this conclusion is found in the chapeaus of section 771(5)(E) and Article 14 of the Subsidies Agreement. The introduction to the benefit section in the statute states that “A benefit shall normally be treated as conferred where there is a benefit to the recipient [.]” Similarly, the title of Article 14 is “Calculation of the Amount of a Subsidy in Terms of the Benefit to the Recipient.” From the perspective of the recipient of a subsidy, the true measure of the benefit derived from any government largesse is by reference to what the recipient would have had to pay for the physical or financial good or service in the marketplace, absent any government involvement. Thus, while one could argue that, from the government's perspective, remuneration could be considered “adequate” as long as it covers the costs to the government of providing the good or service, the cost-to-government standard is wholly inappropriate from the perspective of the private recipient. This is because the cost to the government does not necessarily measure the price at which the private recipient could have obtained the good or service in the marketplace free of government interference.
The concept of benefit in the statute derives from the Subsidies Agreement. A recent WTO dispute settlement panel stated that:
The WTO Appellate Body stated:
Section 771(5)(E)(iv) ensures that, whatever standard is used to assess the adequacy of the remuneration required by the government, that standard must be reasonable and must take into account the market factors in the country under investigation that could affect the measurement of the adequacy of the remuneration. For example, the commercial benchmark must be derived from comparable sales,
It is not necessary that the benchmark come from sales of the good or service within the country under investigation, as respondents argue. The statute requires that the analysis be made “in relation to” prevailing market conditions in the country under investigation, not “in” the country under investigation. Thus, we find no basis in the statute for the restrictive reading proposed by respondents. Moreover, such a restrictive reading would place beyond the reach of the countervailing duty law any government supplier that dominates the market for a particular input and then provides that input to producers at beneficial prices. Under such a reading, subsidy disciplines would only be available to remedy situations where the government has subsidized only an incidental part of the market for a particular input. We may not interpret the statute in a manner that would frustrate its very purpose.
In sum, the key elements of a methodology to determine whether a government has provided a good or service at less than adequate remuneration as required by section 771(5)(E) are: (1) The comparability of prevailing market conditions; and (2) a market-based standard. These elements are reflected in the methodologies established in the Department's Regulations.
Section 351.511(a)(2) of the CVD regulations sets forth three methodologies for determining whether a government good or service is provided for less than adequate remuneration. These methodologies are listed in hierarchical order: (1) Market prices from actual transactions within the country under investigation; (2) world market prices that would be available to purchasers in the country of exportation; or (3) an assessment of whether the government price is consistent with market principles.
This hierarchy is based on a logical preference for achieving the objectives of the statute. The simplest means of determining whether the government required adequate remuneration is by comparison with private transactions for a comparable good or service in the country. Thus, the first methodology in the hierarchy calls for a comparison with an actual market-determined price from a private supplier either within the
The first preference, specified under § 351.511(a)(2)(i), is to compare the government price with a market-determined price resulting from actual transactions in the country in question. Such a price could include prices stemming from actual transactions between private parties, actual imports, or in certain circumstances, actual sales from competitively-run government auctions. In considering such transactions or sales, the Department will take into account product similarity; quantities sold, imported, or auctioned; and other factors affecting comparability.
Further guidance on the use of market-determined prices stemming from actual transactions within the country is provided in the Preamble to the CVD Regulations.
The Preamble also states that the Department normally will not adjust such market-determined prices under this methodology to account for government distortion of the market because such distortion will normally be minimal as long as the government involvement in the market is not substantial. If the government provider constitutes a majority, or a substantial portion of the market, then such prices in the country will no longer be considered market-based and will not be an appropriate basis of comparison for determining whether there is a benefit.
The second approach in the regulatory hierarchy is the use of world market prices that
The regulation also states that, where there is more than one commercially available world market price, the Department will average such prices to the extent practicable, making due allowance for factors affecting comparability. Such averaging would only be called for where we conclude that more than one world market price, i.e., prices from more than one foreign source, would be commercially available to purchasers in the country of exportation.
It is important to note that, if the private prices within the country subject to investigation were in fact market-based, they would necessarily reflect the world market price available in the country of exportation. Therefore, there should be no difference between the private prices in the country of exportation and world market prices, except for import taxes. To the extent there are any differences, this just underscores the distorted nature of the private prices where the government dominates a particular sector of the economy.
In selecting a world market price, the Department will examine the circumstances in the case to determine if a purchaser in the country could obtain the good or service on the world market. Normally, such a world market price is a market-based price at which the good or service could be imported. Thus, it should also indicate the price of that good or service that we would find in the exporting country if that price were market-based. As discussed in the Preamble, the Department will:
This approach is reasonable and consistent with the intent of the statute since it furthers the statutory directive that subsidization be measured on a market basis and in relation to prevailing market conditions.
To determine whether the provincial governments have provided a countervailable benefit to Canadian softwood lumber producers, we must examine whether stumpage was provided to softwood lumber producers for less than adequate remuneration. As we have noted above, the Department must first determine whether there are market prices within Canada which can be used to measure whether the provincial stumpage programs provide a good or service for less than adequate remuneration.
The Provinces of Alberta, Ontario and Quebec have provided private stumpage prices charged within their respective provinces. British Columbia provided stumpage prices set by government auction. As a starting point, these prices reported by all four Provinces would be considered prices based upon actual transactions within the country under investigation, as described in our regulations. However, an examination of the information on the record demonstrates that the private stumpage prices reported by the Provinces do not constitute market-determined prices within the meaning of § 351.511(a)(2)(i) of the CVD Regulations.
In each of the Provinces, the stumpage market is driven by the provincial governments' ownership and control of
• British Columbia—94 percent provincial, 1 percent federal, and 5 percent private;
• Quebec—89 percent provincial and 11 percent private;
• Ontario—83 percent provincial, 1 percent federal, and 17 percent private;
• Alberta—57.4 percent provincial, 10.8 percent federal, and 28.5 percent private;
• Manitoba—94 percent provincial, 1 percent federal, and 5 percent private; and
• Saskatchewan—97 percent provincial, 2 percent federal, and 1 percent private.
In addition, the softwood harvest from Crown lands accounts for approximately 70 to 90 percent of the stumpage sold within each of the Provinces. Therefore, between 70 and 90 percent of the good or service within each of the provinces is provided by the government. Further, the apparent minimum cut requirements on public lands have the potential to distort timber supplies and depress prices. Since stumpage fees on public lands are the price driver for the stumpage market in those Provinces, we conclude that the stumpage fees on private lands are largely derivative of the public land prices and are therefore distorted.
We considered additional information on the record with respect to each of the Provinces examined for this preliminary determination. For example, Quebec provided a private price that was obtained via a survey of 81 companies that had purchased private stumpage during the POI. However, as even acknowledged by the Quebec Ministry of Natural Resources, private stumpage prices in Quebec are affected by the administratively-set price for public stumpage.
Neither Manitoba nor Saskatchewan reported prices on private stumpage sales within the provinces.
British Columbia did not provide private stumpage prices. Instead, the Province provided prices from the auctions the government runs under the Small Business Forest Enterprise Program (SBFEP). As the name of the program indicates, the SBFEP auction is only open to small businesses that are registered as small business forest enterprises. Thus, the overwhelming majority of the purchasers of this government good or service is explicitly excluded from this auction. Moreover, only a small percentage of stumpage in British Columbia is sold via SBFEP auction. Therefore, the SBFEP auction prices submitted by British Columbia cannot be used as benchmark prices under § 351.511(a)(2)(i) of the CVD Regulations.
A large government presence in the market will tend to make much smaller private suppliers price-takers. While it is not unusual for small suppliers to be price-takers even in a market with no government involvement, the government-dominated market will distort the market as a whole if the government does not sell at market-determined prices. In such a situation, true market prices may not exist in the country, or it may be difficult to a find a “market” price that is independent of the distortions caused by the government's action. In fact, where the market for a particular good or service is so dominated by the presence of a government monopoly or near monopoly, the remaining private prices in the country in question cannot be considered to be market-based. Such circumstances are present in this investigation. Because of the provincial governments' control of the market through a system of administratively-set prices and other market distorting measures, there is no market-determined price for stumpage within Canada that is independent of the distortion caused by the governments' interference in the market. Therefore, we preliminarily determine that we cannot use the private transaction prices provided by the provincial governments.
Information on the record of this investigation indicates that there are prices from the world market for comparable goods which can be used to determine whether the provincial stumpage programs provide a good or service to softwood lumber producers for less than adequate remuneration. For the reasons detailed below, we preliminarily determine that stumpage prices from the United States qualify as commercially available world market prices because it is reasonable to conclude that U.S. stumpage would be available to softwood lumber producers in Canada at the same prices available to U.S. lumber producers.
There are no restrictions on obtaining stumpage on private and state lands in the United States. Furthermore, timber harvested in the United States is imported into Canada, and imports from the United States account for almost 100 percent of all Canadian timber imports. Such imports represent a decision made by Canadian mills to purchase U.S. stumpage instead of Canadian stumpage. Finally, we note that some of the largest softwood lumber producers in Canada have operations in both Canada and in the United States and obtain stumpage in both countries.
The United States, like Canada, is one of the world's largest softwood timber producers, and the North American softwood timber region is geographically separated from other softwood timber markets throughout the world. Thus, given the costs of transporting timber across the ocean, it is unlikely that Canadian softwood lumber producers would obtain stumpage from a country other than the United States. For these reasons, we preliminarily determine that it is reasonable to conclude that the world
We also conclude that the price for stumpage in the United States is a market-determined price. The majority of softwood-producing forest land in the United States is held by private concerns. Furthermore, stumpage for harvestable timber, whether sold from private parties or from state land, is sold through an open competitive process available to all buyers. Thus, the stumpage prices in the United States, unlike those in Canada, are set by market forces.
The cross-border stumpage prices that we have used are based on sales from state lands. While our preferred benchmark would be a weighted average of both state and private prices in the United States, we have been unable at this time to locate adequate private sales data, except for sales in Maine. Therefore, for purposes of this preliminary determination, we have used sales data from only state lands.
Public land stumpage fees, such as those available on state lands, accurately reflect market-based prices because they are determined by public auctions available to all comers. These sales involve competitive bidding where most purchasers have the choice of buying public or private stumpage. Moreover, it is reasonable to conclude, for purposes of this preliminary determination, that stumpage fees from public lands are a suitable benchmark because the total volume of timber cut from public land constitutes a minority of the amount of total timber sold in the United States, making private timber sales the primary driver of stumpage fees in the timber market overall. Although we maintain that stumpage rates from state lands are an appropriate benchmark under these circumstances, we intend to continue examining sources for timber prices from private lands in the United States for use in the final determination.
We have received numerous comments on whether cross-border prices can serve as a benchmark to measure the benefit conferred from the provincial stumpage programs. The petitioners support the use of cross-border prices, while respondents oppose it.
In addressing this issue, it is useful to start with the different legal frameworks governing this investigation as compared with
There are several important differences between the discarded preferentiality standard and the current adequate remuneration standard. Preferentiality is a measure of price discrimination,
With the changes in the CVD law as a result of the URAA, and the Subsidies Agreement upon which the URAA is based, the price discrimination test was dropped in favor of adequate remuneration. Under this standard, the government price must be compared with a market-determined price. It is no longer sufficient to say that the government does not discriminate among buyers. Rather, as discussed above, we must determine whether the government is receiving adequate remuneration,
As noted above, under the adequate remuneration methodology, if there is no market-determined price within the country under investigation, the Department seeks a price on the world market (if one is available). However, under the preferentiality methodology, the use of a price on the world market was the last alternative. The preferentiality methodology required the Department to measure the benefit from the government's provision of a good or service by comparing the government's price for that good to its cost of providing that good before using a world market price. Therefore, under the preferentiality methodology, the Department was effectively precluded from using a price from the world market in most cases.
Many comments made by respondents criticize the use of a cross-border price by reference to contrary statements made by the Department in
Respondents further point out that there is no unified North American market for stumpage because each individual stand of timber is unique due to a variety of factors such as species combination, density, quality, size, age, accessibility, terrain and climate. While we agree in part with this statement, the differences in individual stands of timber are just as applicable to comparisons within Canada as they are with cross-border comparisons. For example, private lands in Quebec tend to be located in the southern portion of the province, whereas Crown lands tend to be located north of the St. Lawrence. All parties agree that the topography, climate, and biological characteristics of trees in northern and southern Quebec are very different. In fact, information on the record indicates that the terrain, climate, and mix of species in southern Quebec are much more similar to those in Maine than they are to those in the northern part of the province.
Further, despite statements that the Department may have made in earlier lumber cases, the fact that individual stands may be to some extent unique does not mean that all stands are so dissimilar as to render any stumpage price comparisons meaningless and unreasonable. Rather, information on the record indicates that, despite minor differences, many softwood lumber stands in Canada and the United States are in fact sufficiently similar to allow appropriate comparisons of stumpage prices across borders.
As a general matter, there is nothing about the border between the United
While there may be some information on the record that is conflicting, based on an analysis of all of the facts on the record, we preliminarily determine that the timber in Canada is comparable to that in the northern border states of the United States with respect to quality, species, terrain, availability, and marketability. This is why we have chosen stumpage prices from states which border Canada as appropriate benchmark prices. We have also, where possible, made comparisons on a species-specific basis, and we have accounted for numerous other adjustments claimed by the Provinces, as explained below in the narrative descriptions of the individual provincial stumpage programs. We welcome comments from the parties as to whether additional adjustments are warranted.
Respondents also argue that stumpage in the United States is not available to purchasers in Canada and that therefore the Department may not consider the price of stumpage in the United States to be an appropriate benchmark. These arguments are clearly at odds with the language of the statute and the CVD Regulations, and they are at odds with the factual findings discussed above. The location of the good is not the relevant point of the regulation, it is the availability of the price for that good. Furthermore, as discussed above, we have concluded that U.S. stumpage is in fact available to Canadian lumber producers. For instance, Canadian border mills routinely obtain U.S. stumpage, underscoring the fact that U.S. stumpage prices are actually paid by Canadian producers.
In fact, U.S. prices are very much an “in-country” price from the perspective of many Canadian mills, including some of the largest mills. U.S. prices are a routine part of the business calculations of many Canadian mills, particularly the border mills in Quebec, mills located in the Maritimes, and the large multinational mills in the Pacific northwest. Regardless of where the Canadian purchaser is located, the purchaser has access to U.S. stumpage and can offer bids at any U.S. public auctions. Indeed, we have already received, and we anticipate receiving still more, exclusion requests from companies located near the U.S. border that routinely use both U.S. and Canadian stumpage. Thus, U.S. prices are clearly part of the prevailing market conditions in Canada.
The Department notes, as the above analysis makes clear, that there is little difference between actual import transactions under the first tier and world market prices under the second tier of the adequate remuneration hierarchy. While the regulation draws a distinction between an actual, observable import transaction and a world market price that would be available to producers in the country, the fact is that world market prices are also based on actual transactions equally available in Canada. For this reason, we maintain that there is no practical distinction between a market stumpage price in Canada (if such a price existed) and a market stumpage price in the United States that is available to Canadian producers. Because there is no meaningful commercial distinction between the two, any effort to draw a legal distinction between them represents a hypertechnical reading of the statute that elevates form over substance.
Respondents also object to using prices of imported logs. Presently, there is inadequate information on the record of this investigation regarding U.S. logs imported into Canada. Thus, we did not consider imported log prices as a benchmark for this preliminary determination. However, we note that the CVD Regulations provide for the use of import prices, and we will continue to examine information related to actual log imports into Canada. We note that, when a Canadian producer imports logs from the United States, that producer has paid for U.S. stumpage. If the costs of harvesting, transportation, and profit, are deducted from the price of the logs, whether the U.S. logs are purchased in Canada or in the United States, the price of the U.S. stumpage is derived. Therefore, we believe there is a reason to consider there to be no difference between the purchase of stumpage in the United States and the purchase of logs imported into Canada from the United States.
Thus, after considering the information on the record, we preliminarily determine that cross-border stumpage prices are the appropriate comparison prices to measure whether the provincial governments have provided a good or service to softwood lumber producers at less than adequate remuneration. For each of the provincial stumpage programs, we have compared the administratively-set stumpage price charged to softwood lumber producers with the cross-border stumpage benchmark prices. Using this methodology, we preliminarily determine that each of the provincial stumpage programs provides a benefit to Canadian softwood lumber producers by providing stumpage for less than adequate remuneration.
In conclusion, we preliminarily determine that the provincial stumpage programs are countervailable because they are specific under section 771(5A)(D) of the Act, they provide a financial contribution under section 771(5)(D)(iii) of the Act, and they confer a benefit under section 771(5)(E)(iv) of the Act.
Below, we describe the stumpage programs for each of the investigated provinces and provide the calculated
The Government of Quebec (GOQ) makes standing timber on Crown land available to those parties that have purchased harvesting rights. These rights, often referred to as stumpage rights, apply to a particular area of Crown land and entitle the purchaser to harvest standing timber at a price that is set by the GOQ's Ministry of Natural Resources (MRN), the agency responsible for administering the sale of standing timber on Crown lands. The price that the MRN charges for stumpage rights varies depending on where the timber stand is located. In previous years, the MRN divided the Crown lands into 28 zones and charged different prices for each zone. According to the GOQ, these zones, or tariffing zones, delineated areas that were similar in terms of climate, tree size, topography, species mix, etc. Until 1999, the tariffing zones contained both Crown and private lands. However, in 1999 the GOQ amended the Forestry Act, the legislation that governs the sale of standing timber on Crown land. Pursuant to this amendment, the GOQ expanded the number of tariffing zones in April of 2000 to 161 in order to ensure maximum homogeneity in each zone. Further, as a result of the amendment, privately-owned forests were no longer located within any of the tariffing zones.
In Quebec, there are four ways through which the MRN sells stumpage rights: Timber Supply and Forest Management Agreements (TSFMAs), Forest Management Contracts (FMCs), Annual Forest Management Permits (AFMPs), and public auctions.
TSFMA licences account for virtually all standing timber harvested on Crown lands. During the POI, TSFMAs
FMCs are similar to TSFMAs in that they are also subject to the stumpage prices charged by the MRN. In addition, holders of FMCs are responsible for the same types of silviculture activities as those covered by TSFMAs. The MRN usually enters into FMCs with non-profit organizations or municipalities. FMCs normally cover relatively small forest areas. During the POI, FMCs accounted for less than one percent of the softwood Crown timber harvest.
Standing timber on Crown lands is also available through AFMPs. Pursuant to sections 79, 93, 94, 95, and 208 of the Forest Act, AFMPs permit the harvest of less desirable forms of timber, often referred to as slash and cull, for use in energy production and metallurgical purposes. The MRN issues AFMPs provided that it deems the production of the applicant sufficient and that the slash and cull harvest promotes the growth of stands in a particular forest area. Less than one percent of the standing timber in Quebec is harvested under AFMPs.
The fourth method involves the sale of standing timber on public reserves through public auctions. Public reserves are forest areas in which no timber supply and forest management agreement is in force. However, while these public auctions are permissible under GOQ law, the MRN has yet to sell any publicly-owned timber under this method.
Aside from managing the sale of standing timber on Crown lands, the MRN collects information on the price of standing timber in private forests. Private market prices for standing timber are obtained through a survey of companies that purchase standing timber from private forests. The Quebec Institute of Statistics (the Institute), under the aegise of the MRN, conducts a census of all purchases of privately-held timber every 3 years. Between each census, the MRN conducts a survey of private purchasers using randomly selected respondents. These surveys are based on actual transactions of private purchasers and mainly cover the purchase of trees in the spruce, pine, and fir species group. The most recent analysis of private stumpage prices in Quebec took place in 2000. Of the 190 major companies trading standing timber, 81 responded to the survey. All companies included in the survey have traded at least 4,000 cubic meters of standing timber in the last four years. The GOQ states that the survey covered the private forest in its entirety as well as all 15 territories managed by private wood producers' syndicates and marketing boards.
Once the survey is complete, the Institute compiles a value for each private forest territory covered by a syndicate or wood producer's marketing board. The Institute then weights these values by the volume of timber purchased by each respondent. The GOQ explains that the purpose of this step is to improve the statistical accuracy in the calculation of the average market value of standing timber in private forests. The Institute then obtains a single, province-wide average of the survey respondents, referred to as the Market Value of Standing Timber (MVST), by attributing a weight corresponding to the total trading volume for each wood producers' association territory.
The MRN, as required by the Forestry Act, uses a system called the parity technique to determine the stumpage value the MRN charges to TSFMA and FMC licences. Under the parity technique, the MRN employs a complex formula which adjusts the private MVST in order to account for relative differences that exist between the private MVST and the tariffing zone to be appraised. The MRN then calculates an individual stumpage rate that will be charged in each tariffing zone.
The MRN employs the parity technique by gauging the operating costs for each of the 161 tariffing zones, the private forest (where costs are lowest), and at the northernmost limit of demand (where costs are highest). These operating costs include harvest costs, road construction and maintenance costs, transportation costs to mill and market, logging camp costs, and specific tenure costs. The GOQ states that the operating costs are derived from cost indices that quantify the average biophysical characteristics of each zone (
In addition to making an adjustment for relative operating costs, the characteristics of wood from each tariffing zone are compared with those of wood from the private forest to determine their impact on processing costs and the value of the products they are able to produce. According to the GOQ, this quality adjustment, introduced in 1999, takes into account the impact of average diameter, species distribution, rot percentages, and log taper on log processing costs and sawn product value. The GOQ states that consideration of these characteristics, which are quantified into a public quality and private quality index, allow the value of wood in each tariffing zone to be adjusted according to the
Upon establishing the operating and quality adjustments, the MRN calculates a minimum stumpage rate. The GOQ states that for the fir-spruce-jack pine-larch species group, the minimum stumpage rate is comprised of the average cost of silviculture treatments in the common areas forming the northernmost demand limit. A basic rate of C$1 per cubic meter ($1996), indexed annually pro-rata to changes in the market value of private forest standing timber, is included in the minimum stumpage rate. The GOQ states that during the POI, the minimum stumpage unit rate was C$3.53 per cubic meter.
Lastly, the MRN indexes the MVSTs that are charged in each of the tariffing zones on the first of each quarter in order to account for any price changes in the private forest market price that may have occurred since the most recently completed census or survey of private market prices.
As explained above, the MRN calculates an administered stumpage price for each tariffing zone. According to the MRN, there is no distinction between sawlogs and pulplogs when setting the stumpage price. Thus, to arrive at the administered stumpage rates used in our stumpage calculations, we divided the total softwood stumpage fees paid by TSFMA permit holders during the POI for each species by the total softwood stumpage harvested under TSFMAs during the POI for each species. In this manner, we obtained a weighted-average stumpage price per species that was paid by TSFMA permit holders during the POI. According to information submitted by the GOQ, the softwood stumpage harvested under TSFMAs is equal to the total timber harvested for lumber processing plants (
Under TSFMAs, each TSFMA holder must become a member of SOPFEU and pay the corresponding dues. The Department granted this adjustment in
In addition, TSFMA holders must belong to SOPFIM and pay its membership fees. The Department granted this adjustment in
Prior to fiscal year 1996-1997, the cost of the forestry fund was borne entirely by the MRN. However, beginning in fiscal year 1997-1998, the MRN required TSFMA holders to contribute to the Forestry Fund. The Fund provides financial support for seedling production, inventory data, and forestry research activities. Because this is a cost imposed on TSFMA holders by the GOQ, we have made an adjustment for the Fund by dividing the TSFMA holders' total contributions during the POI by the total harvest under TSFMAs during the POI.
TSFMA holders construct and maintain primary, secondary, and tertiary roads for their logging operations. Because those roads are available for public use, they must meet government standards. We granted this adjustment in
We note that for purposes of this preliminary determination, we have not made an adjustment for haulage roads. According to the GOQ, haulage roads are final branches of a road network the surface of which is composed entirely of natural materials. The GOQ further explains that haulage roads are generally used for one year or less. At this time, we preliminarily determine that haulage roads must be constructed and maintained each time a timber stand is harvested, as opposed to more permanent primary, secondary, and tertiary roads, and, thus, are costs that are borne by all timber harvesters regardless of the level of development of the roads that are within the area in which the standing timber is located and regardless of whether the standing timber was purchased from public or private sources.
We further note that prior to the issuance of our final determination, we will examine whether purchasers of stumpage in private forests in Maine incur road construction and maintenance costs and, if so, the amount of those costs and the extent to which they should offset the road construction and maintenance adjustment granted to producers in Quebec.
Under the TSFMA tenure arrangement, companies must perform silviculture treatments in order to achieve a sustained yield. The GOQ indicates that it credits most of the silviculture costs towards the stumpage dues paid by TSFMA permit holders. However, the GOQ also states that it does not credit certain costs. Specifically, these expenses pertain to control and planning costs associated with silviculture activities and to costs associated with the transportation of seedlings.
Regarding the control and planning costs, the GOQ submitted a study conducted on behalf of the MRN by Del Degan, Massé et Associés inc. that covered fiscal year 1997-1998. This study analyzed the supply costs of harvesting softwood species and poplars found on Quebec's Crown land.
In
As explained above, we have preliminarily determined that stumpage prices in the United States provide the most accurate benchmark. In the case of Quebec, it is bordered by four states: New York, Vermont, New Hampshire and Maine. While data on stumpage prices are available for all four states, our preliminary analysis of the data available to us at this time indicates that the data for Maine are the most comprehensive. For example, New York, Vermont, and New Hampshire are based on a limited number of survey respondents while the stumpage prices collected by the Maine Forest Service (MFS) are based on approximately 3,000 landowner reports received by the MFS that reported stumpage sales in 2000. In addition, among the four states, Maine has the longest border with Canada. Prior to our issuance of the final determination we will further examine our decision to use Maine data as the benchmark stumpage price as well as our decision not to use the data from New York, Vermont, and New Hampshire.
The MFS report provided weighted-average prices for each species in Maine in U.S. dollars per thousand board feet (MBF). We converted these U.S. prices into Canadian dollars using the average exchange rate for calendar year 2000 as reported by the Central Bank of Canada. Next, we converted these figures from MBF into cubic meters using the conversion factor of 5.66. We note that this is the same conversion factor that was used by the ITC. See Conditions Relating to the Importation of Softwood Lumber into the United States, USITC Publication 1241, April 1982, which was placed on the record of this investigation on August 9, 2001. We then calculated the difference (unadjusted) between provincial and Maine stumpage prices for each softwood species harvested in provincial forests. To arrive at a weighted price difference, we weighted each species' price difference in proportion to its share of the TSFMA harvest for fiscal year 2000-2001. We then reduced this weighted price difference by the amount of each adjustment described above to arrive at the adjusted price difference.
To calculate the benefit under Quebec's stumpage system, we first multiplied the adjusted price difference described above by the total softwood harvested by TSFMAs during the POI. Next, we calculated the provincial benefit by dividing the product of the adjusted price difference and the total softwood harvested by TSFMAs during the POI by the total value of softwood lumber shipments plus the total value of by-products for the POI. This methodology of calculating the benefit is similar to the one used in
Although there are 11 forms of agreements that authorize the granting of rights to harvest Crown timber in British Columbia (eight are in the form of licences and three provide harvesting rights in the form of permits), there are three main types: (1) Tree Farm Licenses, (2) Forest Licenses, and (3) Timber Sale Licenses.
Tree Farm Licenses (TFLs) are area-based tenures. Licensees occupy and continuously manage forests in a specific area. Each TFL specifies a term of 25 years and describes the Crown and private lands included within the license. The licensees are responsible for costs associated with planning and inventories. These would include Forest Development Plans, Management Plans, various resource inventories and assessments, as well as other costs including road building, harvesting, basic silviculture, stumpage and annual rent.
Forest Licenses are volume-based tenures in that they confer the right to harvest a certain amount of timber each year within a given Timber Supply Area without designating a specific area of land. A Forest License has a maximum duration of 20 years. Approval to harvest specific timber under a Forest License is accomplished though the issuance of Cutting Permits. The licensees are responsible for costs associated with planning, road building, harvesting, basic silviculture, and payment of stumpage and annual rent.
Timber Sale Licenses grant the right to harvest timber within a specific Timber Supply Area or TFL Area. Timber Sale Licences have a maximum term of 10 years. Section 20 and 23 sales typically have a one-year term; Section 21 sales have terms averaging 4 or 5 years. Section 20 and 21 are under the Small Business Forest Enterprise Program (SBFEP). Section 20 licenses are awarded to the bidder with the highest bonus bid, which is the amount the bidder is willing to pay on top of the upset rate (minimum rate). Section 21 bidders compete on the basis of a set of criteria which includes bonus bids, employment, new capital investment, existing plant, proximity of the plant to the timber supply, the value added through the manufacturing process, and similar criteria. Section 23 sales involve very small volumes harvested for salvage purposes.
The timber pricing system for all tenures are generally determined by two appraisal systems, the Comparative Value Pricing (CVP) system and the Market Pricing System (MPS). The CVP system is used to set stumpage for all tenures except (1) competitive Timber Sale Licenses issued under sections 20 and 21 of the SBFEP, and (2) those qualifying under the “Coast Hemlock Strategy.” Under these exceptions, the MPS is used. The CVP is a means of charging specific stumpage prices according to the relative value of each stand of timber being sold. Comparative value prices are established so that the average rate charged will equal a pre-set target rate per cubic meter. The relative value of each stand depends upon estimates of the selling price and the cost of producing the end products. Two base rates are established for the province, one for the Coast average market value zone (the Coast), and the other for the remainder of the province (the Interior).
The MPS, established in January, 1999, uses results of the SBFEP section 20 auction sales to set the “upset” stumpage rate for upcoming “competitive” timber sales under sections 20 and 21. MPS estimates the
Since the government provides stumpage at administratively-set prices that, even after accounting for differences in forest management and harvesting obligations (as described below), are generally lower than the benchmark stumpage prices that the government obtains from other companies, we preliminarily determine that the B.C. provincial government is providing stumpage for less than adequate remuneration.
We used as our volume information for British Columbia softwood logs (including sawlogs and veneer, and excluding pulplogs) harvested by the major tenure holders in the province during the POI. We also did not include timber harvested on private or federal lands, both of which, represent small percentages of softwood sawlogs harvested in B.C. (approximately 10 percent and less than one percent by volume, respectively, province-wide). We included in our administratively-set prices stumpage sold through the SBFEP.
Although the price-determining factors are different between administratively-set stumpage sales in B.C. and market-driven stumpage sales in Washington state, an examination of stumpage prices alone is not sufficient to determine whether timber is provided for less than adequate remuneration. Tenure holders in B.C. are required to fulfill certain forest management and timber-harvesting obligations, including silviculture and other forest management activities. Therefore, it is necessary to factor in certain cost adjustments to the administered prices in B.C. to reflect the costs of certain mandatory activities that are not factored into the administered price.
For the following adjustments made by the Department, with the exception of reported annual rents, we relied on cost data submitted by respondents, and taken from surveys conducted by the Ministry of Forests (MOF) for Coastal B.C., summarized and reviewed by Pricewaterhouse Coopers (PwC), and a survey developed and conducted directly by PwC for Interior B.C. The PwC report represents data from calendar year 2000. PwC was engaged by the MOF to collect and review certain cost data from major license holders specifically for purposes of this investigation. We did not include any cost adjustments associated specifically with the SBFEP. For all adjustments, we relied on costs borne by major tenure holders, since respondents provided cost data based on survey responses of major tenure holders.
For the Coastal survey, PwC summarized and reviewed survey responses conducted by the MOF. Major licensee cost data was summarized for the Head Office, Forestry, and Engineering Component (
For the Interior, since a calendar year 2000 survey has not yet been completed by the MOF, an independent survey was developed and conducted by PwC. Responses were compiled from major licensees whose calendar year 2000 harvest volume equaled approximately 63 percent of the total harvest volume.
In responding to the surveys, no licensees reported any operations on private lands for the Interior. However, Coastal data includes costs incurred on Crown and any private lands a licensee may own, but this is limited to holders of Tree Farm Licenses. Respondents point out that costs per cubic meter with regard to forest management responsibilities, including silviculture and road construction and maintenance, would generally be the same for both private and Crown land within a Tree Farm Area, since the licensee responsibilities mandate the same activities in the same areas (
Based on the cost data submitted by respondents, we made the following adjustments to the administered prices in order to obtain an appropriate comparison with the benchmark prices:
(1) Annual ground rents, reported on a per cubic meter basis, were included as an adjustment because they are charges for reserving the use of the resource under license, and are imposed whether or not timber is harvested.
(2) Major tenure holders are required to perform certain activities pertaining to the reforestation of their timber stands. These activities, referred to as silviculture, are broken down into two types—basic and incremental. Major tenure holders must perform basic silviculture, which includes surveying, site preparation, planting, brushing, weeding, spacing and seedling. Incremental silviculture activities, which are not required by law, take place after the establishment of a free growing crop of trees. These activities are not the responsibility of tenure holders. In limited instances, a licensee may perform incremental silviculture on a voluntary basis. We added basic silviculture costs incurred by major tenure holders to the administered rate since major licensees are required to perform these activities, whereas private harvesters in Washington state are not required to do so. For Coastal B.C., we took the reported basic silviculture costs and divided by the reported production volume to arrive at a per cubic meter cost. We applied the same calculation for the Interior, based on reported cost and volume information contained in the PwC survey results. We included an adjustment for reported field overhead and general and administrative expenses associated with these activities. We made no adjustment for costs related to incremental silviculture activities for either the Coast or Interior because major tenure holders are not required to perform these activities.
(3) Major tenure holders are required to perform forest protection activities on Crown lands, including fire prevention
(4) There are certain general classifications of roads associated with logging in B.C. Primary (mainline) roads are intended for regular and ongoing traffic. These are roads that require extensive engineering, excavation and construction. Secondary, or operational, roads are generally intended for a lower volume of traffic, and built on a less permanent basis than a mainline road. Cutblock, or on-block, roads enable harvesting to take place on a single cutblock, and are often only sufficient for the movement of crews and equipment. These are temporary roads (typically used for a single season) that require little, if any, maintenance.
Respondents report that major tenure holders are responsible for building and maintaining mainline, operational and cutblock roads. All Crown lands are generally for public use, except where safety concerns may prevent their use. Respondents provided information on road and bridge building and maintenance costs for major licensees, indicating that maintenance of all forest roads is the responsibility of the industrial user, and that roads used by major tenure holders require ongoing maintenance.
Private harvesters in Washington state often must factor in costs for construction and maintenance associated with all roads not considered to be primary roads. Therefore, we included as an adjustment only that portion of the reported costs for road and bridge building, road and bridge maintenance, deactivation (the removal of the road surface and sub-surface, including culverts, to return the roaded area to its original natural state), field overhead and general and administrative expenses that relate to mainline roads only. Since the Government of British Columbia (GBC) did not provide a full breakdown for mainline and operational road costs for both the Coast and Interior, we relied on cost information provided in the Coastal survey response of the PwC report to determine the applicable road cost adjustments to make to the Coastal and Interior administratively-set stumpage prices.
In the Coastal survey response, major licensees reported a majority of their road expenses broken down by mainline, operational and major bridge construction. Based on this reported data, we added the mainline and major bridge construction costs and divided our sum by the total road costs of Coastal survey respondents to arrive at a percentage of the total road costs for which Coastal B.C. major licensees are responsible for but which private harvesters are not. Without having a complete itemization of mainline and operational road costs, we then applied this percentage to the total reported road costs, per cubic meter, to arrive at the applicable adjustment to include for Coastal B.C. Next, we applied this calculated percentage to the submitted per cubic meter road costs of Interior B.C. survey respondents, as well, since road construction and maintenance costs were not reported separately by road type (primary/mainline, secondary/operational, etc.). We used this percentage to determine applicable adjustments for road and bridge building, road and bridge maintenance, deactivation, field overhead and general and administrative expenses.
Cost data reported by respondents does not include any construction or maintenance costs incurred on cutblock, or onblock, roads. We will further examine. We note that we will examine closely at road construction and maintenance cost data.
(5) We have included costs reported as “Sustainable Forest Management” costs, as submitted by respondents. These costs include preparation of forest development plans, management plans, silviculture prescriptions and cutting permits. Interior costs include post-logging treatments, including mistletoe eradication, as well as landing/roadside burning and rehabilitation. Respondents state that these costs are assumed by industry without reimbursement, credit against stumpage or other offset. We note that while private harvesters bear certain costs relating to operational planning and land treatment, the mandatory costs borne by major tenure holders are, in large part, unique to those licensees. Based on these factors, we have preliminarily granted adjustments for forest resource management activities and an allocation of the general and administrative expenses have been added to include the costs of these activities.
We have not included any adjustments to administratively-set prices for costs related to timber sales, such as scaling, residue and waste management and cruising, engineering and layout. While the GBC reported that major licensees bear the costs of planning, engineering and layout, cruising, scaling (including the cost of operating scale sites) and residue and waste surveys, we see no reason to believe that private harvesters would not bear many of these same costs. Indeed, there are several costs related to auction sales that are borne by private harvesters, including costs of evaluating the timber offered for sale. Therefore, we have not included these adjustments for either the Coast or Interior. We will examine this at verification.
To obtain benchmark prices that can be compared to administratively-set B.C. prices, we used data from the Washington State Department of Natural Resources (WDNR), as compiled in the
In order to determine our benchmark prices to compare to stumpage prices in Coastal B.C. and Interior B.C., we first calculated weighted-average prices, by volume sold during the POI, for each of the major species in Washington, separately for Western and Eastern Washington. For Western Washington, which is comparable to the B.C. Coast, we looked at Douglas fir, true fir/hemlock and red cedar/cypress. For Eastern Washington, which is comparable to the B.C. Interior, we examined Douglas fir/larch, hemlock/true fir, ponderosa pine, lodgepole/spruce and red cedar.
Certain species volume and price data was reported for Coastal and Interior B.C. for which we did not have Washington state volume and price data in the
We compared B.C. and WDNR data separately for the Coast and Interior. We compared the stumpage prices reported for the species in B.C. to the prices reported in Washington state, weight-averaged by volume sold during the POI. We then converted the prices for each species from U.S. dollars per thousand board feet to Canadian dollars per cubic meter using monthly exchange rates from the Bank of Canada for the POI and the conversion factor described above (
In order to determine the
The Government of Ontario (GOO) makes standing timber on Crown land available to those parties who have purchased harvesting rights. These rights, often referred to as stumpage rights, apply to a particular area of Crown land and entitle the purchaser to harvest standing timber at a price that is set by the GOO's Ministry of Natural Resources (OMNR), the agency responsible for administering the sale of standing timber on Crown lands. The GOO maintains two main types of tenure arrangements under the Crown Forest Sustainability Act (CFSA): (1) Section 26 Sustainable Forest Licenses (SFLs) and (2) Section 27 Forest Resource Licenses (FRLs). Section 26 SFLs are set for an original 20-year term, which are extendable indefinitely and are not transferable. Four percent of Section 27 FRL holders and 41 percent of Section 26 SFL holders are integrated.
Generally, an SFL covers all forest land in a management unit. The GOO reported that SFLs cover 90 percent of the Crown timber land designated as management units. According to the GOO, SFL holders are responsible for forest planning, information gathering, monitoring, basic silviculture, and road building costs. However, the GOO reimburses many silviculture costs. Section 27 FRLs are set for terms up to 5 years, can be extended for 1 year, and are not transferable. Typically, a FRL covers only part of a management unit, and timber amounts and species are specified. The areas of some FRLs overlap with SFL areas, but, in such instances, different stands are covered.
To get either license, one must own a resource processing facility or must have access to a market (
In Ontario, lumber producers obtain the forest products they need in five ways: (1) They pay the Government of Ontario stumpage dues and harvest timber directly from their tenures on Crown lands; (2) they purchase logs at arm's-length from a company that harvested it from Crown lands; (3) they pay stumpage dues and harvest timber from private timber owners; (4) they purchase logs from a company that harvested timber from private lands; and (5) they import logs from the United States.
The GOO stated that it does not distinguish between saw logs and pulp logs; therefore, in its response to the questionnaire it reported timber harvest data based on whether the log was destined for a saw mill or a pulp and paper mill. The value data reported does not include “in-kind” services provided by tenure holders, however, the GOO has provided certain estimates of the total value of services that tenure holders are obligated to provide. The GOO reported that 30 percent of the softwood timber harvested from Crown lands is resold by the tenure holders to third parties.
The GOO reported that integrated and non-integrated firms pay the same price for stumpage, which is different than what the Department found in the
The GOO reported that the overall provincial price for stumpage on Crown lands that it charges is calculated according to four component charges: (1) The minimum charge, (2) the forest renewal charge, (3) the forest futures charge, and (4) the residual value charge. Ontario reports that some of these component charges differ depending on end product market prices. Ontario contends that prices paid for stumpage represent only a portion of the value received by the province from tenure holders, with the additional value coming from “in-kind” payments, which are discussed in the Ontario adjustments section below.
The minimum charge is set administratively every year depending on the species and the destination of the harvested timber, i.e., whether it is destined for a saw mill or a pulp and paper mill. The GOO states that the primary reason for this charge is to generate a secure source of revenue regardless of market conditions. During the POI, the minimum charge for 97 percent of Crown timber was set at C$3.28 per cubic meter, and the
The GOO reported that this charge generates funds necessary to cover costs of renewing harvest area. This charge covers silviculture costs, and, since 1997, has been determined annually for each management unit and each species within the unit. According to GOO, the monies collected from each management unit go into the Forest Renewal Trust Fund for use for forest renewal costs within that specific management unit.
The third component of the overall provincial stumpage price is the forestry futures charge, which is the same for all management units and species within the province and is set annually. Money collected from this charge is paid into the Forestry Futures Trust Fund and is to be used for costs relating to pest control, fire, natural disaster, stand management, and the silviculture expenses of insolvent licensees. During the POI, the charge was C$0.48 per cubic meter. In response to questions in the Department's supplemental questionnaire, the GOO indicated that this charge has not changed since the Fund was established in 1995.
The fourth component of the stumpage charge is the residual value charge, which is assessed when the price of end-forest products produced with timber reaches a certain level determined by the OMNR. For softwood lumber, the RV charge is assessed when the estimated price a softwood mill receives for lumber exceeds C$351.97 per thousand board feet. This charge is determined on a monthly basis according to a formula.
The GOO reports that basic silviculture, not incremental silviculture, is required to be performed on all harvested Crown land requiring renewal in order to achieve a sustained yield. The GOO reports that the aims of basic silviculture are to ensure the stand regenerates quickly, the desired species regenerates in the area, the trees in the stand reach the appropriate size, and the stand regenerates with optimum tree density. Basic silviculture may include, among other things, site preparation, direct seedling and planting, tree improvement, vegetation management, and thinning.
The GOO claims that all harvesters of Crown timber are required to pay the full cost of basic silviculture. Section 26 and 27 tenure holders pay this through the portion of stumpage (
Because Ontario tenure holders are reimbursed for 100 percent of the costs of basic silviculture from the Forest Renewal Trust Fund, we made an adjustment by subtracting the total value of the forest renewal charges collected during the POI. In addition, we made a further adjustment to the administered stumpage price to account for reimbursement of silviculture overhead costs. We made this adjustment for the reimbursement of silviculture overhead by deducting 10 percent of the value of the forest renewal charges collected during the POI. During verification, we will further examine the silviculture costs required by the OMNR and reimbursements made.
Ontario claims that license holders make in-kind payments to the province because of the following requirements: (1) Road construction and maintenance; (2) forest management planning; (3) forest protection (fire and insect protection costs); and (4) First Nations relations. Total in-kind payments are estimated by the GOO on a per unit basis of C$2.33 per cubic meter for the POI. The GOO claims that SFL holders and FRL holders have similar obligations on tenures, claiming that FRL holders have them indirectly through harvesting arrangements with overlapping SFL holders.
As explained above, the administered stumpage price for each management unit is based on a mixture of general charges and charges specific to a particular management unit, species, and destination mill. To arrive at a single province-wide administered stumpage rate for use in our stumpage calculations, we divided the total softwood stumpage fees paid by both SFL and FRL tenure holders during the POI by the total softwood harvested during the POI. We then added to this administered stumpage rate adjustments (on a per cubic meter basis) for public stumpage obligations that would not be incurred, according to our preliminary analysis, by private harvesters in the United States.
The GOO considers expenses regarding road construction and maintenance requirements as “in-kind” contributions. The GOO categorizes primary roads as permanent roads, which are constructed, maintained and used as the main all-weather access system for the management unit. Secondary roads are categorized as branches of main roads which are designed to provide 5 to 15 years of all-weather access for the public. Tertiary roads are temporary access roads, which are used for several years and then abandoned.
The GOO reported that primary and secondary roads are identified in 20-year management plans submitted with Section 26 SFL licenses. Section 26 SFL license holders are required to build and maintain roads, while Section 27 FRL license holders are responsible for all new forest roads. SFL holders construct and maintain primary, secondary, and tertiary roads for their logging operations. Since those roads are available for public use, they must meet government standards. In a study by KPMG, the GOO provided data on the cost per cubic meter of road construction and maintenance, according to the following formula: 100 percent of primary road construction, 50 percent of secondary road construction and none for tertiary road construction costs. We have made an upward adjustment to the administered stumpage price based on those reported costs. During verification, we will further examine the differences in infrastructure and of primary and secondary road costs.
The GOO stated that the cost of forest management planning is included in the industry obligations in Canada. The CFSA requires that forest management plans be prepared and approved following the Forest Management Planning Manual (FMPM). The FMPM requires, among other things, an environmental, social, and economic description of the management unit, long-range sustainability planning for a 20-year period, designation of areas of operation, and a description of the program for monitoring forest management operations. We have made an upward adjustment for the Forest Management Planning costs by dividing the total estimated value of forest management planning costs during the
Other requirements on tenure holders established by the OMNR include assistance with fire suppression (
The GOO reports that tenure holders provide training and education for First Nation individuals, and provide financial support for activities such as the maintenance of native heritage sites. According to the GOO's June 28, 2000 questionnaire response, the amount of costs incurred for First Nation relations includes both SFL and FRL holders. We have made an upward adjustment for this cost by dividing the total estimated value of these costs during the POI by the total softwood harvest during the POI.
We preliminarily determine that stumpage prices in the United States provide the most accurate benchmark. Although data on stumpage prices are available for other states, we preliminarily determine that the data we collected for Michigan and Minnesota are the most suitable for comparison purposes. Michigan and Minnesota are the states in closest proximity to Ontario, and the data we used reflected actual sales, appraisals and volumes harvested. Prior to our issuance of the final determination, we will further examine our decision to use this Michigan and Minnesota data for comparison purposes.
In order to calculate our cross-border benchmark, we used the
We calculated the benefit conferred under Ontario's stumpage program by first taking the difference between the U.S. benchmark stumpage price and the adjusted administered stumpage price on a per cubic meter basis. We then multiplied per unit benefit by Ontario's total softwood sawtimber harvest volume in cubic meters to derive the total benefit from Ontario's stumpage program.
In
The province of Alberta provides stumpage under three main tenure arrangements: (1) Forest Management Agreements (FMAs), (2) Timber Quota Certificates (quotas), and (3) Commercial Timber Permits (CTPs). FMAs are mainly used by integrated and larger timber companies, quotas are used more by medium-sized companies, and CTPs primarily are used by smaller ones.
An FMA is a long-term (20 years and renewable) agreement between the Government of Alberta (GOA) and a company. The terms and conditions are fully negotiated and approved by the Provincial Cabinet. FMA holders gain the right to harvest timber with the approval of an annual operating plan. An FMA includes the obligation to manage, on a sustained yield basis, the timber within the Agreement Area.
FMAs are provided to companies that require the security of a long-term tenure. In addition to paying stumpage fees, FMA holders are responsible for a number of in-kind services, including construction and maintenance of roads, reforestation of all areas harvested, and any other obligations required by the Department of Alberta Sustainable Resource Development (ASRD). Under the FMA tenure arrangement, recent negotiations have led to an agreement to use regulation rates on many FMAs (
A quota certificate is a long-term (up to 20 years and renewable) right to harvest a share of the annual allowable cut (AAC) as established by the ASRD. A timber license is required for a quota holder to harvest the timber. Quota holders are responsible for road construction and maintenance, reforestation of all areas harvested, and operational planning. Quotas are sold by public tender or at an auction to the highest bidder. The charge for competitively sold quotas includes the timber dues as set out in the TMR, holding and protection charges, and a bonus price. The quota gives the holder license to harvest specific species and maintain utilization standards. For each year that a quota is granted, the holder must prepare and submit, for ASRD approval, an annual operating plan. There were no quotas sold during the POI; however, there were outstanding quotas. Together, FMA and quota holders accounted for approximately 92 percent of the softwood sawlog harvest on provincial forest lands in fiscal year 2000-2001.
CTPs are short-term (averaging 2-3 years) tenure arrangements used to allocate smaller volumes of timber. CTPs are sold either directly or at a public auction. Non-competitively-sold CTPs must pay the timber dues as set out in the TMR. There are two types of competitively-sold CTPs. The first type includes a bid price on top of the upset price, which is the lowest price a seller will accept, as well as other costs related to in-kind services. The second type of competitively-sold CTPs includes a bid price on top of the
The administered price for non-negotiated FMAs and quota tenure holders is set by using the TMR timber dues and in-kind cost adjustments. Timber dues, as established in Schedule 3 of the TMR, describe the method of calculation of the rates of dues payable for coniferous timber used to make lumber products in a given month based on an average price for lumber in that month. This average is calculated by taking the weekly price for 1000 board feet of kiln-dried, 2x4, Standard and Better, Western Spruce-Pine-Fur for the last week ending in the month preceding the payment month and for the three immediately preceding weeks, as shown in the publication
To derive Alberta's administratively-set stumpage rate that we used in our calculations, we divided the total timber dues charged to FMA, quota, and CTP tenure holders during the POI for each species by the total softwood stumpage billed under each tenure during the POI for each species. In this manner, we obtained a weighted-average stumpage price per species that was paid by tenure holders during the POI. To this number, we added per unit adjustment costs.
Although the price-determining factors are different between administratively-set stumpage sales in Alberta and market-driven stumpage sales in Montana state (
For the following adjustments made by the Department, we relied on cost data submitted by respondents. For adjustments, we relied on costs borne by tenure holders, since respondents provided cost data based on an independent consultant's report provided to the province by tenure holders. During verification, we will further examine all of the adjustments.
As explained below, we have made adjustments for road construction and maintenance, basic reforestation, forest management planning, fire, insect and disease costs, environmental protection costs, and holding and protection charges.
Respondents report that major tenure holders are responsible for all costs associated with building and maintaining roads. Respondents stated that access for timber harvesting and extraction is completed at the expense of the stumpage holder and that the province does not build or maintain any access for the harvesting of timber.
We have no information on costs that private harvesters in Montana must pay for construction and maintenance associated with roads. Therefore, we included as an adjustment the entire cost of road building and maintenance as reported by respondents.
Major tenure holders are required to perform certain activities pertaining to the reforestation of their timber stands. These activities, referred to as silviculture, are broken down into two types—basic and intensive. As stated in the TMR and the GOA's August 6, 2001 supplemental questionnaire response, major tenure holders must perform basic silviculture, which includes regeneration or reforestation surveying, site preparation, planting, brushing, weeding, spacing and seedling trees, and stand cleaning. Intensive reforestation activities, which are not required by the GOA, include pruning, fertilizing, pre-commercial thinning, spacing, weeding, and genetics. A licensee may perform intensive silviculture on a voluntary basis.
We added basic reforestation costs incurred by major tenure holders to the administered rate since major licensees are required to perform these activities, whereas private harvesters in Montana are not required to do so. We made no adjustment for costs related to incremental silviculture activities because major tenure holders are not required to perform these activities.
Reforestation levies are charged to CTP tenure holders if the tenure holder does not concurrently hold an FMA or a quota. If a CTP licensee also holds an FMA, then all reforestation activities are the responsibility of the FMA holder. If a CTP is held by a quota holder, then it depends on the type of quota whether or not the CTP holder will be responsible for paying a levy or will be responsible for completing reforestation activities. If a CTP holder is obligated to pay a levy, he will pay this levy to the Forest Resource Improvement Association of Alberta (FRIAA), who will carry out the reforestation work. We took the total value of the reforestation levies paid during the POI and added it to the other adjustments.
Forest management planning, as noted in the FMA Regulations at 10(1), states that a company must submit for the Minister's approval a preliminary forest management plan (FMP) within twelve months. This includes a description of the managing method used for the timber harvesting. After 36 months, the company must submit a detailed FMP for a one full rotation and it must identify a sustainable AAC. The FMP includes reforestation and management practices, harvesting schedule and road developments.
Major tenure holders are required to perform forest protection activities on Crown lands, including fire prevention and suppression, and pest management activities. Initial fire suppression, maintaining specified equipment levels and fire readiness plans are obligations of licensees. Major licensees are also required to combat and extinguish all fires in their operating areas. As for
Environmental costs include those expenses paid by the tenure holder in order to coordinate and comply with federal and provincial environmental regulations.
According to the GOA's supplemental questionnaire response, holding and protection charges are an additional form of cash payment paid by tenure holders. The charge is for holding the timber stumpage rights and for a portion of the costs of protecting the land base. Moreover, the rates for holding and protection charges for CTPs and quotas are prescribed by the TMR, while the holding and protection charges for FMAs are specified in the FMA agreement.
For the reasons stated below, we did not make adjustments for intensive reforestation, Geographic Information System (GIS) costs, forest care, overlapping tenure costs, scaling, inventory, and land use administration.
We did not include intensive reforestation because this level of reforestation is not mandated by the GOA for tenure holders. GIS is a computer system capable of assembling, storing, manipulating, and displaying geographically referenced information. Respondents stated that GIS is used in forestry to manage forests for timber and non-timber purposes. We preliminarily determine that costs related to GIS are not mandatory and are not borne exclusively by tenure holders in Alberta.
Respondents stated in their supplemental questionnaire response that Forest Care is a certification program developed by member companies of the Alberta Forest Products Association as part of their commitment to protect the environment and sustain the public forest. Based on the information provided by respondents, we preliminarily determine that costs related to Forest Care are not mandatory and are not borne exclusively by tenure holders in Alberta.
Respondents stated in their supplemental questionnaire response that in Alberta one tenure may overlap with another and that the costs of managing this overlap would normally be borne by the landowners. However, based on the information provided by respondents, we preliminarily determine that costs related to overlapping tenures are not mandatory and are not borne exclusively by tenure holders in Alberta.
Based on the information provided by respondents, we preliminarily determine that costs related to scaling are not mandatory and are not borne exclusively by tenure holders in Alberta.
Moreover, we did not make an adjustment for costs related to inventory because we preliminarily determine that these costs are not mandatory and are not borne exclusively by tenure holders in Alberta.
Due to insufficient information on the record, we have preliminarily determined not to adjust for land use administration costs. We note that this and all other adjustments, both allowed and not allowed, will be examined at verification.
In Table 19, Exhibit AB-S-43, of the GOA's June 28, 2001 questionnaire response, we discovered that some softwood lumber was harvested from deciduous dispositions without paying stumpage. We calculated the benefit for these free trees by multiplying the benchmark stumpage rate by the amount harvested for free, and we added this benefit into the calculation of our total benefit.
As explained above, we have preliminarily determined that stumpage prices in the United States provide the most accurate benchmark. In the case of Alberta, we are using data from the state of Montana, which borders Alberta, to calculate our cross-border benchmark. We obtained this data from the
In order to compare the species mix in Alberta and Montana, we calculated the difference between provincial and Montana stumpage rates for each softwood species harvested in provincial forests. We took the difference for each species category and multiplied it by Alberta's billed timber volume for each species category to arrive at the weighted benefit. We multiplied this amount by the portion of Alberta's species mix to derive a weighted-average benefit amount per species category.
To calculate the benefit under Alberta's stumpage system, we first multiplied the adjusted price difference described above by the total softwood harvest billed by tenure holders during the POI. Next, we calculated the provincial benefit. We note that in
The Government of Manitoba (GOM) states that the province owns 94 percent of the forest lands and the federal government owns one percent. Private woodlot owners own the remaining 5 percent of forests.
The GOM makes standing timber available to those parties that have purchased harvesting rights. These rights entitle the purchaser to acquire timber at a price, known as the stumpage price, set by the Forestry Branch of the Department of Conservation, the agency responsible for administering the sale of standing timber of Crown lands.
In Manitoba, there are three ways to acquire timber cutting rights: (1) A Forest Management License (FML); (2) a Timber Sales Agreement (TSA); or (3) a Timber Permit (TP). An FML is a long-term (up to 20 years) license, which may be renewed every five years, to harvest a stated volume of timber in a particular area. Licensees must manage their area
The TSA is a short-term (up to five years) right to harvest a stated volume of timber in a specific area generally issued to small and medium sized operators. There were 204 such agreements in effect during the POI. Licensees with TSAs harvest both hardwood and softwood. Similar to the FMLs, the TSA holders must have an annual operating plan. Like FML holders, the stumpage must be paid within 30 days of the end of each quarter in which the timber is cut and scaled.
The TPs are short-term (up to one year) licenses where license holders can only harvest a very small amount of timber. TP holders generally use the license to harvest firewood (softwood and hardwood) for their own use. Stumpage must be paid when the permit is issued. There were 2,617 permits in effect during the POI.
Manitoba also has a quota system. The quota is a five-year renewable fixed allocation of timber; whereas, a TSA or TP provides direct access to the timber. The GOM states that all but a few quota holders also have timber sale agreements.
Tenure holders pay stumpage fees at either the standard provincial rate or a rate negotiated with the province. The Forestry Service has divided the province into eight different forest regions. The standard provincial rate varies depending on which of the forest regions the timber is harvested from and whether the wood type is Aspen/Poplar or all wood other than Aspen/Poplar. Otherwise, the rates do not vary by species or grade. The GOM used a base rate set by administrative determination for calculating the stumpage price for TS holders and TP licensees. The base rates were then adjusted according to changes in a weighted average of two Statistics Canada industrial product price indices to derive an annual rate.
The GOM reports the per unit stumpage amounts by dividing the total value of stumpage collected by the total quantity on a tenure and species-specific basis. These values include a Fire Protection Charge (FPC) for holders of TSAs and FMLs. TSAs and TPs also pay a Forest Renewal Charge (FRC) to the province. The values do not include the un-reimbursed costs that FMLs incur for renewal activity (
In the case of Manitoba, we are using data from the state of Minnesota, which borders Manitoba, to calculate our cross-border benchmark. We based the Minnesota stumpage prices on the
We preliminarily determine that there are certain costs that Crown timber harvesters absorb that Minnesota harvesters do not; therefore, we are adding in certain adjustments to the derived basic stumpage rate for Manitoba. In terms of adjustments, the GOM provided details about the un-reimbursed costs of basic silviculture activities performed by Tolko, the only FML that harvests softwood sawtimber. The GOM said data from Tolko's Annual Operating Report. We weighted the un-reimbursed per unit costs reported for Tolko by the percentage of total volume that the FML softwood harvest represents and added this amount to the administered stumpage price.
The GOM states that the TSA and TP holders pay the province fees related to basic silviculture; however, such fees are already included in the stumpage. An upward adjustment to the administered stumpage price would be double-counting.
We are including the following costs in the adjustment: (1) General silviculture; (2) site preparation; (3) scarification; (4) tree planting; (5) seedling purchase; (6) regeneration surveys; (7) silviculture projects; (8) cost of developing the annual report; and (9) forestry administration. Although the GOM reported the total amounts that Tolko incurred for expenses related to tree improvement and herbicide release, we did not include these expenses because the amounts were so small that their inclusion would not have any impact on the calculation. In fact, the GOM did not calculate a per unit amount for these because the amounts were insignificant.
We did not include expenses related inventory because it is an industry-wide cost and is borne by benchmark harvesters. We did not include the expenses of a Geographic Information System and dwarf mistletoe control because these expenses were not required by the tenure arrangement. We did not include the expenses incurred by the government for renewal of areas outside of FMLs because it is an expense incurred by the government; not an unreimbursed expense incurred by the licensee.
The GOM states that FML and TSA tenure holders bore the expenses for additional in-kind costs that for which the GOM does not reimburse the tenure holders. Although the tenure holders incur substantial in-kind costs, the GOM was unable to report the costs of these activities because tenure holders are required to report their commercial forest activities, but not the cost of those activities. We will examine this issue further at verification.
Manitoba reports the stumpage volume and value by tenure type and species. The GOM states that the species harvested in Manitoba are white and black spruce and jack pine (collectively “spruce/pine”). However, Manitoba also includes an “other” category. We will examine the species-makeup of this category at verification.
To calculate the benefit, we derived a species-specific (
As a benchmark for the “spruce/pine” rate, we calculated a weighted average price of species identical (
In Saskatchewan, the northern half of the province is designated as Forest Crown land. According to the Government of Saskatchewan (GOS), only the lower third of this land contains harvestable timber. This harvestable area where commercial forestry activities occur is referred to as the Commercial Forest Zone (CFZ). The CFZ comprises approximately 12 million hectares. Of this amount, the GOS states that 55 percent contains productive or harvestable land. The GOS states that there are no private lands within the CFZ. In Saskatchewan, all private lands are generally located south of the CFZ. According to information submitted by the GOS, Crown lands accounted for approximately 89 percent of the softwood sawlogs harvested in Saskatchewan during the POI. Private and Federal lands accounted for 9 and 1 percent of the softwood sawlog harvest, respectively.
The right to harvest timber on Crown lands, or stumpage, can only be acquired by a license pursuant to Saskatchewan's Forest Resources Management Act. These licenses come in three forms: Forest Management Areas (FMAs), Forest Product Permits (FPPs), and Term Supply Licenses (TSLs). The Saskatchewan Environment and Resource Management Department (SERM) is the government agency responsible for the administration of provincial timber programs, which includes setting the price of stumpage in the province.
FMAs grant the licensee the right to harvest Crown timber for a term not exceeding 20 years. At every fifth year of the FMA, the term may be extended for an additional 5 years. According to the GOS, the FMAs set out the rights and responsibilities of the licensee which, in particular, focus on the long-term sustainable use of Crown land covered by the agreement. The GOS negotiates the terms of FMAs with each license. Thus, no standard terms or conditions apply to FMAs.
All FMAs, however, must pay certain charges. FMA licensees are charged forest management fees. These fees vary across the province in relation to the preponderance of timber types within the FMA and the costs associated with reforestation of the species that exist there. Forest management fees, also referred to as forest renewal fees, are used to conduct the province's basic silviculture programs, which include surveys, site preparation, mechanical brushing, cone collection, chemical brushing, planting, fertilizer, spacing, administrative costs, seedlings, and other miscellaneous costs.
Four FMAs were in effect during the POI: the Mistik Management FMA, the L&M Wood Products FMA, the Weyerhaeuser FMA, and the Pasquia-Porcupine FMA, which is also a FMA of Weyerhaeuser. All four of these FMA licensees own their own mills. According to information submitted by the GOS, these four FMAs accounted for approximately 86 percent of the softwood sawlog harvest in the CFZ. The GOS states that its policy is to grant FMAs to large mills requiring large volumes of timber and that it requires FMA licensees to operate their facilities on a regular basis. Failure to do so could result in the termination of the FMA and the loss of the licensee's tenure. The GOS states that the requirement relates to the province's responsibilities as a landowner as well as to good forest management practices.
FPPs are the second type of stumpage license issued by the GOS. FPPs are annual licenses that confer the right to harvest specified forest products. Each FPP expires on either the date specified on the permit or at the end of the GOC's fiscal year, whichever comes first. FPPs cannot be renewed. Approximately 700 FPPs were issued during the POI. During the POI, FPPs accounted for 14 percent of the province's softwood sawlog harvest. The terms and conditions of FPPs vary in accordance with the type of forest product harvested. The GOS states that it allows FPP licensees to operate in FMA areas. In those instances, the FPPs must pay forest management fees to the FMA licensee. The rates charged to the FPPs are equal to those charged to the FMAs by the GOS. The FMAs then forward these fees to the GOS. FPPs operating on lands not covered by a FMA are required to pay forest management fees directly to the province.
TSLs are similar to FMAs, but have a term of 10 years. As is the case with FMAs, TSLs must pay processing facility and forest management fees. There was only one TSL in effect during the POI, Green Lake Metis Wood Products of Green Lake. The GOS states that this facility was destroyed by a fire during the POI, and thus, only operated on a limited basis during this period. The GOS states that the amount of fees paid by this TSL licensee during the POI was negligible.
The SERM also charges licensees stumpage dues on harvested trees. There are two steps to the SERM's method of setting stumpage rates. These steps apply to all tenure arrangements. The first part is a base rate of dues which applies to each cubic meter harvested during the year. The second part is an incremental rate which applies to a percentage of product value above a threshold trigger price. Information from the GOS indicates that the incremental rates for softwood sawlogs are a partial function of lumber prices as reported in
Payments of stumpage dues vary according to license. FMA licensees submit their base dues on a monthly basis. Incremental dues are paid either monthly or quarterly in accordance with the terms of the particular FMA. FPP licensees have three payment options. FFP licensees may pay stumpage dues: (1) When the permit is issued, (2) in equalized payments for a maximum of three equalized payments throughout the year, or (3) monthly, based on the timber scaled during that period. Up-front payment and equalized payment options are calculated based on the total volume of timber included in the FPP. The amount of dues payable is determined through scaling the amount of timber harvested. The GOS states that scaling is conducted by licensed scalers.
To derive Saskatchewan's administratively-set stumpage rate, we divided the total value of softwood sawlogs, by species, by the total volume harvested, by species, to derive the per unit price per species. We categorized the species in two sets: (1) A Douglass/Larch/Tamarack (DLT) mix; and (2) a Spruce-Pine-Fir (SPF) mix, which includes white spruce, jack pine, black
We obtained a weighted-average stumpage rate per species category by taking the stumpage price for DLT and SPF, which included veneer logs, mixes and divided by total volume harvested as attributable to category mix. To this stumpage rate we added per unit adjustment costs, in order to derive Saskatchewan's administratively-set stumpage rate.
Tenure holders in Saskatchewan are required to fulfill and/or pay for certain forest management and timber-harvesting obligations, including silviculture and forest management activities. Therefore, we preliminarily determine that it is necessary to factor in certain cost adjustments to the administered prices in Saskatchewan to reflect the costs of certain mandatory activities that are not factored into the administered price.
For the following adjustments, we relied on cost data submitted by respondents. For all adjustments, we relied on costs borne by the tenure holders, since respondents provided cost data based on the responses of the tenure holders.
We have made adjustments for forest management planning and basic silviculture. For the calculation of the total forest management fee, we multiplied the per-unit forest management fee, for FMAs and FPPs, and the total volume of sawlogs and veneer logs harvested during the POI. We then added the basic silviculture costs incurred by FMA tenure holders, as reported by the GOS, to the total forest management fees paid during the POI to arrive at the total value of adjustments during the POI.
In addition to the fees paid by FMA and FFP license holders, described above, the GOS stated that FMA and FPP licensees must also pay as a condition of their license several in-kind costs related to forest management. These include, but are not limited to, long-term operation, planning, environment plans, periodic independent audits of forest management activities and scaling-related costs, including payments for scaling services, scaler training, and scaling plans. In addition, the GOS states that FPPs are also required to pay road user fees as determined by local governments within the province. We did not make an adjustment because there is not enough information on the record that would allow us to quantify these in-kind costs. We will further examine this issue during verification.
As explained above, we have preliminarily determined to use stumpage prices in the United States for our benchmark. In the case of Saskatchewan, we are using data from the state of Montana, which borders Saskatchewan, to calculate our benchmark. We obtained this data from the
We then calculated the difference between provincial and Montana stumpage rates for each species harvested in provincial forests. To arrive at a weighted average price differential, we weighted each species mix's price differential in proportion to its share of Saskatchewan's harvested volume for the POI to arrive at an overall per-unit price differential.
In order to calculate the benefit under Saskatchewan's stumpage system, we first took our calculated per unit price differential and factored in necessary adjustments, which are detailed above. We next multiplied the per unit price differential by the harvested volume to arrive at the total benefit. We calculated the provincial rate by dividing the total benefit by the value of softwood lumber shipments, including the value of by-product shipments. Next, as explained in the “Subsidy Rate Calculation” section of this notice, we weight averaged the benefit from this provincial subsidy program by the province's relative share of total U.S. exports. The preliminary countervailable subsidy for the provincial stumpage programs can be found in the “Country-Wide Rate for Stumpage” section, below.
The preliminary countervailable subsidy rate for the provincial stumpage programs is 19.21 percent ad valorem.
According to the response of the GOC, the Western Diversification Program (WDP) was introduced in 1987, and is administered by the Department of Western Economic Diversification, a department of the GOC. The WDP supports projects that promote or enhance economic development or diversification in Western Canada, including the initiation, promotion or expansion of enterprises, the establishment of new businesses, research and development activities, and the development of business infrastructure. As part of its mandate to assist in the development of Western Canada, the WDP provides non-repayable contributions (grants) to companies located in Western Canada.
According to the GOC, seven companies in the softwood lumber industry have received grants in the last ten years, the period corresponding to the AUL of the softwood lumber industry.
We preliminary determine that this program is specific under section 771(5A)(D)(iv) of the Act because assistance under this program is limited to designated regions in Canada. In addition, the provision of grants by the GOC constitutes a financial contribution as provided within the meaning of section 771(5)(D)(i) of the Act.
Both recurring and non-recurring grants were provided under this program. In accordance with § 351.524 (a) and (b)(2) of the CVD Regulations, all grants provided under this type of program are expensed in the year of receipt. Therefore, to calculate the benefit during the POI, we summed the amount of grants provided to all producers/exporters of softwood lumber during the POI and divided that amount by the f.o.b. value of total sales of softwood lumber for the POI. Using this methodology, we preliminarily determine the countervailable subsidy from this program to be less than 0.005 percent
FedNor is an agency of Industry Canada, a department of the GOC, which encourages investment, innovation, and trade in Northern Ontario. Specifically, FedNor's mandate
CFDCs undertake strategic community planning activities, provide small business counseling and advisory services, and offer commercial loans to small and medium-sized businesses. Besides contributing to the operating costs of the CFDCs, FedNor also provides investment funds to the CFDCs in Northern Ontario that are used by the CFDCs to provide loans to small and medium-sized businesses in the region. According to the response of the GOC, once FedNor provides funds to the CFDCs, FedNor has no involvement in any lending decisions made by the CFDCs. FedNor usually will only require that the interest rate charged by the CFDCs on its loans be at least the prime rate plus two percent.
The GOC stated in its response that during the ten year period corresponding to the AUL, FedNor provided direct assistance, in the form of grants, to entities in the softwood lumber industry on six occasions. In addition, according to the response of the GOC, the CFDCs had 40 loans outstanding during the POI to companies that are producers of softwood lumber.
Because this program is limited to certain regions in Ontario, we preliminarily determine that assistance provided under FedNor is specific within the meaning of section 771(5A)(D)(iv) of the Act. With respect to the loans provided under this program by the CFDCs, we preliminary determine that no benefit is provided within the meaning of section 771(5)(E)(ii) of the Act because the reported interest rates charged on each of these loans is equal to or higher than the interest rate charged on comparable commercial loans, as noted in the “Benchmark for Loans and Discount Rate” section, above. However, with respect to the grants provided by FedNor, we preliminarily determine that a financial contribution within the meaning of section 771(5)(D)(i) of the Act has been provided to the softwood lumber industry.
In accordance with § 351.524 of the CVD Regulations, all grants provided under this program are expensed in the year of receipt. Therefore, to calculate the benefit provided under this program, we summed the amount of grants provided to all producers/exporters of softwood lumber during the POI and divided that amount by the f.o.b. value of total sales of softwood lumber for the POI. Using this methodology, we preliminarily determine the countervailable subsidy from this program to be less than 0.005 percent
In June 1994, the GBC enacted the Forest Renewal Act to renew the forest economy of British Columbia by, among other things, improving forest management of Crown lands, supporting training for displaced forestry workers, and promoting enhanced community and First Nations involvement in the forestry sector. To achieve these goals, the Forest Renewal Act created Forest Renewal B.C., a Crown corporation. The corporation's strategic objectives are implemented through three business units: the Forests and Environment Business Unit, the Value-Added Business Unit, and the Communities and Workforce Business Unit. While much of the activities of Forest Renewal BC are unrelated to the provision of assistance to softwood lumber producers, petitioners allege that this agency provided both grants and loans to producers of softwood lumber.
According to the GBC's response, Forest Renewal B.C. generally does not make direct loans to individual softwood lumber companies. Instead it provides funds to community groups and independent financial institutions, which may provide loans to companies involved in softwood lumber production. Forest Renewal B.C. has made direct loans and provided loan guarantees directly to softwood lumber producers on four occasions. In each of these instances, the loan assistance was provided in conjunction with the Job Protection Commission.
According to the GBC's response, Forest Renewal B.C. has provided grants directly to softwood lumber producers. These grants have been provided to softwood lumber producers in two ways: (1) As part of
As noted in the “Recurring and Non-recurring Benefits” section of this notice, all grants provided under this program are expensed in the year of receipt. Certain marketing grants were provided for programs supporting exports to Asian markets. In accordance with § 351.525(a)(4) of the CVD Regulations, we did not include marketing grants tied to Asian markets in our benefit calculations because they were tied to particular markets and thus, only benefitted sales to those markets. To calculate the benefit provided under this program, we summed the amount of grants provided to all producers/exporters of softwood lumber during the POI (other than those tied to Asian markets) and divided that amount by the f.o.b. value of total sales of softwood lumber for the POI for the Province of British Columbia. Next, as explained in the “Subsidy Rate Calculation” section of this notice, we weight-averaged the benefit from this provincial subsidy program by the province's relative share of total U.S. exports. Using this methodology, we preliminarily determine the countervailable subsidy from this program to be 0.09 percent
Petitioners alleged that the Province of British Columbia provided Skeena with millions of dollars in aid in an attempt to save the company from bankruptcy. According to the response of the government, the agency responsible for administering the province's assistance to Skeena was the British Columbia Ministry of Employment and Investment (MEI). Skeena is primarily a pulp company but it does operate sawmills which produce
According to the GBC's response, the province's involvement in Skeena was not in accordance with any specific provincial government program. Because the assistance provided to Skeena by MEI was not provided under a general government program, but was instead provided under an
As noted in the “Recurring and Non-recurring Benefits” section of this notice, all grants were expensed in the year of receipt. With respect to the provision of grants, the only grants provided to Skeena during the POI were made with respect to road building. Because Skeena is primarily a pulp and paper company, to determine the benefit conferred upon subject merchandise, we first pro-rated the amount of the grant by the percentage of softwood lumber sales to Skeena's total sales for the POI.
With respect to the equity investment by MEI, we preliminarily determine that no countervailable benefit was provided to Skeena because MEI purchased the already-existing Skeena shares from third parties. Thus, no additional equity funds were actually invested in Skeena, and there is no financial contribution. We also preliminarily determine that the payments made in connection with wage concessions by the company's pulp mill workers and general stumpage reductions affecting low-grade hemlock used in pulp production did not provide a benefit to softwood lumber production because this assistance was tied to non-subject merchandise.
Finally, as noted above, loans and loan guarantees were also provided to Skeena by MEI. Two of the loans provided to Skeena under this program were tied to Skeena's pulp mills, and thus, did not provide a benefit to softwood lumber under § 351.525 of the CVD Regulations.
In addition, MEI purchased two of Skeena's loans from the Royal Bank. MEI purchased the loans held by the Royal Bank for approximately 40 cents on the dollar. These loans were not tied to specific operations of Skeena, and thus, benefitted all of the company's sales, including softwood lumber. When MEI purchased these two loans from the Royal Bank, Skeena was obligated to make payment on the loans to the province rather than to the Royal Bank. According to the response from the GBC, Skeena now makes payments on these loans to the province pursuant to the same commercial terms as applied when the Royal Bank held these loans. However, although interest was paid on these loans at commercial interest rates, the repayment of principal on these two purchased loans is based upon Skeena's cash flow. For purposes of this preliminary determination, we find that these two loans did not provide a countervailable benefit. However, we will examine the purchase of these two loans during verification to determine whether a countervailable benefit was provided to Skeena during this transaction.
With respect to the four loan guarantees provided to Skeena by MEI, one of the guarantees was provided specifically to the company's pulp operations, and thus, did not provide a benefit to the subject merchandise pursuant to § 351.525 of the CVD Regulations. Regarding the other three loans, the guarantees resulted in a lower interest rate charged to Skeena by the commercial bank, and guarantee fees payable to the government. However, we preliminarily determine that no benefit is provided within the meaning of section 771(5)(E)(ii) because the reported interest rates charged on each of these loans is equal to or higher than the interest rate charged on comparable commercial loans.
The Private Forest Development Program (PFDP) promotes the development of private forest resources in Quebec. Specifically, the PFDP provides silviculture support to private woodlot owners through payments, either made directly to forest engineers or via reimbursement to the woodlot owner, for silviculture treatments executed on private land. This program is funded by both the provincial government through the Ministere des Ressources naturelles (MRN) and by sawmill operators. The majority of the program funds come from the MRN. However, under the authority of the MRN, wood processing plant operators are charged a fee of C$1.45 for each cubic meter of timber acquired from private land. This fee is used to fund the PFDP.
According to the GOQ response, there are approximately 13,000 forest producers (
Because assistance under this program is limited to private woodlot owners, we preliminarily determine that assistance provided under this program is specific under section 771(5A)(D) of the Act. In addition, payments by PFDP constitute a financial contribution under section 771(5)(D)(i) of the Act. The amount of the benefit conferred under this program to softwood lumber producers is equal to the grant of funds provided to the producers under the PFDP during the POI.
Respondents argue that no benefit is provided under this program to sawmill operators because they are required to make contributions to PFDP for lumber harvested on private land. Respondents state that the sawmill operators' contributions were greater than the amount of silviculture reimbursements the mills received under this program during the POI. However, every holder of a wood processing plant operating permit must pay the fee of C$1.45 for every cubic meter of timber acquired from a private forest, regardless of whether or not that mill owns private
According to the GOQ's response, there were approximately 50 softwood lumber producers that received assistance under this program during the POI. However, the response only provides the amount of grants received by the 35 largest producers. Therefore, to estimate the amount of the grants received by the other 15 producers, we assumed that they received the average grant amount received by the other 35 softwood producers. We will examine this closely at verification. We combined our estimate with the amount reported in the response to obtain a total amount of grants provided to softwood lumber producers during the POI. As explained in the “Recurring and Non-recurring Benefits” section of this notice, these grants were expensed in the year of receipt.
To calculate the benefit provided under this program, we summed the amount of grants provided to all producers/exporters of softwood lumber during the POI and divided that amount by the f.o.b. value of total sales of softwood lumber for the POI for the Province of Quebec. Next, as explained in the “Subsidy Rate Calculation” section of this notice, we weight-averaged the benefit from this provincial subsidy program by the province's relative share of total U.S. exports. Using this methodology, we preliminarily determine the countervailable subsidy from this program to be 0.01 percent
The SDI export assistance program was established in 1994 and expired in 1998, when it was replaced by export assistance under Investissement Quebec (IQ). The objective of SDI, as established in its founding legislation, was to promote the “economic development of Quebec, particularly by encouraging the development of businesses, the growth of exports, [and] research and development of new techniques.” During its existence, SDI worked mainly with businesses whose growth was dependent on technological innovation and exports.
IQ was also established, in part, to facilitate export activities. IQ works with private financial institutions by assuming risks to support projects that might otherwise be cancelled or postponed. IQ assistance is geared mainly to companies whose operations create a significant impact in terms of innovation and exports. Export assistance is provided by IQ's small-and medium-sized businesses (SMB) program which is fundamentally similar to the SDI export assistance program. During the POI, there were three outstanding long-term loan guarantees provided to softwood lumber producers in Quebec.
Because this program provides assistance to exporters, we preliminarily determine it to constitute an export subsidy under section 771(5A)(B) of the Act. To determine whether the loan guarantees provided a benefit, in accordance with section 771(5)(E)(iii) of the Act, we first calculated the amount of interest charged, plus the guarantee fees paid. Because information on the record indicates that the SDI/IQ program provides export guarantees for projects considered too risky for private financial institutions, we have preliminarily determined that the national average benchmark described in the “Benchmarks for Loans and Discount Rates” section of this notice, is an inappropriate benchmark for this program. In order to approximate the interest rate that would have been charged the loan guarantee recipients under this program, we have constructed a benchmark interest rate based on default rates for companies at various levels of risk. Using this benchmark, we preliminarily determine that the amount of interest and fees paid under the guaranteed loans is less than the amount of interest that would have been paid under a commercial interest rate. Therefore, this program confers a benefit. We divided the benefit amount by the value of total exports of softwood lumber for the POI for the Province of Quebec. We then weighted this provincial rate by Quebec's share of softwood lumber to the United States during the POI. Using this methodology, we preliminarily determine a benefit of less than 0.005 percent.
Quebec's Ministere des Ressources Naturelles administers this program but entrusts the program's operation to Rexforet Inc., a subsidiary of SGF Rexfor, and to Quebec's Conference of Forest Cooperatives (known by the French abbreviation, CCFQ). CCFQ is an umbrella organization of 41 forest cooperatives. These cooperatives are private, non-profit, community-based entities organized to pool the resources of land owners and forest operators and to provide support for forestry operations. This program was created in 1994 to train and develop manpower and respond to the anticipated shortage of qualified forest management workers by training unemployed individuals and fostering their integration into regular work teams.
Eligibility for training under this program is limited to unemployed individuals. Eligibility to provide training is limited to forest cooperatives and nonprofit organizations having the ability to provide the necessary level of training. Training assistance under this program is limited to unemployed individuals, and does not relieve companies of training costs that they normally would be obligated to pay. In accordance with § 351.513 of the CVD Regulations, we preliminarily determine that this program does not provide a countervailable benefit.
The Retail Sales Tax Act (RSTA) provides the legal authority for the Province of Ontario to collect taxes on sales and certain services in Ontario. The Retail Sales Tax Branch of the Ontario Ministry of Finance is responsible for the administration of the RSTA. Article 2 of RSTA establishes that sales of tangible personal property and certain services are subject to an eight percent tax to be borne by the purchaser. However, exemptions to the sales tax are provided under Article 7 of the RSTA, that lists exemptions of the sales tax for numerous categories of goods and services.
Paragraph 64 of Article 7 provides that the sales of cones, cuttings, seeds and seedlings for planting in a Crown forest by a forest resource license holder are included in this list of exemptions. This exemption became effective on May 3, 2000. Prior to May 3, 2000, the forest license holders were required to pay sales tax on seedling purchases in connection with their reforestation
The tax exemption for seedlings is part of the Province of Ontario's general provision for sales tax and sales tax exemptions under the RSTA. Therefore, to determine whether the sales tax exemption on seedlings is specific, the Department is required under section 771(5A)(D) of the Act to examine this exemption in connection with the sales tax exemptions provided under the RSTA. An examination of the items exempted from the sales tax under the RSTA shows that eligible exemptions are numerous and cover hundreds of items across a wide-range and multitude of industries. Further, an examination of the RSTA shows that the actual recipients of the sales tax exemptions are not limited in number, nor limited by enterprise or industry. In addition, the recipients of the sales tax exemption on seedlings have not received a predominant or disproportionate share of tax exemptions under the RSTA. Therefore, we preliminarily determine that this sales tax exemption program is not specific under section 771(5A)(D) of the Act. Thus, we preliminarily determine that this program is not countervailable.
Assistance under Article 7 was administered by the SDI, a government corporation. In 1998, Article 7 of SDI was replaced by Article 28, that is administered by Investissement Quebec. Under Article 7, SDI provided financial assistance in the form of loans, loan guarantees, grants, assumption of interest expenses, and equity investments to projects that would significantly promote the development of Quebec's economy. According to the GOQ's response, prior to authorizing assistance, SDI would review a project to ensure that it had strong profit potential and that the recipient business possessed the necessary financial structure, adequate technical and management personnel, and the means of production and marketing required to complete the proposed project. The Article 28 program operates in fundamentally the same manner as Article 7.
During the POI, softwood lumber companies had outstanding loans under Article 7. There were no outstanding loans under Article 28. No other assistance was provided to softwood lumber companies under Article 7. To determine whether these loans provided a benefit to the softwood lumber industry, in accordance with section 771(5)(E)(ii) of the Act, we compared the interest rates charged on the Article 7 loans to the benchmark interest rate charged on comparable commercial loans as described in the “Benchmarks for Loans and Discount Rates” section of this notice. Using this methodology, we preliminarily determine that no benefit was provided by these loans because the interest rates charged under this program were equal to or higher than the interest rates charged on comparable commercial loans. Because we preliminarily determine that no benefit is provided under this program during the POI, there is no need to address the issue of specificity.
Petitioners alleged that in 1994, Tembec Inc. (Tembec) redeemed preferred stock with a face value of C$80 million held by SDI in exchange for only C$20 million of Tembec's Class A voting shares. Petitioners alleged that through this transaction, the Province of Quebec, acting through SDI, a government-owned corporation, provided Tembec with a financial contribution of C$60 million, which represents the difference between the value of the redeemed preferred stock and the Class A voting shares of Tembec. Petitioners alleged that a benefit is provided to the subject merchandise because Tembec is a softwood lumber producer.
According to the government response, Temboard and Company Limited Partnership (Temboard Partnership) was formed in April 1988, for the purpose of constructing and operating a paperboard mill. Tembec was one of the two limited partners of Temboard Partnership. Tembec Inc. produces a number of forest products including softwood lumber. In November 1988, a credit agreement was signed between Temboard Partnership and SDI. The SDI loans provided under this credit arrangement were for the construction and start-up of the new paperboard mill of Temboard Partnership. Interest on the SDI loans was capitalized until the outstanding debt of the SDI loans to Temboard Partnership reached C$80 million. As a result of adverse conditions affecting the operations of Temboard Partnerships, one of the partners withdrew from the partnership and wrote off its investment in May 1991. Tembec decided to continue providing support to the paperboard mill company, and, therefore, became the sole owner of Temboard Partnership.
In September 1991, Temboard was incorporated and assumed all of the assets and liabilities of the Temboard Partnership. Temboard Inc. then incorporated a wholly-owned entity, Temfin Inc. (Temfin) for the sole purpose of refinancing Temboard's debt, primarily through the issuance of “Distressed Preferred Shares” to its commercial bank creditors and to SDI. In subsequent years, the financial condition of Temboard Inc. continued to deteriorate, which required another restructuring of the troubled paperboard mill company. In 1994, because of the financial condition of Temboard Inc., SDI exchanged its Distressed Preferred Shares, which held a nominal value of C$80 million, for two million publicly listed Tembec Class A common shares. This exchange required Tembec Inc. to issue capital of C$20 million.
As noted above, we are conducting this investigation on an aggregate basis. Therefore, we must examine and determine whether there is any benefit conferred on production and exportation of subject merchandise from Canada from this company-specific subsidy allegation. These complex financial transactions between Tembec, its subsidiaries and SDI are tied to loans made by SDI to Temboard, a paperboard company, and to the conversion of that long-term debt into shares issued to SDI. Because this subsidy allegation is tied to non-subject merchandise, under § 351.525 of the CVD Regulations, we preliminarily determine that this alleged subsidy does not provide a benefit to subject merchandise.
Petitioners alleged that SGF Rexfor, Inc. (Rexfor) acts as a conduit for passing funds to the lumber industry. They further alleged that Rexfor itself is a producer of subject merchandise and, thus, it is likely that Rexfor has received, and is currently receiving and issuing below-market loans to lumber producers.
According to the GOQ's response, Rexfor is a corporation all of whose
According to the GOQ's response, Rexfor receives and analyzes investment opportunities and determines whether to become an investor either through equity or participative subordinated debentures. Debentures are used as an investment vehicle when Rexfor determines that a project is worthwhile, but is not large enough to necessitate more complex equity arrangements. Rexfor has invested in companies involved in paper production, panel production, hardwood and softwood sawmills, newsprint, bio-pesticides, composites, engineered wood products, electronic measuring equipment, and forestry equipment.
According to the GOQ's response, Rexfor has no outstanding loans and advances provided by the GOQ. During the POI, Rexfor had two long-term loans (debentures) outstanding to softwood lumber producers. We are not investigating equity investments made in softwood lumber producers by Rexfor because (i) there was no such allegation, and (ii) there is not any information on the record to suggest that Rexfor's investment decisions were inconsistent with the usual investment practice of private investors as required under section 771(5)(E)(i) of the Act.
Because assistance from Rexfor is limited to companies in the forest products industry, we preliminarily determine that this program is specific under section 771(5A)(D) of the Act. With respect to the long-term loans provided by Rexfor, these loans qualify as financial contributions under section 771(5)(D) of the Act. To determine whether these loans provided a benefit to the softwood lumber industry in accordance with section 771(5)(E)(ii) of the Act, we compared the interest rates charged on the Rexfor loans to the benchmark interest rates charged on commercial loans as described in the “Benchmarks for Loans and Discount Rates” section of this notice. Using this methodology, we preliminarily determine that no benefit was provided by these loans because the interest rates charged under this program were equal to or higher than the interest rates charged on comparable commercial loans.
One of the loans provided by Rexfor was provided to a company which subsequently entered bankruptcy negotiations with Rexfor and other creditors. However, the settlement with the creditors was subsequent to the POI. Thus, there is no need to examine whether a benefit was provided to that softwood lumber producer by Rexfor as a result of the creditor settlement.
The British Columbia Job Protection Commission (the Commission) was created in 1991, pursuant to The Job Protection Act, to minimize job loss, particularly in one-industry communities, and to reduce the negative effect on regional and local communities when companies encounter financial difficulties. According to the GBC response, the Commission acts as a facilitator between debt holders, other B.C. government agencies, and private financial institutions, and the troubled companies and their employees. The Commission assists in designing a work-out plan that will allow the companies to continue as going concerns and improve their financial conditions. According to the GBC response, the Commission may make recommendations to the various parties and debt-holders, but each debt-holder makes its own decision as to its role in any company work-out or restructuring. Several companies involved in the production of softwood lumber participated in restructuring plans under this program. In addition, two other softwood lumber producers received loans under programs administered by the Commission.
We determine that additional information is needed before we can determine whether countervailable benefits are provided by the Job Protection Commission.
In accordance with section 782(i) of the Act, we will verify the information submitted by respondents prior to making our final determination.
In accordance with 777A(e)(2)(B) of the Act, we have calculated a single country-wide subsidy rate to be applied to all producers and exporters of the subject merchandise from Canada. This rate is summarized in the table below:
In accordance with section 703(e)(2), the Department has issued a preliminary affirmative countervailing duty determination, and a preliminary affirmative critical circumstances determination on certain softwood lumber products from Canada. We are directing the U.S. Customs Service to suspend liquidation of all entries of the subject merchandise from Canada, that are entered, or withdrawn from warehouse, for consumption on or after 90 days prior to the date of publication of this notice in the
As indicated above, the Department exempted softwood lumber products from the Maritime Provinces from this investigation. This exemption, however, does not apply to softwood lumber products produced in the Maritime Provinces from Crown timber harvested in any other province. Additionally, as explained above in the “Exclusions” section of the notice, we are excluding one company, Frontier Lumber. Therefore, we are directing the U.S. Customs Service to exempt from the suspension of liquidation only entries of softwood lumber products from Canada which are accompanied by an original Certificate of Origin issued by the Maritime Lumber Bureau (MLB), and those of Frontier Lumber. The MLB certificate will specifically state that the corresponding entries cover softwood lumber products produced in the Maritime Provinces from logs originating in Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland, or the state of Maine.
In accordance with section 703(f) of the Act, we will notify the ITC of our
In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.
In accordance with 19 CFR 351.310, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on this preliminary determination. Any requested hearing will be held at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the
Requests for a public hearing should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and, (3) to the extent practicable, an identification of the arguments to be raised at the hearing. In addition, ten copies of the business proprietary version and six copies of the non-proprietary version of the case briefs must be submitted to the Assistant Secretary. The date for submission of the case briefs will be scheduled when the Department announces the date of the hearing. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Ten copies of the business proprietary version and six copies of the non-proprietary version of the rebuttal briefs must be submitted to the Assistant Secretary no later than seven days from the date of filing of the case briefs. An interested party may make an affirmative presentation only on arguments included in that party's case or rebuttal briefs. Written arguments should be submitted in accordance with 19 CFR 351.309 and will be considered if received within the time limits specified above. Please note that an interested party may still submit case and/or rebuttal briefs even though the party is not going to participate in the hearing.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
The Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Public hearing notice; extension of public comment period.
Notice is hereby given that the Estuarine Reserves Division, of the Office of Ocean and Coastal Resource Management (OCRM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce, will extend the public comment period for the purpose of receiving comments on the Draft Environmental Impact Statement and Draft Management Plan (DEIS/DMP) prepared on the proposed designation of the San Francisco Bay National Estuarine Research Reserve in California. The DEIS/DMP addresses research, monitoring, education and resource protection needs for the proposed reserve.
The comment period for the DEIS/DMP which published on June 29, 2001 (66 FR 34618) will be extended to August 31, 2001. All written comments received by this deadline will be considered in the preparation of the FEIS.
Ms. Laurie McGilvray (301) 713-3155 extension 158, Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, NOAA, 1305 East-West Highway, N/ORM5, Silver Spring, MD 20910. Copies of the Draft Environmental Impact Statement/Draft Management Plan are available upon request to the Estuarine Reserves Division.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of application and proposed issuance of a letter of authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that BP Exploration (Alaska), Inc. Anchorage, AK (BPXA) has requested a renewal of its letter of authorization (LOA) to take a small number of marine mammals incidental to operation of an offshore oil and gas facility at the Northstar development in the Beaufort Sea off Alaska.
Comments and information must be received no later than September 17, 2001. Comments will not be accepted if submitted via e-mail or the Internet.
Comments on the application should be addressed to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225. A copy of the application, and a list of references used in this document may be obtained by writing to this address or by telephoning one of
Kenneth R. Hollingshead (301) 713-2322, ext. 128, or Brad Smith (907) 271-5006.
Section 101 (a)(5)(A) of the MMPA (16 U.S.C. 1361
Permission may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals, will not have an unmitigable adverse impact on the availability of the species or stock(s) of marine mammals for subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and the requirements pertaining to the monitoring and reporting of such taking. Regulations governing the taking of marine mammals incidental to construction and operation of the offshore oil and gas facility at Northstar in the Beaufort Sea were published and made effective on May 25, 2000 (65 FR 34014), and remain in effect until May 25, 2005. For a detailed background on the issuance of this 5-year set of regulations, please refer to that document.
On May 15, 2001, NMFS received a request from BPXA for a renewal of an LOA issued on September 28, 2000 (65 FR 58265) for the taking of marine mammals incidental to production operations of the offshore oil and gas facility at Northstar in state and Federal waters, under section 101 (a)(5)(A) of the MMPA. This request contained information in compliance with 50 CFR 216.209 which updated information provided in BPXA’s original application for takings incidental to construction and operations at Northstar. The current LOA for the taking of marine mammals incidental to the construction of the Northstar facility expires on November 11, 2001.
BPXA proposes to produce oil from the Northstar Unit offshore oil development facility. This facility will be the first in the Beaufort Sea that uses a subsea pipeline to transport oil to shore and then into the Trans-Alaska Pipeline System. The Northstar Unit is located on Seal Island between 2 and 8 miles (mi)(3.2 and 12.9 kilometers (km)) offshore from Pt. Storkersen, AK. This unit is adjacent to the Prudhoe Bay industrial complex and is approximately 54 mi (87 km) northeast of Nuiqsut, a Native Alaskan community.
The Northstar island and pipelines were constructed during the winter of 1999 and early 2000. Construction of ice-roads began in November 1999, and was completed in March, 2000. Construction activity included the construction of several ice roads, one from West Dock and Pt. McIntyre to the Northstar gravel mine, one from the Kuparuk River delta mine site to Seal Island, and one along the pipeline route to Seal Island. The gravel-haul road had a parallel alternate road to transport service equipment, construction materials and alternate gravel hauling when maintenance or repair of the main ice road was required. Gravel hauling to the island extended from February to April, 2000. The pipelines were installed through a trench in the ice from March through May, 2000, and buried to a depth of 6 to 8 ft (1.8 to 2.4 m) below the sea floor. Construction work and installation of facilities on the island continued during the spring ice break-up and open water season of 2000. Sheet pile installation at Northstar island began on March 7, 2000, and continued through May 29, 2000 via vibratory and impact pile-driving techniques. Additional work included capping the sheet pile retaining wall and installing the well-conductor pipes, foundation blocks, concrete slope protection, utility and permanent living quarter modules, and the drilling rig with its module. Monitoring of marine mammal impacts was conducted during this construction period and reported in Richardson and Williams (2000, 2001a).
The operational (oil production) phase at the Northstar facility during both the ice-covered and open-water seasons will include two diesel generators (designated emergency generators), three gas-turbine generators for the power plant operating at 50-percent duty cycle (i.e., up to two will be operating at any one time), two high pressure gas-turbine compressors, one low-pressure flare, and two high-pressure flares. All flares will be located on the 215-ft (66 m) flare tower. There is no seismic survey work involved with this activity or being proposed for authorization under this LOA.
Drilling began in December, 2000 and is expected to continue for about 3 years. The operational phase of Northstar is considered to begin with the first oil, likely in October or November, 2001. Production will commence while drilling is continuing. Drilling will continue until 23 development wells (15 production, 7 gas injection) are drilled. After drilling is completed, only production-related site activities will occur.
In order to support operations at Northstar, the proposed operations activity includes the annual construction of three ice roads, one built parallel to the coast from West Dock and Pt. McIntyre to the location of the pipeline shore crossing. A second road will be constructed along the pipeline route from the shore crossing to Northstar Island. A third road from Pt. McIntyre directly to Northstar is also anticipated. Ice road construction will begin sometime during the period from late-November through January, depending on ice conditions. Ice roads are expected to be completed and ready for traffic by mid-February. Ice roads will be used to resupply needed equipment, parts, foodstuffs, and products, and for hauling wastes back to existing facilities. For a description of planned ice-road activities, please refer to BPXA’s 2001 application.
During the summer, barge trips will be required between West Dock or Endicott and the island for resupply. Year-round helicopter access to Northstar is planned for movement of personnel, foodstuffs and emergency movement of supplies and equipment. Helicopters will fly at an altitude of at least 1,000 ft (305 m), except for takeoffs, landings, and safe-flight operations.
The Beaufort/Chukchi seas support a diverse assemblage of marine mammals, including bowhead whales (
In addition to the species mentioned in this paragraph, Pacific walrus (
Issuance of an LOA for taking marine mammals incidental to production at Northstar will be based on findings that the determinations made in the preamble to the final rule (that the total takings by Northstar construction and operations will result in only small numbers of marine mammals being taken, have no more than a negligible impact on marine mammal stocks in the Beaufort Sea, and not have an unmitigable adverse impact on the availability of the affected marine mammal stocks for subsistence uses) remain valid. For that reason, the following discussion of impacts is provided. Additional supporting information on noise, and oil impacts on marine mammals and on impacts to subsistence needs can be found in BPXA, 1999, 2001. Additional information on noise impact assessments can be found in Richardson and Williams (eds.)(2000a, 2000b, 2001).
Sounds and non-acoustic stimuli will be generated during oil production operations by generators, drilling, production machinery, gas flaring, camp operations and vessel and helicopter operations. The sounds generated from production operations and associated transportation activities will be detectable underwater and/or in air some distance away from the area of the activity, depending upon the nature of the sound source, ambient noise conditions, and the sensitivity of the receptor. At times, some of these sounds are likely to be strong enough to cause an avoidance or other behavioral disturbance reaction by small numbers of marine mammals or to cause masking of signals important to marine mammals. The type and significance of behavioral reaction is likely to depend on the species and season, and the behavior of the animal at the time of reception of the stimulus, as well as the distance and level of the sound relative to ambient conditions.
Responses of seals to acoustic disturbance are highly variable, with the most conspicuous changes in behavior occurring when seals are hauled out on ice or land when exposed to human activities. Seals in open water do not appear to react as strongly. Activities planned for the ice-covered seasons during the production phase of Northstar are expected to cause no more than limited and localized displacement of ringed seals. Results of monitoring during intensive construction activities during the ice-covered season in early 2000 showed no change in seal density in the areas closest to Northstar (Moulton
In winter and spring, ice road construction and travel activities will displace some small numbers of ringed seals along the ice road corridors. The noise and general human activity may displace female seals away from activity areas and could negatively affect the female and young, if the female remained in the vicinity of the ice road. In addition to displacement by harassment, BPXA believes there is a small possibility of injury or mortality to a very small number of seal pups during ice road construction and transportation activities. However, planned timing of road construction (before pups are born) will minimize the probability of occurrence.
During the open-water season, all six species of whales and seals could potentially be exposed to noise from vessels, the island and from other stimuli associated with the planned operations. Vessel traffic is known to cause avoidance reactions by whales at certain times (Richardson
During the late summer and autumn, almost all whales are found north of the barrier islands, and north of Northstar. In the case of belugas, most individuals follow a far-offshore migration corridor at or beyond the edge of the continental shelf. In the case of bowheads, almost all individuals travel west north of Northstar. A few individuals travel west within a few kilometers north of Northstar, but most are 10 km (6.2 mi) or more farther offshore. Gray whales are rare in the Northstar area.
In the open-water period, the principal activities on Northstar Island will be drilling and production activities, and associated helicopter and vessel traffic. Underwater sounds from drilling and routine production activities on the islands are not expected to be detectable more than about 5-10 km (3.1-6.2 mi) offshore of Northstar Island. However, when tugs or self-propelled barges are in use, underwater sounds could be faintly detectable as much as 28 km (17.4 mi) offshore of Northstar (Blackwell and Greene, 2001). Avoidance reactions by bowhead, gray and beluga whales will be limited to substantially less than that distance. Cetaceans usually do not show overt avoidance reactions unless received levels of industrial noise are well above natural background noise level (Richardson
For reasons stated in the application (BPXA, 1999, 2001), BPXA believes that the effects of oil on seals and whales in the open waters of the Beaufort Sea are likely to be negligible, but there could be effects on whales in areas where both oil and the whales are at least partially confined in leads or at the ice edge. In the spring, bowhead and beluga whales migrate through offshore leads in the ice. However, given the prob able alongshore trajectory of oil spilled from Northstar, in relation to the whale migration route through offshore waters, interactions between oil and whales are unlikely in the spring. In the summer, bowheads are normally found in Canadian waters, and beluga whales are found far offshore. As a result, at this time of the year, these species would be unaffected should a spill occur. However, oil that persists in the Beaufort Sea into the fall or winter and is not contained and/or removed may impact bowhead whales.
In the fall, the migration route of bowheads can be close to shore. If bowheads were moving through leads in the pack ice, or were concentrated in nearshore waters, or if the oil migrated seaward of the barrier islands, some bowhead whales might not be able to avoid oil slicks and could be subject to prolonged contamination. However,
Ringed seals exposed to oil during the winter or early spring could die if exposed to heavy doses of oil for prolonged periods of time. Prolonged exposure could occur if fuel or crude oil was spilled in or reached nearshore waters, was spilled in a lead used by seals, or was spilled under the ice when seals have limited mobility. Individual seals residing in these habitats may not be able to avoid prolonged contamination and some would die. Studies in Prince William Sound indicated a long-term decline of 36 percent in numbers of molting harbor seals located on those haulouts affected by oil from the EXXON VALDEZ spill. In addition, newborn seal pups, if contacted by oil, will likely die from oiling through loss of insulation and resulting hypothermia (BPXA, 1999). Because the number of ringed and bearded seals in the central Beaufort Sea represents a relatively small portion of their total populations, and even large oil spills are not expected to extend over large areas, relatively few ringed and bearded seals would be impacted, and impacts on regional population size would be expected to be minor.
In addition to oil contacting marine mammals, oil spill cleanup activities could increase disturbance effects on either whales or seals, causing temporary disruption and possible displacement effects (MMS, 1996; BPXA, 1999). In the event of a large spill contacting and extensively oiling coastal habitats, the presence of response staff, equipment, and many low-flying aircraft involved in the cleanup will (depending on the time of the spill and cleanup), potentially displace seals and other marine mammals. However, the potential effects on bowhead and beluga whales are expected to be less than those on seals. The whales tend to occur well offshore where cleanup activities (during the open water season) are unlikely to be concentrated (BPXA, 1999). Also, because bowheads are transient and during the majority of the year, absence from the area would lessen the likelihood of impact by cleanup activities.
BPXA (2001) estimates that, during the ice-covered period, 53 (maximum 139) ringed seals and 1 (maximum 5) bearded seals potentially may be incidentally harassed annually during oil production activities. BPXA estimated these takings by harassment during the ice-covered season by assuming that seals within 3.7 km (2.3 mi) of Seal Island, and within 0.644 km (0.4 mi) of ice roads will be “taken” annually. This constitutes a total area of 46.73 km
For the ice break-up period, BPXA assumes that seals within 1 km (3.11 km
During the open-water season, BPXA (2001) estimates that 17 (maximum 27) ringed seals, 5 spotted seals, 1-5 bearded seals, 215 (maximum 774) bowhead whales, up to 5 gray whales, and 15 (maximum 91) beluga whales may be incidentally harassed annually due to operations at Northstar. BPXA assumes that seals and beluga whales within 1 km (0.6 mi) radius of Northstar Island will be harassed incidental to construction and other activities on the island. Assumed “take” radii for bowhead whales are based on the distance at which the received level of production-related noise from the island would diminish below 115 dB re 1 micro-Pa. This distance has been conservatively estimated at 4 km (2.5 mi), due mostly to noise from tugs and self-propelled barges.
Although the potential impacts to the several marine mammal species occurring in these areas is expected to be limited to harassment, a small number of ringed seals may incur lethal and serious injury. Most effects, however, are expected to be limited to temporary changes in behavior or displacement from a relatively small area near the Northstar site and will involve only small numbers of animals relative to the size of the populations. However, the inadvertent and unavoidable take by injury or mortality of small numbers of ringed seal pups may occur during ice clearing for construction of ice roads. In addition, some injury or mortality of whales or seals may result in the event that an oil spill occurs. As a result, BPXA requested that, because a small number of marine mammals might be injured or killed, that takings by mortality also be covered by the LOA. However, because of the unpredictable occurrence, nature, seasonal timing, duration, and size of an oil spill occurring, a specific prediction cannot be made of the estimated number of takes by an oil spill. According to BPXA, in the unlikely event of a major oil spill at Northstar or from the associated subsea pipeline, numbers of marine mammals killed or injured are expected to be small and the effects on the populations negligible. While NMFS agrees that a major oil spill is unlikely, and believes that it is even less likely that spilled oil will intercept numbers of marine mammals, NMFS cannot necessarily conclude that the effects on marine mammal populations will be negligible. Depending upon magnitude of the spill, its location and seasonality, an oil spill could have the potential to affect ringed and bearded seals, and/or bowhead and beluga whales. Because of the large population size of ringed seals and bearded seals and the small number of animals in the immediate vicinity of the Northstar facility, and because spilled oil is unlikely to disperse widely and, therefore, affect large numbers of seals, NMFS has determined that the effect on ringed and bearded seals will be negligible, even in the unlikely event that a major oil spill occurred.
Bowhead and beluga whales, however, while potentially less likely to come into contact with spilled oil because of their more prevalent offshore distribution, and potentially less seriously affected when in oiled waters provided their passage is not blocked,
However, regardless of the proposed negligible impact finding, because the Clean Water Act (CWA), at 33 USC 1321 (b)(3), prohibits discharge in harmful quantities into the water and regulations at 40 CFR 110.3 define harmful quantities as violating water quality standards or causing a sheen (i.e., oil spills are considered a violation of CWA), an authorization to take marine mammals, under section 101 (a)(5)(A) of the MMPA, incidental to an oil spill cannot be issued. Even though NMFS cannot issue incidental takings for oil spills, it must continue to ensure that potential takings are reduced to the lowest level possible and therefore, provides for mitigation to ensure that oil spills do not occur.
Invertebrates and fish, the nutritional basis for those whales and seals found in the Beaufort Sea, may be affected by operations at the Northstar project. Fish may react to noise from Northstar with reactions being quite variable and dependent upon species, life history stage, behavior, and the sound characteristics of the water. Invertebrates are not known to be affected by noise. Fish may have been displaced when the island was constructed. These local, short-term effects however, are unlikely to have an impact on marine mammal feeding.
In the event of a large oil spill, fish and zooplankton in open offshore waters are unlikely to be seriously affected. Fish and zooplankton in shallow nearshore waters could sustain heavy mortality if an oil spill were to remain within an area for several days or longer. These affected nearshore areas may then be unavailable for use as feeding habitat for seals and whales. However, because these seals and whales are mobile, and bowhead feeding is uncommon along the coast near Northstar, effects would be minor during the open water season. In winter, effects of an oil spill on ringed seal food supply and habitat would be locally significant in the shallow nearshore waters in the immediate vicinity of the spill and oil slick. However, effects overall would be negligible.
This section contains a summary on the potential impacts from operational activities on subsistence needs for marine mammals. A more detailed description can be found in BPXA's applications (BPXA, 1999, 2001). This information, in conjunction with information provided by the Alaska Eskimo Whaling Commission (AEWC) and North Slope Borough (NSB) in their comments on the final rule, and information provided in the Corps' final Environmental Impact Statement (EIS) for Northstar, is believed by NMFS to be the best information available to date on the potential effects on the availability of marine mammals for subsistence uses in the Beaufort Sea area.
The disturbance and potential displacement of bowhead whales and other marine mammals by sounds from vessel traffic and production activities are one of the principle concerns related to subsistence use of the area. The harvest of marine mammals is central to the culture and subsistence economies of the coastal North Slope communities. In particular, if elevated noise levels are displacing migrating bowhead whales farther offshore, this could make the harvest of these whales more difficult and dangerous for hunters. The harvest could also be affected if bowheads become more skittish when exposed to vessel or loud noise (BPXA, 1999, 2001).
Underwater sounds from drilling and production operations on the artificial gravel island are not very strong, and are not expected to travel more than about 10 km (6.2 mi) from the source. BPXA states that even those bowheads traveling along the southern edge of the migration corridor are not expected to be able to hear sounds from Northstar until the whales are well west of the main hunting area for Nuiqsut.
Nuiqsut is the community closest to the area of the proposed activity, and it harvests bowhead whales only during the fall whaling season. In recent years, Nuiqsut whalers typically have taken zero to four whales each season (BPXA, 1999). Nuiqsut whalers concentrate their efforts on areas north and east of Cross Island, generally in water depths greater than 20 m (65 ft). Cross Island, the principle field camp location for Nuiqsut whalers, is located approximately 28.2 km (17.5 mi) east of the Northstar area.
Whalers from the village of Kaktovik search for whales east, north, and west of their village. Kaktovik is located approximately 200 km (124.3 mi) east of Northstar. The westernmost reported harvest location was about 21 km (13 mi) west of Kaktovik, near 70°10′ N. 144°W. (Kaleak, 1996). That site is approximately 180 km (112 mi) east of Northstar.
Whalers from the village of Barrow search for bowhead whales much further from the Northstar area, greater than 250 km (
While the effects on migrating bowheads from noise created by Northstar production are not expected to extend into the area where Nuiqsut hunters usually search for bowheads and, therefore, are not expected to affect the accessibility of bowhead whales to hunters, it is recognized that it is difficult to determine the maximum distance at which reactions occur (Moore and Clark, 1992). As a result, in order to avoid any unmitigable adverse impact on subsistence needs and to reduce potential interference with the hunt, the timing of various activities at Northstar as well as barge and aircraft traffic in the Cross Island area will be addressed in a Conflict Avoidance Agreement between BPXA and the AEWC on behalf of its bowhead whale subsistence hunters. Information on impacts on subsistence seal hunting can be found in the final rule document (65 FR 34014, May 25, 2000).
Oil spills have the potential to affect the hunt for bowhead whales. As a result, the potential for oil spills from Northstar are of significant concern to the residents of the NSB. While oil spills from production drilling or pipelines, could occur at any time of the year, NMFS believes that only if a significant spill occurred just prior to or during the subsistence bowhead hunt and spread into offshore waters would a reduction in the availability of bowhead whales for subsistence uses be possible. While unlikely, oil spills could extend into the bowhead hunting area under certain wind and current conditions. BPXA (1999, 2001) states that even in the event of a major spill, it is unlikely that more than a small number of those bowheads encountered by hunters would be contaminated by oil. However, disturbance associated with reconnaissance and cleanup activities could affect bowhead whales and, thus, accessibility of bowheads to hunters. As a result, in the unlikely event that a major oil spill occurred during the relatively short fall bowhead
To minimize the likelihood that impacts will occur to the species and stocks of marine mammals and to the subsistence use of marine mammals, all activities at Northstar will be conducted in accordance with all federal, state and local regulations. BPXA will coordinate all activities with relevant federal and state agencies.
In addition to design for safety and leak prevention (including not having any valves, flanges, or fittings in the subsea section to reduce the potential for equipment failure), the pipeline (which was installed in 2000), includes the following measures to mitigate impacts on the marine environment: (1) utilize the best available technology leak detection system to monitor for any potential leaks, (2) conduct, at a minimum, weekly helicopter aerial surveillance of the offshore (and onshore) pipeline corridor; and (3) conduct ice-road surveillance of the pipeline, including checking for hydrocarbons under the ice by drilling ice holes.
Although the likelihood of an oil spill occurring at Northstar is unlikely, an oil spill contingency plan has been developed and was submitted to the Alaska Department of Environmental Conservation, the U.S. Department of Transportation, U.S. Coast Guard, and the MMS for review and approval in March, 1999. An updated plan will be resubmitted by BPXA in August, 2001. Also, emergency response exercises, training and evaluation drills will occur at regular scheduled intervals.
During the ice-covered season, BPXA proposes to use trained dogs to locate seal structures in previously undisturbed areas after the traditional birthing date for ringed seals of March 20. However, NMFS has a condition in current LOAs requiring the use of trained dogs after January 1st. NMFS has established this date based on a concern over the impacts on timing for seal structures for becoming birthing lairs. As a result, NMFS invites reviewers to provide scientific information on the costs and benefits of requiring mitigation from January 1 rather than from March 20.
During the open-water season, a minimum flight altitude of 1,000 ft (304.8 m) will be maintained by all aircraft unless limited by weather conditions or emergencies, and except during takeoff and landing. Helicopter flights will primarily be conducted during ice breakup or freeze-up and will occur in a specified corridor from Northstar Island to the mainland. In addition, all non-essential boat, barge and air traffic will be scheduled to avoid periods when bowhead whales are migrating through the area. Essential traffic will be closely coordinated with the NSB and the AEWC to avoid disrupting subsistence hunting. In addition, BPXA this year has installed a dock for barges at Northstar. This action, which will allow barges to tie up at Northstar instead of using diesel engines to remain in place, and thus, will reduce underwater noise levels at Northstar.
To mitigate the potential for an oil spill interacting with bowhead whales and affecting both the species and the subsistence harvest by the NSB villagers, BPXA has confirmed to NMFS that they will not drill new wells or sidetracks from existing wells into oil-bearing strata during the defined period of broken ice or open water conditions which is defined as a period from June 13, 2002, and ending with the presence of 18 inches of continuous ice cover for one-half mile in all directions.
In addition, to ensure that there will not be an unmitigable adverse impact on the subsistence uses of marine mammals, principally bowhead whales, from an oil spill (an oil spill in this context means a 1,000-barrel or greater crude oil spill into the water at Northstar, occurring within 6 months of the fall whale hunt, as confirmed by the U.S. Coast Guard), this mitigation will include planning and financial assistance that will cover the following oil-spill related costs: (a) annual transportation to alternative bowhead whale hunting areas for whaling crews, (b) annual alternate subsistence food supplies to replace subsistence food otherwise provided by a whale, (c) annual counseling and cultural assistance for NSB residents and AEWC members to handle the disruptions to their lives and culture caused by the oil spill, and (d) annual assistance to the NSB and the AEWC to restore the International Whaling Commission quota for bowhead whales in the event that an oil spill at Northstar results in a reduction or loss of the IWC quota (BPXA Good Neighbor Policy, March 14, 2001).
A detailed description of BPXA’s proposed monitoring program for implementation during the production phase at Northstar can be found in the revised BPXA application (BPXA, 2001). The open-water season portion of BPXA’s monitoring plan was reviewed by scientists and others attending the annual open-water peer-review workshop held in Seattle on June 6, 2001. Peer review on the on-ice portion of the application was conducted on October 14-15, 1999 and October, 2000. A summary of marine mammal monitoring that will be conducted during Northstar production this year is provided here; greater detail can be found in BPXA’s application (BPXA, 2001).
Under the current LOA, BPXA conducted 6 monitoring tasks. These were to conduct: (1) Fixed-wing, systematic, aerial surveys of seals hauled out on the ice in spring, 2001; (2) on-ice searches, during winter 2000/2001, for ringed seal breathing holes and lairs near Northstar and, if needed, follow-up surveys; (3) measurements of underwater and in air sounds produced by any construction, drilling, and operations to document sounds and vibrations from Northstar construction, (4) island-based visual monitoring for marine mammals during the open water
During late May/early June, 2002, BPXA plans to conduct systematic aerial surveys, using fixed-wing aircraft, of seals hauled out on the ice. This survey will be consistent with BPXA surveys of this type conducted from 1997 through 2001 (see Richardson and Williams, 2001a, 2001b), and will be the last in the planned series. The initial surveys (1997-1998) were to provide data on baseline distribution and density prior to construction of offshore production facilities. The subsequent surveys (1999-2002) provide comparative data during and after construction at Northstar. BPXA will also make measurements of underwater and in-air sounds, as well as ice vibration, produced by any construction, drilling, and operational activities occurring in 2002, whose sounds have not been previously measured.
If construction activities occur in previously undisturbed areas after March 19, 2002, on-ice searches using trained dogs will be employed to locate seal structures. If needed, a recheck of these structures will be conducted in May, 2002 to assess the proportion of structures abandoned relative to distance between the disturbance and the structure.
During the open-water period of 2002, monitoring activities will include acoustic measurements of sounds produced by operational activities and acoustical monitoring of bowhead whales. No visual monitoring of marine mammals will be undertaken in 2002 or in subsequent years for Northstar operations. This task was undertaken in prior years primarily to ensure that no seals or whales would be exposed to potentially injurious levels of sounds from impact pipe driving, or other loud noise sources during construction. However, even during pipe driving, impulse sound levels in the water near the island did not exceed 155 dB (re 1 micro-Pa) and levels did not approach the established 180 dB (whales) and 190 dB (seals) sound level criteria. As BPXA does not plan to conduct impact pipe driving, or other noisy activities in 2002 and beyond, there is no need to continue an observer monitoring program from Northstar.
BPXA plans to use an acoustic localization technique in 2002 to document the occurrence and locations of calling bowhead whales in the southern part of the migration corridor. This work will be a continuation of work conducted in 2000 (Greene et al., 2001) and planned for 2001 under the current LOA. The primary objective is to document the occurrence of calling bowhead whales in the southern part of the migration corridor near Northstar and to determine whether their distances from the island vary in direct relation to the sound levels emanating from the island. This will provide information on whether Northstar affected the distribution and/or the calling behavior of the whales. For a detailed description of the work being proposed, please refer to BPXA's application.
Under its current LOA, BPXA is required to provide two 90-day reports annually to NMFS. The first report is due 90 days after either the ice roads are no longer usable or spring aerial surveys are completed, whichever is later. Under the current LOA, this report was submitted to NMFS on September 15, 2000 (Richardson and Williams (eds.), 2000). The second 90-day report is required to be forwarded to NMFS 90 days after the formation of ice in the central Alaskan Beaufort Sea prevents water access to Northstar. Under the current LOA, this report was submitted to NMFS on January 31, 2001 (Richardson and Williams (eds.), 2001a). These reports included the dates and locations of construction activities, details of marine mammal sightings, estimates of the amount and nature of marine mammal takes, and any apparent effects on accessibility of marine mammals to subsistence hunters.
Under the current LOA, a draft final technical report must be submitted to NMFS by April 1 of each year. This report was submitted to NMFS on that date (Richardson and Williams (eds.), 2001b). The draft final report was subject to peer review in Seattle, WA on June 6, 2001. The final technical report will be and will fully describe the methods and results of all monitoring tasks and a complete analysis of the data. NMFS proposes that the reporting requirements described in these paragraphs will be continued under the new LOA.
On May 22, 2001 (66 FR 28141), NMFS announced receipt of a petition from the Center for Biological Diversity and the Marine Biodiversity Protection Center to designate critical habitat for the Western Arctic stock of bowhead whales under the ESA. NMFS is currently reviewing this petition to determine whether designation of critical habitat is warranted. However, there is no provision under the ESA that activities that might impact critical habitat cease while a review is underway. However, federally-permitted oil and gas exploration activities require consultation under section 7 of the ESA if endangered or threatened species are likely to be affected.
On March 4, 1999, NMFS concluded consultation with the Corps on permitting the construction and operation at the Northstar site. The finding of that consultation was that construction and operation at Northstar is not likely to jeopardize the continued existence of the bowhead whale stock. Because issuance of a small take authorization to BPXA under section 101 (a)(5) of the MMPA is a Federal action, NMFS has completed section 7 consultation on this action. The finding of this consultation was that the issuance of the small take authorization was unlikely to adversely affect the bowhead whale.
On June 12, 1998 (63 FR 32207), the Environmental Protection Agency (EPA) noted the availability for public review and comment a draft EIS prepared by the Corps under NEPA on Beaufort Sea oil and gas development at Northstar. Comments on that document were accepted by the Corps until August 31, 1998 (63 FR 43699, August 14, 1998). On February 5, 1999 (64 FR 5789), EPA noted the availability for public review and comment, a final EIS prepared by the Corps under NEPA on Beaufort Sea oil and gas development at Northstar. Comments on that document were accepted by the Corps until March 8, 1999. Based upon a review of the final EIS, the comments received on the draft EIS and final EIS, and the comments received during the rulemaking, NMFS adopted the Corps' final EIS as its own as provided in the Council on Environmental Quality regulations (40 CFR 1501.6) and has determined that it is not necessary to prepare supplemental NEPA documentation.
On May 25, 2000 (65 FR 34014), NMFS determined that the impact of production operations at the Northstar project in the U.S. Beaufort Sea will result in no more than a temporary modification in behavior by certain species of cetaceans and pinnipeds. During the ice-covered season, pinnipeds close to the island may be subject to incidental harassment due to the localized displacement from construction of ice roads, from transportation activities on those roads, and from production activities at Northstar. As cetaceans will not be in the area during the ice-covered season, they will not be affected.
During the open-water season, the principal operations-related noise activities will be helicopter traffic, vessel traffic, and other general oil production activities on Seal Island. Sounds from production-related activities on the island are not expected to be detectable more than about 5-10 km (3.1-6.2 mi) offshore of the island. Disturbance to bowhead or beluga whales by on-island activities will be limited to an area substantially less than that distance. Helicopter traffic will be limited to nearshore areas between the mainland and the island and is unlikely to approach or disturb whales. Barge traffic will be located mainly inshore of the whales and will involve vessels moving slowly, in a straight line, and at constant speed. Little disturbance or displacement of whales by vessel traffic is expected. While behavioral modifications may be made by these species to avoid the resultant noise, this behavioral change is expected to have no more than a negligible impact on the animals.
While the number of potential incidental harassment takes will depend on the distribution and abundance of marine mammals (which vary annually due to variable ice conditions and other factors) in the area of operations, because the activity is in shallow waters inshore of the main migration corridor for bowhead whales and far inshore of the main migration corridor for belugas, the number of potential harassment takings is estimated to be small. In addition, no take by injury and/or death is anticipated, except possibly for a small take by mortality incidental to ice-road construction. No rookeries, areas of concentrated mating or feeding, or other areas of special significance for marine mammals occur within or near the planned area of Northstar operations.
Because bowhead whales are east of Seal Island area in the Canadian Beaufort Sea until late August/early September, activities at Northstar are not expected to impact subsistence hunting of bowhead whales prior to that date. Appropriate mitigation measures to avoid an unmitigable adverse impact on the availability of bowhead whales for subsistence needs is the subject of consultations between BPXA and subsistence users.
Also, while production activities at Northstar have some potential to influence seal hunting activities by residents of Nuiqsut, because (1) the peak sealing season is during the winter months, (2) the main summer sealing is off the Colville Delta, and (3) the zone of influence from Northstar on beluga and seals is fairly small, NMFS believes that Northstar production-related activities will not have an unmitigable adverse impact on the availability of these stocks for subsistence uses.
NMFS has determined that the potential for an offshore oil spill occurring is low (less than 10 percent over 20-30 years (Corps, 1999)) and the potential for that oil intercepting whales or seals is even lower (about 1.2 percent (Corps, 1999)). Because of this low potential and because of the seasonality of bowheads, and recognizing that NMFS cannot authorize the incidental taking for oil spills, NMFS has determined that the taking of marine mammals incidental to construction and operation at the Northstar oil production facility will have no more than a negligible impact on them. In addition, because BPXA has certified to NMFS that it will not drill into oil-bearing strata during periods of open water or broken ice (the time period between June 13 and ending with the presence of 18 inches of continuous ice cover for one-half mile in all directions), because there will be an oil spill response program in effect that will be as effective as possible in Arctic waters, and because other mitigation measures have been proposed by BPXA in the event that oil did contact bowheads, NMFS has preliminarily determined that there will not be an unmitigable adverse impact on subsistence uses of marine mammals.
NMFS requests interested persons to submit comments, and information, concerning this request for an LOA (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Pacific Fishery Management Council (Council) and its advisory bodies will hold public meetings.
The Council and its advisory bodies will meet September 9-14, 2001. The Council meeting will begin on Tuesday, September 11, at 10:30 a.m., reconvening each day through Friday. All meetings are open to the public, except a closed session will be held from 10 a.m. until 10:30 a.m. on Tuesday, September 11 to address litigation and personnel matters. The Council will meet as late as necessary each day to complete its scheduled business.
The meetings and hearing will be held at the DoubleTree Hotel Columbia River, 1401 N Hayden Island Drive, Portland, OR 97217; telephone: 503-283-2111. Council address: Pacific Fishery Management Council, 7700 NE
Dr. Donald O. McIsaac, Executive Director; telephone: 503-326-6352.
The following items are on the Council agenda, but not necessarily in this order. All items listed are subject to potential Council action.
1. Opening Remarks, Introductions
2. Council Member Appointments
3. Roll Call
4. Executive Director's Report
5. Approve Agenda
6. Approve June 2001 Minutes
1. Status of 2001 Fisheries
2. Status of Bycatch Estimate
3. Proposed Changes to the Catch Sharing Plan and Annual Regulations
1. National Marine Fisheries Service (NMFS) Report
2. Marine Recreational Fishery Statistics Survey Update
3. Preliminary Harvest Levels and Other Specifications for 2002
4. Groundfish Strategic Plan Implementation
5. Rebuilding Programs
6. Exempted Fishing Permits (EFP)
7. Proposed Management Measures for 2002
8. Status of Fisheries and Inseason Adjustments
9. Amendment 15 to the Groundfish Fishery Management Plan (FMP) - American Fisheries Act
10. Groundfish FMP Environmental Impact Statement
11. Full Retention Measures
12. 2002 Stock Assessment Schedule
1. Status Report on West Coast Marine Reserve Activities
2. Marine Reserve Proposals for Channel Island National Marine Sanctuary
Essential Fish Habitat Issues
1. NMFS Report
2. Update of Ongoing Fisheries
3. Update on Scientific and Statistical Committee Methodology Review
4. Queets Coho Status Review
1. NMFS Report
2. Update on FMP Development
1. NMFS Report
2. Final Report on Squid Maximum Sustainable Yield Workshop
3. Pacific Sardine Fishery Update
1. Status of Legislation
2. Appointments to Advisory Bodies
3. Report of the Budget Committee
4. Council Staff Work Load Priorities
5. November 2001 Council Meeting Draft Agenda
Although non-emergency issues not contained in this agenda may come before this Council for discussion, those 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 Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 326-6352 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council’s (Council) Scientific and Statistical Committee’s
The subcommittee will meet Thursday, September 13, 2001, from 9 a.m. until business for the day is completed.
The meeting will be held at the DoubleTree Hotel-Columbia River, Yakima Room, 1401 N Hayden Island Drive, Portland, OR 97217; telephone: 503-283-2111.
Mr. Dan Waldeck, Pacific Fishery Management Council, 503-326-6352.
The purpose of the work session will be to review the revised draft HMS fishery management plan and regulatory document, largely focusing on Chapter 3 (e.g., maximum sustainable yield specifications) and regulatory analyses.
Although nonemergency issues not contained in the meeting agenda may come before the subcommittee for discussion, those issues may not be the subject of formal subcommittee action during this meeting. Subcommittee 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 Fishery Conservation and Management Act, provided the public has been notified of the subcommittee's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at 503-326-6352 at least 5 days prior to the meeting date.
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs adjusting limits.
August 17, 2001.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being adjusted for swing, carryover and carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 27, 2000, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain wool and man-made fiber textile products, produced or manufactured in Bulgaria and exported during the twelve-month period which began on January 1, 2001 and extends through December 31, 2001.
Effective on August 17, 2001, you are directed to adjust the current limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs adjusting a limit.
August 17, 2001.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of this limit, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limit for Category 433 is being increased for carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on November 28, 2000, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textile products, produced or manufactured in the Dominican Republic and exported during the twelve-month period which began on January 1, 2001 and extends through December 31, 2001.
Effective on August 17, 2001, you are directed to increase the current limit for Category 433 to 27,275 dozen
The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs adjusting limits.
August 17, 2001.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being adjusted for swing, carryover and the recrediting of unused carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on November 15, 2000, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in Macau and exported during the twelve-month period which began on January 1, 2001 and extends through December 31, 2001.
Effective on August 17, 2001, you are directed to adjust the limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs increasing a limit.
August 17, 2001.
Roy Unger, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of this limit, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.gov. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limit for Category 361 is being increased for the recrediting of unused carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 27, 2000, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textile products, produced or manufactured in the Republic of Turkey and exported during the twelve-month period which began on January 1, 2001 and extends through December 31, 2001.
Effective on August 17, 2001, you are directed to increase the current limit for Category 361 to 2,576,045 numbers
The Committee for the Implementation of Textile Agreements has determined that this action falls within the foreign affairs exception of the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Request for public comments.
Lori Mennitt, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
Pursuant to a textile visa arrangement between the United States and the Government of the Philippines, certain textiles and textile products exported from the Philippines must be accompanied by a visa issued by the Government of the Philippines in order to be imported into the United States. See 44 FR 68005 (November 28, 1979).
The Electronic Visa Information System (ELVIS) allows certain foreign governments to electronically transfer textile and textile product shipment information to the U.S. Customs Service and thereby issue a visa electronically. On August 18, 1997 (62 FR 43993), CITA announced that the Government of the Philippines would begin an ELVIS test implementation phase using both paper and electronic visas.
As a result of successful use of the dual visa system, preparations are under way to move beyond the current dual system to the paperless ELVIS system with the Philippines. Exempt goods, for example cottage industry handwoven and handloomed fabrics, handmade articles and garments of handwoven and handloomed fabric, and traditional folklore handicraft products, would still require an exempt certification issued by the Government of the Philippines.
CITA is soliciting public comments on the elimination of the paper visa requirement for the Philippines and utilization of the ELVIS system exclusively. Comments must be received on or before October 16, 2001. Comments may be mailed to D. Michael Hutchinson, Acting Chairman, Committee for the Implementation of Textile Agreements, room 3001, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Washington, DC 20230.
The solicitation of comments is not a waiver in any respect of the exemption to the rulemaking provisions contained in 5 U.S.C. 553(a)(1) relating to matters which constitute "a foreign affairs function of the United States."
Commodity Futures Trading Commission.
Notice and order.
The Commodity Futures Trading Commission (“Commission”) is authorizing the National Futures Association (“NFA”), effective September 17, 2001, to process notice registration filings as a futures commission merchant (“FCM”) or introducing broker (“IB”) in the case of a securities broker or dealer (“BD”) registered with the Securities and Exchange Commission (“SEC”) that, among other things, limits its involvement with commodity futures contracts to security futures products. In
September 17, 2001.
Barbara S. Gold, Assistant Chief Counsel, or Lawrence B. Patent, Associate Chief Counsel, Division of Trading and Markets, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, (202) 418-5450, electronic mail:
In a separate notice published elsewhere today in the
Because the CFMA speaks in terms of a “broker or dealer,” the term “BD as used in this release applies equally to a broker, a dealer or a person registered as both a broker and a dealer.
(A) The broker or dealer limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market or registered derivatives transaction execution facility to security futures products;
(B) The broker or dealer files written notice with the Commission in such form as the Commission, by rule, may prescribe containing such information as the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors;
(C) The registration of the broker or dealer is not suspended pursuant to an order of the Securities and Exchange Commission; and
(D) The broker or dealer is a member of a national securities association registered pursuant to section 15A(a) of the Securities Exchange Act of 1934.
Specifically, the Commission is amending Rule 3.10 by adding paragraph (a)(3) to provide for such notice registration.
As proposed and as adopted, Rule 3.10(a)(3) provides that this notice registration may be made “by following such procedures . . . as may be specified” by NFA. As the Commission explained in proposing paragraph (a)(3), this is consistent with the Commission's previous delegations of registration authority to NFA under Rule 3.2 and through various Commission orders.
NFA Registration Rule 204, like Commission Rule 3.10, concerns the registration of persons as FCMs and IBs. On May 17, 2001, NFA's Board of Directors approved a proposed amendment to Rule 204 so as to conform NFA's rule to that proposed by the Commission for notice registration of certain BDs as an FCM or IB.
Upon consideration, the Commission has determined to authorize NFA, effective September 17, 2001, to perform notice registration functions as set forth in Rule 3.10 in accordance with the standards established by section 4f(a)(2) of the CEA. The Commission is further authorizing NFA, under specified conditions, to terminate any such registration and to perform records custodian functions with respect to notice registration under Rule 3.10. Concurrently, the Commission is separately approving on this date NFA's proposed amendment to its Registration Rule 204.
The Commission further notes that section 17(p)(1) of the CEA
Section 17(
By prior orders, the Commission has authorized NFA to maintain various other Commission registration records and certified NFA as the official custodian of such records for this agency.
In maintaining the Commission's registration records pursuant to this Order, NFA shall be subject to all other requirements and obligations imposed upon it by the Commission in existing or future Orders or regulations.
The Commission has determined, in accordance with the provisions of Section 8a(10) of the CEA, to authorize NFA, effective September 17, 2001, to perform the following registration functions:
(1) To receive and maintain filings for notice registration under the Commodity Exchange Act as a futures commission merchant or introducing broker by those brokers and dealers registered with the Securities and Exchange Commission who meet the requirements of NFA Registration Rule 204;
(2) To terminate the notice registration of a registered broker or dealer as a futures commission merchant or introducing broker where the broker or dealer no longer meets the requirements of NFA Registration Rule 204; and
(3) To maintain records regarding brokers and dealers notice-registered as a futures commission merchant or introducing broker and to serve as the official custodian of those Commission records.
NFA shall perform these functions in accordance with the standards established by the CEA and the regulations promulgated thereunder.
These determinations are based upon the Congressional intent expressed in sections 8a(10) and 17(
Nothing in this Order or in sections 8a(10) or 17 of the CEA or in section 125 of the CFMA shall affect the Commission's authority to review the performance by NFA of Commission registration functions.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In accordance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Health Affairs announces the proposed extension of a public information collection and seeks public comment on the provisions thereof. 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 information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received October 16, 2001.
Written comments and recommendations on the information collection should be sent to LTC Thomas V. Williams, Ph.D., M.S., U.S.A., Dir., Program Evaluation TRICARE Management Activity; HPA&E, 5111 Leesburg Pike, Suite 810, Falls Church, VA 22041.
Please refer to the information cited above.
This request encompasses all activities required to develop, pilot test and implement an instrument to assess the attitudes and opinions of MHS prescriptive providers regarding their ability to provide high quality care. Of particular interest is how TRICARE and other organizational factors contribute to the effort to practice medicine in the MHS.
The survey will be designed to collect information from direct care TRICARE providers, focusing on providers who are licensed to practice independently. The provider groups surveyed will include physicians, nurse practitioners, physician assistants, and independent duty corpsmen all of whom are affiliated with Department of Defense (DoD) MTFs. Westat will conduct the information, analyze the results, and generate a report for the government. Activities include the collection and analyses of information obtained confidentially from providers (physicians, physician assistants, independent duty corpsmen, and nurse practitioners) within MTFs.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Written comments and recommendations on the proposed information collection should be sent to Mr. Springer at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Written comments and recommendations on the proposed information collection should be sent to Mr. Shapiro at the Office of Management and Budget, Desk Officer for DoD Health Affairs, Room 10235, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Written comments and recommendations on the proposed information collection should be sent to Mr. Springer at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Written comments and recommendations on the proposed information collection should be sent to Mr. Oleinick at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Pub. L. 104-164 dated 21 July 1996.
Ms. J. Hurd, DSCA/COMPT/RM, (703) 604-6575.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 01-09 with attached transmittal, policy justification, and Sensitivity of Technology.
Office of the Secretary, DoD.
Notice to amend a system of records.
The Office of the Secretary of Defense proposes to amend one system of records notice in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on September 17, 2001 unless comments are received that would result in a contrary determination.
Send comments to OSD Privacy Act Coordinator, Records Management Section, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Mr. David Bosworth at (703) 588-0159.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the records system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Personnel Security Operations File (June 22, 1995, 60 FR 32511).
Delete current entry and replace with ‘Active records are maintained for as long as an individual may require a security clearance or suitability certificate because of their affiliation with the agency. When this relationship ceases, files are transferred to inactive status, retained for two years and destroyed.’
Personnel Security Operations File.
Directorate for Personnel and Security, Washington Headquarters Services, Department of Defense, Personnel Security Operations Division, 1155 Defense Pentagon, Room 3B347, Washington, DC 20301-1155.
Civilian employees of, and military members assigned to, the Office of the Secretary of Defense, its components and supported organizations including the United States Court of Appeals for the Armed Forces, the Advanced Research Projects Agency, the Ballistic Missile Defense Organization, the American Forces Information Service, the Defense Legal Services Agency, the Defense Security Assistance Agency, the Defense Technology Security Administration, the Defense Medical Program Activity, the Defense POW/MIA Office, and certain personnel selected for assignment to the United States Mission to NATO.
Experts and consultants serving with or without compensation. Certain employees of the Congressional Budget Office and the U.S. Capitol Police.
Staff of Congressional committees and personnel office staff who require access to classified DoD information or material.
Employees of other agencies detailed to the Office of the Secretary of Defense.
Members and staff of DoD commissions and certain Presidential commissions.
Very important people selected to attend orientation conferences. Defense contractors requiring access to special programs.
Unsalaried students working as interns in supported organizations.
National Agency Checks conducted by the Directorate for Personnel and Security, Washington Headquarters Services; the Individual's Certificate of Security Clearance; security briefing and debriefing statements; security violations and other files pertinent to the security clearance or access status of an individual.
5 U.S.C. 301, Departmental Regulations; E.O. 12985; E.O. 10450; and E.O. 9397 (SSN).
To be used by officials of the Personnel Security Operations Division, Directorate for Personnel and Security, Washington Headquarters Services, to maintain security clearance and authorized access information.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ set forth at the beginning of OSD's compilation of systems of records notices apply to this system.
Hard copy files are maintained in a secured area, and computer files are stored on magnetic tape and disk.
Active personnel security files maintained alphabetically by last name of subject, or by Social Security Number. Inactive personnel security files serially numbered and indexed alphabetically.
Files are maintained under the direct control of office personnel during duty hours. Office is locked and alarmed during non-duty hours. Computer media is stored in controlled areas. Computer terminal access is controlled by user passwords that are periodically changed.
Active records are maintained for as long as an individual may require a security clearance or suitability certificate because of their affiliation with the agency. When this relationship ceases, files are transferred to inactive status, retained for two years and destroyed.
Director for Personnel and Security, Washington Headquarters Services, Department of Defense, Room 3B347, 1155 Defense Pentagon, Washington, DC 20301-1155.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director for Personnel and Security, Washington Headquarters Services, Department of Defense, Room 3B347, 1155 Defense Pentagon, Washington, DC 20301-1155.
Individuals seeking to access information about themselves contained in this system should address written inquiries to the Director for Personnel and Security, Washington Headquarters Services, Department of Defense, Room 3B347, 1155 Defense Pentagon, Washington, DC 20301-1155.
The OSD's rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Applications and related forms from the individual; background investigations and summaries of information from background investigations; employment suitability related information; and forms and correspondence relating to the security clearance and access of the individual.
Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
An exemption rule for this record system has been promulgated in accordance with the requirements of 5 U.S.C. 553(b) (1), (2), and (3), (c) and (e) and published in 32 CFR part 311. For additional information contact the system manager.
National Reconnaissance Office, DOD.
Notice to Amend a System of Records.
The National Reconnaissance Office (NRO) is proposing to amend a system of records notice to its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended. The amendment corrects an
This proposed action will be effective without further notice on September 17, 2001 unless comments are received which result in a contrary determination.
National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Ms. Barbara Freimann at (703) 808-5029.
The National Reconnaissance Office systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the records systems being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Inspector General Investigative Records (August 8, 2001, 66 FR 41570).
Add to entry ‘Records are used to investigate allegations of misconduct or wrongdoing by NRO personnel related to violations of laws, rules, or regulations or to mismanagement, gross waste of funds, fraud or mismanagement on the part of persons assigned or detailed to the NRO, and to provide information to NRO management regarding personnel matters and for evaluating current and proposed programs, policies and activities, assignments, and requests for awards or promotions.
Records are used by the NRO Inspector General and his/her staff, the NRO Director, the Director of the Central Intelligence Agency, and the Secretary of Defense to effect corrective personnel or other administrative action; to provide facts and evidence upon which to base prosecution; to provide information to other investigative elements of the Department of Defense, other Federal, State, or local agencies having jurisdiction over the substance of the allegations or a related investigative interest; to provide information upon which determinations may be made for individuals' suitability for various personnel actions including but not limited to retention, promotion, assignment, retirement in grade or selection for sensitive or critical positions in the Armed Forces or Federal service.'
Inspector General Investigative Records.
Office of the Inspector General, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Persons who are interviewed by or provide information to the National Reconnaissance Office (NRO) Office of Inspector General, and persons involved with or who have knowledge about a matter being investigated or reviewed by the Office of the Inspector General. These persons include NRO civilian and military personnel assigned or detailed to the NRO, persons with a contractual relationship with the NRO or who perform work under NRO contracts.
Reports of investigations, reports of interviews, signed statements, correspondence, government forms, internal NRO memoranda.
National Security Act of 1947, as amended, 50 U.S.C. 401 et seq.; 5 U.S.C. 301, Departmental Regulations; NRO Directive 22-3A; E.O. 12333; E.O. 12958; E.O. 12968; and E.O. 9397 (SSN).
Records are used to investigate allegations of misconduct or wrongdoing by NRO personnel related to violations of laws, rules, or regulations or to mismanagement, gross waste of funds, fraud or mismanagement on the part of persons assigned or detailed to the NRO, and to provide information to NRO management regarding personnel matters and for evaluating current and proposed programs, policies and activities, assignments, and requests for awards or promotions.
Records are used by the NRO Inspector General and his/her staff, the NRO Director, the Director of the Central Intelligence Agency, and the Secretary of Defense to effect corrective personnel or other administrative action; to provide facts and evidence upon which to base prosecution; to provide information to other investigative elements of the Department of Defense, other Federal, State, or local agencies having jurisdiction over the substance of the allegations or a related investigative interest; to provide information upon which determinations may be made for individuals' suitability for various personnel actions including but not limited to retention, promotion, assignment, retirement in grade or selection for sensitive or critical positions in the Armed Forces or Federal service.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To appropriate officials within the Intelligence Community (Central Intelligence Agency, other Federal departments, agencies, inspectors generals and elements thereof) to the extent that the records concern NRO funds, personnel, property programs, operations, or contracts or when relevant to the official responsibilities of those organizations and entities; regarding personnel matters; and to evaluate current and proposed programs policies and activities, selected assignments and requests for awards or promotions.
To Federal, state, local, foreign or international agencies, or to an individual or organization, when necessary to elicit information relevant to an NRO Inspector General investigation, inquiry, decision or recommendation.
To the Department of Justice or any other agency responsible for representing NRO interests in connection with a judicial, administrative, or other proceeding.
To the Department of Justice or other Intelligence Community Inspector General or agency to the extent
To the President's Foreign Intelligence Advisory Board, and the Intelligence Oversight Board, and any successor organizations, when requested by those entities, or when the Inspector General determines that disclosure will assist in the performance of their oversight functions; and
The DoD “Blanket Routines Uses” published at the beginning of the NRO compilation of systems of records notices apply to this system.
Paper files and automated information system, maintained in computers and computer output products.
Name or Social Security Number.
Records are stored in a secure, gated facility, guard, badge, and password access protected. Access to and use of these records are limited to the Inspector General staff whose official duties require such access.
Records are permanently maintained by NRO.
Inspector General, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include the individual's full name and any aliases or nicknames, address, Social Security Number, current citizenship status, date and place of birth, and other information indentifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: ‘I declare (or certify, verify, or state) under penalty or perjury under the laws of the United States of America that are foregoing is true and correct. Executed on (date). (Signature)’
If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty or perjury that the foregoing is true and correct. Executed on (date). (Signature)’
Individuals seeking to access information about themselves contained in this system should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include the individual's full name, and any aliases or nicknames, address, Social Security Number, current citizenship status, date and place of birth, and other information identifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)’.
If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
The NRO rules for accessing records, for contesting contents and appealing initial agency determinations are published in NRO Directive 110-3A and NRO Instruction 110-5A; 32 CFR part 326; or may be obtained from the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Information is supplied by the individual, parties other than the individual, as well as by personal records and documentation; subjects and suspects of NRO investigations; interview of witneses, victims, and confidential sources. All types of records and information maitnained by all levels of government, private industry, and non-profit organizations reviewed during the course of the investigation or furnished the NRO; and any other type of record deemed necessary to complete the NRO investigation.
Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j) (2) if the information is compiled and maintained by a component of the agency which performs as its principle function any activity pertaining to the enforcement of criminal laws.
Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j) (2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
An exemption rule for this record system has been promulgated in accordance with the requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 326. For additional information contact the system manager.
Department of the Army, DoD.
Notice.
Notice is given of the names of members of a Performance Review Board for the Department of the Army.
August 14, 2001.
David Stokes, U.S. Army Senior Executive Service Office, Assistant Secretary of the Army, Manpower & Reserve Affairs, 111 Army, Washington, DC 20310-0111.
Section 4314(c)(1) through (5) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations, one or more Senior Executive Service performance review boards. The boards shall review and evaluate the initial appraisal of senior executives'
The members of the Performance Review Board for the Office of the Surgeon General are:
1. MG Patrick D. Sculley, Deputy Surgeon General, Office of The Surgeon General
2. Dr. Zita M. Simutis, Technical Director, Army Research Institute
3. Mr. James Sizelove, Assistant Deputy Undersecretary of the Army (Operations Research), Office of the DUSA(OR)
Department of the Army, DoD.
Notice.
Notice is given of the names of members of a Performance Review Board for the Department of the Army.
August 14, 2001.
David Stokes, U.S. Army Senior Executive Service Office, Assistant Secretary of the Army, Manpower & Reserve Affairs, 111 Army, Washington, DC 20310-0111.
Section 4314(c)(1) through (5) of Title 5, U.S.C. requires each agency to establish, in accordance with regulations, one or more Senior Executive Service performance review boards. The boards shall review and evaluate the initial appraisal of senior executives' performance by supervisors and make recommendations to the appointing authority or rating official relative to the performance of these executives.
The members of the Performance Review Board for the U.S. Army Materiel Command are:
1. Mr. James L. Bacon, Program Manager for Chemical Demil Operations, Office of the Army Acquisition Executive.
2. Mr. James J. Barbarello, Director, C2 and Systems Integration, CECOM RD&E Center, U.S. Army Communications-Electronics Command.
3. Mr. Thomas C. Boyle, Director, Integrated Materiel Management Center, U.S. Army Tank-automotive and Armaments Command.
4. MG John S. Caldwell, Jr., U.S. Army Tank-automotive and Armaments Command.
5. Ms. Lucretia M. Cruze, Executive Director, Acquisition Center, U.S. Army Aviation and Missile Command.
6. Dr. Chine I. Chang, Director, U.S. Army Research Office, U.S. Army Research Laboratory.
7. MG John J. Deyermond, Deputy Chief of Staff for Logistics, and Operations, U.S. Army Materiel Command.
8. Mr. Robert Doto, Director, Intelligence and Information, Warfare Directorate, CECOM RD&E Center, U.S. Army Communications-Electronics Command.
9. Mr. Mitra Dutta, Director, Research and Technology Integration, U.S. Army Research Office.
10. Mr. Victor J. Ferlise, Deputy to the Commander, U.S. Communications-Electronics Command, Dr. James D. Gantt, Deputy Director, Computational and Information Sciences Directorate, U.S. Army Research Laboratory.
11. Mr. Truman W. Howard, Director for Weapon Sciences, Aviation and Missile RD&E Center, U.S. Army Aviation and Missile Command.
12. Dr. Joseph A. Lannon, Director, Warheads, Energetics and Combat-Support, Armaments Center, U.S. Army Armament Research, Development and Engineering Center, U.S. Army Tank-automotive and Armaments Command.
13. Mr. Anthony A. LaPlaca, Director, CECOM RD&E Logistics & Readiness Center, U.S. Army Communications-Electronics Command.
14. Mr. John C. Lawkowski, Assistant Deputy Chief of Staff for Resource Management, U.S. Army Materiel Command.
15. Mr. Anthony Lisuzzo, Associate Technical Director, CECOM RD&E Center, U.S. Army Communications-Electronics Command.
16. Dr. Louis C. Marquet, Director, CECOM RD&E Center, U.S. Army Communications-Electronics Command.
17. MG Michael R. Mazzuchi, Program Executive Office, C3 Systems, Office of the Army Acquisition Executive.
18. Mr. Daniel G. Mehney, Director, Acquisition Center, U.S. Army Tank-automotive and Armaments Command.
19. Dr. John M. Pellegrino, Director, Sensors and Electron Devices Directorate, U.S. Army Research Laboratory.
20. Ms. Renata F. Price, Assistant Deputy Chief of Staff for RDA—Science, Technology, and Engineering, U.S. Army Materiel Command.
21. Dr. N. Radhakrishnan, Director, Computational and Information, Sciences Directorate, U.S. Army Research Laboratory.
22. Mr. Vemula P. Rao, Vice President for Customer Engineering, Tank-Automative RD&E Center, U.S. Army Tank-automotive and Armaments Command.
23. Mr. Michael C. Schexnayder, Associate Director for Missile Systems, Aviation and Missile RD&E Center, U.S. Army Aviation and Missile Command.
24. Mr. David J. Schaffer, Director, U.S. Army Materiel Systems Analysis Activity.
25. Ms. Sandra O. Sieber, Associate Director, CECOM Acquisition Center, U.S. Army Communciations-Electronics Command.
26. Mr. Brian M. Simmons, Deputy to the Commander and Technical Director, U.S. Army Test and Evaluation Center, U.S. Army Test and Evaluation Command.
27. MG James R. Snider, Deputy Chief of Staff for Research, Development and Acquisition, U.S. Army Materiel Command.
28. Mr. Robert J. Spazzarini, Chief Counsel, U.S. Army Aviation and Missile Command.
29. Ms. Kathryn T. H. Szymanski, Chief Counsel, U.S. Army Communications-Electronics Command.
30. Mr. Joseph H. Zarzycki, Technical Director, Edgewood Chemical and Biological Center, U.S. Army Soldier and Biological Chemical Command.
Department of the Army, DoD.
Notice.
Notice is given of the names of members of a Performance Review Board for the Department of the Army.
August 14, 2001.
David Stokes, U.S. Army Senior Executive Service Office, Assistant Secretary of the Army, Manpower & Reserve Affairs, 111 Army, Washington, DC 20310-0111.
Section 4314(c)(1) through (5) of Title 5, U.S.C.,
The members of the Performance Review Board for the Office of the Chief of Staff, Army are:
1. Lt. Gen Russell Davis, Chief, National Guard Bureau
2. MG Raymond Rees, Vice Chief, National Guard Bureau
3. Ms. Maureen Lischke, NGB Chief, Information Officer, National Guard Bureau
4. Mr. Chris Gardner, Director, NGB Joint Staff, National Guard Bureau
5. Mr. Mark J. O'Konski, Executive Director, USA Logistics Intergration Agency, Office, Deputy Chief of Staff for Logistics
6. Mr. Wimpy D. Pybus, Director for Aviation and Munitions, Office, Deputy Chief of Staff for Logistics
7. Mr. William P. Neal, Assistant Director for Force Projection and Distribution, Office, Deputy Chief of Staff for Logistics
8. Ms. Donna L. Shands, Associate Director for Sustainment, Office, Deputy Chief of Staff for Logistics
9. Mr. Joe R. Billman, Director for Program Development, Office, Deputy Chief of Staff for Logistics
10. BG Jeannette K. Edmunds, Director for Sustainment, Office, Deputy Chief of Staff for Logistics
11. BG Jerome Johnson, Director for Plans, Operations and Logistics Automation, Office, Deputy Chief of Staff for Logistics
12. BG Donald D. Parker, Director for Force Projection and Distribution, Office, Deputy Chief of Staff for Logistics
13. Ms. Jean Bennett, Director of Intelligence Programs, Plans, and Studies, Office, Deputy Chief of Staff for Intelligence
14. Mr. Terrance Ford, Assistant Deputy Chief of Staff for Intelligence, Office, Deputy Chief of Staff for Intelligence
15. Mr. Thomas Dillon, Director, Foreign Disclosure, Office, Deputy Chief of Staff for Intelligence
16. LTG Robert W. Noonan, Jr., Deputy Chief of Staff for Intelligence, Office, Deputy Chief of Staff for Intelligence
17. MG Robert A. Harding, Assistant Deputy Chief of Staff for Intelligence, Office, Deputy Chief of Staff for Intelligence
18. BG Nicholas P. Grant, Special Assistant to the Deputy Chief of Staff for Intelligence, Office, Deputy Chief of Staff for Intelligence
19. Mr. Vernon M. Bettencourt, Technical Advisor to the DCSOPS, Deputy Chief of Staff for Operations
20. Mr. Wendell H. Lunceford, Jr., Director, Army Models Simulation Office (AMSO), Deputy Chief of Staff for Operations
21. LTG Larry R. Ellis, Deputy Chief of Staff for Operations, Office, Deputy Chief of Staff for Operations
22. MG Phillip R. Kensinger, Jr., Assistant Deputy Chief of Staff for Operations, Office, Deputy Chief of Staff for Operations
23. BG Robert W. Chestnut, Assistant Deputy Chief of Staff for Operations for Mobilization/IMA, Office, Deputy Chief of Staff for Operations
24. BG Raymond T. Odierno, Director, Force Management, Office, Deputy Chief of Staff for Operations
25. MG Michael D. Maples, Director, Operations Readiness and Mobilization, Office, Deputy Chief of Staff for Operations
26. BG Clyde A. Vaughn, Deputy Director, Operations Readiness and Mobilization, Office, Deputy Chief of Staff for Operations
27. MG John R. Wood, Director, Strategy, Plans and Policy, Office, Deputy Chief of Staff for Operations
28. BG Karl W. Eikenberry, Deputy Director, Strategy, Plans and Policy, Office, Deputy Chief of Staff for Operations
29. BG William G. Webster, Director, Training, Office, Deputy Chief of Staff for Operations
30. BG(P) Gene M. LaCoste, Assistant Deputy Chief of Staff for Personnel, Office, Deputy Chief of Staff for Personnel
31. Mr. John W. Matthews, Director, Army Records Management and Declassification Agency, Office, Deputy Chief of Staff for Personnel
32. Dr. Edgar Johnson, Director, Army Research Institute
33. Dr. Zita Simutis, Technical Director, Army Research Institute
34. MG Lawrence R. Adair, Commander, U.S. Total Army Personnel Command
35. BG William P. Heilman, Director, Well-Being, Office, Deputy Chief of Staff for Personnel
36. BG Katherine G. Frost, Adjutant General, U.S. Total Army Personnel Command
37. BG Elbert N. Perkins, Director, Military Personnel Management, Office, Deputy Chief of Staff for Personnel
38. BG Dorian T. Anderson, Director, Officer Personnel Management, U.S. Total Army Personnel Command
39. BG Harry B. Axson, Director, Military Personnel Management, Office, Deputy Chief of Staff for Personnel
40. Dr. Craig E. College, Assistant Deputy Chief of Staff for Programs, Office, Deputy Chief of Staff for Programs
41. BG Craig A. Peterson, Director of Integration, Office, Deputy Chief of Staff for Programs
42. MG A.J. Madora, Director, Program Analysis & Evaluation, Office, Deputy Chief of Staff for Programs
43. Mr. Donald E. Tison, Deputy Director, Program Analysis & Evaluation, Office, Deputy Chief of Staff for Programs
44. Edgar B. Vandiver III, Director, U.S. Army Center for Army Analysis
45. Daniel J. Shedlowski, Technical Director, U.S. Army Center for Army Analysis
46. Robert N. Kittel, Special Assistant for Communications & Transportation, Office, The Judge Adjutant General
47. Janet C. Menig, Deputy Assistant Chief of Staff for Installation Management, Office, Assistant Chief of Staff for Installation Management
48. Jeffrey J. Clarke, Chief Historian, Center of Military History
49. Barr, Brian, Technical Director, Army Test & Evaluation Command
50. Brown C. David, Director for Technical Mission (APG, MD), Army Test & Evaluation Command
51. Orlicki, George A. Technical Director/Chief Scientist (White Sands, NM), Army Test & Evaluation Command
52. Pasini, Harold C., Jr., Technical Director, Test & Experimentation Command, Army Test & Evaluation Command
53. Simmons, Brian M., Deputy to Cmdr/Technical Director (APG, MD), Army Test & Evaluation Command
54. Streilein, James J., Director, Army Evaluation Center, Army Test & Evaluation Command
Department of the Navy, DOD.
Notice to Add a System of Records.
The Department of the Navy proposes to add a system of records
This action will be effective on September 17, 2001 unless comments are received that would result in a contrary determination.
Send comments to the Department of the Navy, PA/FOA Policy Branch, Chief of Naval Operations (N09B10), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545 or DSN 325-6545.
The Department of the Navy's record system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Millennium Cohort Study
Naval Health Research Center, Emerging Illness Division, P.O. Box 85122, San Diego CA 92186-5122.
An initial probability-based, cross-sectional sample of 100,000 U.S. Armed Forces personnel (active duty Army, Navy, Marine Corps, and Coast Guard and reserve/National Guard), as of October 2000, that will be followed prospectively by postal surveys every 3 years over a 21-year period. The initial sample of 100,000 persons will be comprised of 30,000 individuals who have been deployed to Southwest Asia, Bosnia, or Kosovo since August 1997, and 70,000 individuals who have not been deployed to these conflicts. In October 2004 and October 2007, a random sample of 20,000 new Armed Forces personnel will be added to the cohort. The total of 140,000 individuals will be followed until the year 2022.
Demographic data, such as name, Social Security Number, rank, grade, gender, military occupational speciality. Health data, such as self-reported medical conditions and symptoms, smoking and drinking behaviors. Validated instruments will be incorporated to capture self-assessed physical and mental functional status (Short Form-36 Veterans), psychosocial assessment (Patient Health Questionnaire), and posttraumatic stress disorder (Patient Checklist-17.
Information obtained from the survey responses will be supplemented with deployment, occupational, vaccination, and healthcare utilization data) related to individual health status.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; and E.O. 9397 (SSN); DoD Protocol Number 32227; Sec 743, National Defense Authorization Act for Fiscal Year 1999; Sec 735, National Defense Appropriations Act for Fiscal Year 2001; Defense Technology Objective MD.25 Deployed Force Health Protection: Predicting Warfighter Resilience.
To create a probability-based, cross sectional database of selected veterans who have, or have not, deployed overseas so that various longitudinal health and research studies may be conducted over a 21 year period. The database will be used:
a. To systematically collect population-based demographic and health data to evaluate the health of Armed Forces personnel throughout their careers and after leaving service.
b. To evaluate the impact of operational deployments on various measures of health over time including medically unexplained symptoms and chronic disease such as cancer, heart disease and diabetes.
c. To serve as a foundation upon which other routinely captured medical and deployment data may be added to answer future questions regarding the health risks of operational deployment, occupations, and general service in the Armed Forces.
d. To examine characteristics of service in the Armed Forces associated with common clinician-diagnosed diseases and with scores on several standardized self-reported health inventories for physical and psychological functional status.
e. To provide a data repository and available representative Armed Forces cohort that future investigators and policy makers might use to study important aspects of service in the Armed Forces including disease outcomes among a Armed Forces cohort.
In addition to revealing changes in veterans' health status over time, the Millennium Cohort Study will serve as a data repository, providing a solid foundation upon which additional epidemiologic studies may be constructed.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 522a(b)(3):
To the Department of Veterans Affairs (DVA) for (1) considering individual claims for benefits for which that DVA is responsible; and (2) for use in scientific, medical and other analysis regarding health outcomes research associated with military service.
To the Department of Health and Human Services, Centers for Disease Control and Prevention for use in scientific, medical and other analysis regarding health outcome research associated with military service.
All disclosures to the DVA and HHS must have prior approval of the Naval Health Research Center Institutional Review Board and a Memorandum of Understanding must be entered into to ensure the right and obligations of the signatories are clear. Access to data (1) is provided on need-to-know basis only; (2) must adhere to the rule of minimization in that only information necessary to accomplish the purpose for which the disclosure is being made is releasable; and (3) must follow strict guidelines established in the data sharing agreement.
To the Social Security Administration (SSA) for considering individual claims for benefits for which that SSA is responsible.
The DoD “Blanket Routine Uses” that appear at the beginning of the Navy's compilation of systems of records notices apply to this system.
Automated databases; electronic records are stored on magnetic media.
Records are retrieved by military service member's name and Social Security Number.
Access to areas where records are maintained is limited to authorized personnel. Access control devices protect areas during working hours and intrusion alarm devices during non-duty hours. Access to data is provided on need-to-know basis only. Password or other user code controls access to data.
Disposition pending (until the National Archives and Records Administration has approved the retention and disposition schedule for these records, treat then as permanent.
Policy Official: Commanding Officer, Naval Health Research Center, Box 85122, San Diego, CA 92186-5122.
Record Holder: Senior Investigator, The Millennium Cohort Study, Naval Health Research Center, Emerging Illness Division, P.O. Box 85122, San Diego, CA 92186-5122.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Senior Investigator, The Millennium Cohort Study, Naval Health Research Center, Emerging Illness Division, P.O. Box 85122, San Diego, CA 92186-5122.
The request should contain the service member's name and Social Security Number and must be signed by the service member requesting the information.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Senior Investigator, The Millennium Cohort Study, Naval Health Research Center, Emerging Illness Division, PO Box 85122, San Diego, CA 92186-5122.
The request should contain the service member's name and Social Security Number and must be signed by the service member requesting the information.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individual participant survey instruments; Composite Health Care System; Corporate Executive Information Systems; Defense Manpower Data Center; Defense Enrollment Eligibility Reporting System; Civilian Health and Medical Program of the Uniformed Services; survey research instruments and health research records at Naval Medical Center, San Diego; and individual physical exams and biological specimens.
None.
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 October 16, 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, 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. 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
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at (540) 776-7742 or via her internet address Kathy@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.
The Department is not bound by any estimates in this notice.
Matching requirement: Under title VI, part A, section 604(a)(3) of the Higher Education Act of 1965, as amended (HEA), 20 U.S.C. 1124(a)(5), Undergraduate International Studies and Foreign Language grantees must provide matching funds in either of the following ways: (a) Cash contributions from the private sector equal to one-third of the total project costs; or (b) a combination of institutional and non-institutional cash or in-kind contributions equal to one-half of the total project costs.
The Secretary may waive or reduce the required matching share for institutions that are eligible to receive assistance under part A or part B of title III, or under title V of the Higher Education Act of 1965, as amended.
This competition focuses on projects designed to meet the priority in section 604(a)(5) of the HEA (20 U.S.C. 1124(a)(5)) (see 34 CFR 75.105(b)(2)(iv)):
Applications from institutions of higher education or combinations or partnerships that: (a) Require entering students to have successfully completed at least two years of secondary school foreign language instruction; (b) require each graduating student to earn two years of postsecondary credit in a foreign language or have demonstrated equivalent competence in the foreign language; or (c) in the case of a two-year degree granting institution, offer two years of postsecondary credit in a foreign language.
Under 34 CFR 75.105(c)(2)(i) we award an additional five points to an application that meets the priority.
Within the competitive priority specified in this notice, we are particularly interested in applications that meet the following invitational priority:
Applications from institutions of higher education that propose activities that enrich or enhance the effectiveness of educational programs abroad, including pre-departure and post-return programs, and integrate education programs abroad into the curriculum of the home institution.
Under 34 CFR 75.105(c)(1) we do not give an application that meets the invitational priority a competitive or absolute preference over other applications.
Christine Corey, Undergraduate International Studies and Foreign Language Program, U.S. Department of Education, International Education and Graduate Programs Service, 1990 K Street, NW., Suite 600, Washington, DC 20006-8521. Telephone: 202-502-7629 or via Internet: chris.corey@ed.gov
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact person listed under
Individuals with disabilities may obtain a copy of the application package in an alternative format by contacting that person. However, the Department is not able to reproduce in an alternative format the standard forms included in the application package.
You may view 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 this 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, DC area at (202) 512-1530.
The official version of this document is the document published in the
20 U.S.C. 1124.
National Educational Research Policy and Priorities Board; Education.
Notice of meeting by teleconference.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting by teleconference of the Executive Committee of the National Educational Research Policy and Priorities Board. Notice of this meeting is required under Section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify the general public of their opportunity to attend the meeting.
August 21, 2001.
Thelma Leenhouts, Designated Federal Official, National Educational Research Policy and Priorities Board, Washington, DC 20208-7564. Tel.: (202) 219-2065; fax: (202) 219-1528; e-mail: Thelma.Leenhouts@ed.gov. The main telephone number for the Board is (202) 208-0692.
The National Educational Research Policy and Priorities Board is authorized by Section 921 of the Educational Research, Development, Dissemination, and Improvement Act of 1994. The Board works collaboratively with the Assistant Secretary for the Office of Educational Research and Improvement to forge a national consensus with respect to a long-term agenda for educational research, development, and dissemination, and to provide advice and assistance to the Assistant Secretary in administering the duties of the Office. The meeting is open to the public. Persons who wish to attend should contact the Board office at (202) 208-0692. The Executive Committee will review and approve decisions on contract activity for the remainder of FY 2001. Records are kept of all Board proceedings and are available for public inspection at the office of the National Educational Research Policy and Priorities Board, Suite 100, 80 F St., NW., Washington, DC 20208-7564.
The Department of Energy (DOE).
Notice of issuance of supplemental announcement.
The U. S. Department of Energy (DOE) pursuant to the DOE Financial Assistance Rules, 10 CFR 600.8, is announcing its intention to solicit Applications under this Supplemental Announcement 08, titled “Enhancing Economic Viability and Long-term Sustainability of Operating Geothermal Power Plants” of the Fiscal Year 2001 Broad-based Solicitation for Submission of Financial Assistance Applications Involving Research, Development and Demonstration, DE-PS36-01GO90000. The Financial Assistance award(s) resulting from this Supplemental Announcement will be cooperative agreement(s).
DOE expects to issue the Supplemental Announcement in mid-August, 2001.
To obtain a copy of the Supplemental Announcement and the Broad-based Solicitation once it is issued, interested parties must access the DOE Golden Field Office Home Page at http://www.golden.doe.gov/businessopportunities.html under “Solicitations”, then locate the Solicitation number and Supplemental Announcement number. DOE does not intend to issue written copies of the solicitation.
Ruth E. Adams, Contracting Officer, DOE Golden Field Office, 1617 Cole Boulevard, Golden, CO 80401-3393 or via Facsimile to Ruth E. Adams at 303-275-4788 or electronically to
DOE is seeking applications from a team that includes geothermal power plant operators, owners, and assessors for plant-wide assessments that will lead to substantial improvements in energy output, conversion efficiency, parasitic power reduction, and long-term sustainability. The goal in supporting such plant assessments is to develop case studies, which illustrate the benefits of adopting a plant-wide systems approach strategy across an entire production facility.
Geothermal Power plant applicant teams that take a comprehensive, plant-wide, systems approach to increasing energy conversion efficiency, production capacity, and improving sustainability are of interest. Specifically, proposals are sought where teams are considering the adoption of best available and emerging technologies using a variety of tools, information, process engineering techniques, and support systems. We anticipate that the plant would conduct the assessment by initially profiling the entire plant's energy requirements and energy-intensive processes. This would be conducted in the form of an energy audit using state-of-the-art process modeling tools. Further assessment would then focus on specific components or systems that would offer the largest cost savings and return on investment. Assessment methodologies and strategies that aim to discover opportunities where the plant's investment in energy conversion efficiency and capacity are maximized will be of most interest.
Applications submitted by Federally Funded Research and Development Centers (FFRDC's), as defined by Federal Acquisition Regulation (FAR) 35.017, will not be considered for award.All questions concerning this Supplemental Announcement must be submitted in writing to Ruth E. Adams, Contracting Officer, at the locations specified under the contact for further information above.
Take notice that on August 6, 2001, Algonquin Gas Transmission Company (Algonquin), 5400 Westheimer Court, Houston, Texas 77056-5310, filed in Docket No. CP01-425-000 an application pursuant to Section 7(c) of the Natural Gas Act for a certificate of public convenience and necessity to uprate certain compression facilities at its Burrillville, Rhode Island, compressor station in order to render up to 10,000 dekatherms per day of firm transportation service to Colonial Gas Company (Colonial), all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may also be viewed on the web at
Algonquin states that each of the two existing compressor units at the Burrillville compressor station has a design capacity of 6,950 HP and each is certificated by the Commission to
Algonquin states that Colonial has entered into a service agreement for a primary term of 15 years, under which Colonial will receive 10,000 dekatherms per day of firm transportation service under Rate Schedule AFT-1. Algonquin further states that the costs of the compressor station uprates are estimated to be $84,000, and will be expensed.
Questions regarding the details of this proposed project should be directed to Steven E. Tillman, Director of Regulatory Affairs for Algonquin Gas Transmission Company, P.O. Box 1642, Houston, Texas 77251-1642.
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 September 4, 2001 file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, D.C. 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
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 to 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, 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 under the “e-Filing” link.
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.
On August 3, 2001, Dynegy LNG Production Terminal, LP (Dynegy LNG), filed a petition for a declaratory order by the Commission disclaiming jurisdiction over the siting, construction and operation of the Hackberry, Louisiana LNG facility or, alternatively, assert such jurisdiction solely to determine that the facility is not inconsistent with the public interest, all as more fully set forth in the petition which is on file with the Commission and open to public inspection. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Dynegy LNG states that it requests the Commission issue a declaratory order disclaiming jurisdiction over the siting, construction and operation of the Hackberry LNG facility, in light of the Energy Policy Act amendment to Section 3 of the Natural Gas Act. Alternatively, if this primary request for relief is not granted, Dynegy LNG states that it requests the Commission issue a declaratory order finding that the project is not inconsistent with the public interest and should be authorized on that basis without any further proceedings or conditions.
Dynegy LNG states that it would convert an existing LPG terminal to an LNG terminal, using the existing dock and ship berthing structure. Dynegy LNG states that it would add an LNG tank and necessary vaporization facilities and that the new LNG import facility would have the capacity to receive and vaporize 750 MMcf/day and that the facility will be expandable up to 1.5 Bcf/day. A header pipeline would be constructed connecting the terminal to multiple interstate pipelines (none of
Dynegy LNG states that it requests a Commission determination by September 12, 2001, so that Dynegy LNG could begin conversion of the terminal to meet a fourth quarter 2003 in-service date, convert the LPG tanker under construction to an LNG tanker, and compete in a timely manner for additional dedicated LNG tankers for year 2004 delivery.
Dynegy states that the basis of this petition is that LNG ought to be able to compete with other gas supply in meeting the country's future energy needs. Dynegy LNG asserts that if LNG labors under unique regulatory barriers, dating back to a by-gone age of pervasive gas supply regulation, then LNG resources will not develop in a timely and natural way to meet market requirements.
Dynegy LNG claims that historically, the regulation of LNG has not worked well. Dynegy LNG believes LNG projects were not built when they were needed—instead they were built when they were not needed. Consumers paid for this in the form of “minimum bills” that guaranteed recovery of various project costs to the LNG subsidiaries of interstate pipelines. This early form of “stranded costs” materialized in the early 1980s when LNG imports ceased due to delivered prices way above market prices.
Dynegy LNG asks that history not be repeated. Dynegy LNG believes LNG should be treated like any other gas supply—no unique regulatory burden and no unique regulatory benefit.
Dynegy LNG asserts that this relief is, in fact, what Congress included in the Energy Policy Act of 1992. Importation of LNG is to be treated as a “first sale” over which the Commission has no jurisdiction. The legislative history of this provision shows that Congress wants importation of LNG to be deregulated like all other gas supply.
Giving effect to the intent of the Energy Policy Act, Dynegy LNG believes will allow LNG to play an appropriate, market-driven role in America's energy future. LNG facilities will be efficiently located in the United States instead of being built in foreign countries (with interconnecting pipelines to the U.S.), or not built at all. And consumers will not be at risk for project failure.
To the extent that the Commission determines that, notwithstanding the Energy Policy Act, it retains jurisdiction to impose conditions on LNG projects, Dynegy LNG requests, in the alternative, that the Commission assert jurisdiction solely to determine that the project is not inconsistent with the public interest and grant import authority to Dynegy LNG without any further proceedings or conditions.
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 September 4, 2001, file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
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 to 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, 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 under the “e-Filing” link.
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.
Pursuant to Rule 601 of the Commission's Rules of Practice and Procedure,18 CFR 385.601 (2001), a settlement conference in the above docketed proceeding will be held on
The purpose of the conference is to resolve all matters pending in the above docketed proceeding. As agreed at the July 31, 2001 settlement conference, the economic terms of the settlement will be determined at the October 10th session, and the final language of the settlement agreement, including the economic terms, will be determined at the October 11th session. All parties in the above docketed proceeding are directed to participate in both days of this settlement conference or have principals present with full and complete authority to act on all matters addressed, and approve and accept a settlement.
Steven A. Rothman is the mediator for the conference. He will be available to communicate in private with any party prior to the conference. If a party has any questions regarding the conference, please call Mr. Rothman at 202/208-2278 or send an e-mail to
Take notice that on August 7, 2001, Lester Reed filed a complaint pursuant to Rule 206 of the Commission's Rules of Practice and Procedure, 18 CFR 385.206 (2001), and Part I of the Federal Power Act, 16 U.S.C. 791,
As required by 18 CFR 385.206(c), when Mr. Reed filed his complaint, he was required to simultaneously serve a copy of the complaint on the licensee and affected regulatory agencies. No later than August 15, 2001, Mr. Reed must provide evidence that he served the complaint on these entities.
The licensee may file an answer to the complaint. Any person desiring to be heard or to protest this filing should file comments, 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 Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). The licensee's answer and all comments, motions, or protests must be filed on or before September 4, 2001. Any entity wishing to become a party must file a motion to intervene. Comments, motions to intervene, and protests may be filed electronically via the internet in lieu of paper.
Take notice that the following filings have been made with the Commission:
Take notice that on August 6, 2001, Acadia Power Partners, LLC (Acadia) filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
Acadia, a Louisiana limited liability company, proposes to own and operate an electric generating facility and sell the output at wholesale to electric utilities, an affiliated power marketer and other purchasers. The facility is a natural gas-fired, combined cycle generating facility, which is under construction near Eunice, Louisiana.
Take notice that on August 6,2001, Duke Energy Lee, LLC (Duke Lee) tendered for filing its revised Emergency Redispatch Tariff in compliance with the Federal Energy Regulatory Commission's (Commission) letter order of July 6, 2001.
Take notice that on August 6, 2001, Kansas City Power & Light Company (KCPL) filed the designation page to Service Agreement No. 24 under its FERC Electric Tariff, First Revised Volume No. 4, providing for the long-term sale of capacity and energy to the City Utilities of Springfield, Missouri. This filing was made to comply with the Order of the Commission in this docket issued on July 23, 2001.
Take notice that on August 7, 2001, ODEC Power Trading, Inc. (OPT) filed a Petition for blanket authority to sell wholesale power at market-based rates. OPT's Petition is filed pursuant to Section 205 of the Federal Power Act and Rules 205 and 207 of Commission's rules of Practice and Procedure, 18 CFR 385.205 and 385.207. OPT also seeks waiver of the 60-day notice requirement of 18 CFR 35.3 in order to permit OPT
Take notice that on August 6, 2001, Pacific Gas and Electric Company (PG&E) tendered for filing an agreement entitled Special Facilities Agreement for the Interconnection of the City of Santa Clara's 115kV Northern Receiving Station (SFA) between PG&E and the City of Santa Clara (CSC) (collectively, Parties).The SFA permits PG&E to recover its costs for installing, owning, operating and maintaining Special Facilities necessary for the interconnection of a new CSC receiving station with PG&E's transmission system. PG&E has requested certain waivers.
Copies of this filing have been served upon CSC, the California Independent System Operator, and the California Public Utilities Commission (CPUC).
Take notice that the California Independent System Operator Corporation, (ISO) on August 6, 2001, tendered for filing a Participating Generator Agreement between the ISO and Wellhead Power Panoche, LLC for acceptance by the Commission. The ISO states that this filing has been served on Wellhead Power Paonoche, LLC and the California Public Utilities Commission.
The ISO is requesting waiver of the 60-day notice requirement to allow the Participating Generator Agreement to be made effective July 31, 2001.
Take notice that the California Independent System Operator Corporation, (ISO) on August 6, 2001, tendered for filing a Participating Generator Agreement between the ISO and Wellhead Power Gates, LLC for acceptance by the Commission. The ISO states that this filing has been served on Wellhead Power Gates, LLC and the California Public Utilities Commission.
The ISO is requesting waiver of the 60-day notice requirement to allow the Participating Generator Agreement to be made effective July 31, 2001.
Take notice that on August 6, 2001, Exelon Generation Company, LLC, filed with the Federal Energy Regulatory Commission its market-based rate wholesale power sales tariff, FERC Electric Tariff Original Volume No. 2 (Tariff No. 2).
Take notice that the California Independent System Operator Corporation, (ISO) on August 6, 2001, tendered for filing a Meter Service Agreement for ISO Metered Entities between the ISO and Wellhead Power Gates, LLC for acceptance by the Commission. The ISO states that this filing has been served on Wellhead Power Gates, LLC and the California Public Utilities Commission.
The ISO is requesting waiver of the 60-day notice requirement to allow the Meter Service Agreement for ISO Metered Entities to be made effective July 31, 2001.
Take notice that the California Independent System Operator Corporation, (ISO) on August 6, 2001, tendered for filing a Meter Service Agreement for ISO Metered Entities between the ISO and Wellhead Power Panoche, LLC for acceptance by the Commission.The ISO states that this filing has been served on Wellhead Power Panoche, LLC and the California Public Utilities Commission.
The ISO is requesting waiver of the 60-day notice requirement to allow the Meter Service Agreement for ISO Metered Entities to be made effective July 31, 2001.
Take notice that the California Independent System Operator Corporation, (ISO) on August 7, 2001, tendered for filing a Participating Generator Agreement between the ISO and Wellhead Power Tesla, LLC for acceptance by the Commission. The ISO states that this filing has been served on Wellhead Power Tesla, LLC and the California Public Utilities Commission.
The ISO is requesting waiver of the 60-day notice requirement to allow the Participating Generator Agreement to be made effective July 31, 2001.
Take notice that on August 7, 2001, Poquonock River Funding, L.L.C. (Poquonock), filed with the Federal Energy Regulatory Commission an application for approval of its initial rate schedule (FERC Electric Tariff Original Volume No. 1), and for blanket approval for market-based rates pursuant to Part 35 of the Commission's regulations.
Poquonock is a limited liability company formed under the laws of Delaware. Poquonock does not own any generating facilities.
Take notice that the California Independent System Operator Corporation, (ISO) on August 7, 2001, tendered for filing a Meter Service Agreement for ISO Metered Entities between the ISO and Wellhead Power Tesla, LLC for acceptance by the Commission.The ISO states that this filing has been served on Wellhead Power Tesla, LLC and the California Public Utilities Commission.
The ISO is requesting waiver of the 60-day notice requirement to allow the Meter Service Agreement for ISO Metered Entities to be made effective July 31, 2001.
Take notice that on August 6, 2001, Arizona Public Service Company (APS)
A copy of this filing has been served upon the affected parties, the California Public Utilities Commission, and the Arizona Corporation Commission.
E. Any person desiring to be heard or to protest such 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 Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions or protests should be filed on or before the comment date. 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 proceeding. 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. This filing may also be viewed on the web at
Take notice that the following filings have been made with the Commission:
Take notice that on August 8, 2001, Aquila Energy Marketing Corporation (AEMC), filed with the Federal Energy Regulatory Commission (Commission) an application for approval pursuant to section 203 of the Federal Power Act and section 33 of the Commission's regulations of the internal restructuring resulting from the merger of AEMC into its parent Aquila, Inc. (Aquila) with Aquila as the surviving corporation. All jurisdictional assets of AEMC will be transferred to Aquila. AEMC has asked the Commission to approve the Application within thirty days of filing.
Take notice that on August 3, 2001, Conectiv Bethlehem, Inc. (CBI) filed an Application for Determination of Exempt Wholesale Generator Status (Application) pursuant to Section 32(a)(1) of the Public Utilities Holding Company Act of 1935 (PUHCA), all as more fully explained in the Application.
CBI will own and operate a facility located in Bethlehem, Pennsylvania (the “Eligible Facility” for purposes of PUHCA and the Commission's EWG regulations). The Eligible Facility, a natural gas-fired combined cycle turbine, will have a generating capacity of approximately 1100 MW. The Eligible Facility will be interconnected to PP&L, Inc.'s transmission system via PP&L, Inc.'s transmission voltage facilities. CBI has served this filing on Pennsylvania Public Utility Commission, Maryland Public Service Commission, Delaware Public Service Commission, New Jersey Board of Public Utilities, Virginia State Corporation Commission and the Securities and Exchange Commission (SEC).
Take notice that on August 3, 2001, Allegheny Energy Service Corporation on behalf of Allegheny Energy Supply Company, LLC (Allegheny Energy Supply) filed First Revised Service Agreement No. 137 to complete the filing requirement for one (1) new Customer of the Market Rate Tariff under which Allegheny Energy Supply offers generation services. Allegheny Energy Supply continues to requests a waiver of notice requirements to maintain the effective date of June 26, 2001 for Service Agreement has also been requested.
Copies have been proved to the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporate Commission, the West Virginia Public Service Commission, and all parties of record.
Take notice that on August 3, 2001, Indianapolis Power & Light Company filed a First Revised Service Agreement for Non-Firm Point-to-Point Transmission Service between Indianapolis Power & Light Company and Dayton Power & Light Company, under its open access transmission tariff in the above-captioned proceeding.
Take notice that on August 3, 2001, Public Service Company of New Mexico (PNM) submitted for filing an executed service agreement with Nevada Power Company (Nevada), under the terms of PNM's Open Access Transmission Tariff. The agreement is for short-term firm point-to-point transmission service and is effective as of July 13, 2001, the execution date of the agreement. PNM's filing is available for public inspection at its offices in Albuquerque, New Mexico.
Copies of the filing have been sent to Nevada and to the New Mexico Public Regulation Commission.
Take notice that on August 3, 2001, Axia Energy, L.P. (Axia) filed (1) a Notice of Succession informing the Commission that the corporate name of Axia Energy, L.P. (Axia) was changed to Entergy Koch Trading, LP (EKT), effective August 1, 2001; (2) a Notice of Cancellation for the existing Axia market rate tariff (FERC Electric Rate Schedule No. 1); and (3) new tariff sheets for FERC Electric Rate Schedule
Axia Energy, L.P. stated that it served a copy of the foregoing on the Arkansas Public Service Commission, Mississippi Public Service Commission, Louisiana Public Service Commission, Texas Public Utility Commission, and the Council of the City of New Orleans.
Take notice that on August 3, 2001 Florida Power & Light Company (FPL) tendered for filing proposed service agreements with Exelon Generation Company, LLC for Non-Firm transmission service and Firm transmission service under FPL's Open Access Transmission Tariff. FPL requests that the proposed service agreements become effective on August 1, 2001.
FPL states that this filing is in accordance with Section 35 of the Commission's regulations.
Take notice that on August 3, 2001, Calpine Construction Finance Company, L.P. (CCFC) filed three executed long-term power marketing agreements under which CCFC will make wholesale sales of electric energy to Calpine Energy Services, L.P. at market-based rates. CCFC requests confidential treatment of these agreements.
Take notice that on August 3, 2001, Nevada Power Company (Nevada Power) filed pursuant to Section 205 of the Federal Power Act, an executed Transmission Service Agreement between Nevada Power and Las Vegas Cogeneration II, LLC.
On August 3, 2001, Koch Energy Trading, Inc. (KET) tendered for a notice of cancellation in operations pursuant to 18 CFR § 35.15 in order to reflect the cancellation of its market-rate tariff originally accepted for filing by the Commission in Docket ER96-1615-000.
On August 3, 2001, Entergy Power Marketing Corp. (EPMC) tendered for a notice of cancellation in operations pursuant to 18 CFR § 35.15 in order to reflect the cancellation of its market-rate tariff originally accepted for filing by the Commission in Docket ER96-1615-000.
Take notice that on August 3, 2001, Allegheny Energy Service Corporation on behalf of Allegheny Energy Supply Company, LLC (Allegheny Energy Supply) filed First Revised Service Agreement No. 138 to add one new Customer to the Market Rate Tariff under which Allegheny Energy Supply offers generation services. Allegheny Energy Supply continues to requests a waiver of notice requirements to maintain the effective date of August 2, 2001 for service to OGE Energy Resources, Inc. Confidential treatment of information in the Service Agreement has been requested.
Copies have been proved to the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporate Commission, the West Virginia Public Service Commission, and all parties of record.
Take notice that on August 3, 2001, Caledonia Power I, LLC (Caledonia) tendered for filing a Master Power Sales Agreement under Caledonia's Market-Based Rate Schedule FERC No. 1, entered into between Caledonia and Cinergy Capital & Trading, Inc. (CCT).
Caledonia and CCT are requesting an effective date of July 5, 2001.
Take notice that on August 3, 2001, Brownsville Power I, LLC (Brownsville) tendered for filing a Master Power Sales Agreement under Brownsville's Market-Based Rate Schedule FERC No. 1, entered into between Brownsville and Cinergy Capital & Trading, Inc. (CCT).
Brownsville and CCT are requesting an effective date of July 5, 2001.
E. Any person desiring to be heard or to protest such 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 Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions or protests should be filed on or before the comment date. 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 proceeding. 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. This filing may also be viewed on the web at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before October 16, 2001.
Compliance Monitoring and Water Programs Branch, Office of Compliance, Office of Enforcement and Compliance Assurance, Mail Code 2223A, U.S. Environmental Protection Agency, 401 M Street SW., Washington DC 20460. A hard copy of this ICR may be obtained without charge by calling the identified information contact individual.
Virginia Lathrop at (202) 564-7057 and FAX at (202) 564-0050, or by E-mail at lathrop.virginia@epa.gov.
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 Standard Industrial Classification Code for this industry is 4491, Marine Cargo Handling. The information is used by the Agency to assure existing sources are subject to the standards, to ensure the RACT and MACT are being applied correctly, and to ensure that the emissions control system used are properly operated. Based on records and reports the Agency can decide what facilities should be inspected. To minimize burden, much of the information is kept as records and would not be routinely reported to the Agency.
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,
In the currently approved ICR, it is estimated that there are 105 respondents and that the recordkeeping and reporting total annual burden is 28,131 hours. The estimated cost to the respondents is $999,273. Since the frequency of response is once per year (annual reporting), the average annual burden per response is 268 hours per year.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before October 16, 2001.
Compliance Assistance and Sector Program Division, Office of Compliance, Office of Enforcement and Compliance Assurance, Mail Code 2224A, U. S. Environmental Protection Agency, 1200 Pennsylvania Ave, NW.; Washington D.C. 20460. A hard copy of this ICR may be obtained without charge by calling the identified information contact individual.
Carolyn Young at (202) 564-7062, fax at (202) 564-0009, or by E-mail at www.young.carolyn@epa.gov.
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.
(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 respond through the use of automated, electronic, mechanical, or other forms of information technology.
The EPA estimates that there are 56 respondents that would submit 112 responses per year to the EPA. The annual burden is projected to be 59,366 hours annually at a cost of between $2,059,000 per year to meet the monitoring, recordkeeping, and reporting requirements of the rule. The frequency of response is semiannual and the estimated average burden hour cost per response is estimated to be 530 hours.Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501,
Comments must be submitted on or before October 16, 2001.
Ms. Linda Herring, Coatings and Consumer Products Group, Emission Standards Division (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number (919) 541-5358; facsimile number (919) 541-5689; electronic mail (e-mail) address: herring.linda@epa.gov.
Entities potentially affected by this action are those which manufacture or import architectural coatings for sale or distribution in the United States, including the District of Columbia and all United States territories.
The information collection includes initial reports, annual reporting, and recordkeeping necessary for EPA to ensure compliance with Federal standards for volatile organic compounds in architectural coatings. Respondents are manufacturers and importers of architectural coatings. Responses to the collection are mandatory under 40 CFR part 59, subpart D—National Volatile Organic Compound Emission Standards for Architectural Coatings. All information submitted to EPA for which a claim of confidentiality is made will be safeguarded according to the Agency policies set forth in 40 CFR part 2, subpart B—Confidentiality of Business Information. 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 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 EPA, including whether the information will have practical utility;
(ii) evaluate the accuracy of EPA'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,
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previous applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. Total industry burden is estimated to be 23,411 hours per year, at a total labor cost of $1,425,382 per year. Labor costs were estimated based on Table 2 of the Bureau of Labor Statistics (BLS) Employment Cost Trends. After adding overhead costs of 100 percent to the BLS figures, the resulting hourly labor rates for management, technical, and clerical labor are $74, $52, and $34, respectively. There are no capital costs associated with this collection. Burden was calculated based on the following assumptions:
(i) Initial Notification Reports will have been submitted by nearly all the estimated 500 regulated entities prior to expiration of the existing ICR. Therefore, the burden calculation is based on 5 notifications per year beginning in 2002.
(ii) Reading the rule to obtain the recordkeeping and reporting instructions would require 2 hours per respondent.
(iii) Completion of the Initial Notification Report, including the date code explanation, would require 3 hours per respondent.
(iv) Notification of change in date code would require 2 hours per respondent.
(v) Annual planning for recordkeeping activities would require 8 hours per respondent.
(vi) Labeling products would require 67 hours per respondent.
(vii) An additional recordkeeping and annual reporting burden, required only for those who choose the recycled coating provision, exceedance fee provision, or tonnage exemption in lieu of meeting the coating volatile organic compound content limits, is based on the assumptions that 25 manufacturers/importers per year will use the recycled coating provision; 120 will use the exceedance fee provision; and 100 will use the tonnage exemption. The burden estimates for these provisions are 121 hours, 100 hours, and 43 hours, respectively.
Environmental Protection Agency (EPA).
Notices.
This document announces the Office of Management and Budget's
Sandy Farmer at 260-2740, or email at
EPA ICR No. 0801.13; Requirements for Generators, Transporters, and Hazardous Waste Management Facilities Under the RCRA Hazardous Waste Manifest; in 40 CFR parts 262, 263, 264, and 265; OMB No. 2050-0039; on 04/23/2001 OMB filed comment and continue.
EPA ICR No. 1648.03; Control Technology Determination for Equivalent Emission Limitations by Permit; OMB No. 2060-0266; in 40 CFR 63.1-15, 63.50-56; this ICR was withdrawn from OMB review.
EPA ICR No. 1984.01; National Emission Standards for Hazardous Air Pollutants (NESHAP) for Plywood and Composite Wood Products Manufacturing Plants (Proposed rule); on 02/13/2001 this ICR was withdrawn from OMB review.
EPA ICR No. 1958.01; State Clean Air Act Section 507 Program Cooperative Agreement Demonstration Outreach Program Evaluation; on 03/12/2001 this ICR was withdrawn from OMB review.
EPA ICR No. 1941.01; Proposed Information Collection Request for the Evaluation of PrintSTEP; on 03/12/2001 this ICR was withdrawn from OMB review.
EPA ICR No. 1487.06; Cooperative Agreements and Superfund Contracts for Superfund Response Actions; OMB No. 2030-0038; was transferred to OMB No. 2050-0179 effective 05/17/01.
Environmental Protection Agency (EPA).
Notice of adequacy.
In this notice, EPA is notifying the public that EPA has found that the Motor Vehicle Emissions Budgets (MVEB) in the Wisconsin ozone attainment demonstration and post 1999 Rate of Progress (ROP) plan are adequate for conformity purposes. These MVEBs cover the Milwaukee severe ozone area, the Manitowoc moderate ozone area, and the Sheboygan ozone maintenance area for Volatile Organic Compounds (VOC) and Oxides of Nitrogen (NO
The finding and the response to comments will be available at EPA's conformity website:
Michael Leslie, Environmental Engineer, Regulation Development Section (AR-18J), Air Programs Branch, Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-6680,
Today's notice is simply an announcement of a finding that we have already made. EPA Region 5 sent a letter to the Wisconsin Department of Natural Resources on July 25, 2001, stating that the Milwaukee, Manitowoc, and Sheboygan MVEBs in the submitted ozone attainment demonstration and ROP plan for 2002, 2005 and 2007 are adequate. This finding will also be announced on EPA's conformity website:
Transportation conformity is required by section 176(c) of the Clean Air Act. EPA's conformity rule requires that transportation plans, programs, and projects conform to state air quality implementation plans and establishes the criteria and procedures for determining whether or not they do. Transportation conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The criteria by which we determine whether a SIP's motor vehicle emission budgets are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4). Please note that an adequacy review is separate from EPA's completeness review, and it also should not be used to prejudge EPA's ultimate approval of the SIP. Even if we find a budget adequate, the EPA may later disapprove the SIP.
We've described our process for determining the adequacy of submitted SIP budgets in guidance (May 14, 1999 memo titled “Conformity Guidance on Implementation of March 2, 1999 Conformity Court Decision”). We followed the guidance in making our adequacy determination.
42 U.S.C. 7401-7671q.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under Section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal activities at (202) 564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated May 18, 2001 (66 FR 27164).
ERP No. D-AFS-L65384-OR Rating EC2, Drew Creek, Diamond Rock and Divide Cattle Allotments, Issuance of Term Grazing Permits on Livestock Allotments on Tiller Ranger District, Implementation, Umpqua National Forest, Douglas and Jackson Counties, OR.
EPA expressed environmental concerns for the Clean Water Act 303(d)-listed streams in the three remaining cattle allotments. EPA requested that the final EIS include costs to administer the proposed new grazing allotments and disclose impacts of grazing fewer cattle on aquatic and terrestrial resources as well as including details of how the Forest Service will meet the Aquatic Conservation Strategy to restore and maintain watersheds and aquatics.
EPA commented that the EIS was well written and complete, and satisfactorily addressed EPA's scoping comments regarding the potential for avian mortality. EPA requested additional clarification regarding cumulative effects and potential impacts to power rates.
EPA expressed concerns, and requested additional information regarding: coordination of dredge and fill activities in the Port area, water quality impacts, compliance with Clean Water Act Section 404, and air quality impacts.
EPA expressed concerns regarding air quality conformity issues and requested that this issue be resolved in the final EIS.
EPA expressed concerns about the comparative analysis of the four alternatives for destroying chemical weapons at Puebo. More information is also needed on air emissions and hazardous waste generation.
Environmental Protection Agency.
Notice of a prospective purchaser agreement and covenant not to sue the city of Vineland, New Jersey for a property within the vineland company chemical superfund site.
The United States Environmental Protection Agency (EPA) is proposing to enter into a Prospective Purchaser Agreement to provide the City of Vineland, New Jersey, a covenant not to sue under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), as amended, in connection with its proposed purchase and development of a property related to the Vineland Chemical Company Superfund Site. The property is currently owned by the WaWa Corporation. This agreement is intended to resolve a potentially responsible party's liability for certain response costs incurred by the EPA at the Vineland Chemical Superfund Site in Vineland, New Jersey. Notice is being published to inform the public of the Proposed Prospective Purchaser Agreement and of the opportunity to comment.
Comments must be provided on or before September 17, 2001.
Comments should be addressed to the U.S. Environmental Protection Agency, Office of Regional Counsel, 290 Broadway—17th Floor, New York, NY 10007 and should refer to: In the Matter of the Vineland Chemical Company Superfund Site: The City of Vineland, New Jersey, U.S. EPA Index No. CERCLA 2001-2012.
U.S. Environmental Protection Agency, Office of Regional Counsel, 290 Broadway—17th Floor, New York, NY 10007, Attention: Virginia Curry, Esq. (212) 637-3134, or
Notice is hereby given of a Proposed Prospective Purchaser Agreement with the City of Vineland, New Jersey resolving the City's potential liability for a property within the Vineland Chemical Company Superfund Site. CERCLA authorizes EPA to enter this agreement. The Department of Justice approved this agreement pursuant to the inherent settlement authority of the Attorney General to settle claims of the United States.
A copy of the Proposed Prospective Purchaser Agreement, as well as background information relating to the agreement, may be obtained by mail from EPA's Region II Office of Regional Counsel, 290 Broadway—17th Floor, New York, NY 10007.
Proposed Prospective Purchaser Agreement under CERCLA—Vineland Chemical Company Superfund Site.
Environmental Protection Agency.
Notice of proposed settlement.
Under section 122(h)(1) of the Comprehensive Environmental Response and Liability Act (CERCLA), the Environmental Protection Agency (EPA) has proposed to settle claims for response costs at the Chemet Site located in Moscow, Tennessee (Site), with ContiGroup Companies, Inc., Harcross Chemicals, Inc., Kewanee Industries, Inc. and Chevron Environmental Management Company and Pechiney World Trade (U.S.A.), Inc.
EPA will consider public comments on the proposed settlement for thirty (30) days. EPA may withdraw or modify the proposed settlement should such comments disclose facts or
Copies of the proposed settlement are available from: Ms. Paula V. Batchelor, U.S. Environmental Protection Agency, Region IV, CERCLA Program Services Branch, Waste Management Division, 61 Forsyth Street, SW., Atlanta, GA 30303, 404-562-8887.
Written comments may be submitted to Ms. Batchelor at the above address within thirty (30) days of the date of publication.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning Operable Unit Two of the Peterson Puritan, Inc. Superfund Site in Cumberland, Rhode Island with the following settling parties: Bestfoods and CCL Custom Manufacturing, Inc. The settlement requires the settling parties to pay $609,754.87 plus an additional sum for interest on that amount calculated from April 13, 2001 through the date of payment to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling parties pursuant to sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a). For thirty (30) days following the date of publication of this notice, the United States Environmental Protection Agency will receive written comments relating to the settlement. The United States will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The United States Environmental Protection Agency's response to any comments received will be available for public inspection at the Cumberland Public Library, Cumberland, Rhode Island, the Lincoln Public Library, Lincoln, Rhode Island and U.S. Environmental Protection Agency, Region 1, One Congress Street, Suite 1100, Boston, MA 02114.
Comments must be submitted on or before September 17, 2001.
The proposed settlement is available for public inspection at U.S. Environmental Protection Agency, Region 1, One Congress Street, Suite 1100, Boston, MA 02114. A copy of the proposed settlement may be obtained from Diane Boudrot, Office of Environmental Stewardship, U.S. EPA, Region 1, One Congress Street, Suite 1100 (SES), Boston, MA 02114, (617) 918-1776. Comments should reference the Peterson Puritan, Inc. Superfund Site, Cumberland, Rhode Island and EPA Docket No. CERCLA 01-2001-0057 and should be addressed to Michelle Lauterback, Office of Environmental Stewardship, U.S. EPA, Region 1, One Congress Street, Suite 1100 (SES), Boston, MA 02114.
For legal questions, Michelle Lauterback, Office of Environmental Stewardship, U.S. EPA, Region 1, One Congress Street, Suite 1100 (SES), Boston, MA 02114, (617) 918-1774 or for technical questions, Dave Newton, Office of Site Remediation and Restoration, U.S. EPA, Region 1, One Congress Street, Suite 1100 (HBO), Boston, MA 02114, (617) 918-1243.
Environmental Protection Agency.
Notice, request for public comments.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended by the Superfund Amendments and Reauthorization Action (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of an proposed Administrative Order on Consent (“AOC,” Region 9 Docket No. 2000-15) pursuant to Section 122(h) of CERCLA concerning the PRC Patterson Superfund Removal Site (the “Site”), located in Patterson, California. The respondents to the AOC include all parties that participated or cooperated in the removal action to the satisfaction of EPA, except Chevron U.S.A. Inc. and Atlantic Richfield Company, which are negotiating individual settlements in recognition of their distinct commitments at the Site. Through the proposed AOC the respondents will complete the removal action addressing certain above ground storage tanks at the Site. The AOC provides the respondents with a covenant not to sue and contribution protection for matters addressed in the AOC. To date, EPA has incurred approximately $900,000.00 in response costs related to the Site; however, EPA's response costs incurred at the Site are less than twenty-five percent (25%) of the total costs of the response action at the Site. EPA is waiving all claims for recovery of its response costs against the respondents consistent with EPA's established policy regarding allocation of “orphan shares,” which are those of potentially responsible parties that are insolvent or defunct. EPA anticipates recovery of all or a significant portion of its costs from other potentially responsible parties at the Site. For thirty (30) days following the date of publication of this Notice, the Agency will receive written comments relating to the proposed AOC. The Agency's response to any comments received will be available for public inspection at EPA's Region IX offices, located at 75 Hawthorne Street, San Francisco, California 94105.
Comments must be submitted on or before September 17, 2001.
The proposed AOC may be obtained from Danielle Carr, Hearing Clerk, telephone (415) 744-1389. Comments regarding the proposed AOC should be addressed to Danielle Carr (ORC-3) at 75 Hawthorne Street, San Francisco, California 94105, and should reference the PRC Patterson Superfund Removal Site, and Region IX Docket No. 2000-15.
J. Andrew Helmlinger, Office of Regional Counsel, (415) 744-1325, U.S.
The Advisory Committee was established by P.L. 98-181, November 30, 1983, to advise the Export-Import Bank on its programs and to provide comments for inclusion in the reports of the Export-Import Bank of the United States to Congress.
For further information, contact Nichole Westin, Room 1257, 811 Vermont Ave., NW, Washington, DC 20571, (202) 565-3542.
The Federal Communications Commissions, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) 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; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) 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.
Written comments should be submitted on or before September 17, 2001. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster for the State of North Dakota (FEMA-1376-DR), dated May 28, 2001, and related determinations.
August 7, 2001.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
Notice is hereby given that the incident period for this declared disaster is now March 1, 2001, through and including, July 31, 2001.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the State of North Dakota, (FEMA-1376-DR), dated May 28, 2001, and related determinations.
August 7, 2001.
Madge Dale, Readiness, Response and Recovery and Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
The notice of a major disaster declaration for the State of North Dakota is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of May 28, 2001:
Adams, Golden Valley and Grant Counties for Public Assistance.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Virginia, (FEMA-1386-DR), dated July 12, 2001, and related determinations.
August 9, 2001.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3772.
The notice of a major disaster declaration for the Commonwealth of Virginia is hereby amended to include Public Assistance for the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of July 12, 2001:
Buchanan, Dickenson, Russell, Smyth, Tazewell and Wise Counties for Public Assistance (already designated for Individual Assistance).
Federal Emergency Management Agency (FEMA).
Notice of open meeting.
FEMA announces the following open meeting.
This meeting will be open to the public with limited seating available on a first-come, first-served basis. Members of the general public who plan to attend the meeting should contact Cindy Wivell, United States Fire Administration, 16825 South Seton Avenue, Emmitsburg, Maryland 21727, (301) 447-1083, on or before Tuesday, September 4, 2001.
Minutes of the meeting will be prepared and will be available upon request 30 days after they have been approved at the next FICEMS Committee Meeting on December 6, 2001. The minutes will also be posted on the United States Fire Administration website at
Federal Maritime Commission.
Notice of Inquiry; Extension of Time.
The Federal Maritime Commission (“Commission”) by notice published July 18, 2001, 66 FR 37468, initiated an inquiry to solicit information and comments concerning the impact of the Government Paperwork Elimination Act and the Electronic Signatures in Global and National Commerce Act on all sectors of the U.S. ocean shipping industry. Upon request of an interested party, the Commission has determined to enlarge the time for comment on the inquiry.
Comments due on or before September 17, 2001.
Bryant L. VanBrakle, Secretary, Federal Maritime Commission, 800 North Capitol St., NW., Room 1046, Washington, DC 20573-0001, (202) 523-5725, E-mail:
Florence A. Carr, Deputy Executive Director, Office of the Executive Director, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573-0001, (202) 523-5800, E-mail: florence@fmc.gov
By the Commission.
The Department of Health and Human Services, Office of the Secretary will periodically publish summaries of proposed information collections projects and solicit public comments in compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995. To request more information on the project or to obtain a copy of the information collection plans and instruments, call the OS Reports Clearance Officer on (202) 690-6207.
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.
Proposed Projects 1. Surveys of SCHIP Enrollees and Disenrollees for the Congressionally Mandated Evaluation of the State Children's Health Insurance Program—NEW—As part of the Evaluation of the State Children's Health Insurance Program (SCHIP), the Office of the Assistant Secretary for Planning and Evaluation is proposing to conduct a survey about children currently and previously covered by the program. These surreys, to be conducted in ten states, will provide detailed description of the children's characteristics, their movement in and out of the program, access to care, service use and experiences with the program. A supplemental survey about Medicaid children will be conducted in three states. Respondents: individuals or households; Burden Information for SCHIP Survey—Number of Respondents: 18,000; Frequency of Response: one time; Average Burden per Response: .59 hours; Burden for SCHIP Survey: 10,620 hours—Burden Information for Medicaid Survey: Number of Respondents: 5,400; Frequency of Response: one time; Average Burden per Response: .59 hours; Burden for Medicaid Survey: 3,186 hours—Total Burden: 13,806 hours.
Send comments to Cynthia Agens Bauer, OS Reports Clearance Officer, Room 503H, Humphrey Building, 200 Independence Avenue SW., Washington DC, 20201. Written comments should be received within 60 days of this notice.
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2002 funds for grants to state and territorial health departments, to support programs addressing violence against women. The Rape Prevention and Education Grant Program strengthens violence against women prevention efforts by supporting increased awareness, education and training, and the operation of hotlines. The purpose of this program is to award formula grants to States and Territories to be used for rape prevention and education programs conducted by rape crisis centers, State sexual assault coalitions, and other public and private nonprofit entities. This announcement addresses the “Healthy People 2010” focus areas of injury and violence prevention.
Assistance will be provided only to the health departments of States and territories, or their bona fide agents who are current recipients of Rape Prevention and Education funding, including the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau.
Approximately $42,000,000 is available in FY 2002, for funding under this formula based grant program (refer to attachment 1 in the application kit). It is expected that the awards will be made on two cycles. The first cycle will begin on or about January 1, 2002, and the second cycle will begin on or about June 1, 2002. The awards will be made for a 12-month budget period within a project period of up to five years.
The funding formula is based on population. The population used for the States, the District of Columbia, and Puerto Rico is based on the Census conducted April 1, 2000. This information is available at www.census.gov/population/www/cen2000/respop.html. The population used for the remaining territories is based on the U.S. Census International Data Base dated May 10, 2000. This information can be accessed at (www.census.gov/ipc/www/idbsum.html). 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 availability of funds.
Pre-award cost is authorized up to three months before the effective date of the award.
Funds will be used for Rape Prevention and Education Programs specifically to conduct:
1. Educational seminars;
2. The operation of hotlines;
3. Training programs for professionals;
4. The preparation of informational material;
5. Training programs for students and campus personnel designed to reduce the incidence of sexual assault at colleges and universities;
6. Education to increase awareness about drugs used to facilitate rapes or sexual assault; and
7. Other efforts to increase awareness of the facts about, or to help prevent sexual assault, including efforts to increase awareness in under-served communities and awareness among individuals with disabilities (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)).
Applicants must adhere to Congressional legislation (section 393B of the Public Health Service Act (42 U.S.C. 280b
The Legislation stipulates the following:
1. Applicants may not use more than five percent of the amount received for each fiscal year (exclusive of Direct Assistance) for administrative expenses. This five percent limitation is in lieu of, and replaces, the indirect cost rate.
2. An applicant may not use more than two percent of the amount received for each fiscal year for surveillance studies or prevalence studies.
3. Amounts provided to applicants must be used to supplement, and not supplant Preventive Health and Health Services Block Grant, other Federal, State, and local public funds expended to provide the services described above.
4. Grant funds cannot be used for construction, renovation, the lease/purchase of passenger vehicles or the development of major software applications.
Applications may be submitted electronically using the Rape Prevention and Education Grant System (RPEGS) format. The RPEGS application will include the following:
1. Executive Summary;
2. Program Narrative including goals and objectives;
3. Budget and Justification; and
4. Cost Allocations for Surveillance and Core RPE activities.
All eligible applicants will receive the RPEGS software no later than September 4, 2001. CDC will provide technical and administrative support to ensure the timely submission of applications. To provide technical assistance for this RFA, CDC will conduct pre-application conference calls with PA 02002 eligible applicants on August 27, 2001 and September 5, 2001. Details are as follows:
To provide technical assistance for this RFA, CDC will conduct pre-application calls with PA 02002 recipients on August 27, 2001 and September 5, 2001. Details are as follows:
Submit the original copy and two copies of PHS form 5161-1, (OMB Number 0937-0189). Forms are located in the RPEGS certifications section. Forms are also available at: www.forms.psc.gov
(a) Received on or before the deadline dates; or
(b) Postmarked on or before the deadline dates and received in time for orderly processing.
a. The applicant should describe the degree to which human subjects may be at risk and what protections will be in place to assure protection and confidentiality.
b. The applicant should demonstrate that it has adequately addressed the requirements of Title 45 CFR Part 46 for the protection of human subjects.
1. a progress report shall be submitted annually, no later than 90 days after the end of each budget period.
2. a financial status report shall be submitted, no later than 90 days after the end of each budget period.
3. a final financial status report shall be submitted, no later than 90 days after the end of the five year project period.
The following additional requirements are applicable to this program. For a complete description of each see Addendum 1.
In addition to being authorized under 301 (a) (42 U.S.C. 241(a)) of the Public Health Service Act, this program announcement is also authorized under 391 (a) and 393B (42 U.S.C. 280(b) et seq) of the Public Health Service Act. The catalog of Federal Domestic Assistance number is 93.136.
This and other CDC announcements can be found on the CDC homepage on the Internet http://www.cdc.gov. Click on “Funding” then “Grants and Cooperative Agreements.”
If you have questions after reviewing the contents of all the documents, business management technical assistance may be obtained from:Sheryl Heard, Grants Management Specialist,Grants Management Branch,Procurement and Grants Office,Program Announcement 02002,Centers for Disease Control and Prevention (CDC) 2920 Brandywine Road, Room 3000 Atlanta, Georgia 30341 Telephone: (770) 488-2723 Email address: slh3@cdc.gov
For program technical assistance, contact:Wendy Watkins, Program Manager,Division of Violence Prevention,National Center for Injury Prevention and Control,Centers for Disease Control and Prevention (CDC) 4770 Buford Highway, NE, Mailstop K-58 Atlanta, GA 30341-3724 Telephone: (770) 488-1567 Email address: dmw7@cdc.gov.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by September 17, 2001.
Submit written comments on the collection of information to the Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW., rm. 10235, Washington, DC 20503, Attn: Wendy Taylor, Desk Officer for FDA.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 701 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371) and part 7, subpart C sets forth the recall regulations (guidelines) and provides guidance to manufacturers on recall responsibilities. The guidelines apply to all FDA-regulated products (i.e., food, including animal feed; drugs, including animal drugs; medical devices, including in vitro diagnostic products; cosmetics; and biological products intended for human use). These responsibilities include development of a recall strategy that requires time by the firm to determine the actions or procedures required to manage the recall (§ 7.42); providing FDA with complete details of the recall including reason(s) for the removal or correction, risk evaluation, quantity produced, distribution information, firm's recall strategy, copy of any recall communication(s), and a contact official (§ 7.46); notifying direct accounts of the recall, providing guidance regarding further distribution, giving instructions as to what to do with the product, providing recipients with a ready means of reporting to the recalling firm (§ 7.49); and submitting periodic status reports so that FDA may assess the progress of the recall. Status report information may be determined by, among other things, evaluating return reply cards, effectiveness checks, and product returns (§ 7.53); and providing the opportunity for a firm to request in writing that FDA terminate the recall (§ 7.55).
A search of the FDA database was performed to determine the number of recalls that took place during fiscal year 2000. The resulting number of recalls from this database search (1,933) is used in estimating the current annual reporting burden for this report. FDA estimates the total annual industry burden to collect and provide the above information to be 157,675 burden hours.
In the
We agree with the comment that the agency is slow in providing the recall classification letter to recalling firms and are taking steps to streamline the classification process which, in turn, will improve the timeliness of the classification letter. However, we
We have accepted the commenter's estimate of the time expended to conduct recalls and have used those figures, coupled with revised recall numbers, to develop what we believe to be a more realistic estimate of the time expended by FDA-regulated industry to develop and report recall information requested by FDA.
FDA agrees with the comment to have a process whereby reports and any other necessary information can be submitted by e-mail. In many cases, this has become routine for some firms and FDA district offices. Certainly there is no reason not to use e-mail or facsimile communications in most recall situations; however, FDA would maintain the prerogative for investigational visits and other in-person communications where the agency considers it appropriate. In fact, FDA is currently working toward providing “industry guidance” online which will provide a format for industry responses to recall situations.
At the present time, the names and telephone numbers of FDA's district office recall coordinators may be found on the Internet at http://www.fda.gov/ora/inspect—ref/iom/iomoradir —monitors.html
At this time, we will refer to the Center for Food Safety and Applied Nutrition your suggestion to allow processing authorities to authorize reconditioning/destruction of thermally processed low acid and acidified foods in hermetically sealed containers and for the recalling firm to then submit a summary of the disposition action to FDA.
As a result of the comment received, the following is a revised summary of the estimated annual burden hours for manufacturers, processors, and distributors to comply with the voluntary reporting requirements of FDA's recall regulations.
Recognizing that there may be a vast difference in the information collection and reporting time involved in different recalls of FDA's regulated products, FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open 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.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
August 17, 2001.
Clifford Taffet, Department of Housing and Urban Development, Room 7262, 451 Seventh Street SW, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with the December 12, 1988 court order in
Today's Notice is for the purpose of announcing that no additional properties have been determined suitable or unsuitable this week.
Fish and Wildlife Service, Interior.
Notice of availability.
This notice advises the public of the availability of the Final Environmental Impact Statement on the application to incidentally take 2 federally listed species and 12 currently unlisted species should any of them become listed under the Endangered Species Act of 1973, as amended (Act), during the life of the permit. The Metro Air Park Property Owners Association (Association) has applied to the Fish and Wildlife Service (Service) for a 50-year incidental take permit pursuant to
A Record of Decision and permit decision will occur no sooner than 30 days from the date of publication of this notice.
Copies of the Metro Air Park Habitat Conservation Plan (Plan), Implementing Agreement, and Final Environmental Impact Statement are available for public inspection, during regular business hours, at the Sacramento Fish and Wildlife Office, 2800 Cottage Way, Sacramento, CA; State Library, 914 Capitol Mall, Sacramento, CA; the State Library, 828 I Street, Sacramento, CA; and the State Library, 1620 W. El Camino Avenue, Sacramento, CA.
Ms. Vicki Campbell, Chief, Conservation Planning Division, at the Sacramento Fish and Wildlife Office (see address above); telephone: (916) 414-6600.
Section 9 of the Act and Federal regulation prohibit the “take” of animal species listed as endangered or threatened. Take is defined under the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect listed animal species, or attempt to engage in such conduct (16 U.S.C. 1538). However, under limited circumstances, the Service may issue permits to authorize “incidental take” of listed animal species. “Incidental take” is defined by the Act as take that is incidental to, and not the purpose of, carrying out of an otherwise lawful activity. Regulations governing permits for threatened species and endangered species, respectively, are at 50 CFR 17.32 and 50 CFR 17.22.
The Association seeks a permit for take of the following federally listed species: the threatened giant garter snake (
The Metro Air Park Special Planning Area comprises 1,892 acres within the Natomas Basin in Sacramento County, California. Agriculture is the dominant land use in the Natomas Basin and on the Metro Air Park site. The predominant crops are rice, corn, sugar beets, grain, tomatoes, and pasture. Natural and uncultivated vegetation types are interspersed throughout the agricultural areas of the Natomas Basin. Natural areas are found primarily along irrigation canals, drainage ditches, pastures, and uncultivated fields. The borders of drainage canals are often associated with narrow strips of emergent vegetation and/or wooded riparian areas.
Portions of the Natomas Basin that are within the jurisdiction of the City of Sacramento are included in the Natomas Basin Habitat Conservation Plan which was completed by the City of Sacramento in November, 1997. The Metro Air Park Project is described in the Natomas Basin Habitat Conservation Plan, but because the Metro Air Park Project is outside of the City limit lines, the project cannot be covered by the City's incidental take permit. Therefore, the Association is seeking a separate incidental take permit for the Metro Air Park project. Take of listed species could occur as a result of urban development of the Metro Air Park industrial park project and from rice farming activities.
Under the Plan, the Association proposes to minimize and mitigate the effects of urban development by participating in the basin-wide conservation program set up for the entire Natomas Basin which is described in the Natomas Basin Habitat Conservation Plan. The focus of this basin-wide conservation program is the preservation, enhancement, and restoration of ecological communities which support species associated with the wetland and upland habitats. Through the payment of development fees, one-half acre of mitigation land would be established for every acre of land developed within the Plan area. The mitigation land would be acquired and managed by the Natomas Basin Conservancy, a non-profit conservation organization established to implement the Natomas Basin Habitat Conservation Plan. Mitigation fee amounts and the mitigation strategy for the Plan would be subject to the same adjustments required under the Natomas Basin Habitat Conservation Plan. To mitigate for the loss of Swainson's hawk nest trees on-site, the Association will secure 200 contiguous acres, in perpetuity, and transfer the lands to the Natomas Basin Conservancy to manage them for the benefit of Swainson's hawk; or the Association will provide funds to the Natomas Basin Conservancy to secure and manage 200 contiguous acres, in perpetuity for the benefit of Swainson's hawk. The Plan also includes take avoidance and minimization measures that include the requirement for landowners to conduct pre-construction surveys for covered species and to carry out minimization measures prior to site development.
The Plan will be implemented by the Association with assistance from the County of Sacramento and environmental consultants. The Natomas Basin Conservancy will serve as the Plan Operator, receive mitigation fees from the County, and be responsible for using the fees to acquire and manage habitat lands in accordance with the Plan.
Funding for the Plan will be financed through a combination of development fees charged at the time grading permits are issued, Mello-Roos Community Facilities District bond proceeds, and Property Owners Assessments.
On December 5, 2000, a notice was published in the
The Final Environmental Impact Statement considers four alternatives, including the Proposed Action and the No-Action/No Take Alternative. Under the No-Action/No Take Alternative, no section 10(a)(1)(B) permit would be issued for take of listed species during urban development and other activities in the Plan area. Landowners within the Plan area would continue to apply for individual incidental take permits on a case-by-case basis, resulting in piecemeal planning that would establish smaller and more isolated patches of mitigation land. This could result in cumulatively significant adverse impacts to those species which would benefit from larger tracts of interconnected habitats.
The Increased Mitigation Ratio Alternative examines the environmental effects of applying a higher mitigation ratio than is required under the Natomas Basin Habitat Conservation Plan and the proposed Plan for addressing impacts to the giant garter snake and the Swainson's hawk. This alternative would require a site-specific analysis of habitat values in order to determine specific mitigation obligations.
The Reduced Development Alternative would result in reduced development of the Metro Air Park site. The 18-hole golf course situated on approximately 279 acres would be reduced to a 140-acre 9-hole golf course. This would reallocate 140 acres on-site for the creation of habitat as a mitigation area for covered species. Because an on-site mitigation area would eventually be surrounded by urban development it should be anticipated that adverse urban “edge effects” will occur.
The analysis provided in the Final Environmental Impact Statement is intended to accomplish the following: inform the public of the proposed action and alternatives; address public comments received on the Draft Environmental Impact Statement; disclose the direct, indirect, and cumulative environmental effects of the proposed action and each of the alternatives; and indicate any irreversible commitment of resources that would result from implementation of the proposed action.
Fish and Wildlife Service, Interior.
Revised notice of intent.
On December 18, 2000, the Fish and Wildlife Service (Service) issued a Notice of Intent (NOI) regarding an Environmental Impact Statement for a revised Natomas Basin Habitat Conservation Plan (Plan) and Incidental Take Permits (Permits) under section 10(a)(1)(B) of the Endangered Species Act. At that time, the Service was considering amending the Permit for the City of Sacramento and issuing a Permit to Sutter County. Reclamation District No. 1000 (RD 1000) and Natomas Central Mutual Water Company (Natomas Mutual) have now joined the City of Sacramento and Sutter County as applicants for Permits. RD 1000 plans to participate as a co-lead agency with the City of Sacramento and Sutter County. In addition, Sacramento County may also apply for a Permit.
The Permits would authorize incidental take of listed species and unlisted species that may be listed in the future. The original scope of the Environmental Impact Statement, as described in the December 18, 2000 NOI, was to consider incidental take occurring as a result of urban development within the City of Sacramento and Sutter County, certain farming activities, and management of habitat reserves. Take resulting from Sacramento County is anticipated to be similar in scope to the City of Sacramento and Sutter County. With the proposed addition of the RD 1000 and Natomas Mutual Permits, the Environmental Impact Statement will also consider incidental take associated with RD 1000's and Natomas Mutual's operation and maintenance of water delivery and drainage canals and ditches, as well as the previously identified urban development, farming activities, and management of habitat reserves.
Pursuant to the National Environmental Policy Act, the Service intends to prepare an Environmental Impact Statement addressing the proposed action of amending the Plan and issuing Permits. This Environmental Impact Statement will be prepared jointly with an Environmental Impact Report pursuant to the California Environmental Quality Act. Pursuant to the prior NOI, the Service conducted public scoping from December 18, 2000 to January 16, 2001, including three meetings in the project vicinity. This notice reopens the scoping process and solicits written comments because the project description has changed to include the participation of RD 1000 and Natomas Mutual. Comments previously submitted during the initial scoping period will be addressed in the Environmental Impact Report/ Environmental Impact Statement.
Written comments are encouraged and should be received on or before September 17, 2001.
Information, written comments, or questions related to the inclusion of RD 1000 and Natomas Mutual into the Plan and Environmental Impact Report/Environmental Impact Statement should be submitted to Vicki Campbell, Division Chief, Conservation Planning, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, California 95825; FAX (916) 414-6713. All comments received, including names and addresses, will become part of the official administrative record and may be made available to the public.
Lori Rinek or Kelly Hornaday, Fish and Wildlife Biologists, Sacramento Fish and Wildlife Office at (916) 414-6600. Additional information can also be obtained from the City of Sacramento [Grace Hovey, (916) 264-7601], Sutter County [Jeff Pemstein, (916) 361-8384], RD 1000 [Jim Clifton, (916) 922-9173], and Natomas Mutual [Peter Hughes, (916) 419-5936].
Bureau of Land Management (BLM), Burns District, Interior.
Revocation of the moratorium on the number of commercial outfitting permits and designation of special areas for the public land administered by the BLM, Burns District.
The BLM, Burns District is revoking the existing moratorium on new commercial outfitting Special Recreation Permits (SRPs). New commercial outfitting SRP applications will be accepted for the entire BLM, Burns District which includes the Andrews and Three Rivers Resource Areas. All commercial, competitive, and organized group permit applications must be received at least 180 days before the intended use unless otherwise approved by the Authorized Officer.
The lifting of this moratorium does not guarantee specific SRP approval and issuance. BLM will consider evidence of user conflicts, resource impacts, and consistency with recreation management objectives, and other relevant information in determining whether or not to issue a specific SRP. Processing of an SRP application that is accepted will include appropriate environmental analysis and documentation.
The BLM, Burns District established a moratorium on all new commercial outfitting permits for public land on June 15, 1999 (
BLM will meet this planning requirement through preparation of the Andrews Resource Area/Steens Mountain CMPA Resource Management Plan (RMP) and Environmental Impact Statement (EIS), which is scheduled to begin later this fiscal year and to be completed in 2004. The RMP currently in affect for the Three Rivers Resource Area is scheduled to be updated within the next 3 years. Long-term use levels for organized groups and commercial permittees will now be determined through the RMP process. SRPs are a means to manage commercial, competitive, and organized group recreational users of public land. They are issued as a means to control visitor use, protect recreational and natural resources, monitor impacts, and provide for the health and safety of visitors. Relevant regulations are found in 43 CFR 8372.
Given the current recreational interest in the Burns District, the BLM finds that it is preferable to lift the moratorium rather than delay issuance of SRPs until the planning efforts are completed. To delay SRP issuance until after the plans are completed would potentially deny compatible forms of recreational use in the interim without just consideration of the public's needs. Any applications received by BLM will also provide valuable data for preparation of the comprehensive plan, because BLM will be able to gauge current interest in commercial and organized group recreational use in the area. The environmental analysis and documentation to be done for each new permit will also be used in the development of the RMPs.
The BLM is also designating the CMPA and the Wilderness Study Areas within the Burns District as special areas as provided for in 43 CFR 8372.1-2. This special area designation will require organized groups to obtain a SRP or other proper authorization to conduct certain activities within these areas. The Authorized Officer determines when a permit is required based on resource concerns, user conflicts, and/or the need for monitoring.
Additional information may be obtained from Evelyn Treiman, Outdoor Recreation Planner, Burns District Office, HC 74-12533 Hwy 20 West, Hines, Oregon 97738, (541) 573-4442.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation contact Darrin King at (202) 693-4129 or E-Mail to King-Darrin@dol.gov.
Comments should be sent to Office of Information and Regulatory Affairs, Attn: Stuart Shapiro, OMB Desk OSHA, Office of Management and Budget, Room 10235, Washington, DC 20503 ((202) 395-7316), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• 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;
• 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;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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.
The OSHA 70 Form is used by applicants seeking accreditation from OSHA to be able to test or examine certain equipment and material handling devices, as required under the maritime regulations, part 1917 (Marine Terminals), and part 1918 (Longshoring). The OSHA 70 Form application for accreditation provides an easy means for companies to apply for accreditation.
The OSHA 71 Form is required to be issued by those accredited by OSHA to employers in the maritime industry to make known that certain equipment and material handling devices are safe to use or operate. The OSHA 72 Form is required to be issued by those accredited by OSHA to employers in the maritime industry when the equipment or material handing device is found to be unsafe to use.
The collection of the information needed to complete these forms is necessary to provide an effective and efficient means of enabling employers and employees to determine if cargo gear, equipment and/or other material handling devices are safe to use.
Paragraph (e)(1) requires that employers provide training to employees at least annually and when changes in job assignment will expose them to new hazards.
Paragraph (f)(1) requires the employer to issue a permit for all hot work. Under paragraph (f)(2) the permit shall certify that the requirements contained in 1910.252(a) have been implemented prior to beginning the hot work operations and shall be kept on file until completion of the hot work operation.
Paragraph (g)(1)(i) requires the employer to issue a permit for entering bins, silos, or tanks unless the employer or the employer's representative is present during the entire operation. The permit shall certify that the precautions contained in paragraph (g) have been implemented prior to employees entering bins, silos or tanks and shall be kept on file until completion of the entry operations. Paragraph (m)(4) requires the employer to implement procedures for the use of tags and locks which will prevent the inadvertent application of energy or motion to equipment being repaired, serviced, or adjusted.
Paragraphs (i)(1) and (i)(2) require the employer to inform contractors performing work at the grain handling facility of known potential fire and explosion hazards related to the contractor's work and work area and to explain to the contractor the applicable provisions of the emergency action plan.
Paragraph (j)(1) requires the employer to develop and implement a written housekeeping program that establishes the frequency and method(s) determined best to reduce accumulations of fugitive grain dust on ledges, floors, equipment, and other exposed surfaces.
The purpose of the housekeeping program is to require employers to have a planned course of action for the control and reduction of dust in grain handling facilities reducing the fuel available in a grain facility. The housekeeping program must specify in writing the frequency that housekeeping will be performed and the dust control methods that the employer believes will best reduce dust accumulations in the facility.
Under paragraph (m)(1), the employer is required to implement preventive maintenance procedures consisting of regularly scheduled inspections of at least the mechanical and safety control equipment associated with dryers, grain stream processing equipment, dust collection equipment including filter collectors, and bucket elevators. Paragraph (m)(3) requires a certification be maintained of each inspection.
General wage determination decisions of the Secretary of Labor are issued in accordance with applicable law and are based on the information obtained by the Department of Labor from its study of local wage conditions and data made available from other sources. They specify the basic hourly wage rates and fringe benefits which are determined to be prevailing for the described classes of laborers and mechanics employed on construction projects of a similar character and in the localities specified therein.
The determinations in these decisions of prevailing rates and fringe benefits have been made in accordance with 29 CFR part 1, by authority of the Secretary of Labor pursuant to the provisions of the Davis-Bacon Act of March 3, 1931, as amended (46 Stat. 1494, as amended, 40 U.S.C. 276a) and of other Federal statutes referred to in 29 CFR part 1, Appendix, as well as such additional statutes as may from time to time be enacted containing provisions for the payment of wages determined to be prevailing by the Secretary of Labor in accordance with the Davis-Bacon Act. The prevailing rates and fringe benefits determined in these decisions shall, in accordance with the provisions of the foregoing statutes, constitute the minimum wages payable on Federal and federally assisted construction projects to laborers and mechanics of the specified classes engaged on contract work of the character and in the localities described therein.
Good cause is hereby found for not utilizing notice and public comment procedure thereon prior to the issuance of these determinations as prescribed in 5 U.S.C. 553 and not providing for delay in the effective date as prescribed in that section, because the necessity to issue current construction industry wage determinations frequently and in large volume causes procedures to be impractical and contrary to the public interest.
General wage determination decisions, and modifications and supersedeas decisions thereto, contain no expiration dates and are effective from their date of notice in the
Any person, organization, or governmental agency having an interest in the rates determined as prevailing is encouraged to submit wage rate and fringe benefit information for consideration by the Department.
Further information and self-explanatory forms for the purpose of submitting this data may be obtained by writing to the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Division of Wage Determinations, 200 Constitution Avenue, NW., Room S-3014, Washington, DC 20210.
The number of decisions listed to the Government Printing Office document entitled “General Wage determinations Issued Under the Davis-Bacon and related Acts” being modified are listed by Volume and State. Dates of publication in the
General wage determinations issued under the Davis-Bacon and related Acts, including those noted above, may be found in the Government Printing Office (GPO) document entitled “General Wage Determinations Issued Under the Davis-Bacon And Related Acts”. This publication is available at each of the 50 Regional Government Depository Libraries and many of the 1,400 Government Depository Libraries across the country.
General wage determinations issued under the Davis-Bacon and related Acts are available electronically at no cost on the Government Printing Office site at
Hard-copy subscriptions may be purchased from: Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, (202) 512-1800.
When ordering hard-copy subscription(s), be sure to specify the State(s) of interest, since subscriptions may be ordered for any or all of the six separate volumes, arranged by State. Subscriptions include an annual edition (issued in January or February) which includes all current general wage determinations for the States covered by each volume. Throughout the remainder of the year, regular weekly updates will be distributed to subscribers.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a preclearance consultation program to provide the general public and other federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Pension and Welfare Benefits Administration is soliciting comments concerning the proposed extension of a currently approved collection of information, Prohibited Transaction Class Exemption 86-128 for certain transactions involving employee benefit plans and securities broker-dealers. A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the
Written comments must be submitted on or before October 16, 2001.
Mr. Gerald B. Lindrew, Office of Policy and Research, U.S. Department of Labor, Pension and Welfare Benefits Administration, 200 Constitution Avenue, NW, Room N-5647, Washington, D.C. 20210. Telephone: (202) 219-4782; FAX (202) 219-4745 (these are not toll-free numbers).
Prohibited Transaction Class Exemption 86-128 permits persons who serve as fiduciaries for employee benefit plans to effect or execute securities transactions on behalf of employee benefit plans. The exemption also allows sponsors of pooled separate accounts and other pooled investment funds to use their affiliates to effect or execute securities transactions for such accounts in order to recapture brokerage commissions for benefit of employee benefit plans whose assets are maintained in pooled separate accounts managed by the insurance companies. This exemption provides relief from certain prohibitions in section 406(b) of the Employee Retirement Income Security Act of 1974 (ERISA) and from the taxes imposed by section 4975(a) and (b) of the Internal Revenue Code of 1986 (the Code) by reason of Code section 4975(c)(1)(E) or (F).
The Department of Labor is particularly interested in comments which:
• 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;
• 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;
• Enhance the quality, utility, and clarity of the information to be collected;
• 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,
The Office's of Management and Budget (OMB's) approval of this ICR will expire on November 30, 2001. OMB's approval should be extended because without the relief provided by this exemption, broker-fiduciaries who provide investment management services to accounts for which they also effect transactions for the purchase or sale of securities, may be barred by ERISA from providing these combined services to employee benefit plans, causing disruption of the existing business practices of plans and the businesses that service them.
In order to insure that the exemption is not abused, that the rights of participants and beneficiaries are protected, and that the exemption's conditions are being complied with, the Department has included in the exemption five information collection requirements. The first requirement is written authorization executed in advance by an independent fiduciary of the plan whose assets are involved in the transaction with the broker-fiduciary. The second requirement is, within three months of the authorization, the broker-fiduciary furnish the independent fiduciary with any reasonably available information necessary for the independent fiduciary to determine whether an authorization should be made. The information must include a copy of the exemption, a form for termination, and a description of the broker-fiduciary's brokerage placement practices. The third requirement is that the broker-fiduciary must provide a termination form to the independent fiduciary annually so that the independent fiduciary may terminate the authorization without penalty to the plan; failure to return the form constitutes continuing authorization. The fourth requirement is for the broker-fiduciary to report all transactions to the independent fiduciary, either by confirmation slips or through quarterly reports. The fifth requirement calls for the broker-fiduciary to provide an annual summary of the transactions. The annual summary must contain all security transaction-related charges incurred by the plan, the brokerage placement practices, and a portfolio turnover ratio.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record.
Pension and Welfare Benefits Administration, Department of Labor.
Notice.
The Pension and Welfare Benefits Administration (PWBA) is announcing that collections of information included in the following Prohibited Transaction Class Exemptions (PTE) have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA 95). This notice announces the OMB approval numbers and expiration dates.
Address requests for copies of the information collection requests (ICRs) to Gerald B. Lindrew, U.S. Department of Labor, Pension and Welfare Benefits Administration, 200 Constitution Avenue, NW., Room N-5647, Washington, DC 20210. Telephone: (202) 219-4782. This is not a toll-free number.
In the
In the
Under 5 CFR 1320.5 (b), 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 control number.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE is proposed to expand the current equity hedge exemption to eliminate position and exercise limits for certain qualified hedge strategies. The current reporting procedures, which serve to identify and document hedged positions, would remain in place. The text of the proposed rule change is set forth below. Proposed additions are
Rule 4.11 No change.
.01-.03 No change.
.04 Equity Hedge Exemption
(a) [The following positions, where each option contract is “hedged” by 100 shares of stock or securities convertible into such stock, or, in the case of an adjusted option contract, the same number of shares represented by the adjusted contract, shall be exempted from established position and exercise limits up to that number of option contracts, equal to the limit as computed in Interpretation .02 above: (I) long call and short stock; (ii) short call and long stock; (iii) long put and long stock; and (iv) short put and short stock.]
(b) The equity hedge exemption is in addition to the standard limit and other exemptions available under Exchange rules, interpretation and policies. [In no event may the equity hedge exemption for any class of stock options exceed twice the standard limit established by Rule 4.11, except that the equity hedge exemption for a Market-Maker who also receives a market-maker exemption from the standard limit pursuant to Interpretation .05 below may not exceed twice the market-maker exempted position.]
.05-.07 No Change.
In its filing with the Commission, the CBOE 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 CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The CBOE is proposing to eliminate position and exercise limits when certain qualified strategies are employed to establish a hedged equity option position.
The CBOE believes that since the inception of the equity hedge exemption in 1988, the types of hedge strategies employed have become more diversified. The Exchange has learned through its experience in administering and processing equity hedge exemption information that market participants no longer rely solely on a strict stock option hedge. While market participants continue to utilize traditional hedge strategies such as a covered call or reverse conversion strategy, listed option contracts are now utilized to hedge a wider spectrum of securities. For example, firms that conduct an over-the-counter (“OTC”) options business may use listed options to hedge proprietary positions established through the facilitation of customer OTC transactions. These market participants maintain that hedging with a listed option provides a more realistic hedge because the listed option is a mirror image of the OTC option. They also believe that, in some instances, hedging with listed options can be more economical than hedging with common stock.
To accommodate more fully the hedging needs of investors, the Exchange is proposing to eliminate position and exercise limits when certain qualified strategies are employed to establish a hedged equity option position. Accordingly, the CBOE proposes to amend Interpretation .04 of Exchange Rule 4.11 to expand the definition of a “qualified” hedged position. Listed below are the proposed qualified hedge strategies and their accompanying examples.
(i) Positions hedged or covered with the underlying security or securities readily convertible into stock (long call/short stock or short call/long stock or long put/long stock or short put/short stock). This hedge strategy is currently exempt pursuant to the equity hedge exemption provision contained in Exchange Rule 4.11; contracts are covered on a one-for-one basis.
For example, account ABC is short 5,000 GE Apr 35 calls and long 500,000 shares of GE common stock. Account ABC is also short 1,000 GE April 40 calls but has no corresponding stock hedge. The account is exempt on 5,000 contracts hedged with stock and the short 1,000 GE April 40 call position is not considered hedged and thus applied to the applicable position limit.
(ii) Reverse Conversion (buy call/sell put (same expiration)/sell stock.
Under the proposed rule change, two options contracts (i.e., one long call and one short put) will be treated as one contract for hedging purposes. Each reverse conversion option position must be hedged with 100 shares of the underlying security to remain exempt. Account ABC increases its position by establishing a long call position of 5,000 April 40 contracts with no qualified hedge. Option contracts held by account ABC number 55,000 on the short call long put side of the market. The 50,000 contract reverse conversion position is a qualified hedge strategy and is thus exempt from the position and exercise limit. The remaining 5,000 contracts and any future position established by the account in which a non-qualified strategy is employed would be added to the account's existing 5,000 contract position and applied to the standard position limit.
(iii) Conversion (sell call/buy put (same expiration)/buy stock).
(iv) Collar (call sell/buy, both out-of-the-money when established with the same expiration where the strike price of the short call exceeds the strike price of the long pub/buy stock).
(iv) Box Spread (buy call, sell put at one strike price, sell call, buy put at another strike price). Assume that account maintaining the following position:
This position is a qualified box spread and would be exempt from the position limit. Any future option positions established that do not meet the requirements of the qualified hedge strategies would be applied to the account's applicable position limit.
(vi) Listed vs. OTC Options Spreads (options are to generally be within the strike of each other and no more than one expiration month apart). Member firms that conduct an over-the-counter options business utilize the listed options marked to hedge their customer facilitated OTC transaction. It is the CBOE's understanding that some member firms participate in stock by-back programs whereby the firm purchases OTC put option contracts from the subject corporation, the corporation, in turn, will be assigned its short put position, thereby “buying back” its own stock.
To hedge this position, the firm will sell put option contracts in the listed market. For example, Firm ABC purchases 50,000 XYZ puts with a strike price of 63.34 expiring in 1/19/03 from XYZ Corporation. At the expiration of the OTC contract, the firm will sell to
Within the list of proposed hedge strategies eligible for an equity hedge exemption, the Exchange proposes that the option component of a reversal, conversion, or collar position be treated as one contract rather than as two contracts. All three strategies serve to hedge a related stock portfolio. Because these strategies require the contemporaneous
Under the proposed rule change, the existing standard position and exercise limits will remain in place for unhedged equity option positions. Once an account nears or reaches the standard limit, positions identified as one or more of the proposed qualified hedge strategies will be exempted from limit calculations. The exemption will be automatic (
The exemption will remain in effect to the extent that the exempted position remains intact and that the Exchange is provided with any required supporting documentation. Procedures to demonstrate that the option position remains qualified will be similar to those currently in place for equity hedge exemptions. Currently a qualified account must report hedge information each time the option position changes. Hedge information for member firm and customer accounts are reported to the Exchange electronically, via the Large Options Position Report. Market maker account information is also reported to the Exchange electronically by the member's clearing firm. For those option positions that do not change, a filing is generally required on a weekly basis. Finally, the existing requirement imposed on member firms to report hedge information for proprietary and customer accounts that maintain an options position in excess of 10,000 contracts will remain in place.
The CBOE believes that, with the exception of covered stock positions, all of the proposed qualified strategies are market neutral.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. The Commission is especially interested in receiving written data, views and arguments concerning the use of a listed option position hedged on a one-for-one basis with an OTC option position on the same underlying security. In particular, the Commission staff has concerns that such exemption would grant members the ability to sell OTC options and hedge such positions on the exchange with listed options on an unlimited basis. This potentially raises manipulation concerns. Therefore, the Commission staff specifically requests comment on this issue. 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 in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of such filing will also be available for inspection and copying at the principal office of CBOE. All submissions should refer to File Number SR-CBOE-00-12 and should be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to adopt a new interpretation to CBOE Rule 8.7. Below is the text of the proposed rule change. Proposed new language is
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change, as amended, 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 CBOE has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The CBOE states that a spread order is an order to buy a stated number of option contracts and to sell a stated number of option contracts of the same class of options. The CBOE represents that there are various types of spread transactions. For example, a typical calendar spread order would be to buy ten March call options and to sell ten June call options of the same class. The CBOE states that spread transactions can be used by investors in a number of trading strategies.
The CBOE represents that market-makers at the Exchange are often willing to execute a spread transaction at a net price that is better than the aggregate price of executing each leg of the spread separately. However, the CBOE states that there is currently no systematic means by which market-makers can communicate their willingness to execute spread transactions at favorable prices to investors who might be interested in such spread transactions. By adopting the proposed Interpretation, the CBOE intends to encourage market-makers to post indicative prices for spreads on the websites of member organizations through a system licensed from a third party, developed by the Exchange or otherwise.
Initially, the CBOE represents that it intends to license the software for such a system (called the “iSpreads System”) from a third party. The CBOE states that it may later develop its own proprietary software to operate such a system. The CBOE states that it will make this system available to all CBOE market-makers on its trading floor. CBOE members and member firms who wish to use the system from off the trading floor may do so by obtaining their own license from the third party. Use of this system is not mandatory; a market-maker is not required to post indicative spread prices at all, and, if he chooses to do so, he is free to use some mechanism other than the system being made available by the Exchange.
The CBOE states that market-makers who choose to use the iSpreads System can post indicative spread prices for selected options classes on the websites of participating member organizations. Depending on how the member organization wishes to use the system, a customer either can search directly on the firm's publicly accessible website to find indicative prices for the particular spread in which he is interested, or he can contact his broker at the firm and ask the broker to conduct the search on an internal site accessible to the firm. Customer orders would be sent to the CBOE market for execution in accordance with current practices, by being phoned into a member firm's order desk or transmitted via an electronic order routing system. Once a spread order has been transmitted to the Exchange, it will be executed in accordance with the Exchange's current trading rules. No special allocation rules or priority rules are being created.
The CBOE states that the iSpreads System should provide significant benefits to customers. The CBOE represents that it will provide improved information about spread prices and help customers get their spread orders executed at a price that is better than executing each leg of the spread separately.
The proposed Interpretation also provides that the indicative spread prices shall not be regarded as firm quotes, and a market-maker shall not be obligated to execute at the indicative prices spread orders that are entered into the market. The Exchange believes that attempting to obligate a market-maker to execute a spread order at the posted indicative price would create a disincentive to his use of the system. The proposed Interpretation makes it clear to all market participants that the indicative spread prices are not firm quotes and may not be available when an order is sent to the Exchange for execution. A similar disclaimer will be posted on the websites of member firms displaying the indicative spread prices.
The Exchange believes the proposed rule change, as amended, is consistent with Section 6 of the Act
The CBOE does not believe that the proposed rule change, as amended, will impose a burden on competition that is not necessary or appropriate in furtherance of purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change, as amended: (1) does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days after the date of filing, or such shorter time as the Commission may designate if consistent with protection of investors and the public interest; provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission, the proposed rule change, as amended, has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The CBOE seeks to have the proposed rule change, as amended, become operative immediately.
The Commission, consistent with the protection of investors and the public interest, has determined to make the proposed rule change, as amended, operative as of July 19, 2001.
A proposed rule change filed under Rule 19b-4(f)(6) normally requires that a self-regulatory organization give the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior the date of filing of the proposed rule change. However, Rule 19b-(f)(6)(iii) permits the Commission to designate a shorter time. The CBOE seeks to have the five-business-day pre-filing requirement waived with respect to the proposed rule change, as amended.
The Commission has determined to waive the five-business-day pre-filing requirement.
At any time within 60 days of the filing of the proposed rule change, as amended, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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 in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE.
All submissions should refer to File No. SR-CBOE-2001-41 and should be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change consists of amendments of NYSE Rule 46 to create Executive Floor Official and Senior Floor Official positions. It also makes housekeeping changes to other rules and policies to enable Executive Floor Officials and Senior Floor Officials to perform Floor Governor functions.
In its filing with the Commission, the Exchange 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 Exchange has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
Floor Officials and Floor Governors have the authority to supervise and regulate activities, which arise with respect to trading on the Floor of the Exchange. Recently, a number of changes in the marketplace on the Floor have created a need for additional individuals to be able to perform the duties delegated to Floor Governors under Exchange rules. For example, the historical trend of consolidation of NYSE specialist units has continued with the acquisition of one or more units by other units, which has significantly reduced the number of specialist units. This has the effect of reducing the effectiveness of the ten specialist Floor Governors, since they may not make rulings involving their firm's specialty stocks. In addition, there has been an increase in trading volume, which has resulted in higher demand for the services of Floor Officials and Floor Governors who are responsible for overseeing unusual market situations on the trading Floor. Finally, an expansion of the trading Floor has contributed to spreading the coverage of Floor Officials and Floor Governors.
To address these problems, the Exchange proposes to amend NYSE Rule 46 (Floor Officials—Appointment) to create Executive Floor Official and Senior Floor Official positions to perform many of the functions performed by Floor Governors.
In addition, rules and policies that use the term “Floor Governor” will be amended to also include, where appropriate, the term “Executive Floor Official” and “Senior Floor Official.” These include NYSE Rules 37, 60, 79A, 86, 123A.30, 282, the Exchange's Allocation Policy and Procedures, and the Floor Conduct and Safety Guidelines.
The Exchange believes the proposed rule changes will permit the Exchange, through the addition of two new classes of Floor Officials with Floor Governor authority, to perform more effectively those duties prescribed in Exchange rules relating to supervision and regulation of Floor matters.
The Exchange believes that the proposed rule change is consistent with Section 6(b)(1)
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 purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
This Exchange has designated this proposed rule change as concerned solely with the administration of the Exchange and, as such, it may take effect upon filing with the Commission pursuant to Section 19(b)(3)(A) of the Act.
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal, as amended, 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 in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to the File No. SR-NYSE-2001-16 and should be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposed to amend the Exchange's Allocation Policy and Procedures to allow a listing company to send a separate letter to the Allocation Committee indicating the role that one specialist unit has played in helping the company to reach its listing decision. The text of the proposed rule change is available at the Office of the Secretary, the NYSE and the Commission.
In its filing with the Commission, the Exchange 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 Exchange has prepared summaries, set forth in Sections A, B, and C below.
The intent of the Exchange's Allocation Policy and Procedures (“Policy”) is (1) to ensure that the allocation process is based on fairness and consistency, and that all specialist units have a fair opportunity for allocations based on established criteria and procedures; (2) to provide an incentive for ongoing enhancement of performance by specialist units; (3) to provide the best possible match between a specialist unit and security; and (4) to contribute to the strength of the specialist system.
The Policy currently permits a listing company to send a letter to the Exchange's Allocation Committee indicating the general characteristics it believes would be appropriate as to the specialist unit ultimately selected to trade its stock. Such letter may not name any particular specialist unit, and the characteristics so indicated may not be so specific as to apply to a readily identifiable specialist unit. The listing company's letter is distributed with a memorandum prepared by the Exchange staff describing the listing company, underwriters, recent market activity, and other details soliciting specialist units to apply for the allocation of the listing company's stock.
In certain situations, specialist units have met with companies prior to the company making a listing decision and have played a significant role in a company's decision to list on the Exchange. The listing company may then have an expectation that a particular specialist unit should be included in the group of units to be interviewed by the listing company, but the Exchange does not require such a result under the current Policy. Under the Policy, the Allocation Committee cannot directly know from the listing company a specialist unit's role, if any, in its listing decision.
The Exchange believes it is appropriate to amend the Policy to allow the listing company to send a separate letter to the Allocation Committee indicating the role that one specific specialist unit has played in helping the listing company to reach its listing decision. This letter would be separate and distinct from the general characteristics letter that the company would send to the Allocation Committee, which is then distributed to all specialist units, as noted above.
The Allocation Committee would then assemble a pool of specialist units to meet with the listing company in accordance with the performance-based criteria of the Policy, and would include the specialist unit named in the separate letter in the pool, unless the unit is prohibited under the Policy from applying for allocation of a stock. The separate letter would not have any influence on a decision by other specialist units to apply for allocation of the company's stock because these units would not know its existence. The listing company would then interview all units, and make the final decision as to its specialist unit.
The Exchange believes that the proposed rule change is consistent with Section 6(b)(5) 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 purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions
For the Commission, by the Division of Market Regulation, pursuant to the delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change would set an option's marking price for purposes of calculating premium margin at the arithmetic average of the best bid and best offer across all exchanges listing the option.
In its filing with the Commission, OCC 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 self-regulatory organization has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In November 1999, OCC proposed to change how it determines an option's marking price for purposes of calculating premium margin.
To increase option pricing consistency and to improve the calculation of reasonable implied volatility curves, OCC proposes to use the arithmetic average of the best bid and the best offer across all exchanges on which the option trades as the marking price of each option series. OCC believes that this approach will improve the construction of implied volatility curves, especially for deep in-the-money and out-of-the-money options that often are quoted without a progressive variance in prices. OCC also believes that the proposed approach will reduce the likelihood of inconsistent price jumps, which are often caused by changes in the volume leading exchange. OCC understands that this proposed marking methodology is consistent with industry practices.
Specifically, OCC proposes to amend OCC Rules 601 and 602. First, OCC would nullify the recently approved changes made to Rules 601(b)(4)(A) and 602(b)(4)(A). This nullification would restore the cited rule provisions to what they were before the approval of SR-OCC-99-14. Thus, OCC will use the highest asked price for an option series from the exchange with the highest transaction volume in that series. Second, OCC would amend the cited rule provisions to reflect the new methodology for determining an option's marking price for purposes of calculating premium margin. OCC will begin using the new arithmetic average promptly when the programming changes are ready for installation. OCC will provide advance notice of implementation to the Commission and to its clearing members.
OCC believes that the proposed rule change is consistent with the purposes and requirements of Section 17A of the Act because the proposed rule change will foster cooperation and coordination with persons engaged in the clearance and settlement of securities transactions and remove impediments to and perfect the mechanism of a national system for the prompt and accurate clearance and settlement of securities transactions.
OCC does not believe that the proposed rule change would impose any burden on competition.
Written comments were not and are not intended to be solicited with respect
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder and particularly with the requirements of Section 17A(b)(3)(F)
OCC has requested that the Commission find good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of filing. The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice of filing because such approval will allow OCC to immediately amend its rules so that the rules accurately reflect OCC's practice of setting options' marking prices for purposes of calculating premium margin and to implement its new method of setting options marking prices as soon as its systems are ready.
Interested persons are invited to submit written data, views, and arguments concerning the 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 in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing will also be available for inspection and copying at OCCs principal office. All submissions should refer to File No. SR-OCC-2001-08 and be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The PCX proposes to expand its current equity hedge exemptions by eliminating position and exercise limits for certain designated hedge strategies. The current reporting procedures to identify and document hedged positions would remain in place. The text of the proposed rule change is set forth below. Proposed additions are
¶4769—Position Limits
Rule 6.8(a)—No change.
Commentary:
.01-.06—No change.
.07—Equity Hedge Exemption.
[The Exchange may exempt position and exercise limits for options on underlying stocks in the following positions where each option contract is “hedged” by 100 shares of the underlying stock or securities convertible into such stock or, in the case of an adjusted option contract, the same number of shares represented by the adjusted contract:
Position limits for any class of options on underlying stocks may not exceed three times the established position limits for such class. This restriction also applies to positions for which an exemption has been granted pursuant to Rule 6.8 commentaries .03 or .04.]
In its filing with the Commission, the PCX 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 self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange is proposing to eliminate position and exercise limits for certain qualified hedged equity option positions by expanding the definition of a “qualified” hedged position. The PCX believes that the proposed rule change expands position and exercise limits to meet the hedging needs of investors for market neutral strategies. The PCX represents that the proposal is in large part adopted from a proposed rule change by the Chicago Board Options Exchange, Inc. (“CBOE”).
(i) Where each option contract is “hedged” or “covered” by 100 shares of the underlying security or securities convertible into the underlying security, or, in the case of an adjusted option contract, the same number of shares represented by the adjusted contract: (a) Long call and short stock; (b) short call and long stock; (c) long put and long stock; and (d) short put and short stock;
(ii) A long call position accompanied by a short put position, where the long call expires with the short put, and the strike price of the long call and short put is equal, and where each long call and short put position is hedged with 100 shares (or other adjusted number of shares) of the underlying security or securities convertible into such stock (“reverse conversion”);
(iii) A short call position accompanied by a long put position where the short call expires with the long put, and the strike price of the short call and long put is equal, and where each short call and long put position is hedged with 100 shares (or other adjusted number of shares) of the underlying security or securities convertible into such stock (“conversion”);
(iv) A short call position accompanied by a long put position, where the short call expires with the long put, and the strike price of the short call equals or exceeds the long put, and where each short call and long put position is hedged with 100 shares of the underlying security (or other adjusted number of shares). Neither side of the short call/long put position can be in-the-money at the time the position is established (“collar”);
(v) A long call position accompanied by a short put position with the same strike price and a short call position accompanied by a long put position with a different strike price (“box spread”); and
(vi) A listed option position hedged on a one-for-one basis with a over-the-counter (“OTC”) option position on the same underlying security. The strike price of the listed option position and corresponding OTC option position must be within one strike of each other and no more than one expiration month apart.
Within the list of proposed hedge strategies eligible for an equity hedge exemption, the Exchange proposes that the option component of a reversal, conversion, or collar position be treated as one contract rather than as two contracts. All three strategies serve to hedge a related stock portfolio. Because these strategies require the contemporaneous
Under the proposed rule change, the existing standard position and exercise limits will remain in place for unhedged equity option positions. Once an account nears or reaches the standard limit, positions identified as one or more of the proposed qualified hedge strategies will be exempted from limit calculations. The exemption will be automatic (
The exemption will remain in effect to the extent that the exempted position remains intact and that the Exchange is provided with any required supporting documentation. Procedures to
The Exchange believes that all of the proposed qualified strategies are market neutral with the exemption of covered stock positions. According to the Exchange, we covered stock transactions (long stock/short call; short stock/short put) are not market neutral, the market exposure resides with the stock position where no limit is imposed. The Exchange believes that the short option premium mitigates the stock exposure and therefore no limit should be imposed on this strategy.
The Exchange believes that the proposed strategies do not lend themselves to market manipulation and should be exempt from position limits. The Exchange represents that the reporting requirements under PCX Rule 6.6 and internal surveillance procedures for hedged positions will enable the Exchange to closely monitor sizable option position and corresponding hedge.
The Exchange believes that the proposed rule change is consistent with Section 6(b) 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 purposes of the Act.
Written comments were not solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. The Commission is especially interested in receiving written, data, views and arguments concerning the use of a listed option position hedged on a one-for-one basis with an OTC option position on the same underlying security. In particular, the Commission staff has concerns that such exemption would grant members the ability to sell OTC options and hedge such positions on the exchange with listed options on an unlimited basis. This potentially raises manipulation concerns. 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 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. 522, will be available for inspection and copying in the Commission's Public Reference Room, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-00-45 and should be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend through November 5, 2001 its Philadelphia Stock Exchange Automated Communication and Execution System (“PACE”)
The only substantive change the Phlx proposes at this time is to extend the pilot program through November 5, 2001.
The remaining changes proposed at this time are non-substantive formatting and language changes. These are cosmetic changes to ensure that the pilot program reflects amendments that were made in previous filings that were inadvertently overlooked. The underscored proposed language was added in SR-Phlx 00-54,
The Exchange recognizes that all options currently trade in decimals, and is proposing the non-substantive language changes herein to conform the language of Phlx Rule 229 to prior filings. The following is the text of the proposed rule change. Additions are in italics. Deletions are in brackets.
PACE provides a system for the automatic execution of orders on the Exchange equity floor under predetermined conditions. Orders accepted under the system may be executed on a fully automated or manual basis in accordance with the provisions of this Rule. Securities admitted to dealings on the equity floor are eligible for trading on the PACE System in which equity specialists and member organizations may choose to participate. The conditions under which orders will be accepted and executed are set forth below. When used in the Rule, PRL means a combined round-lot and odd-lot order, and PACE Quote means the best bid/ask quote among the American, Boston, Cincinnati, Chicago, New York, Pacific or Philadelphia Stock Exchange, or the Intermarket Trading System/Computer Assisted Execution System (“ITS/CAES”) quote, as appropriate. The PACE rules, conditions and guidelines do not apply to orders not on the system, and existing rules governing orders not on the system are not affected hereby.
.07
(c) Price Improvement for PACE Orders
(i) Automatic Price Improvement—Where the specialist voluntarily agrees to provide automatic price improvement to all customers and all eligible market orders in a security, automatically executable market and marketable limit orders in New York Stock Exchange and American Stock Exchange listed securities received through PACE for 599 shares or less shall be provided with automatic price improvement from the PACE Quote when received of
(A) a buy order would be improved to a price less than the last sale or a sell order would be improved to a price higher than the last sale (except as provided in (E) below); or
(B) a buy order would be improved to the last sale price which is a downtick or a sell order would be improved to the last sale price which is an uptick (except as provided in (E) below). The PACE System will determine whether the last sale price is a downtick or an uptick. The PACE System does not recognize changes from the previous day's close. In these situations, the order is not eligible for automatic price improvement, and is, instead, automatically executed at the PACE Quote.
A specialist may voluntarily agree to provide automatic price improvement to larger orders in a particular security to all customers under this provision.
A specialist may choose to provide automatic price improvement
In its filing with the Commission, the Exchange 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 Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Phlx proposes to extend, through November 5, 2001, the Phlx's pilot program that incorporates automatic price improvement for equities trading in decimals based on a percentage of the spread between the bid and offer.
The Exchange believes that the proposed rule change is consistent with section 6 of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not:
(i) significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission finds good cause to waive the pre-filing notice requirement, and to designate the proposal to be both effective and operative upon filing because such designation is consistent with the protection of investors and the public interest. Waiver of these requirements will allow the pilot program to continue uninterrupted through November 5, 2001. For these reasons, the Commission finds good cause to designate that the proposal is both effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal 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 in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the exchange. All submissions should refer to file number SR-Phlx-2001-67, and should be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Phlx proposes to amend Exchange Rule 1080, Philadelphia Stock Exchange Automated Options Market (“AUTOM”) and Automatic Execution System (“AUTO-X”),
The proposed rule change, as amended, would also impose certain obligations on Order Entry Firms, specifically to: (1) Follow applicable Exchange rules and procedures; (2) provide written notice to all Users regarding the proper use of AUTO-X; and (3) prohibit Order Entry Firms from either entering or permitting the entry of multiple orders in call options and/or put options for the same option within any 15-second period for an account or accounts of the same beneficial owner.
Below is the text of the proposed rule change. Proposed new language is
(a)-(b) No change.
(c) AUTO-X—AUTO-X is a feature of AUTOM that automatically executes public customer market and marketable limit orders up to the number of contracts permitted by the Exchange for certain strike prices and expiration months in equity options and index options, unless the Options Committee determines otherwise. AUTO-X automatically executes eligible orders using the Exchange disseminated quotation and then automatically routes execution reports to the originating member organization.
AUTOM orders not eligible for AUTO-X are executed manually in accordance with Exchange rules. Manual execution may also occur when AUTO-X is not engaged. An order may also be executed partially by AUTO-X and partially manually.
The Options Committee may for any period restrict the use of AUTO-X on the Exchange in any option or series. Currently, orders up to 100 contracts, subject to the approval of the Options Committee, are eligible for AUTO-X.
The Options Committee may, in its discretion, increase the size of orders in one or more classes of multiply-traded equity options eligible for AUTO-X to the extent necessary to match the size of orders in the same options eligible for entry into the automated execution system of any other options exchange, provided that the effectiveness of any such increase shall be conditioned upon its having been filed with the Securities and Exchange Commission pursuant to Section 19(b)(3)(A) of the Securities Act of 1934.
(i) No change.
In its filing with the Commission, the Phlx included statements concerning the purpose of and basis for the proposed rule change, as amended, 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 Phlx has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change, as amended, is to protect investors and other market participants from the potential negative consequences that might result from Order Entry Firms engaging in prohibited conduct. A further purpose is to ensure that an Exchange member that provides access to AUTO-X to its customers would ultimately be responsible for the orders that are entered by its customers.
The proposed amendments to Rule 1080(c), codifying and defining the terms “User” and “Order Entry Firm” are intended to create definitions of AUTOM and AUTO-X participants and to help define and clarify the rights and obligations of AUTOM and AUTO-X participants currently, and in possible proposed Exchange rules and policies concerning such participants in the future. The instant proposed rule change applies these terms in proposed Rule 1080(c)(ii)(B), which sets forth obligations of Order entry firms.
Proposed Rule 1080(c)(ii)(B) would require Order Entry firms to comply with certain requirements. Specifically, the proposed rule would require Order Entry Firms to comply with all applicable Exchange options trading rules and procedures and to provide written notice to all Users regarding the proper use of AUTO-X. In addition, the proposed rule would prohibit Order Entry Firms from either entering or permitting the entry of multiple orders in call options and/or put options in the same option within any 15-second period for an account or accounts of the same beneficial owner.
The purpose of proposed Rule 1080(c)(ii)(B) is to make explicit the responsibilities and requirements of Order Entry Firms. In addition to the compliance and written notice provisions, proposed Rule 1080(c)(ii)(B)(3) would place a specific prohibition against Order Entry Firms entering or permitting the entry of orders in call options and/or put options in the same option within any 15-second period for an account or accounts of the same beneficial owner. The Exchange believes that the establishment of a prohibition on members and member organizations entering or permitting the entry of multiple orders from the account or accounts of the same beneficial owner within any 15-second period should add certainty and consistency to the enforcement of the Rule and should provide clarity as to what conduct violates the Rule.
The Exchange believes the proposed rule change, as amended, is consistent
The Phlx does not believe that the proposed rule change, as amended, will impose any inappropriate burden on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change, as amended: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days after the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest; provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission, the proposed rule change, as amended.
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Phlx seeks to have the proposed rule change, as amended, become operative immediately in order to remain competitive with other exchanges with similar rules in effect.
The Commission, consistent with the protection of investors and the public interest, has determined to make the proposed rule change, as amended, operative as of July 13, 2001.
Interested persons are invited to submit written data, views and arguments concerning the 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 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 in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Phlx.
All submissions should refer to File No. SR-Phlx-2001-58 and should be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is proposing to extend the pilot program period for Rule 98, Emergency Committee until November
In its filing with the Commission, the Exchange 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 Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On December 23, 1999, the Commission approved amendments to Rule 98, Emergency Committee (the “Committee”), which updated the composition of the Committee to reflect the current governance structure of the Exchange, on a 120-day pilot basis.
The Exchange originally proposed to amend Rule 98, Emergency Committee, by updating the composition of the Committee to correspond with previous revisions to the Exchange's governance structure,
The Committee was formed in 1989
Thus, Rule 98 specifies the composition of the Emergency Committee to include the following individuals: the Chairman of the Board of Governors; the On-Floor Vice Chairman of the Board of Governors; and the Chairmen of the Options Committee, the Floor Procedure Committee, and the Foreign Currency Options Committee.
Extension of the pilot program through November 30, 2001 permits the Committee to reflect the current governance structure of the Exchange and ensures that the Committee will be in place to take necessary and appropriate action to respond to extraordinary market conditions or other emergencies.
The Exchange believes that the proposed rule change is consistent with Section 6
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(iii) of the Act
The Commission finds that it is appropriate to accelerate the effective date of the proposed rule change and to permit the proposed rule change to become immediately effective because the proposal simply extends a
Interested persons are invited to submit written data, views, and arguments concerning the 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 in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Phlx. All submissions should refer to the File No. SR-Phlx-2001-70 and should be submitted by September 7, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given that Mercantile Capital Partners I, L.P. (Mercantile), 1372 Shermer Road, Northbrook, Illinois, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“Act”) in connection with the financing of a small concern has sought an exemption under Section 312 of the Act and section 107.730 which constitutes Conflicts of Interest under 13 CFR 107.730(2000). Mercantile proposes to provide debt security financing to ITracs Corporation (ITracs), One IBM Plaza, 330 N. Wabash, 40th Floor, Chicago, Illinois. The financing is contemplated for expansion.
The financing is brought under the purview of Sec 107.730(a)(1) of the regulations because Jackson National Life Insurance Company and Mercantile Equity Partners I, L.P. currently own greater than ten percent of ITrac and ITrac is considered an Associate of Mercantile as defined in Sec. 107.50 of the regulations.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investments, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
By virtue of the authority vested in me as Secretary of State, including the State Department Basic Authorities Act and the Presidential Delegation of Responsibilities Related to the Latin American Development Act of 1960 dated May 30, 2001, 66 FR 110, in which the President delegated the functions conferred upon him by the Latin American Development Act of 1960, 22 U.S.C. 1942
This delegation shall be published in the
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The Oregon Department of Transportation (ODOT) proposes to amend the Highway Beautification Federal/State Agreement dated August 26, 1974, between the United States of America represented by the Secretary of Transportation and the State of Oregon, in order to permit the use of tri-vision signs adjacent to routes controlled under Highway Beautification Act.
Comments must be received on or before September 17, 2001.
Mail or hand deliver comments for the docket number that appears in the heading of this documents to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit electronically at
John Burney, Realty Specialist, Office of Real Estate Services, HEPR (202) 366-4842; or Mr. Robert Black, Office of Chief Counsel, HCC-31, (202) 366-1359, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
You may submit or retrieve comments online through the Document Management System (DSM) at:
An electronic copy of this document may also be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at:
The Highway Beautification Act of 1965 (HBA), partially codified at 23 U.S.C. 131, requires States to provide effective control of outdoor advertising in areas adjacent to both the Interstate System and the Federal-aid primary system. States must provide effective control as a condition of receiving their full apportionment of Federal-aid highway funds. Outdoor advertising is permitted in zoned or unzoned commercial and industrial areas. In order to promote the reasonable, orderly and effective display of outdoor advertising, States entered into individual agreements with the Federal Government through the FHWA, which established size, spacing, and lighting criteria for signs in commercial and industrial areas consistent with customary use in each State.
Among other things, the agreement between Oregon and the FHWA was executed August 26, 1974.
On July 28, 1999, the 70th Oregon Legislative Assembly passed Senate Bill 855, which made an exception in Oregon's outdoor advertising control law to allow tri-vision signs (1999 Or. Rev. Stat. Vol. 9, amending title 31, ORS, chap. 377). Tri-vision signs are composed of a series of three-sided rotating slats arranged side by side, either horizontally or vertically, that are rotated by an electromechanical process, capable of displaying a total of three separate and distinct messages, one message at a time. Prior to this change, outdoor advertising signs subject to Oregon's law could not have moving parts. This change created an exception for the tri-vision sign.
In July 1996, the FHWA issued a policy memorandum
The State of Oregon is seeking an amendment to its Federal/State Agreement to allow tri-vision signs as defined at 1999 ORS Chapter 377. The Oregon statute, defines a tri-vision sign as follows:
“Tri-Vision sign” means an outdoor advertising structure that contains display surfaces composed of a series of three-sided rotating slats arranged side by side, either horizontally or vertically, that are rotated by an electromechanical process, capable of displaying a total of three separate and distinct messages, one message at a time, provided the rotation from one message to another message is no more frequent than every eight seconds, and the actual rotation process is accomplished in four seconds or less. A Tri-Vision sign is, by Oregon statute, three signs and is required to have three outdoor advertising permits of equivalent type.
In April 1980, the FHWA adopted a procedure for States to follow in order to make changes in the Federal/State agreement. A State must first submit its proposed change, along with the reasons for the change and the effects of such change, to the FHWA Division Office. The division and headquarters offices review and comment on the proposal. If the concept is approved, the State must then hold public hearings on the proposed change to receive comments from the public. If the State then wishes to amend the agreement, it must submit to the FHWA the full justification for the change, the record of the hearings, and the assessment of the impact. These submissions will be published in the
The Oregon Department of Transportation (ODOT) held a public hearing on November 8, 2000, regarding its proposal to amend the Federal/State agreement. The hearing remained open for written testimony through November 15, 2000. Fifteen comments were submitted.
The Oregon DOT cites several points as justification for the proposed revision to the 1974 Federal/State Agreement. The Oregon statute was changed to allow tri-visions signs. Prior to that change, outdoor advertising signs subject to Oregon's law could not have moving parts. The law change made an exception for the tri-vision signs. The effects of the amendment are believed to be modest. In the October 31, 2000, Oregon DOT News Release, Jim Odom of ODOT's Outdoor Advertising Program is quoted as saying that, “Since the signs display three messages, the legislature determined that each sign will require three permits. In the mid-1970's, Oregon established a cap of approximately 1,700 permits that would allow billboards visible to State highways. Of the 1,700 permits, about 500 remain unused. Each of the tri-vision signs will take three of the remaining unused permits out of the inventory.”
Additionally, Jim Oden, further states that, “Also, a tri-vision sign is by Oregon statute three signs. Therefore, such a sign is required to have three
Many States now allow Tri-Vision signs and as Oregon now proposes. Therefore, this proposed change in Oregon will not have any precedential impact for other States.
The Federal/State Agreement “For Carrying Out the National Policy Relative to Control of Outdoor Advertising in Areas Adjacent to the National System of Interstate and Defense Highways and the Federal-Aid Primary System” (the Agreement) made and entered into on August 26, 1974, between the United States of America represented by the Secretary of Transportation acting by and through the Federal Highway Administrator and the State of Oregon now reads at Section III: State Control, Paragraph A,
No sign shall contain, include or be illuminated by any flashing intermittent, revolving, rotating or moving light or lights or moves or has any animated or moving parts; however, this paragraph does not apply to a traffic control sign or signs providing only public information such as time, date, temperature, weather or similar information.
The amended agreement would read as follows:
No sign shall contain, include or be illuminated by any flashing intermittent, revolving, rotating or moving light or lights or moves or has any animated or moving parts; however, this paragraph does not apply to a traffic control sign or signs providing only public information such as time, date, temperature, weather or similar information and Tri-vision signs. Tri-vision signs, however, shall not contain, include or be illuminated by any flashing intermittent, revolving, rotating or moving light or lights. The frequency of message change is determined by the State.
Tri-Vision sign—means an outdoor advertising structure that contains display surfaces composed of a series of three sided rotating slats arranged side by side, either horizontally or vertically, that are rotated by an electromechanical process, capable of displaying a total of three separate and distinct messages, or one message at a time.
23 U.S.C. 131; 23 U.S.C. 315; 49 CFR 1.48.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel CHALLENGE BUSINESS 36.
As authorized by Pub. L. 105-383, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a description of the proposed service, is listed below. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. If MARAD determines that in accordance with Pub. L. 105-383 and MARAD's regulations at 46 CFR Part 388 (65 FR 6905; February 11, 2000) that the issuance of the waiver will have an unduly adverse effect on a U.S.-vessel builder or a business that uses U.S.-flag vessels, a waiver will not be granted.
Submit comments on or before September 17, 2001.
Comments should refer to docket number MARAD-2001-10394. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Kathleen Dunn, U.S. Department of Transportation, Maritime Administration, MAR-832 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-2307.
Title V of Pub. L. 105-383 provides authority to the Secretary of Transportation to administratively waive the U.S.-build requirements of the Jones Act, and other statutes, for small commercial passenger vessels (no more than 12 passengers). This authority has been delegated to the Maritime Administration per 49 CFR § 1.66, Delegations to the Maritime Administrator, as amended. By this notice, MARAD is publishing information on a vessel for which a request for a U.S.-build waiver has been received, and for which MARAD requests comments from interested parties. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD'S regulations at 46 CFR part 388.
(1) Name of vessel and owner for which waiver is requested. Name of vessel: CHALLENGE BUSINESS 36. Owner: Challenge Business, Ltd.
(2) Size, capacity and tonnage of vessel. According to the applicant: “The yacht is 53.9′ long, has a breadth of 15.22′ and a depth of 8.37′. Her current certificate shows that she has a gross tonnage of 41.8 and a net tonnage of 41.8″.
(3) Intended use for vessel, including geographic region of intended operation and trade. According to the applicant: “The yacht will be used to generate interest in sailing boats of this type around the world in a race called the New World Challenge 2002. Ordinary people, from all walks of life, will become members of the crew on eight slightly larger boats that will sail from Southampton, United Kingdom, to New York, down the East Coasts of North and South America, around Cape Horn, and up the West coasts of South and North America to San Francisco. The interest, love and excitement of sailing such boats, in difficult conditions, over a period of approximately seven months, will be supported by a number of corporate sponsors who expect to benefit from the team building aspect of the race and the publicity that the race will generate.
To foster interest in the race among potential sponsors and supporters of the race, the yacht will be used as an information and training platform. The
This yacht will be based in Boston and may be sailed to various places on the East Coast of the United States.”
(4) Date and Place of construction and (if applicable) rebuilding. Date of construction: May 1998. Place of construction: United Kingdom.
(5) A statement on the impact this waiver will have on other commercial passenger vessel operators. According to the applicant: “This activity will have absolutely no impact on the operations of any commercial passenger operations. As stated, no income will be derived from the use of this yacht as an informational and sail training platform. This boat had been used in another, similar race promoted by Challenge Business. The yacht is very similar in size, design, sail area and handling characteristics to the eight boats that will be competing in the race. Thus, it is one of the most representative, “experienced”, boats that could be used for the intended purpose. Further, this boat and the others employed in the Challenge Business race are very unique. This project brings together ordinary people, the corporate and non-profit communities, and fully involves them in sailing one-design-boats in a sailing experience that is not duplicated by anyone else in the world.”
(6) A statement on the impact this waiver will have on U.S. shipyards. According to the applicant: “Similarly, the proposed activity will have absolutely no impact on U.S. shipyards. This yacht is uniquely valuable in that it has been raced under similar conditions, in a similar race while manned by individuals who had little, if any, sailing experience, before sailing aboard such a yacht. This yacht most accurately represents the look, feel and impact that the eight yachts in the race will have on the sailors, media, press, sponsors and supporters. Given its historical connection to a similar race, no newly built U.S. yacht could perform the proposed activity. Further, we are not aware of any similar yacht currently under construction in the U.S.”
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel SANDRA JEAN II.
As authorized by Pub. L. 105-383, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a description of the proposed service, is listed below. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. If MARAD determines that in accordance with Pub. L. 105-383 and MARAD's regulations at 46 CFR part 388 (65 FR 6905; February 11, 2000) that the issuance of the waiver will have an unduly adverse effect on a U.S.-vessel builder or a business that uses U.S.-flag vessels, a waiver will not be granted.
Submit comments on or before September 17, 2001.
Comments should refer to docket number MARAD-20001-10395. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Kathleen Dunn, U.S. Department of Transportation, Maritime Administration, MAR-832 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-2307.
Title V of Pub. L. 105-383 provides authority to the Secretary of Transportation to administratively waive the U.S.-build requirements of the Jones Act, and other statutes, for small commercial passenger vessels (no more than 12 passengers). This authority has been delegated to the Maritime Administration per 49 CFR § 1.66, Delegations to the Maritime Administrator, as amended. By this notice, MARAD is publishing information on a vessel for which a request for a U.S.-build waiver has been received, and for which MARAD requests comments from interested parties. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD's regulations at 46 CFR part 388.
(1) Name of vessel and owner for which waiver is requested. Name of vessel: SANDRA JEAN II. Owner: Peter and Nancy Hardy.
(2) Size, capacity and tonnage of vessel. According to the applicant: “The vessel is 39 feet long, suitable for six passengers plus two crew. The vessel is 14 tons gross, 9.5 tons net, per the official Certificate of British Registry (Canada).”
(3) Intended use for vessel, including geographic region of intended operation and trade. According to the applicant: “This vessel will be used for training and recreation, specifically: a. Navigation and maneuvering instruction/training; b. Nature and wildlife observation and research; c. ‘Mothership’ and shuttle for kayakers and campers.”
“This operation will be in the Puget Sound region of Washington State, from Olympia, Washington to the Canadian border. Also in Southeast Alaska from the Canadian border to Skagway, Alaska.”
(4) Date and Place of construction and (if applicable) rebuilding. Date of construction: 1965. Place of construction: Sather Boat Works, New Westminster, British Columbia, Canada.
(5) A statement on the impact this waiver will have on other commercial passenger vessel operators. According to the applicant: “This waiver will have little or no effect on other commercial
(6) A statement on the impact this waiver will have on U.S. shipyards. According to the applicant: “This waiver will have no impact on U.S. Shipyards.”
By Order of the Maritime Administrator.
Office of Pipeline Safety, Research and Special Programs Administration, DOT.
Notice of intent to approve project modification and environmental assessment of modification.
The Office of Pipeline Safety (OPS) is conducting a Risk Management Demonstration Program with pipeline operators to determine how risk management might be used to complement and improve the existing Federal pipeline safety regulatory process. In December, 1998, OPS approved Natural Gas Pipeline Company of America (NGPL)
This Notice explains OPS's rationale for approving NGPL's Alternatives. OPS seeks public comment on the proposed demonstration project modification so that it may consider and address these comments before modifying the order to approve the alternatives.
OPS requests that comments to this Notice or about this environmental assessment be submitted on or before September 17, 2001 so they can be considered before the modifications are approved. However, comments on this or any other demonstration project will be accepted in the Docket throughout the demonstration period. Written comments should be sent to the Dockets Facility, U.S. Department of Transportation, Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. Comments should identify the docket number RSPA-98-4034. Persons should submit the original comment document and one (1) copy. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard. The Dockets Facility is located on the plaza level of the Nassif Building in Room 401, 400 Seventh Street, SW., Washington, DC. The Dockets Facility is open from 10 a.m. to 5 p.m., Monday through Friday, except on Federal holidays. You may also submit comments to the docket electronically. To do so, log on to the DMS Web at http://dms.dot.gov. Click on Help & Information to obtain instructions for filing a document electronically.
Elizabeth Callsen, OPS, (202) 366-4572, regarding the subject matter of this Notice. Contact the Dockets Unit, (202) 366-5046, for docket material. Comments may also be reviewed online at the DOT Docket Management System website at
In December, 1998, OPS approved NGPL as a participant in the Pipeline Risk Management Demonstration Program
2. OPS Evaluation of NGPL's Proposed Alternatives
A Project Review Team (PRT), consisting of representatives from OPS Headquarters, Central Region, and Southwestern Region; representatives of Illinois and Texas pipeline regulatory agencies; and risk management experts evaluated NGPL's proposed Alternatives. The PRT met with NGPL to discuss the current risk assessment and risk control processes NGPL uses, how these processes were used to identify and define the proposed regulatory alternatives, the analysis of the protection achieved by the proposed alternatives compared to the protection 49 CFR 192.611 provides, and proposed performance measures to ensure superior performance is being achieved. The evaluation also included an environmental assessment, which is described in Appendix A of this Notice.
The major review criterion for this evaluation was whether the risk control alternatives NGPL proposed can be expected to produce superior safety, environmental protection, and reliability of service compared to that achieved from compliance with 49 CFR 192.611.
Once OPS and NGPL consider comments received on this Notice, OPS intends to modify NGPL's risk management demonstration project order to allow the alternatives.
The NGPL System transports pressurized natural gas, which is lighter than air and flammable. If released as a result of a pipeline leak or rupture, natural gas can potentially ignite causing fires or explosions. Protection of
NGPL is focusing its proposed regulatory alternatives to control the increased risk from population increases along the pipeline (see Section 5) in one location in Illinois and four locations in Texas.
• One pipe segment (4912 feet) located on the Amarillo #3 line in Will County, Illinois, within Mileposts 978-979 (just upstream of Compressor Station 113).
• Two pipe segments (1177 feet and 1116 feet) located on the Gulf Coast #1 and #2 Lines in Liberty Country Texas, within Mileposts 288-289 (between Compressor Stations 302 and 303).
• Two pipe segments (both 4.4 miles) located on the Louisiana #1 and #2 Lines in Liberty County, Texas, within Mileposts 23-28 (between Compressor Stations 302 and 343).
NGPL has identified five short pipe segments where it believes alternatives to the regulations addressing population increase near a pipeline ( 49 CFR 192.611) would result in superior safety, environmental protection, and reliability (see Section 4).
This section describes the current regulatory requirements in 49 CFR 192.611 that govern actions taken when population density increases along the pipeline.
OPS categorizes all locations along a gas pipeline according to the population near the pipeline (see 49 CFR 192.5). Locations with the smallest population (10 or fewer buildings intended for human occupancy within an area that extends 220 yards on either side of the centerline of any continuous one mile length of pipeline) are designated as Class 1. As the population along the pipeline increases, the class location increases. For example, Class 2 locations have more than 10 but fewer than 46 buildings intended for human occupancy. Class 3 locations have 46 or more buildings intended for human occupancy, or are areas where the pipeline lies within 100 yards of either a building or small, well-defined outside area (such as a playground, recreation area, outdoor theater, or other place of public assembly) that is occupied by 20 or more persons on at least 5 days a week for 10 weeks in any 12 month period. Class 4 locations are any class location unit where buildings with four or more stories above ground are prevalent (
All of the NGPL class location change pipe segments identified in Section 4 are changing from Class 2 to Class 3.
Pipeline safety regulations impose more stringent design and operational requirements as the class location increases. When a pipe segment changes to a higher class (e.g., from class 2 to class 3), the operator must lower operating pressure to provide an additional margin of safety, unless a pressure test on the pipe has confirmed that a prescribed safety margin exists. If a previous pressure test has not confirmed the prescribed safety margin, then the operator must test the pipe to confirm the margin. In situations where it is not possible to confirm through testing, the operator must replace the pipe with new pipe that has the prescribed design factor, unless the operator wants to reduce operating pressure.
Because of the importance of providing reliable natural gas service to its customers, NGPL is not considering permanent operating pressure reduction as a realistic alternative since this would decrease the quantity of gas that the company could deliver. To comply with pipeline safety regulations, NGPL would have to replace pipe in these five segments. Replacing existing pipe with new pipe that has the prescribed design factor eliminates the possibility that defects from the original materials and construction, as well as corrosion that may have occurred since installation, will result in a failure.
For each class location change area described in Section 4, NGPL has performed risk analyses to understand and characterize the existing risks to the pipeline and defined specific alternatives to replacing pipe for controlling these risks. NGPL identified outside force damage and corrosion as the principal risks to the pipeline in the class location segments and the surrounding sections and defined the following risk control alternatives (also summarized in Table 1):
• Internally inspecting class location change segments using geometry and magnetic flux leakage in-line inspection tools. Gas pipeline safety regulations do not currently require internal inspection. These tools will identify indications of wall loss (e.g. corrosion), as well as dents and gouges from initial construction damage or third party excavators working along the pipeline right-of-way. OPS reviews results of these internal inspections as they are completed.
• Internally inspecting an extended length of pipe bordering each class change segment to further extend the benefits of the better integrity analysis. NGPL has already internally inspected approximately 310 miles of pipe.
• Repairing indications of corrosion or existing construction and outside force damage identified by the internal inspection. NGPL is using conservative investigation and repair criteria in the class location change sites and in an additional length of pipe bordering those sites. The criteria call for investigation and repairs of small dents and anomalies that are well below the size at which a challenge to pipeline integrity might be expected.
• Performing close-interval surveys on the five class location segments and an extended length of pipe bordering each class location segment, as an added measure to detect possible pipeline corrosion. NGPL has surveyed approximately 257 miles of pipe.
• Pressure testing the five class location change segments, an extended length of pipe that encompasses each class location segment, and additional segments on the same pipelines. NGPL has pressure tested approximately 60 miles of pipe.
• Enhancing damage prevention activities in the class location change segments and an additional length of pipe bordering each class location segment. Damage caused by excavators near the pipeline represents one of the highest risks to the five class location change areas. This multi-faceted damage prevention program includes:
• Annual verification of one-call system database information to ensure accuracy of pipeline data;
• Increasing contact with local contractors that may be working near the pipeline to provide information on safe practices when planning and performing work near pipelines;
• Having more frequent face-to-face contact with landowners and residents near the pipeline to provide information on safe practices and prevent potential damage to the pipeline;
• Expanding distribution of information on pipeline awareness and potential hazards to nearby residents;
• Regularly verifying the depth of cover over the pipeline to protect it from the risk of excavation damage;
• Increasing the number of pipeline markers along the segment to alert potential excavators of the line's presence; and
• Increasing local patrolling frequency.
• Increasing contacts with local emergency planners and emergency responders to ensure preparation for more effective and coordinated response to emergencies.
• Conducting public education on the subject of pipeline safety; part of this education program will be specifically developed for students in schools in the immediate vicinity of the Gulf Coast line class location segments.
• Continuing the NGPL current investigation, analysis, and mitigation program for Stress Corrosion Cracking (SCC). This company program, initiated in response to recent experience on the NGPL system, involves integration of data regarding soil, coating, and pipe characteristics to identify areas of probable susceptibility to SCC. These areas are then investigated further to determine if SCC is present; any detected SCC is mitigated.
As part of the company's risk evaluation, NGPL has compared the risk reduction produced by these alternatives to that achieved by the current regulations. OPS has reviewed this evaluation in detail and concluded that the alternative risk control activities can be expected to reduce safety and environmental risk below that which would be achieved by compliance with 49 CFR 192.611. Furthermore, because of the resources saved by not having to replace pipe in these five locations, NGPL is able to conduct internal inspections and pressure tests on additional portions of its system.
Based on the PRT's evaluation of the these alternatives, OPS intends to exempt NGPL from the pressure confirmation requirements of 49 CFR 192.611. In lieu of compliance with this requirement, NGPL will implement the Alternatives and, along with OPS, monitor their effectiveness.
OPS believes that the proposed risk control alternatives will improve protection for the environment and the communities in the vicinity of NGPL's pipelines. OPS believes NGPL's risk-based justification of the alternatives to the class change regulations is technically sound. OPS also believes that this modification to the NGPL demonstration project will help OPS further the overall goals of the Risk Management Demonstration Program. In particular, as a result of this modification there will be an increased sharing of information between the company and government about potential pipeline risks and activities to address those risks, as OPS reviews the results of the inspection and testing activities that are part of the Alternatives. This sharing will increase OPS's knowledge and awareness about potential pipeline threats, and thereby support a more effective regulatory role in improving safety and environmental protection.
After approving the proposed modifications, the PRT will monitor the implementation and results of the Alternatives, as part of its continued monitoring of the Demonstration Project. The PRT is a more comprehensive oversight process that draws maximum technical experience and perspective from all affected OPS regional and headquarters offices, and from any affected state agencies that would not normally provide oversight on interstate transmission projects.
OPS retains its authority to enforce NGPL's compliance with the pipeline safety regulations. OPS plans to exempt compliance from 49 CFR 192.611 at those five segments where NGPL has demonstrated that its proposed risk alternatives should provide superior protection. Should the demonstration project performance measures or other information subsequently indicate that superior protection has not been achieved or is unlikely to continue to be achieved, then OPS can require NGPL to again comply with 49 CFR 192.611.
(1) NGPL “Application and Work Plan for DOT-OPS Risk Management Demonstration Program”, available in Docket No. RSPA-98-3893 at the Dockets Facility, U.S. Department of Transportation, Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001, (202) 366-5046.
(2) Pipeline Safety: Intent to Approve and Environmental Assessment for the Natural Gas Pipeline Company of America Pipeline Risk Management Demonstration Project, [63 FR 46497, September 1, 1998].
(3) Pipeline Safety: Natural Gas Pipeline Company of America; Approved for Pipeline Risk Management Demonstration Program (includes Finding of No Significant Impact) [64 FR 1067, January 7, 1999].
(4) “Risk Management Demonstration Project Order,” Reference No. RMD 98-4, December 31, 1998.
(5) Pipeline Safety: Remaining Candidates for the Pipeline Risk Management Demonstration Program, [62 FR 53052, October 10, 1997].
This Notice is OPS's final request for public comment before OPS intends to approve the described modification of NGPL's Risk Management Demonstration Project.
Henry G. Hohorst, Bruce Hohorst, and Anthony M. Linn, individuals (applicants), have filed a verified notice of exemption to continue in control of The West Tennessee Railroad, LLC (WTNN), a New Jersey limited liability company, upon its succeeding to the operating rights and responsibilities of West Tennessee Railroad Corp. (WTRC) and its leasing a line of railroad from Norfolk Southern Railway Company (NSR).
The transaction was scheduled to be consummated on or after August 1, 2001.
This transaction is related to STB Finance Docket No. 34039,
Applicants own South Central Rail Group, Inc., which, in turn, owns WTRC
This is a transaction within a corporate family that will not result in adverse changes in service levels, significant operational changes, or a change in the competitive balance with carriers outside the corporate family. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under sections 11324 and 11325 that involve only Class III rail carriers. Because this transaction involves Class III rail carriers only, the Board, under the statute, may not impose labor protective conditions for this transaction.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34073, 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, a copy of each pleading must be served on John F. McHugh, McHugh & Barnes, P.C., 20 Exchange Place, New York, NY 10005.
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
By the Board, David M. Konschnik, Director, Office of Proceedings.
The West Tennessee Railroad, LLC (WTNN), a New Jersey limited liability company, has filed a verified notice of exemption under 49 CFR 1150.31 to lease and operate, pursuant to an agreement entered into with Norfolk Southern Railway Company (NSR), approximately 140.1 miles of rail line. The subject line runs from milepost IC-406.1 at Fulton, KY, to milepost IC-525.0, one mile north of Ruslor Junction (Corinth), MS. The transaction includes the Bemis to Poplar Corner, TN branch line from milepost GW-0.0 to GW-15.0, the Jackson, TN connection track from milepost GH-0.0 to GH-2.2, and the Lawrence and Carroll, TN branch line from milepost MM-388.5 to MM-394.5, as well as all associated tracks and spurs. WTNN will also acquire trackage rights between milepost IC-525.0 and NSR's connection with The Kansas City Southern Railway Company at milepost IC-526.0 in Corinth.
The transaction was scheduled to be consummated on or after August 1, 2001.
This transaction is related to STB Finance Docket No. 34073,
If this notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34039, 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, a copy of each pleading must be served on John F. McHugh, McHugh & Barnes, P.C., 20 Exchange Place, New York, NY 10005.
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
By the Board, David M. Konschnik, Director, Office of Proceedings.
Customs Service, Department of the Treasury.
Notice of accreditation of Camin Cargo, Inc. of Linden, New Jersey as a commercial laboratory.
Camin Cargo, Inc. of Linden, New Jersey, has applied to U.S. Customs under § 151.12 of the Customs Regulations for an extension of accreditation as a commercial laboratory to analyze petroleum product under Chapter 27 and Chapter 29 of the Harmonized Tariff Schedule of the United States (HTSUS). Customs has determined that this company meets all of the requirements for accreditation as a commercial laboratory. Specifically, Camin Cargo, Inc. has been granted accreditation to perform the following tests methods at their Pasadena Texas site: (1) API Gravity by Hydrometer, ASTM D287; (2) API Gravity by Densitometer, ASTM D4052; (3) Water and Sediment in Crude Oils by Centrifuge, ASTM D4007; (4) Water and Sediment in Fuel Oils by Centrifuge, ASTM D1796; (5) Knock Characteristics of Motor Fuels by Research Method, ASTM D2699; (6) Knock Characteristics of Motor and Aviation Fuels by Motor Method, ASTM D2700; (7) Water in Petroleum Products and Bituminous Materials by Distillation, ASTM D95; (8) Water in Liquid Petroleum Products by Karl Fischer Reagent (Titration Method), ASTM D1744; (9) Vapor Pressure of Petroleum Products (Reid Method), ASTM D323; (10) Vapor Pressure of
Michael Parker, National Quality Manager, Laboratories and Scientific Services, U.S. Customs Service, 1300 Pennsylvania Avenue, NW, Suite 1500 North, Washington, D.C. 20229, (202) 927-1060.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-4-89 (TD 8580), Disposition of an Interest in a Nuclear Power Plant (§ 1.468A-3).
Written comments should be received on or before October 16, 2001 to be assured of consideration.
Direct all written comments to Garrick R. Shear, Internal Revenue Service, room 5571, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, (202) 622-6665, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice.
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.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the 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 collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (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; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the New York Metro Citizen Advocacy Panel will be held in Uniondale, New York.
The meeting will be held Friday, September 14, 2001.
Eileen Cain at 1-888-912-1227 or 718-488-3555.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an operational meeting of the Citizen Advocacy Panel will be held Friday, September 14, 2001, 6 p.m. to 9:20 p.m. at the Marriott Hotel located at 101 James Doolittle Blvd., Uniondale, NY 11201.
For more information or to confirm attendance, notification of intent to attend the meeting must be made with Eileen Cain. Mrs. Cain can be reached at 1-888-912-1227 or 718-488-3555.
The public is invited to make oral comments from 9 p.m. to 9:20 p.m. on Friday, September 14, 2001.
Individual comments will be limited to 5 minutes. If you would like to have the CAP consider a written statement, please call 1-888-912-1227 or 718-488-3555, or write Eileen Cain, CAP Office, P.O. Box R, Brooklyn, NY, 11201. The Agenda will include the following: various IRS issues.
Last minute changes to the agenda are possible and could prevent effective advance notice.
Notice.
An open meeting of the Florida Citizen Advocacy Panel will be held in Sunrise CAP Office, Florida.
The meeting will be held Friday, September 14, 2001.
Nancy Ferree at 1-888-912-1227, or 954-423-7973.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Citizen Advocacy Panel will be held Friday, September 14, 2001 from 9 a.m. to 12 p.m. and from 1 p.m. to 4 p.m., at The Sunrise Hilton, 3003 N. University Drive, Sunrise, FL 33322. The public is invited to make oral comments. Individual comments will be limited to 10 minutes. If you would like to have the CAP consider a written statement, please call 1-888-912-1227 or 954-423-7973, or write Nancy Ferree, CAP Office, 7771 W. Oakland Park Blvd. Rm. 225, Sunrise, FL 33351, or e-mail firstcapsfl@mindspring.com. Due to limited conference space, notification of intent to attend the meeting must be made with Nancy Ferree. Ms. Ferree can be reached at 1-888-912-1227 or 954-423-7973, or e-mail firstcapsfl@mindspring.com.
The agenda will include the following: various IRS issue updates and reports by the CAP sub-groups.
Last minute changes to the agenda are possible and could prevent effective advance notice.
Internal Revenue Service (IRS), Treasury.
Notice.
A meeting of the Midwest Citizen Advocacy Panel will be held in Milwaukee, Wisconsin.
The meeting will be held Thursday, August 23, 2001, and Friday, August 24, 2001.
Sandra McQuin at 1-888-912-1227 (in Wisconsin, Iowa, Nebraska and Illinois), or 414-297-1604.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Citizen Advocacy Panel (CAP) will be held Thursday, August 23, 2001, from 9 a.m. to 4 p.m. and Friday, August 24, 2001, from 8 a.m. to Noon at the University of Wisconsin, Milwaukee Center for Continuing Education, 161 West Wisconsin Avenue, Milwaukee, WI. The Citizen Advocacy Panel is soliciting public comment, ideas, and suggestions on improving customer service at the Internal Revenue Service. Public comments will be welcome during the meeting, or you can submit written comments to the panel by faxing to (414) 297-1623, or by mail to Citizen Advocacy Panel, Mail Stop 1006 MIL, 310 West Wisconsin Avenue, Milwaukee, WI 53203-2221.
The Agenda will include the following: Reports by the CAP sub-groups, presentation of taxpayer issues by individual members, discussion of issues, and an update on recruitment for new panel members.
Last minute changes to the agenda are possible and could prevent effective advance notice.
United States Mint, Treasury.
Notice of systems of records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the U.S. Mint, Treasury, is publishing its Privacy Act systems of records.
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a) and the Office of Management and Budget (OMB), Circular No. A-130, the U.S. Mint has completed a review of its Privacy Act systems of records notices to identify changes that will more accurately describe these records.
Changes to the “Categories of records” described under U.S. Mint .003-Employee and Former Employee Travel & Training Accounting Information System, have been made to update form titles and numbers.
The title of U.S. Mint .008 has been changed from Criminal Investigations Files' to “Employee Background Investigations Files.”
Other changes throughout the notices are editorial in nature and consist principally of changes to the “System Locations” and/or “System Manager(s) Address.”
One system of records, Mint .002-Current Employee Security Identification Record was deleted December 14, 2000, as published at 65 FR 78261.
This notice covers all systems of records adopted by the U.S. Mint up to June 1, 2001. The systems notices are reprinted in their entirety following the Table of Contents.
Cash Receivable Accounting Information System—Treasury/United States Mint.
United States Mint, 801 9th Street, NW, Washington, DC 20220; United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; United States Mint, 320 West Colfax Avenue, Denver, CO 80204; United States Mint, 155 Hermann Street, San Francisco, CA 94102; United States Mint, West Point, NY 10996; United States Bullion Depository, Fort Knox, KY 40121.
Employees and former employees of the United States Mint and the general public who have: (a) Served on jury duty when employed by the United States Mint; (b) paid for lost Government property belonging to the Mint; (c) purchased numismatic items from Mint sales outlets; and (d) have obtained travel advances.
Categories of records in the system:
(1) Receivables due from Mint employees, former employees and general public for lost Government property, salary overpayments, and cash sales of over-the-counter numismatic items; and (2) Receivables due from Mint employees and former employees who have outstanding travel advances.
5 U.S.C. 5537 and 31 U.S.C. 5111 (a)(3).
These records and information in the records may be used to disclose information to: (1) Accounting offices, managers, supervisors and government officials pertaining to cash receivables and debts owed the Government; (2) appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (3) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (4) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (5) foreign governments in accordance with formal or informal international agreements; (6) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (7) the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings; (8) unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114; (9) third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
Paper documents.
Name or number substitute.
Storage in filing cabinets with access by authorized accounting personnel.
General records control schedule, GAO rules and regulations, United States Mint Records Control Schedule. Records are destroyed in accordance with National Archives and Records Administration regulations.
Chief Financial Officer, United States Mint, 801 9th Street, NW, Washington, DC 20220; Financial Manager, United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; Financial Manager, United States Mint, 320 West Colfax Avenue, Denver, CO 80204; Financial Manager, United States Mint, 155 Hermann Street, San Francisco, CA 94102; Chief, Accounting Division, United States Mint, West Point, NY 10996; Administrative Officer, United States Bullion Depository, Fort Knox, KY 40121.
Refer to System manager(s) and address. An employee or former employee is required to show an identification such as: (a) Employee identification; (b) Driver's license; (c) Other means of identification, including social security number and date of birth.
For information on procedures for gaining access to and contesting records, individuals may contact the following official: Disclosure Officer, United States Mint, Office of Management Services, 801 9th Street, NW, Washington, DC 20220.
Refer to “Record access procedures.”
U.S. Mint employees and appropriate agency officials.
None.
Employee and Former Employee Travel and Training Accounting Information System—Treasury/United States Mint.
United States Mint, 801 9th Street, NW, Washington, DC 20220; United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; United States Mint, 320 West Colfax Avenue, Denver, CO 80204; United States Mint, 155 Hermann Street, San Francisco, CA 94102; United States Mint, West Point, NY 10996; United States Bullion Depository, Fort Knox, KY 40121.
Employees and former employees of the United States Mint who have engaged in travel and training.
(1) Schedule of Payments generated from the Electronic Certification System (ECS) with supporting documents such as: (a) SF 1012 Travel Voucher; (b) SF 1038 Application and Account for Advance of Funds; (2) Travel Authorities; (3) SF-182, Request, Authorization, Agreement and Certification of Training.
5 U.S.C. Chapters 41 and 57.
These records and information in the records may be used to disclose information to: (1) Accounting offices, managers, supervisors and government officials pertaining to cash receivables and debts owed the Government; (2) appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (3) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (4) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (5) foreign governments in accordance with formal or informal international agreements; (6) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (7) the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings; (8) unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114; (9) third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
Paper documents.
Name or number substitute (social security number, authority number).
Stored in filing cabinets with access by authorized accounting personnel.
General Records Control Schedule, GAO rules and regulations, United States Mint Records Control Schedule are destroyed in accordance with National Archives and Records Administration regulations.
Chief Financial Officer, United States Mint, 801 9th Street, NW, Washington, DC 20220; Financial Manager, United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; Financial Manager, United States Mint, 320 West Colfax Avenue, Denver, CO 80204; Financial Manager, United States Mint, 155 Hermann Street, San Francisco, CA 94102; Chief, Accounting Division, United States Mint, West Point, NY 10996; Administrative Officer, United States Bullion Depository, Fort Knox, KY 40121.
Refer to System manager(s) and address. An employee or former employee is required to show an identification such as: (a) Employee identification; (b) Driver's license; and (c) Other means of identification including social security number and date of birth.
For information on procedures for gaining access to and contesting records, individuals may contact the following official: Disclosure Officer, United States Mint, Office of Management Services, 801 9th Street, NW, Washington, DC 20220.
Refer to “Record access procedures.”
United States Mint employees and appropriate agency officials.
None.
Occupational Safety and Health, Accident and Injury Records, and Claims for Injuries or Damage Compensation Records—Treasury/United States Mint.
Location and Category of Records Maintained: United States Mint, 801 9th Street, NW, Washington, DC 20220—Accident/Injury/Illness Records, Vehicle Accident, and Claims against the Government; United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106—Accident/Injury/Illness Records, Motor Vehicle Accident Data, Claims against the Government, Safety Equipment Logs, and Operators Training/Licensing; United States Mint, 320 West Colfax Avenue, Denver, CO 80204; Accident/Injury/Illness Records, Motor Vehicle Accident Data, Claims against the Government, Safety Equipment Logs, and Operators Licensing; United States Mint, 155 Hermann Street, San Francisco, CA 94102; Accident/Injury/Illness Records, Motor Vehicle Accident Data, Claims against the Government, Safety Equipment Logs, and Operators Training/ Licensing; United States Mint, West Point, NY 10996; Accident/Injury/Illness Records, Motor Vehicle Accident Data, Claims against the Government, and Safety Equipment Logs; United States Bullion Depository, Fort Knox, KY 40121; Accident/Injury/Illness Records, Motor Vehicle Accident Data, and Claims against the Government.
United States Mint employees, former employees and members of the public.
Refer to “System location.”
5 U.S.C. Ch. 81; 29 U.S.C. 668; 29 CFR 1910; E.O. 12196, 28 U.S.C. 2680 et seq; 31 U.S.C. 3701 and 3721; and 31 CFR Parts 3 and 4.
These records and information in the records may be used to disclose information to: (1) Appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (2) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (3) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (4) foreign governments in accordance with formal or informal international agreements; (5) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (6) the news media in
Paper documents.
By name.
Locked file cabinets available to authorized personnel only.
Records are retained in accordance with General Records Control Schedules; DOL, OSHA; EPA; and United States Mint Records Control Schedules; are destroyed in accordance with National Archives and Records Administration rules and regulations.
Assistant Director for Human Resources, Associate Director for Protection, Safety Officer, Treasury Department, United States Mint, 801 9th Street, NW, Washington, DC 20220; Personnel Officer and Safety Officer, United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; Personnel Officer, United States Mint, 320 West Colfax Avenue, Denver, CO 80204; Personnel Officer and Safety Officer, United States Mint, 155 Hermann Street, San Francisco, CA 94102; Administrative Officer, United States Mint, West Point, NY 10996; Administrative Officer, United States Bullion Depository, Fort Knox, KY 40121.
Refer to System manager(s) and address. An employee or former employee is required to show an identification such as: (a) Employee identification; (b) Driver's license; and (c) Other means of identification, including social security number and date of birth.
For information on procedures for gaining access to and contesting records, individuals may contact the following official: Disclosure Officer, United States Mint, Office of Management Services, 801 9th Street, NW, Washington, DC 20220.
Refer to “Record access procedures.”
Employees, supervisors, medical staff, general public, and visitors to the facilities of the United States Mint.
None.
Employee—Supervisor Performance Evaluation, Counseling and Time and Attendance Records—Treasury/United States Mint.
United States Mint, 155 Hermann Street, San Francisco, CA 94102; United States Mint, 320 West Colfax Avenue, Denver, CO 80204; United States Mint, 801 9th Street, NW., Washington, DC 20220; United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; United States Mint, West Point, NY; United States Bullion Depository, Fort Knox, KY 40121; and United States Mint, Customer Care Center, 10003 Derekwood Lane, Lanham, MD 20706.
United States Mint employees and former employees.
Information necessary for managers and supervisors to effectively carry out supervisory responsibilities. Included are such records as: copies of personnel actions, performance appraisal including production and control, disciplinary actions, overtime reports, tardiness reports, work assignments, training reports, applications for employment, home addresses, leave reports, employee awards. (Supervisors maintain varying combinations of the above records. Some supervisors may maintain all or none of the above records depending upon the nature and size of the operation or organization and the number of individuals supervised.)
5 U.S.C. 301 and FPM Supplement 990—1, Section 3.
These records and information in the records may be used to disclose information to: (1) Appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (2) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (3) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (4) foreign governments in accordance with formal or informal international agreements; (5) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (6) the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings; (7) third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
Paper documents maintained in folders.
By name.
Stored in file cabinets and desks of supervisors.
Retained as long as employee is under their supervision.
Associate and Assistant Directors and Director's Staff, United States Mint, 801 9th Street, NW., Washington, DC 20220, and Customer Care Center, 10003 Derekwood Lane, Lanham, MD 20706; Superintendent, United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; Superintendent, United States Mint, 320 West Colfax Avenue, Denver, CO 80204; Superintendent, United States Mint, 155 Hermann Street, San Francisco, CA
Refer to System manager(s) and address. Employee or former employee is required to show identification such as: identification card, driver's license.
For information on procedures for gaining access to and contesting records, individuals may contact the following official: Disclosure Officer, United States Mint, Office of Management Services, 801 9th Street, NW., Washington, DC 20220.
Refer to “Record access procedures.”
Employees, previous employers, and appropriate agency officials.
None.
General Correspondence—Treasury/United States Mint.
United States Mint, 801 9th Street, NW, Washington, DC 20220.
Members of the public, Members of Congress, Mint officials and officials from other Federal agencies.
Incoming correspondence and replies pertaining to the mission, function and operation of the United States Mint.
31 U.S.C. 5131 and 5132.
These records and information in the records may be used to disclose information to: (1) Appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (2) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (3) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (4) foreign governments in accordance with formal or informal international agreements; (5) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (6) the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings; (7) third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
Paper documents and electronic files.
By name (limited retrievability by subject and/or control number).
Maintained in limited access area available only to appropriate agency officials.
In accordance with the National Archives and Records Administration's General Records Control Schedule and the United States Mint Records Control Schedule. Destroyed in accordance with National Archives and Records Administration regulation.
Chief, Executive Secretariat, United States Mint, 801 9th Street, NW, Washington, DC 20220.
Refer to System Manager for addresses to which inquiries may be addressed and addresses at which the individual may present a request as to whether a system contains records pertaining to himself/herself. The individual must supply his/her name.
For information on procedures for gaining access to and contesting records, individuals may contact the following official: Disclosure Officer, United States Mint, Office of Management Services, 801 9th Street, NW, Washington, DC 20220.
Refer to “Record access procedures.”
The general public, Members of Congress and Federal officials.
None.
Employee Background Investigations Files—Treasury/United States Mint.
United States Mint, 801 9th Street, NW, Washington, DC 20220.
Mint employees and members of the public suspected of criminal misconduct against the United States Mint.
Name of individual, location of Mint facility, and reports by security personnel of the U.S. Mint Police.
Title 18 U.S.C.
Routine uses of records maintained in the system, including categories of users and the purposes of such uses: These records and information in the records may be used to disclose information to: (1) Appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (2) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (3) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (4) foreign governments in accordance with formal or informal international agreements; (5) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (6) the news media in accordance with guidelines contained in
Paper documents.
By name.
Files are kept in a combination locked file cabinet in an area accessible to authorized agency officials.
Retained in accordance with United States Mint Records Control Schedule; are destroyed in accordance with National Archives and Records Administration rules and regulations.
Office of Protection, United States Mint, 801 9th Street, NW, Washington, DC 20220.
Refer to System manager(s) and address.
For information on procedures for gaining access to and contesting records, individuals may contact the following official: Disclosure Officer, United States Mint, Office of Management Services, 801 9th Street, NW, Washington, DC 20220.
Refer to “Record access procedures.”
United States Mint and other law enforcement officials.
As authorized by 5 U.S.C. 552a(k)(2); this system is exempt from the following provisions, subsections (c)(3), (d), (e)(1); (e)(4) (G), (H), and (I) and (f) of 5 U.S.C. 552a.
Mail-order and Catalogue Sales System (MACS), Customer Mailing List, Order Processing Record for Coin Sets, Medals and Numismatic Items, and records of undelivered orders, product descriptions, availability and inventory-Treasury/United States Mint.
United States Mint, 801 9th Street, NW, Washington, DC 20220 and Customer Care Center, 10003 Derekwood Lane, Lanham, MD 20706.
Members of the public.
Names, addresses, order history of customers purchasing numismatic items and of individuals who wish to receive notification of numismatic offerings by the Mint.
31 U.S.C. 5111, 5112, 5132 and 31 CFR Part 92.
These records and information in the records may be used to disclose information to: (1) Accounting offices, managers, supervisors and government officials pertaining to cash receivables and debts owed the Government; (2) appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (3) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (4) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (5) foreign governments in accordance with formal or informal international agreements; (6) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (7) the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings; (8) third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
Magnetic tape, discs, paper and cards:
Name, customer number or order number.
CRT, password protection; only designated persons may request computer generated reports. Access to any information pertaining to any individual is limited to only those individuals requiring the information to accommodate handling of transactions with the customers. Separation of functions; source documents maintained in one division and programming systems in another.
In accordance with the National Archives and Records Administration General Records Control Schedule and the United States Mint Records Control Schedule; are destroyed in accordance with National Archives and Records Administration regulations. Customer names and addresses are maintained as long as they are active.
Associate Director for Customer Care, Customer Care Center, 10003 Derekwood Lane, Lanham, MD 20706.
Refer to System manager(s) and address. Individuals should supply order number as provided on order card or copy of both sides of canceled check; customer number which appears on pre-printed order cards or on face of check.
For information on procedures for gaining access to and contesting records, individuals may contact the following official: Disclosure Officer, United States Mint, Office of Management Services, 801 9th Street, NW, Washington, DC 20220.
Refer to “Record access procedures.”
Members of the public and appropriate government officials.
None.
Grievances. Union/Agency Negotiated Grievances; Adverse Performance Based
United States Mint, 801 9th Street, NW, Washington, DC 20220; United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106; United States Mint, 320 West Colfax Avenue, Denver, CO 80204; United States Mint, 155 Hermann Street, San Francisco, CA 94102; United States Mint, West Point, NY 10996; United States Bullion Depository, Fort Knox, KY 40121.
Employees and former employees of the United States Mint.
This system of records contains information or documents relating to employee grievances filed under provisions of negotiated grievance procedures, administrative grievance procedures, adverse action procedures, performance based action procedures, and discrimination complaint procedures, including decision of appropriate third parties where applicable.
5 U.S.C. 7701 and 7702; 5 U.S.C. Ch. 75; and 5 U.S.C. Ch. 71. Executive Orders 11491, 11616, 11636, 11838, 11901, 12027, 12107; 29 CFR 1613; negotiated agreements between the United States Mint and exclusively recognized labor unions.
These records and information in the records may be used to disclose information to: (1) Appropriate Federal, state, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license; (2) a Federal, state, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an employee, or issuance of a security clearance, license, contract, grant, or other benefit; (3) a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a court-ordered subpoena, or in connection with criminal law proceedings; (4) a congressional office in response to an inquiry made at the request of the individual to whom the record pertains; (5) the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings; (6) unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114; (7) third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
These records are maintained in file folders or binders.
These records are filed by the names of the individuals on whom they are maintained or by the subject of the action.
Access to and use of these records are limited to those agency officials whose official duties require such access.
Retained in accordance with the United States Mint Records Control Schedules; are destroyed in accordance with National Archives and Records Administration rules and regulations.
For current and former employees: Assistant Director for Human Resources, United States Mint, Department of the Treasury, 801 9th Street, NW, Washington, DC 20220. Personnel Officer, United States Mint, 151 North Independence Mall East, Philadelphia, PA 19106. Personnel Officer, United States Mint, 320 West Colfax Avenue, Denver, CO 80204. Personnel Officer, United States Mint, 155 Hermann Street, San Francisco, CA 94102. Personnel Officer, United States Mint, West Point, NY 10996. Administrative Officer, United States Bullion Depository, Fort Knox, KY 40121.
Individuals who have filed an action are provided a copy of the record. They may, however, contact the System Manager indicated above regarding the existence of such records pertaining to them. It is necessary to furnish information sufficient to verify the identity of the requester such as full name, date of birth, a brief description of the grievance and the approximate date of submission.
Individuals who have filed a grievance, appeal, or complaint about a decision or determination made by an agency or about conditions existing in an agency already have been provided a copy of the record. The contest, amendment, or correction of a record is permitted during the prosecution of the action to whom the record pertains. However, after a case has been closed, an individual may gain access to, or contest the official copy of the grievance record by writing the appropriate System Manager indicated above. Individuals should provide name, date of birth, a brief description of the action and the approximate date of submission.
Refer to “Record access procedures.”
The sources of these records are as follows: (a) Individual to whom the record pertains; (b) Agency officials; (c) Affidavits or statements from employee(s); (d) Testimonies of witnesses; (e) Official documents and correspondence relating to the grievance.
None.
In notice document 01-18792 beginning on page 39199 in the issue of Friday, July 27, 2001, make the following correction:
On page 39200, in the second column, in paragraph “H.”, in the first line, “of” should read “or”.
In rule document 01-19895 appearing on page 41445 in the issue of Wednesday, August 8, 2001, make the following corrections:
1. On page 41445, in §16.130, in the the second column, in paragraph
2. On the same page, in the same section, in the third column, in paragraph
In rule document 01-19896 beginning on page 41445 in the issue of Wednesday, August 8, 2001, make the following corrections:
1. On page 41446, in the first column, ÿ7Ein the fourth line, insert “is” after the word “and”.
2. On the same page, in the same column, in the sixth line, “DOG-005”, should read “DOJ-005”.
3. On the same page, in the second column, in §16.131, in paragraph “(3)”, in the 12th line, remove the word “and”.
4. On the same page, in the same column, in the same section, in paragraph “(4)”, in the fourth line, insert “is” after the word “as”.
5. On the same page, in the same column, in the same section, in the same paragraph, in the second line from the bottom, “given” should read “give”.
Rural Utilities Service, USDA.
Final rule.
The Rural Utilities Service (RUS) amends its regulations on Telecommunications Standards and Specifications for Materials, Equipment and Construction, by revising RUS Contract Form 515, Telephone System Construction Contract, and revising and renumbering RUS Bulletin 345-150, Specifications and Drawings for Construction of Direct Buried Plant (Form 515a); RUS Bulletin 345-151, Specifications and Drawings for Conduit and Manhole Construction (Form 515c); RUS Bulletin 345-152, Specifications and Drawings for Underground Cable Installation (Form 515d); RUS Bulletin 345-153, Specifications and Drawings for Construction of Pole Lines, Aerial Cables and Wires (Form 515f); and RUS Bulletin 345-154, Specifications and Drawings for Service Entrance and Station Protector Installation (Form 515g). The revised contract and specifications will incorporate the latest technology, remove redundant or outdated requirements, and simplify the specification format.
Charlie I. Harper, Jr., Chief, Outside Plant Branch, Telecommunications Standards Division, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Ave., SW., Stop 1598, Washington, DC 20250-1598, telephone (202) 720-0667.
This final rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this final rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effort will be given to this rule, and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.
RUS has determined that this final rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601
The reporting and recordkeeping requirements contained in this rule are pending approval by the Office of Management and Budget (OMB) under OMB control number 0572-0059, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Send questions or comments regarding this burden or any other aspect of these collections of information, including suggestions for reducing the burden, to F. Lamont Heppe, Jr., Director, Program Development and Regulatory Analysis, Rural Utilities Service, USDA, 1400 Independence Ave., SW, Stop 1522, Washington, DC 20250-1522.
The Administrator of RUS has determined that this final rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The program described by this final rule is listed in the Catalog of Federal Domestic Assistance program under No. 10.851, Rural Telephone Loans and Loan Guarantees, and No. 10.852, Rural Telephone Bank Loans. This catalog is available on a subscription basis from the Superintendent of Documents, the U.S. Government Printing Office, Washington, DC 20402-9325. Telephone (202) 512-1800.
This final rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. A final rule related notice entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034) exempts RUS and RTB loans and loan guarantees, and RTB bank loans, from coverage under this Order.
This final rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act) for State, local, and tribal governments or the private sector. Thus this final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.
RUS issues contracts, standards and specifications for construction of telecommunications facilities financed with RUS loan funds. RUS is revising the RUS Contract Form 515, Telephone System Construction Contract, and revising and renumbering the associated supplemental specifications from RUS Bulletin 345-150 (RUS Form 515a) to RUS Bulletin 1753F-150 (RUS Form 515a), Specifications and Drawings for Construction of Direct Buried Plant; RUS Bulletins 345-151 (RUS Form 515c) and 345-152 (RUS Form 515d) combined into RUS Bulletin 1753F-151 (RUS Form 515b), Specifications and Drawings for Construction of Underground Plant; RUS Bulletin 345-153 (RUS Form 515f) to RUS Bulletin 1753F-152 (RUS Form 515c), Specifications and Drawings for Construction of Aerial Plant; and, RUS Bulletin 345-154 (RUS Form 515g) to RUS Bulletin 1753F-153 (RUS Form 515d), Specifications and Drawings for Service Installations at Customer Access Locations. The renumbering effort is to conform to the existing numbering system maintained by the agency.
The current RUS Contract Form 515, Telephone System Construction
On August 25, 2000, RUS published a proposed rule (65 FR 51773) to revise RUS Contract Form 515, Telephone System Construction Contract, and to revise and to renumber RUS Bulletin 345-150, Specifications and Drawings for Construction of Direct Buried Plant (Form 515a); RUS Bulletin 345-151, Specifications and Drawings for Conduit and Manhole Construction (Form 515c); RUS Bulletin 345-152, Specifications and Drawings for Underground Cable Installation (Form 515d); RUS Bulletin 345-153, Specifications and Drawings for Construction of Pole Lines, Aerial Cables and Wires (Form 515f); and RUS Bulletin 345-154, Specifications and Drawings for Service Entrance and Station Protector Installation (form 515g). Comments on this proposed rule were due December 26, 2000. Comments and recommendations were received from several interested parties by this due date. The comments, recommendations, and responses are summarized as follows:
a. Modify the BM2A assembly unit description to read as follows:
“BM2A
b. Modify the BM2A assembly unit drawing to show the proper placement of the connection according to the unit description. Additionally, add “Note 4” to the drawing to read as follows: “Clamp shall be accepted by Listing Agency (UL, etc.) for two conductors, otherwise two clamps shall be used.”
“V—One or more vacant innerduct to be placed in a conduit. The parentheses for the UD unit shall indicate the number of innerducts followed by the inside diameter of the innerduct to be placed in new or existing conduit, including rodding and cleaning of the conduit if necessary”.
“Example: UD(3-1.25)V—Indicates 3 innerducts of 1.25 inch inner diameter to be placed in new or existing conduit”.
Because the UH assembly unit description listed in the proposed RUS Form 515b revision is similar to the proposed BH assembly unit, the proposed UH assembly unit description listed in the RUS Form 515b revision will also be changed to indicate that these handholes should be used only in areas of non-vehicular traffic to make both assembly unit descriptions consistent.
No other comments were received. RUS’ review of the proposed Form 515 contract, Form 515a, Form 515b, Form 515c, and Form 515d revisions revealed that these revisions needed additional clarification and consistency between existing RUS published contracts and between the individual proposed documents. Therefore to provide the needed clarification and to make individual documents consistent, RUS has made the following changes to the proposed document:
a. To insure that contractors and borrowers are using the latest issue of RUS forms related to the contract, a parenthetical statement indicating that the current issue of related RUS forms is to be utilized has been added to page i, Roman numeral III of the final RUS Form 515 contract.
b. To make the proposed RUS 515 contract's approval period consistent with other RUS published contract forms, the “60-day period” was changed to the “90-day period” in the “Instructions to Bidders, paragraph 10” and “Article VII, section 8” of the final RUS Form 515 contract.
c. To emphasize that the liquidated damage amount is an owner's decision, the “Liquidated Damage Amount” along with page number references has been added to the index as the first item under the “Owner—Prior to Release for Bids Completes” heading of the final RUS Form 515 contract.
d. Editorial changes were made to the “Notice to Bidders” and “Instruction to Bidders” sections of final RUS Form 515 Contract by adding the “(s)'' or “(ies)” to the words “state,” “county,” and “exchange” to indicated that the construction project could be performed in more than one location.
e. Changed the language “shown on the maps and construction sheets” in paragraph 18(d), “Instruction to Bidders”, to “shown on the construction sheets” of the final RUS Form 515 contract. The reason for the change in language is because the definition of “construction sheets” on page 97 of the final RUS Form 515 contract includes “maps”.
f. Removed the parenthetical statement indicating the type of pole preservatives allowed in “Section A—POLE UNITS” and “Section BA—BURIED PLANT HOUSING STUB POLE UNITS” listed in the final RUS Form 515 contract. The reason for removal is that the consulting engineer specifies the type of pole preservative to be used on poles and stub poles.
g. Moved the language “Rural Utilities Service (hereinafter called the “Administrator”)” from paragraph 3 to paragraph 2 of the “Contractor's Proposal” in the final RUS Form 515 contract to place the reference in the appropriate paragraph.
h. Placed a parenthetical statement referencing the “RUS Form 168b or 168c” in paragraph 13 of the “Contractor's Proposal” in the proposed RUS Form 515 contract to delineate the appropriate form to be used in the contractor's proposal.
i. Changed the “BD12R” example shown in the proposed BD assembly unit of the proposed RUS Form 515a to a “BD14R” example. The reason for the change is because a BD12 size buried plant housing does not exist in the proposed assembly unit.
j. Changed the language “ripping (where necessary)” to “ripping (where necessary as determined by the Engineer)” in the proposed BFC and BFO assembly units in the final RUS Form 515a to clarify the ripping application.
k. Changed the language “vacant tubes” to “vacant ducts” in the proposed “V( )( )” suffix under the BFC and BFO assembly units in the final RUS Form 515a for consistency.
l. Added the suffix “T” to the BH assembly unit listed in the final RUS Form 515a to indicate that these type handholes can be used in areas of vehicular traffic if rated for such usage. The reason for the change is to make the BH assembly unit consistent with the UH assembly unit listed in the final RUS Form 515b.
m. Changed the language “suffixed by ‘E()’, where the required depth shall be shown inside the parentheses” to “suffixed by ‘E( )’, where the required depth in rock shall be shown inside the parentheses” in the BM71 assembly unit listed in the final RUS Forms 515a and 515d. The reason for the change is to clarify that “E( )” suffix associated with the proposed BM71 assembly unit specifically refers to the depth in rock rather than from the surface of the earth.
n. All assembly unit and construction guide drawings were reviewed for editorial content. The review resulted in RUS revising the drawings for editorial content to ensure consistent formatting, text font, leader dimensions, etc. This resulted in changing the issue date from “August 1999” to “March 2001” for all assembly unit and construction guide drawings listed in RUS Forms 515a, 515b, 515c, and 515d.
Incorporation by reference, Loan programs—communications, Reporting and recordkeeping requirements, Rural areas, Telephone.
7 U.S.C. 901
(c) List of telecommunications standard contract forms.
(34) RUS Form 515, issued September 17, 2001, Telecommunications Systems Construction Contract (Labor and Materials).
3. Section 1755.97 is amended by revising the section heading and the introductory text, removing the entries RUS Bulletins 345-150, 345-151, 345-152, 345-153, and 345-154 from the table and adding in numerical order new entries 1753F-150, 1753F-151, 1753F-152, and 1753F-153 to read as follows:
The following telecommunications bulletins have been approved for incorporation by reference by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These bulletins contain construction standards and specifications for materials and equipment and may be obtained from the Rural Utilities Service, Program Development and Regulatory Analysis, 1400 Independence Ave., SW, Stop 1522, Room 4028 South Building, Washington, DC 20250-1522. The bulletins are available for inspection at RUS, at the address above, and the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC. These materials are incorporated as they exist on the date of the approval and notice of any change in these materials will be published in the
Rural Utilities Service, USDA.
Final rule.
The Rural Utilities Service (RUS) amends its regulations on Telecommunications Standards and Specifications for Materials, Equipment and Construction, by rescinding RUS Bulletin 345-52, RUS Standard for Service Entrance and Station Protector Installations, PC-5A, and codifying the revised standard in the Code of Federal Regulations (CFR) as the RUS Standard for Service Installations at Customer Access Locations. The revised standard updates the installation methods used for installing aerial and buried service drops, network interface devices, fused primary station protectors, and protected building entrance terminals at customer access locations as a result of technological advancements made in installation practices and materials over the past 17 years.
Charlie I. Harper, Jr., Chief, Outside Plant Branch, Telecommunications Standards Division, Rural Utilities Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., STOP 1598, Washington, DC 20250-1598, telephone (202) 720-0667.
This final rule is exempt from the Office of Management and Budget (OMB) review for purposes of Executive Order 12866 and, therefore has not been reviewed by OMB.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this final rule meets the applicable standards provided in section 3 of that Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effect will be given to this rule, and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.
RUS has determined that this final rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601
This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
The Administrator of RUS has determined that this final rule will not significantly affect the quality of the
The program described by this final rule is listed in the Catalog of Federal Domestic Assistance programs under No. 10.851, Rural Telephone Loans and Loan Guarantees, and No. 10.852, Rural Telephone Bank Loans. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402-9325. Telephone (202) 512-1800.
This final rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. A final rule related notice titled, “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034) exempts RUS and RTB loans and loan guarantees, and RTB bank loans, from coverage under this Order.
This final rule contains no Federal Mandates (under the regulatory provision of title II of the Unfunded Mandates Reform Act) for State, local, and tribal governments or the private sector. Thus this final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.
RUS issues publications titled “Bulletin” which serve to guide borrowers regarding already codified policy, procedures, and requirements needed to manage loans, loan guarantee programs, and the security instruments which provide for and secure RUS financing. RUS issues standards and specifications for the construction of telecommunications facilities financed with RUS loan funds. RUS is rescinding Bulletin 345-52, RUS Standard for Service Entrance and Station Protector Installations, PC-5A, and codifying the revised standard at 7 CFR 1755.500 through 1755.510, RUS Standard for Service Installations at Customer Access Locations.
RUS Bulletin 345-52 is used by borrowers and contractors as an outside plant construction standard for the installation of aerial and buried service drops and primary station protectors at customer residences. Because of technological advancements and national code changes made in customer drop and protector installation methods and materials over the past 17 years, the installation methods and materials specified in the current standard have become outdated. To allow borrowers and contractors to observe current codes and take advantage of these improved installation methods and materials which will reduce installation costs, the current standard has been revised to update the customer access location installation methods and materials to reflect these improved methods and materials.
This action will allow borrowers and contractors an economical and efficient means of reducing their construction costs through the use of improved customer access location installation methods and materials.
On December 21, 1998, RUS published a proposed rule (63 FR 70456) to rescind Bulletin 345-52, RUS Standard for Service Entrance and Station Protector Installations, PC-5A, and to codify the revised standard at 7 CFR 1755.500 through 1755.510, RUS Standard for Service Installations at Customer Access Locations. Comments on this proposed rule were due February 19, 1999. Comments and recommendations were received from several companies by this due date. The comments, recommendations, and responses are summarized as follows:
One respondent commented that the 1996 issue of the
The same respondent commented that the definition for “Manufactured Home” in § 1755.501 be redefined in accordance with the definition stated in the 1999 issue of the
The third comment from the same respondent indicated that the language in § 1755.507(c)(7) should be changed to clarify the use of “substantial backing material” in the service cable attachment device installation procedure.
The last comment from the same respondent recommended that the term “Manufactured Home” be included in § 1755.509(a) because the definition of a “Mobile Home” in § 1755.501 indicates that a “Manufactured Home” is also considered to be a “Mobile Home.”
One respondent recommended that the burial depth in soil of buried service wire or cable specified in § 1755.505(e)(3) be raised to a depth of less than the recommended minimum of 24 inches (in.) [610 millimeters (mm)].
The same respondent recommended that Note 2 of the BM83 Assembly Unit Drawing in § 1755.510 be modified to allow the optional installation of a flexible service guard when an obstruction of greater than 2 in. (51 mm) is encountered instead of requiring two service guards.
One respondent recommended that the existing language of § 1755.508(aa) be modified to include a reference to the “Cadweld” bonding process.
The second comment from the same respondent indicated that the 1999 issue of the
The same respondent recommended that the existing language of § 1755.508(dd)(3) be modified to include a reference indicating that when both a telecommunications ground rod and an electric system ground rod are present at the customer's access location, the separate ground rods be bonded together using a #6 AWG bonding conductor.
The fourth comment from the same respondent questioned why RUS in § 1755.509(c) requires the Network Interface Device (NID) at mobile homes to be installed in accordance with requirements specified in either §§ 1755.509(c)(1) or (c)(2) instead of the methods allowed under the 1999 issue of the
The final comment from the same respondent questioned the editorial and technical correctness of Construction Drawings 312-1, 501-1, 501-2, 702, 958, and 962 in § 1755.510.
1. All figures and construction drawings have been revised for editorial content to ensure consistent formatting, text font, leader dimensions, etc. This resulted in changing the issue date from “August 1997” to “March 2001” for all assembly unit and construction drawings listed in § 1755.510.
2. Figures 3 and 8 have been revised to reference the 1999 issue of the
3. Figures 9, 17, and 18 have been revised to indicate generic telecommunications service wire installations at customer access locations instead of specific telecommunications service wire installations at customer access locations because it is impossible for RUS to predict the number of telecommunications service circuits requested by customers. This was accomplished by replacing the references to the “#12 AWG copper insulated ground wires” which specify only two pair telecommunications services with generic references to “copper insulated ground wires” and “associated notes” indicating that § 1755.508(v), Table 5, should be used to determine the correct ground wire conductor size suitable for the installations based on the number of telecommunications circuits installed at customer access locations.
4. Construction Drawing 312-1 in § 1755.510 is being changed by adding the respondent's recommended language of “only if plant is not dedicated” to the proposed language concerning one of the methods of terminating the lead-out wires of terminal blocks to distribution cable conductors. This new language will read as follows: “Make connection without cutting circuit conductor only if plant is not dedicated.”
5. Construction Drawings 501-1 and 501-2 in § 1755.510 require the use of “tape” as a component in the installation methods illustrated in these construction drawings. The commenter
6. Construction Drawing 702 in § 1755.510 is being eliminated from the section because RUS agrees with the respondent's comment that the appropriate climbing space is not depicted in the guide drawing. In addition, the proposed language in § 1755.506(h) is being changed to indicate that horizontal and vertical climbing spaces on poles used jointly with power circuits shall be in accordance with the requirements specified in Rule 236 of the National Electrical Safety Code because RUS again agrees with the respondent's recommendation.
7. The “BM50 Assembly Unit Drawing” is being inserted to replace Construction Drawing 912 in § 1755.510. The reason for this change is attributed to current installation practices. Aerial service wires (from buried cables) are installed in accordance with information provided in the BM50 Assembly Unit Drawing not the 912 Construction Drawing. The major difference between the BM50 Assembly Unit Drawing and the 912 Construction Drawing is that the BM50 drawing eliminates the aerial service installation information from the drawing and indicates that the buried plant housing is paid under the buried plant housing assembly unit (BD).
8. Note #4 of Construction Drawing 958 was modified to allow the use of alternative marking materials as requested by the respondent.
9. The respondent questioned the wisdom of placing the ground wire and service wire under the same attachment device when parallel runs are encountered as indicated in Note #2 of Construction Drawing 962 in § 1755.510. After much discussion and consideration concerning this procedure, RUS is not modifying the proposed Note #2 language of Construction Drawing 962 in § 1755.510 because the allowance of this installation procedure over the past 15 years has not resulted in any service problems at customer access locations.
Incorporation by reference, Loan programs-communications, Rural areas, Telephone.
7 U.S.C. 901
The following specifications are included throughout 7 CFR chapter XVII. These specifications are not incorporated by reference elsewhere in the chapter. The terms “RUS form,” “RUS standard form,” “RUS specification,” and “RUS bulletin” have the same meaning as the terms “REA form,” “REA standard form,” “REA specification,” and “REA bulletin,” respectively, unless otherwise indicated. The list of specifications follows:
(a) Sections 1755.501 through 1755.510 cover service installations at permanent or mobile home customer access locations. Sections 1755.501 through 1755.510 do not cover service installations at customer access locations associated with boat yards or marinas.
(b) Service installations for customer access locations in boat yards or marinas shall be performed in accordance with Article 800, Communications Circuits, of the American National Standards Institute/National Fire Protection Association (ANSI/NFPA) 70-1999,
For the purpose of this section and §§ 1755.502 through 1755.510, the following terms are defined as follows:
(1)
(2)
(ii) In multiunit premises in which wiring is installed after August 13, 1990, including additions, modifications, and rearrangements of wiring existing prior to that date, the telecommunications company may establish a reasonable and nondiscriminatory practice of placing the demarcation point at the minimum point of entry. If the telecommunications company does not elect to establish a practice of placing the demarcation point at the minimum point of entry, the multiunit premises owner shall determine the location of the demarcation point or points. The multiunit premises owner shall determine whether there shall be a single demarcation point for all customers or separate such locations for each customer. Provided, however, that where there are multiple demarcation points within the multiunit premises, a demarcation point for a customer shall not be further inside the customer's premises than a point 12 in. (305 mm) from where the wiring enters the customer's premises.
(1) Final assembly or manufacture of the equipment is completed in the United States, its territories and possessions, or in an eligible country;
(2) The cost of components within the material or equipment manufactured in the United States, its territories and possessions, or in an eligible country is more than 50 percent of the total cost of all components used in the material or equipment; and
(3) The material or equipment is suitable for use on systems of RUS telecommunications borrowers.
(1) Final assembly or manufacture of the equipment is not completed in the United States, its territories and possessions, or in an eligible country; and
(2) The cost of components within the material or equipment manufactured in the United States, its territories and possessions, or in an eligible country is 50 percent or less than the total cost of all components used in the material or equipment.
(a) Sections 1755.503 through 1755.510 cover approved methods of making service installations at customer access locations in telecommunications systems of RUS borrowers.
(b) Requirements in §§ 1755.503 through 1755.510 cover facilities of the type described in the FCC rules in 47 CFR part 68 for one and multi-party customer owned premises wiring.
(a) For the purposes of this section and §§ 1755.504 through 1755.510, a NID shall be as defined in § 1755.501 and shall contain both a fuseless primary station protector and a modular plug and jack for each conductor pair, up to a maximum of 11 pairs, and shall be provided by the telecommunications company and used by customers.
(b) For the purposes of this section and §§ 1755.504 through 1755.510, BET shall be as defined in § 1755.501 and shall contain both primary station protectors and connector terminals for each conductor pair, of 12 or more pairs, and shall be provided by the telecommunications company and used by customers. The primary station protectors may be either fuseless or fused.
(c) The requirements provided in this section and §§ 1755.504 through 1755.510 have been designed to coordinate with the provisions of the ANSI/NFPA 70-1999,
(d) RUS borrowers shall make certain that all construction financed with RUS loan funds comply with:
(1) The provisions of this section and §§ 1755.504 through 1755.510 and the ANSI/NFPA 70-1999,
(2) The provisions of this section and §§ 1755.504 through 1755.510 with borrower added adjustments to bring construction into compliance with any more stringent local codes.
(e) This section and §§ 1755.504 through 1755.510 are intended primarily for the installer who will perform the work. It assumes that decisions regarding the selection of grounding electrodes, locations, and types of equipment have been made by the RUS borrower or the engineer delegated by the RUS borrower.
(f) Only a
(g) This section and §§ 1755.504 through 1755.509 contain information which is normally not provided on the construction drawings which are included in § 1755.510.
(h) All work shall be conducted in a careful and professional manner. Service wire and cable shall not be trampled on, run over by vehicles, pulled over or around abrasive objects or otherwise subjected to abuse.
(i) When situations not covered by this section and §§ 1755.504 through 1755.510 arise, the RUS borrower or the engineer delegated by the borrower, shall specify the installation procedure to be used. The requirements of paragraph (j) of this section shall be complied with in every installation.
(j) NIDs, BETs, and fused primary station protectors shall be installed and grounded to meet the requirements of the ANSI/NFPA 70-1999,
(k) Battery polarity and conductor identification shall be maintained throughout the system as indicated on construction drawings 815 and 815-1 contained in § 1755.510. Color codes and other means of conductor identification of buried and aerial service wires shall conform to the requirements of this section and §§ 1755.504 through 1755.510.
(l) All materials for which RUS makes acceptance determinations, such as service wires and cables, ground rods, ground rod clamps, etc., used in service entrance installations shall be RUS accepted or RUS technically accepted. Borrowers shall require contractors to obtain the borrower's approval before RUS technically accepted materials are to be used in service entrance installations. Borrower's shall also ensure that the cost of the RUS technically accepted materials are at least 6 percent less than the cost of equivalent RUS accepted materials, as specified in “Buy American” Requirement of the Rural Electrification Act of 1938, as amended (7 U.S.C. 903 note). Materials used in service entrance installations which are of the type which RUS does not make acceptance determinations shall be of a suitable quality for their intended application as determined by the RUS borrower or the engineer delegated by the RUS borrower.
(m) On completion of an installation, borrowers shall require the installer to make all applicable tests required by §§ 1755.400 through 1755.407, RUS standard for acceptance tests and measurements of telecommunications plant.
(a) The demarcation point (DP) provides the physical and electrical interface between the telecommunications company's facilities and the customer's premises wiring.
(b) The Federal Communications Commission (FCC) rules in 47 CFR part 68 require telecommunications providers to establish a “DP” which marks a separation of the provider's facilities from the customer's (owned) premises wiring and equipment.
(c) RUS borrowers shall observe the FCC DP requirement by installing NIDs, BETs, or fused primary station protectors when required by section 800-30(a)(2) of ANSI/NFPA 70-1999,
(d) For all customer access locations of less than 12 pairs, RUS borrowers shall establish DPs by using either NIDs or fused primary station protectors when required by section 800-30(a)(2) of ANSI/NFPA 70-1999,
(a) Buried services of two or three pairs shall consist of Service Entrance Buried (SEB) assembly units, in accordance with RUS Bulletin 1753F-153 (RUS Form 515d), Specifications and Drawings for Service Installations at Customer Access Locations. The wire used for buried services shall conform to the requirements of § 1755.860, RUS specification for filled buried wires, and shall be RUS accepted or RUS technically accepted. The conductor size for two and three pair buried service wires shall be 22 American Wire Gauge (AWG). Copies of RUS Bulletin 1753F-153 are available upon request from RUS/USDA, 1400 Independence Avenue, SW., STOP 1522, Washington, DC 20250-1522, FAX (202) 690-2268.
(b) Buried services of six or more pairs shall be RUS accepted or RUS technically accepted 22 AWG filled buried cable conforming to the requirements of § 1755.390, RUS specification for filled telephone cables.
(c) Buried service wire or cable shall be terminated in buried plant housings using either splicing connectors or filled terminal blocks in accordance with the applicable paragraphs of § 1755.200, RUS standard for splicing copper and fiber optic cables.
(d) Buried service wire or cable shall be identified at buried plant housings in accordance with construction drawing 958 contained in § 1755.510.
(e) Buried service wire or cable shall be installed up to the building in the same general manner as buried exchange cable but in addition must meet the following requirements:
(1) Light weight lawn plows or trenchers shall be used;
(2) The shortest feasible route commensurate with the requirements of § 1755.508(i), (j), and (k), and paragraph (f)(1) of this section shall be followed;
(3) Buried service wire or cable shall be plowed or trenched to a depth of 12 in. (305 mm) or greater where practicable in soil, 36 in. (914 mm) in ditches, or 3 in. (76 mm) in rock. Depths shall be measured from the top of the wire or cable to the surface of the ground or rock;
(4) In the case of a layer of soil over rock either the minimum depth in rock measured to the surface of the rock, or the minimum depth in soil measured to the surface of the soil may be used; and
(5) Where adequate advance planning has been done, burial of telecommunications services jointly with electric power services may be feasible. If a decision has been reached by management to provide joint occupancy services, the services may be installed using the recommendations in RUS Bulletin 1751F-640, “Design of Buried Plant—Physical Considerations.” Copies of RUS Bulletin 1751F-640 are available upon request from RUS/USDA, 1400 Independence Avenue, SW., STOP 1522, Washington, DC 20250-1522, FAX (202) 720-4120.
(f) Buried service wire or cable shall be installed on or in buildings as follows:
(1) Each buried service wire or cable shall contact the building as close to the NID, BET, or fused primary station protector as practicable. Service wire or cable runs on buildings shall normally consist of a single vertical run held to the minimum practical length. Horizontal and diagonal runs shall not be permitted.
(2) Buried service wire or cable shall be located so as to avoid damage from lawn mowers, animals, gardening operations, etc.
(3) Buried service wire or cable shall be installed against a foundation wall or pillar to provide adequate support and mechanical protection.
(4) Where it is likely that the service wire or cable shall be subjected to mechanical damage, the wire or cable shall be enclosed in a guard in accordance with assembly unit drawing BM83 contained in § 1755.510.
(5) The first above-ground attachment for a buried service wire or cable, unless it is enclosed in a guard, shall not be more than 4 in. (100 mm) above final grade.
(6) Uninsulated attachment devices may be used to attach buried service wire and cable to masonry and other types of noncombustible buildings and on any type of building if fuseless primary station protectors incorporated in NIDs or BETs are used and installations fully comply with section 800-30(a)(1) of ANSI/NFPA 70-1999,
(7) Insulated attachments shall be used to separate service wires or cables from woodwork where section 800-30(a)(2) of ANSI/NFPA 70-1999,
(8) Minimum separation between buried service wire or cable and other facilities shall be as listed in Table 1, as follows:
(9) Wire and cable attachments to buildings for outside mounted NIDS, BETs, or fused primary station protectors shall be in accordance with construction drawing 962 contained in § 1755.510.
(10) Appropriate devices for attaching service wire or cable on or in buildings vary with the type of building construction and the wire or cable size. Figures 1 and 2 illustrate various types of anchoring devices and their applications. The size and type of fastening device for the wire or cable size and type of surface shall be in accordance with the manufacturer's recommendation; Figures 1 and 2 are as follows:
(11) Experience indicates that there are objections from many owners of buildings covered with aluminum or vinyl siding to the drilling of holes in the siding for the attachment of wires or cables, and NIDs, BETs, or fused primary station protectors. It is, therefore, important to obtain permission from the owner before drilling holes in such siding.
(12) If the NID, BET, or fused primary station protector must be mounted inside (not recommended by RUS), the service entrance into the building shall be installed in accordance with section 800-12(c) of ANSI/NFPA 70-1999,
(13) If the customer requests an all buried installation for an alarm system or objects to above-ground facilities because of appearance and one-party service is involved, the entrance hole shall be made below grade as shown in sketch C of construction drawing 510-2 contained in § 1755.510. Care shall be exercised to prevent damage to the building foundation. The hole shall be sealed as specified in paragraph (f)(12) of this section. The installation shall comply with all the requirements of section 800-12(c) of ANSI/NFPA 70-1999,
(g) When the NID, BET, or fused primary station protector is to be installed inside the building, the installation shall comply with section 800-12(c) of ANSI/NFPA 70-1999,
(h) An inside NID, BET, or fused primary station protector installation may also be made without use of a rigid metal or intermediate metal conduit provided that the ingress of the outside plant wire or cable complies with section 800-12(c) of ANSI/NFPA 70-1999,
(1) The NID, BET, or fused primary station protector is located as close as practicable to the point where the outside plant wire or cable emerges through an exterior wall. The length of outside plant wire or cable exposed within the building shall be as short as practicable but in no case shall it be longer than 50 feet (ft) (15.2 meters (m)) in accordance with the allowable exception No. 3 of section 800-50 of ANSI/NFPA 70-1999,
(2) Where the NID, BET, or fused primary station protector must be located within the building remote from the entrance point and the entrance point of the outside plant wire or cable cannot be designed to be closer to the NID, BET, or fused primary station protector location, the outside plant wire or cable shall be spliced, as close as practicable to the point where the outside plant wire or cable emerges through an outside wall, to an inside wiring cable that is “Listed” as being suitable for the purpose in accordance with part E of article 800 of ANSI/NFPA 70-1999,
(i) The polarity of buried wire or cable “tip” and “ring” conductors shall be maintained by making the connections in accordance with Table 2, as follows:
(a) Aerial services of one through six pairs shall consist of Service Entrance Aerial (SEA) assembly units, in accordance with RUS Bulletin 1753F-153 (RUS Form 515d), Specifications and Drawings for Service Installations at Customer Access Locations. The wire used for aerial services shall conform to the requirements of §§ 1755.700 through 1755.704, RUS specification for aerial service wires, and shall be RUS accepted or RUS technically accepted. Copies of RUS Bulletin 1753F-153 are available upon request from RUS/USDA, 1400 Independence Avenue, SW., STOP 1522, Washington, DC 20250-1522, FAX (202) 720-4120.
(b) If aerial wire services are to be connected to aerial cable pairs, the NIDs or fused primary station protectors and grounds shall be installed and connected before the aerial service wires are attached to the customer's structure.
(c) Kinks or splices shall not be permitted in aerial service wire spans.
(d) Aerial service wires shall be run in accordance with the construction drawings contained in § 1755.510 and shall conform to all clearance requirements of the ANSI/NFPA 70-1999,
(e) Aerial service wire shall be installed using the maximum practicable sag consistent with the required ground clearance and good construction practices. In no event shall the minimum sags be less than the values shown on construction drawing 505 contained in § 1755.510 for various span lengths and loading areas provided. Span lengths shall not exceed 250 ft (76 m).
(f) To reduce vibration and galloping, aerial service wire shall be twisted one complete turn for each 10 ft (3 m) of span length at the time of installation.
(g) The methods of attaching aerial service wires at poles shall be as illustrated in construction drawings 503-2 and 504 contained in § 1755.510.
(h) Horizontal and vertical climbing spaces on poles used jointly with power circuits shall be provided in conformance with the requirements of Rule 236 of ANSI/IEEE C2-1997, NESC.
(i) Not more than four aerial service wires shall be distributed from any one 7/16 in. (10 mm) drive hook, or more than two aerial service wires from any one 5/16 in. (8 mm) drive hook. Aerial service wires and drive hooks shall be arranged so that the load does not pull the drive hook out of the pole. When more than one drive hook is required, the drive hooks shall be staggered with a minimum separation of 1 in. (25.4 mm) horizontally on centers and 1.5 in. (40 mm) vertically on centers. If drive hooks are placed within 3 in. (76 mm) of the top of the pole and on the opposite side of the pole's circumference, a vertical separation of at least 3 in. (76 mm) shall be provided. A
(j) When connecting aerial service wires to cable pairs at terminals, sufficient slack shall be provided so that each aerial service wire shall reach any binding post position as shown on construction drawing 312-1 contained in § 1755.510.
(k) Aerial service wire attachments on utility poles and the manner of placing bridle rings and entering cable terminals shall be as shown on construction drawing 503-2 contained in § 1755.510.
(l) Not more than two conductors shall be connected to any terminal binding post. Where it is necessary to bridge more than two aerial service wires at the same closure, the aerial service wires shall be terminated in aerial service wire terminals connected in parallel with a No. 20 AWG bridle wire which shall be terminated on the binding posts of the filled terminal block.
(m) Where aerial service wire is attached to aerial plastic cable, it shall be brought directly into a ready-access closure and shall be terminated on the binding posts of the filled terminal block as shown on construction drawing 503-2 contained in § 1755.510.
(n) The conductor of copper coated steel reinforced aerial service wires identified by tracer ridges shall be used as the ring (negative battery) conductor of the pair, and shall normally be connected to the right or lower binding post of a pair on filled terminal blocks and NIDs or fused primary station protectors.
(o)
(2) The ring (negative battery) conductor of the pair shall normally be connected to the right or lower binding post of a pair on filled terminal blocks and NIDs or fused primary station protectors.
(p) When it is necessary to avoid intervening obstacles between a pole and a building, span clamp attachments shall be used to support the aerial service wires at points between the poles that are supporting the cable on the suspension strand as indicated by construction drawings 501-1 and 501-2 contained in § 1755.510.
(q) Aerial service wire strung from pole to pole shall be placed entirely below or entirely above any existing wire or cable. When adequate ground clearance can be obtained, preference shall be given to placing aerial service wire below wire and cable.
(r) When more than one aerial service wire is installed from pole to pole, the first aerial service wire shall be sagged in accordance with construction drawing 505 contained in § 1755.510. Succeeding aerial service wires shall be sagged with 2 in. (50.8 mm) more sag for each aerial service wire.
(s) Aerial service wire spans from pole lines to buildings shall follow the shortest feasible route commensurate with the requirements of paragraph (t) of this section and shall be sagged in accordance with construction drawing 505 contained in § 1755.510. The route shall avoid trees and other obstructions to the extent practicable. Where trees cannot be avoided, tree trimming permission shall be obtained from the owner or the owner's representative, and all limbs and foliage within 2 ft (600 mm) of the finally sagged wire shall be removed. If tree trimming permission cannot be obtained, the matter shall be referred to the borrower for resolution before proceeding with the installation.
(t) Aerial service wires shall contact buildings as closely as practicable at a point directly above the NID, or fused primary station protector. Generally, horizontal drop wire runs on buildings shall not exceed 20 ft (6 m). The warning given in § 1755.505(f)(11) regarding drilling holes in aluminum and vinyl siding applies also to attaching aerial service wires.
(u) The point of the first building attachment shall be located so that the aerial service wire will be clear of roof drainage points.
(v) Where practicable, aerial service wires shall pass under electrical guys, power distribution secondaries and services, tree limbs, etc.
(w) Aerial service wire shall not pass in front of windows or immediately above doors.
(x) Aerial service wires shall be routed so as to have a minimum clearance of 2 ft (600 mm) from any part of a short wave, ham radio, etc. antenna mast and a television antenna mast in its normal vertical position and of the possible region through which it sweeps when being lowered to a horizontal position.
(y) Aerial service wires shall be installed such that all clearances and separations comply with either section 237 of ANSI/IEEE C2-1997, NESC, or ANSI/NFPA 70-1999,
(z) Aerial service wire attachments to buildings shall be as follows:
(1) First attachments on buildings shall be made in accordance with construction drawings 506, 507, or 508-1 contained in § 1755.510, as applicable;
(2) Intermediate attachments on buildings shall be made in accordance with construction drawings 510 or 510-1 contained in § 1755.510; and
(3) Uninsulated attachments shall be permitted to be used as follows:
(i) Wherever NIDS are used as permitted by section 800-30(a)(1) of the ANSI/NFPA 70-1999,
(ii) On masonry and other types of nonflammable buildings.
(aa) Insulated attachments shall be used on wooden frame, metallic siding and other types of combustible buildings where fused primary station protectors are used, as required by section 800-30(a)(2) of ANSI/NFPA 70-1999,
(bb) Aerial service wire runs on buildings shall be attached vertically and horizontally in a neat and most inconspicuous possible manner. See construction drawing 513 contained in § 1755.510. Horizontal runs on
(cc) Aerial service wire runs on buildings shall be located so as not to be subjected to damage from passing vehicles, pedestrians, or livestock.
(dd) Minimum separation between aerial service wires and other facilities on or in buildings shall be in accordance with § 1755.505(f)(8), Table 1.
(ee) Appropriate devices for attaching aerial service wires to buildings vary with the type of building construction and with the type of customer access location equipment. Table 4 lists various types of attachments and their application with respect to construction, customer access location equipment, and proper mounting devices. Construction drawings 506 through 513 contained in § 1755.510 illustrate requirements with respect to various angles of service wire contacts and uses of various attachments. Table 4 is as follows:
1. Screw dimensions are minimum. Where appropriate, either or both dimensions shall be increased. All wood screws for exterior use shall be stainless steel. All other exterior metal devices shall be stainless steel, zinc coated steel, silicon bronze, or corrosion resistant aluminum alloy.
2. Toggle bolt dimensions are minimum. Where appropriate, either or both dimensions shall be increased.
3. All devices should be attached to studding.
4. Screw-type devices shall be secured by means of expansion-type anchors. Equivalent manual or machine-driven devices may be used. Where toggle bolts are specified equivalent devices may be used.
5. Pilot holes shall be provided for screws and bridle rings in shingles and dropsiding.
6. Attachment device not applicable.
7. Attachment device applicable but no separate fastening device required.
8. To convert English units to Metric units use 1 in. = 25.4 mm.
(ff) Fastener spacings for vertical and horizontal runs on frame or masonry buildings shall not be more than 6 ft (2 m) apart. Fasteners should be spaced close enough to prevent the aerial service wire from “slapping” against the building during windy conditions.
(gg) When it is necessary to pass behind or around obstructions such as downspouts and vertical conduits, the aerial service wire shall be supported firmly with attachment devices placed not more than 6 in. (152 mm) from the obstruction as illustrated in Figures 4 and 5 of paragraph (hh) of this section. Preferably, the aerial service wire should be routed behind obstructions to minimize the possibility of mechanical damage to the aerial service wire in the event repair work to the obstruction is required.
(hh) When passing around building projections of masonry or wood or around corners, aerial service wires shall be installed as illustrated in Figures 5 and 6. Figures 4, 5, and 6 are as follows:
(ii) In areas where ice and snow conditions are severe, aerial service wires shall be located so that ice and snow falling from the roof will not strike the wires. However, where aerial service wires must pass under the sloping part of the roof, first attachments shall be made as close as practicable to the eaves.
(jj) If two aerial service wire spans are required to the same building, the first attachment shall be such that both aerial service wires can be attached at the same attachment device. Refer to construction drawing 508-1 contained in § 1755.510. Where more than two aerial service wires are required, additional attachment devices in the same general location on the building shall be used.
(kk) When two or more aerial service wire runs are required on the same building they shall share the same type of attachment devices.
(ll) Aerial service wire entrances to buildings shall conform to sketch B of construction drawing 510-2 contained in § 1755.510, unless the entrance is made through a conduit.
(mm) When the aerial service wire approaches the entrance hole from above, a 1.5 in. (40 mm) minimum drip loop shall be formed in accordance with sketch B of construction drawing 510-2 contained in § 1755.510.
(nn) If an entrance conduit which slopes upward from outside to inside is available and suitably located, it shall be used for the aerial service wire entrance.
(a) Where more than six pairs are needed initially, and where an aerial service is necessary, the service shall consist of 22 AWG filled aerial cable of a pair size adequate for the ultimate anticipated service needs of the building. The cable shall comply with the requirements of § 1755.390, RUS specification for filled telephone cables, and shall be RUS accepted or RUS technically accepted.
(b) Aerial cable services shall be constructed in accordance with specific installation specifications prepared by the RUS borrower or the engineer delegated by the borrower.
(c) Unless otherwise specified in the installation specifications, aerial cable service installations shall meet the following requirements:
(1) Strand supported lashed construction shall be used.
(2) Where practicable a
(3) Construction on poles shall comply with applicable construction drawings for regular line construction. Aerial service cable shall be spliced to the main cable in accordance with § 1755.200, RUS standard for splicing copper and fiber optic cables.
(4) Where practicable, aerial cable shall pass under electrical guys, distribution secondaries, and services.
(5) The suspension strand shall be attached to the building by wall brackets as indicated in Figure 7 as follows:
(i) If taut spans are necessary, appropriate size strand may be used if the pull is in line with one wall of the building, or within 20 degrees of being in line as illustrated in sketch A of Figure 7. If the angle of pull is greater than 20 degrees from the building, the wall bracket shall be reinforced against pullout by an arrangement equivalent to sketch B of Figure 7. Taut spans may be strung using the recommendations in RUS Bulletin 1751F-630, Design of Aerial Plant. The same tension as would be used in normal line construction so as not to exceed 60 percent of the breaking strength of the strand under maximum loading shall be used. Taut spans shall not exceed 100 ft (30.5 m) in length and the cable weight shall not exceed 1 pound/foot (lb/ft) [1.5 kilogram/meter (kg/m)] except when equivalent combinations of greater span lengths with cable weight less than 1 lb/ft (1.5 kg/m) are permissible. Copies of RUS Bulletin 1751F-630 are available upon request from RUS/USDA, 1400 Independence Avenue, SW., STOP 1522, Washington, DC 20250-1522, FAX (202) 720-4120.
(ii) When an attachment must be made to the face of a building wall away from a corner, a “U” type wall bracket shall be used as indicated in sketch C of Figure 7. Only slack span construction with
(6) Aerial cable shall be located on the rear or side of the building and shall be run only in a horizontal or a vertical direction. The cable route shall be selected so as to avoid building projections and obstructions to the extent practicable.
(7) Cable attachment devices shall be located on solid masonry or on studs of wood frame buildings. Cable attachment devices may be installed on sheet surface materials only when such materials are reinforced with a backing material which allows penetration and firm holding of the attachment devices through the backing material.
(8) The minimum separation on or in buildings between cable and other facilities shall be as indicated in § 1755.505(f)(8), Table 1.
(9) On horizontal runs, cable clamps shall be placed so that the attachment is below the cable. On vertical runs, cable clamps shall be placed so that the attachment is on the same side as horizontal runs. Cable clamps shall be placed on the inside of cable bends.
(10) On horizontal runs, cable clamps shall be placed not more than 16 in. (400 mm) apart for cable diameters equal to or greater than 1 in. (25.4 mm) and 24 in. (600 mm) apart for cable diameters less than 1 in. (25.4 mm).
(11) On vertical runs, cable clamps shall be approximately 24 in. (600 mm) apart for all sizes of cable.
(12) For the cable entrance, holes shall be bored slightly larger in diameter than the cable and shall slope upward from outside to inside. A duct sealer having RUS acceptance or RUS technical acceptance shall be applied to both ends of the hole after the cable is pulled in.
(13) Section 1755.505(g) and (h) shall also apply to aerial cable services.
(a) All customer access locations shall be protected.
(b) Customer access location protection shall consist of installing the telecommunications facilities with proper clearances and insulation from other facilities, providing primary voltage limiting protection, fuse links, NIDs, BETs, or fused primary station protectors, if required, and adequate bonding and grounding.
(c) All NIDs shall be RUS accepted or RUS technically accepted or the RUS borrower shall obtain RUS regional office approval on a case by case basis as applicable.
(d) All BETs shall be RUS accepted or RUS technically accepted.
(e) All fused primary station protectors shall be RUS accepted or RUS technically accepted.
(f) NIDs, BETs, or fused primary station protectors shall be mounted outside for all applications except for those described in paragraphs (g)(1) through (g)(3) of this section.
(g) NIDs, BETs, or fused primary station protectors may be mounted inside when:
(1) Large buildings are to be served and the customer requests an inside installation;
(2) Buried alarm circuits are requested by the subscriber; or
(3) The customer requests an all buried installation for appearance or to prevent the drilling of holes in aluminum or vinyl siding.
(h) Outside mounted NIDs, BETs, or fused primary station protectors shall be easily accessible and shall be located between 3 to 5 ft (1 to 1.5 m) above final grade.
(i) The locations of NIDs, BETs, or fused primary station protectors shall be selected with emphasis on utilizing the shortest primary station protector grounding conductor practicable and on grounding of the telecommunications primary station protector to the electric service grounding system established at the building served utilizing electrodes (c) through (g) cited in section 800-40(b)(1) of ANSI/NFPA 70-1999,
(j) If access to the building electric service grounding system, as referenced in paragraph (i) of this section, is not possible or is not reasonable (telecommunications primary station protector grounding conductor will be longer than 10 ft (3 m)), the NID, BET, or fused primary station protector shall be located as close as practicable to electrodes (a) or (b) cited in section 800-40(b)(1) of ANSI/NFPA 70-1999,
(k) In addition, the NID, BET, or fused primary station protector shall be located in, on, or immediately adjacent to the structure or building to be served as close as practicable to the point at which the telecommunications service wire attaches to the building, making sure that the telecommunications primary station protector grounding conductor is connected to the closest, existing, and accessible electrode, of the electrodes cited in paragraph (i) or (j) of this section.
(l) For the preferred customer access location installation, the ANSI/NFPA 70-1999,
(1) Connections to metallic conduits shall be made by ground straps clamped over a portion of the conduit that has been cleaned by sanding down to bare metal.
(2) Connections to metallic service equipment closures shall be made by attaching a connector which is listed for the purpose by some organization acceptable to the local authority (State, county, etc.) per article 100 of ANSI/NFPA 70-1999,
(m) Where it is not possible to accomplish the objective of paragraphs (i), (j), and (k) of this section, interior metallic pipes may be used to the maximum practicable extent to gain access to the electric service ground as shown in Figure 9. Note that the water pipe in Figure 9 is electrically continuous between electric and telecommunications bonds to the cold water pipe and it is used only as a portion of a bonding conductor and, therefore, does not have to be “acceptable” as a ground electrode but may be floating (isolated from ground by a plastic pipe section). ANSI/NFPA 70-1999,
(n) Where the telecommunications premises system at a customer's access location is grounded to a separate electrode (of any type) this telecommunications grounding electrode must be bonded to the electric grounding system with a No. 6 AWG or larger copper insulated grounding conductor. Bonding of separate electrodes is a requirement of the ANSI/NFPA 70-1999,
(o) The NID, BET, or fused primary station protector pair size shall be selected for the number of lines anticipated within five years.
(p) When lightning damage is considered probable or customer access locations are remote from the borrower's headquarters, use of maximum duty gas tube primary station protectors incorporated in NIDs, BETs, or fused primary station protectors should be considered. (See RUS TE&CM 823, Electrical Protection by Use of Gas Tube Arresters). Copies of RUS TE&CM 823 are available upon request from RUS/USDA, 1400 Independence Avenue, SW., STOP 1522, Washington, DC 20250-1522, FAX (202) 720-4120.
(q) NIDs or BETs incorporating fuseless station protectors shall always be used in preference to fused station protectors or BETs incorporating fused protectors, when in the judgment of the RUS borrower or the engineer delegated by the RUS borrower, the requirements of ANSI/NFPA 70-1999,
(r) A fuse link consisting of a copper conductor two gauges (AWG) finer (numerically higher) conductivity than the aerial service wire shall be provided between the cable and aerial service wire where NIDs or BETs incorporating fuseless station protectors are used. Thus for a 22 AWG drop, a fuse link of No. 24 AWG or finer copper wire shall be provided. If the cable circuit is No. 24 gauge or finer, the cable conductors serve as the fuse link for the 22 AWG aerial service wire and no separate fuse link is necessary. (Note: The fuse link or the facilities serving as the fuse link must be located between the telecommunications facilities that are exposed to possible power cross and the customer drop where there is no exposure to possible power cross.)
(s) RUS's buried plant practices require buried main line plant to be protected against power contacts to aerial plant extensions and aerial inserts by No. 24 AWG fuse links at every buried-aerial junction.
(t) In aerial cable plant, fuse links are usually provided by No. 24 AWG leads on filled terminal blocks regardless of the gauge of the cable conductors. This practice is acceptable if the ampacity of the aerial service wire is sufficiently higher than the fuse link's ampacity.
(u) The grounding and bonding of each NID, BET, or fused primary station protector shall be selected by consulting paragraphs (i) through (n) of this section. The “first choice” assembly unit shall be selected whenever the prevailing conditions make its use practicable. The NID, BET, or fused primary station protector assembly unit selected shall be installed in accordance with the appropriate construction drawing specified in RUS Bulletin 1753F-153 (RUS Form 515d), Specifications and Drawings for Service Installations at Customer Access Locations (Incorporated by reference at § 1755.97). Copies of RUS Bulletin 1753F-153 are available upon request from RUS/USDA, 1400 Independence Avenue, SW., STOP 1522, Washington, DC 20250-1522, FAX (202) 720-4120.
(v) The minimum size grounding conductor that can be used with a single NID; a group of NIDs; a multipair NID; fused protector; or BET shall be in accordance Table 5, as follows:
(w) Grounding conductor runs between the NID, BET, or fused station protector and the ground electrode shall conform to the following:
(1) The shortest, most direct route practicable shall be used;
(2) Sharp bends in the grounding conductor shall be avoided during installation;
(3) No splices shall be made in the grounding conductor;
(4) Grounding conductors shall not be fished through walls, under floors, or placed in bridle rings or any metal conduit unless the grounding conductor is bonded to the conductor at both ends of the metallic conduit;
(5) Grounding conductor runs from an outside mounted NID, BET, or fused station protector to an inside ground electrode shall use the same entrance as the station wire; and
(6) Grounding conductor runs from an outside mounted NID, BET, or fused station protector to an outside ground electrode at the building shall be attached to the exterior surface of the building or buried. If buried, the grounding conductor shall be either plowed or trenched to a minimum depth of 12 in. (300 mm). When trenched, the trenches shall be as close to the side of the building as practicable, backfilled, and tamped to restore the earth to its original condition.
(x) Telecommunications grounding connectors shall be RUS accepted or RUS technically accepted. Grounding and bonding conductors shall be made of copper. Where the grounding and bonding conductors must be connected to aluminum electric service grounding conductors, bimetal grounding connectors shall be used.
(y) Grounding conductor attachments shall conform to the following:
(1) Galvanized nails or clamps, or nickel-copper alloy staples shall be used for grounding conductor attachments in accordance with Table 6 in paragraph (y)(3) of this section;
(2) Grounding conductors, station or buried service wires in parallel runs may share the same fastening device when the device is specifically designed for two wires. See Table 6 in paragraph (y)(3) of this section for station wire and grounding conductor fasteners; and
(3) Grounding conductor fasteners shall be placed 12 to 18 in. (300 to 450 mm) apart on straight runs and 2 to 4 in. (50.8 to 100 mm) apart at corners and at bends. Table 6 is as follows:
1. Screw dimensions are minimum. Where appropriate, either or both dimensions shall be increased. All wood screws for exterior use shall be stainless steel. All other exterior metal devices shall be stainless steel, zinc coated steel, silicon bronze, or corrosion resistant aluminum alloy.
2. Toggle bolt dimensions are minimum. Where appropriate, either or both dimensions shall be increased.
3. Wall screw anchors may be used in wall board, plaster or tile walls. Screws and nails in masonry shall be secured by means of expansions type anchors. Equivalent manual or machine-driven devices may be used. Where toggle bolts are specified, equivalent devices may be used.
4. Lead holes shall be drilled for screws, nails, and bridle rings in shingles and dropsiding.
5. Sheet metal screws shall be used except where toggle bolts are required. Where wood sheathing under sheet metal siding is encountered, the sheet metal may be drilled or punched and a wood screw used.
6. Machine-driven staples of nickel-copper composition may be used for exterior wiring.
7. Galvanized clamps and wiring nails may be used for exterior and interior wiring. Enameled clamps shall be used for interior wiring only. Where toggle bolts or equivalent devices require holes in the structure larger than the clamp being fastened, a suitable washer of sufficient size to cover the hole must be used under the clamp.
8. Double clamp may be used where two #22 AWG station wires, two #12 AWG grounding conductors, or one #22 AWG station wire and one #12 grounding conductor parallels one another.
9. For converting English units to Metric units use 1 in. = 25.4 mm.
(z) Grounding conductors shall be separated from non-telecommunications company wires in accordance with section 800-12(b) of ANSI/NFPA 70-1999, NEC®.
(aa) Grounding conductors run through metal conduits shall be bonded to the conduit at each end. RUS accepted and RUS technically accepted pipe type ground clamps and grounding connectors shall be used for bonding.
(bb) Where NID, BET, or fused station protector assembly units require grounding conductor connections to pipe systems, the following apply:
(1) The connection shall be made to a cold water pipe of an operating water system;
(2) The connection point shall be preferably inside the building;
(3) Allow a minimum of 6 in. (152 mm) between the last fastener and the point where the grounding conductor first touches the water pipe;
(4) Leave 2 in. (50.8 mm) of slack in the grounding conductor to avoid breaking the conductor at the terminating point. Tape the grounding conductor to the pipe where possible to avoid movement. In no case, shall the grounding conductor be coiled or wrapped around the pipe;
(5) The pipe shall be cleaned with fine sand paper to make a good electrical connection. Care should be taken to avoid damaging the pipe while cleaning it;
(6) Attach the pipe grounding conductor connector to the cleaned area of pipe and tighten. Care shall be exercised to avoid deforming, crushing, or otherwise damaging the pipe. A simple continuity check with an ohmmeter between the connector and the pipe will indicate whether or not a good electrical contact has been made. Set the ohmmeter to “Rx1” scale to ensure that a low resistance contact is made;
(7) A warning tag shall be attached to the ground clamp with the following or equivalent statement: “Call the telecommunications company if this connector or grounding conductor is loose or must be removed;” and
(8) When the water pipe is used, the ANSI/NFPA 70-1999, NEC®, requires that metal piping be used as a bonding conductor in this manner only when the connections to the pipe are within 5 ft (1.5 m) of where the pipe enters the premises.
(cc) Bonding conductors shall consist of either copper or tinned copper insulated wires of appropriate sizes.
(1) Bonding conductors shall be run and attached in the same manner as grounding conductors.
(2) Attaching and terminating devices for bonding conductors shall be adequate for the size of wire involved. The No. 6 AWG copper insulated conductor or larger shall not be terminated by bending it around a threaded stud.
(dd) Where NID, BET, or fused station protector assembly units require a driven ground rod the following shall apply to the ground rod installation:
(1) Locate the ground rod at least 1 ft (300 mm) from buildings, poles, trees and other obstruction;
(2) Ground rods shall not be installed within 6 ft (2 m) of electric service ground rods (Note: This minimum separation is provided to avoid mutual impedance effects of multiple grounding electrodes that will deleteriously degrade the effective impedance-to-earth if grounding electrodes are installed any closer than 6 ft (2 m) to one another. This requirement is included for cases where the telecommunications company is not allowed, for some reason, to observe the RUS preferred grounding method of attaching the primary protector grounding conductor directly to an accessible point on the building electric service grounding system. RUS believes that if the primary protector location can be sited within 6 ft (2 m) of the electric service ground rod then the electric service ground rod could be used as the preferred telecommunications grounding electrode and a separate telecommunications ground rod is unnecessary);
(3) A hole, 15 in. (350 mm) deep and 6 in. (150 mm) in diameter, shall be dug at the location where the ground rod is to be driven;
(4) Where “slip-on” type ground rod clamps are used instead of “clamp-around” type clamps, the ground rod clamps shall be placed onto the rod prior to driving the rod into the ground (Note there should be one clamp for the NID, BET, or fused station protector grounding conductor and one clamp for the conductor required to bond the telecommunications ground rod to the electric grounding system). However, the clamp shall not be tightened until the rod is completely driven. The end of the rod shall be placed in the bottom of the hole and the rod shall be aligned vertically adjacent to one wall of the hole prior to driving. The rod shall be driven until its tip is 12 in. (300 mm) below final grade. The grounding conductor shall then be attached, the clamp shall be tightened, and hole backfilled. Clamps employed in this manner shall be suitable for direct burial and shall be RUS accepted or RUS technically accepted; and
(5) Where rods are manually driven, a large number of blows from a light hammer (4 lbs (1.8 kg)) shall be used instead of heavy sledgehammer type blows. This should keep the rod from bending.
(ee) Terminations on fuseless primary station protectors incorporated in NIDs and on fused primary station protectors shall be as shown in Figures 10, 11, 12, and 13 of paragraph (ee)(1) of this section, Figure 14 of paragraph (ee)(4) of this section, and Figure 15 of paragraph (ee)(6) of this section. The inner jackets of buried service wires and outer jackets of cables used as service drops shall be extended into the NID or the fused primary station protector. A 10 in. (250 mm) length of each spare wire shall be left in NIDs or fused primary station protectors. The spare wires shall be coiled up neatly and stored in the NID or fused primary station protector housing.
(1) The shields of buried service wires may be connected to the ground binding post using RUS accepted or RUS technically accepted buried service shield bond connectors as shown in Figure 10 for NIDs and Figure 11 for
(2) On buried service drops and aerial service drops of more than 6 pairs using RUS accepted or RUS technically accepted cables, the shields shall be terminated with a RUS accepted or RUS technically accepted cable shield bonding connector and extended to the ground binding post of the NID, BET, or fused primary station protector with an RUS accepted or RUS technically accepted bonding harness wire. The installation of the shield bond connector and bonding harness wire shall be in accordance with the manufacturer's instructions.
(3) The shield and other conductors at the fuseless primary station protector incorporated in the NID shall be terminated as shown on Figure 14 in paragraph (ee)(4) of this section. The pronged or cupped washer shall be placed above the shield. The grounding conductor shall be placed around the post on top of the pronged or cupped washer. A flat washer shall be placed above the grounding conductor.
(4) The station wire signaling ground conductor, if required, shall be placed above the first flat washer and beneath the second flat washer as indicated in Figure 14 as follows:
(5) The shield and other conductors at the fused primary station protector shall be terminated as shown on Figure 15 in paragraph (ee)(6) of this section. The pronged or cupped washer shall be placed above the shield. The grounding conductor shall be placed around the post on top of the pronged or cupped washer. A flat washer shall be placed above the grounding conductor.
(6) The station wire signaling ground conductor, if required, shall be placed above the first flat washer and beneath the second flat washer as indicated in Figure 15 as follows:
(7) Indoor NIDs or BETs that are equipped with “Quick Connect” type terminals shall not have more than one wire connected per clip. No. 19 AWG copper and No. 18 AWG copper covered-steel reinforced aerial service wire conductors shall not be connected to quick connect terminals. Nonmetallic reinforced aerial service wire using No. 22 AWG copper conductors may be connected to the quick connect terminals.
(8) Tip and ring connections and other connections in multipair NIDs or BETs shall be as indicated in Figure 16 as follows:
(ff) System polarity and conductor identification shall be maintained in NIDs, BETs, or fused primary station protectors in accordance with construction drawings 815 and 815-1 contained in § 1755.510.
(a) Customer access location installations at mobile homes shall be treated the same whether the homes are mounted on permanent foundations or temporary foundations and shall be installed as specified in §§ 1755.500 through 1755.510. For the purpose of this section, mobile homes include manufactured homes, motor homes, truck campers, travel trailers, and all forms of recreational vehicles. Customer access location installations at mobile homes can be considerably different than customer access location installations at regular homes and borrowers shall be certain that the two types of installations are properly applied.
(b) The method of customer access location installation prescribed by the ANSI/NFPA 70-1999,
(c) NIDs shall be installed at mobile homes as follows:
(1) Where the mobile home electric service equipment (power meter, etc.,) or the electric service disconnecting means associated with the mobile home is located within 35 ft (10.7 m) of the exterior wall of the mobile homes it serves, the NID shall be installed in accordance with Figure 17 as follows:
(2) Where the mobile home electric service equipment (power meter, etc.,) or the electric service disconnecting means associated with the mobile home is located more than 35 ft (10.7 m) from the exterior wall of the mobile homes it serves, the NID shall be installed in accordance with Figure 18 as follows:
(d) The service wire and station wire shall be terminated in the NID in accordance with Figure 19 in paragraph (e) of this section.
(e) Installation of the station wire and grounding conductor at the mobile home shall be in accordance with Figure 20. Figures 19 and 20 are as follows:
(a) The construction and assembly unit drawings in this section shall be used by borrowers to assist the installer in making the customer access location installations.
(b) The asterisks appearing on the construction drawings indicate that the items are no longer listed in the RUS Informational Publication (IP) 344-2, “List of Materials Acceptable for Use on Telecommunications Systems of RUS Borrowers.” RUS IP 344-2 can be obtained from the Superintendent of Documents, P. O. Box 371954, Pittsburgh, PA 15250-7954, telephone number (202) 512-1800.
(c) Drawings BM50, BM83, 312-1, 501-1, 501-2, 503-2, 504, 505, 506, 507, 508-1, 510, 510-1, 510-2, 513, 815, 815-1, 958, and 962 are as follows:
Forest Service, Department of Agriculture; Bureau of Indian Affairs, Bureau of Land Management, Fish and Wildlife Service, and National Park Service, Department of the Interior.
Notice.
This notice provides an update to the initial list of urban wildland interface communities in the vicinity of Federal lands that are at high risk from wildfire published in the
Dick Bahr, Fire Management Program Center, National Park Service, USDI, 3833 S. Development Avenue, Boise, Idaho 83705-5354, (208) 387-5217 (e-mail: dick_bahr@nps.gov); or Janet Anderson Tyler, USDA Forest Service, Attn: Fire and Aviation Management, Yates Bldg., 201 14th Street, SW., Washington, DC 20024, (202) 205-1494 (e-mail: janderson03@fs.fed.us). Information specific to individual State listings should be directed to the respective State Foresters as listed with the National Association of State Foresters (NASF), 444 N. Capitol St., NW., Suite 540, Washington, DC 20001, or electronically from the NASF World Wide Web/Internet home page at http://www.stateforesters.org/SFlist.html.
The initial list of urban wildland interface communities, published in the
It is important to note that the urban wildland interface is not limited to communities in the vicinity of Federal land. Many States, particularly in the East, submitted revised community lists that included all interface communities in their State, regardless of their relationship to Federal land. These States felt strongly that the full, nationwide scope of the urban wildland interface problem must be conveyed.
Due to the specificity of Congressional direction, the list set out at the end of this notice contains only those communities identified by the States or Tribes as “in the vicinity of Federal land.”
A list of all the interface communities submitted by the States and Tribes is available from the National Association of State Foresters (NASF). Please see the
The Federal agencies do not now plan to publish any subsequent lists in the
Prior to revising the list of communities previously published in the
The process outlined provided the flexibility for State teams to use existing community assessment systems when those systems met or exceeded the standardized process. State-level groups also retain the right to prioritize subsequent hazard reduction efforts according to local goals and opportunities. Although this State-level flexibility has resulted in some variance among State submissions, the Secretaries feel the application of a standardized process has resulted in greater nationwide consistency for the revised lists.
The information contained in the list set out at the end of this notice will be used by interagency groups of land managers at the State and/or Tribal level to collaboratively identify priority areas within their jurisdictions that would benefit from hazard reduction activity. This will ensure that available funding is focused on areas of local importance and where opportunities are most conducive to reducing risks on a meaningful scale.
As described above, the list includes only those communities in the vicinity of lands managed by the Federal Government, especially the Departments of Agriculture and the Interior. This list is annotated to identify those communities around which the Secretaries have ongoing hazardous fuel reduction treatments or plan to begin treatments in FY 2001. These treatments will be focused primarily on Federal lands in the urban wildland interface and on nearby tribal and non-Federal lands where the landowner is a willing participant. All treatments will be subject to review for conformance with applicable laws, as addressed in the report accompanying the FY 2001 Appropriations Act for the Department of the Interior and Related Agencies (Pub. L. 106-291).
Of the 11,376 communities contained in the revised list, 9,457 communities are near Federal lands managed by the Departments of Agriculture and the Interior. The remaining 2,007 communities are near lands managed by other Federal agencies.
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•
•
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The updated list of urban wildland interface communities in the vicinity of Federal lands at high risk from wildfire is set out at the end of this notice.
For the Department of Agriculture.
For the Department of the Interior.
Footnote (1) indicates that one or more treatments are planned or ongoing for this community in FY 2001. Footnote (2) indicates communities in the vicinity of Federal lands other than those managed by the Departments of Agriculture and the Interior.
National Skill Standards Board.
Solicitation of comments.
The National Skill Standards Board (NSSB) is building a voluntary national system of skill standards, assessment, and certification that will enhance the ability of the U.S. to compete effectively in a global economy. The Sales & Service Voluntary Partnership (S&SVP) is an industry-based organization that has been recognized by the NSSB to develop proposed skill standards. As NSSB requires of Voluntary Partnerships, S&SVP seeks public comment to improve the product, receive input on potential uses of the skill standards in various organizations, and to assist in the design of associated assessment and certification systems related to the skill standards' full implementation and continuous improvement. Comments must be submitted in writing in order to be considered, and details on submitting comments via e-mail, fax, or regular mail are provided in the
The Sales & Service Voluntary Partnership will accept written comments on the proposed Skill Standards on or before September 17, 2001.
Please send comments via regular mail to: Nicole Manning, S&SVP, c/o NRF Foundation, 325 7th Street NW, Suite 1100, Washington, DC 20004. To submit comments via fax, transmit to Nicole Manning, S&SVP, 202-737-2849. To submit comments via e-mail, send comments to ssvpinfo@nrf.com.
For further information regarding S&SVP's development of skill standards, assessment, and certification, contact JoEllen Carlson, S&SVP, 202-626-8196,
The full text of the proposed S&SVP Skill Standards may be obtained by submitting a written request to the following mailing address: Nicole Manning, S&SVP, c/o NRF Foundation, 325 7th Street NW, Suite 1100, Washington, DC 20004, or by faxed request to Nicole Manning, S&SVP, 202-737-2849. The full text of the proposed S&SVP Skill Standards is also available on the S&SVP website at
The S&SVP is a national body serving as the catalyst for skill standards development for the retail, wholesale, real estate and personal services industries. Participation is open to large and small employers, trade associations, labor organizations, employee associations, and public interest representatives from education, government, community and policy groups. The S&SVP is managed by the NRF Foundation under a grant from the National Skill Standards Board.
Public Law 103-227, Title V, National Skill Standards Act of 1994.
The National Skill Standards Act of 1994 created “a National Skill Standards Board to serve as a catalyst in stimulating the development and adoption of a voluntary national system of skill standards and of assessment and certification of attainment of skill standards.” Industry coalitions called Voluntary Partnerships are developing the skill standards, assessment and certification systems within fifteen NSSB-defined industry sectors.
The National Skill Standards Board formally recognized the Sales & Service Voluntary Partnership on May 28, 1998 to develop a system of voluntary skill standards for the service industry. This system is industry-led with full partnership and full and balanced participation of representatives of employers, unions, education, civil rights organizations, and community stakeholders. The Sales & Service Voluntary Partnership (S&SVP) is staffed and managed by the NRF Foundation under a grant from the National Skill Standards Board.
The mission of the S&SVP is to develop a nationwide system of workforce skill standards for workers in the service sector. This nationwide Sales & Service Skill Standards System seeks to:
• Enhance productivity and global economic competitiveness of U.S.-based companies;
• Raise the standard of living and economic security of American workers by improving their access to high-skill, high-wage employment and career opportunities for those currently in, entering, or reentering the workforce;
• Encourage the use of world-class academic, occupational and employability standards to guide continuous education and training for current and future workers.
The S&SVP comprises the retail, wholesale, real estate, and personal services industries. Standards are expected to be used broadly to provide national credentials in the areas of customer service, sales, and others as appropriate, and in conjunction with industry, education, labor, government, and organizational partners. Completion of these proposed standards for submission to the National Skill Standards Board marks a major step towards developing a nationwide system of voluntary skill standards, assessments and certification, as envisioned in the National Skill Standards Act of 1994.
The S&SVP Proposed Standards include information on the work (
The Sales & Service Voluntary Partnership shall review and take into consideration all comments; will respond in writing to comments as appropriate; and, with agreement from the National Skill Standards Board, will make revisions as deemed appropriate. At the end of the comment period the S&SVP will post a summary of comments on the S&SVP Web site,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS, upon application from the University of California San Diego, Scripps Institution of Oceanography (Scripps), is issuing regulations to govern the unintentional take of a small number of marine mammals incidental to the continued operation of a low frequency (LF) sound source by Scripps. The sound source was previously installed off the north shore of Kauai by the Acoustic Thermometry of Ocean Climate (ATOC) project. Issuance of regulations governing unintentional incidental takes of marine mammals in connection with particular activities is required by the Marine Mammal Protection Act (MMPA) when the Secretary of Commerce (Secretary), after notice and opportunity for comment, finds, as here, that such takes will have a negligible impact on the species and stocks of marine mammals and will not have an unmitigable adverse impact on the availability of them for subsistence uses. These regulations do not authorize conducting the activity; such authorization is not within the jurisdiction of the Secretary. Rather, these regulations authorize the unintentional incidental take of marine mammals in connection with such activities and prescribe methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses.
Effective from September 17, 2001, through September 17, 2006.
Copies of the Scripps' application and NMFS' Biological Opinion may be obtained by writing to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226 or by telephoning the contact listed here (see
Comments regarding the burden-hour estimate or any other aspect of the collection of information requirements contained in this rule should be sent to the Chief, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: NOAA Desk Officer, Washington, DC 20503.
Kenneth R. Hollingshead (301) 713-2055, ext. 128.
Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 1361
Permission may be granted for periods of 5 years or less if the Secretary finds that the taking will be small, will have no more than a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for Arctic Ocean subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and the requirements pertaining to the monitoring and reporting of such taking.
On May 21, 2000, NMFS received an application for an incidental, small take authorization under section 101(a)(5)(A) of the MMPA from Scripps to take a small number of marine mammals incidental to the continued operation of a LF sound source previously installed off the north shore of Kauai, HI as part of the ATOC project. The principal funding agency for the proposed action is ONR. A final decision on whether to use the acoustic sound source and its seabed power cable for the North Pacific Acoustic Laboratory (NPAL), in order to combine a second phase of research on the feasibility and value of large-scale acoustic thermometry with long range underwater sound transmission studies and marine mammal monitoring and studies, will be made by Scripps and ONR based, in part, on their findings and determinations made under the National Environmental Policy Act (NEPA). Draft and final EISs have been prepared by the ONR. NMFS is a cooperating agency, as defined by NEPA, in the preparation of these documents.
Acoustic thermometry is a method for obtaining information about the temperature field in the ocean from precise measurements of the travel times of sound pulses transmitted through the ocean. It is also a technique for acoustic remote sensing of the ocean interior, in which the properties of the ocean between the acoustic sources and receivers are determined, rather than the properties of the ocean at the instruments as is the case for conventional thermometers and current meters.
The basic principle behind acoustic thermometry is that, because sound travels faster in warm water than in cold water, sound travel time is a direct measure of the average temperature between source and receiver. The travel time of a sound pulse from a source near Kauai to a receiver in the western North Pacific Ocean, for example, will decrease if the ocean in between warms up and will increase if the ocean cools down. Measuring average ocean temperatures over time may answer questions related to global climate change.
The NPAL acoustic project takes advantage of an acoustic “waveguide” deep within the ocean that carries sounds over very long distances. This feature, known as the “sound channel” or sound fixing and ranging (SOFAR) channel, is at the ocean depth where the speed of sound is at a minimum. Above the SOFAR channel, sound travels faster because the water is warmer. Below the SOFAR channel, sound travels faster because the pressures are greater. Sounds that would otherwise spread to higher or lower depths are refracted (bent) back toward the SOFAR channel axis by this difference in speeds. The net effect is that the sound channel very efficiently transmits sounds for long distances. This effect also tends to limit sounds that are trapped in the SOFAR channel from being detectable at depths outside of the channel. The sounds to be produced by the NPAL source are digitally coded, low frequency rumbles
Long-range underwater sound transmission studies are needed: (1) To improve the understanding of the basic principles of LF, long-range underwater sound transmission (i.e., acoustic propagation) in the ocean; (2) to determine the effects of ocean environmental variability on acoustic signal stability and coherence; (3) to study the seasonal and annual variations in acoustic conditions in the North Pacific and the impact of environmental variability on acoustic propagation; and (4) to determine the fundamental limits to acoustic signal processing at long-range imposed by the ocean environment.
The original ATOC feasibility project demonstrated that acoustic thermometry is a powerful tool for making routine measurements of large-scale ocean temperature variability and heat content. The key results obtained to date are: (1) Acoustic travel times can be measured with a precision of about 20-30 milliseconds at 3000-5000 km (1620-2700 nm) ranges; (2) range- and depth-averaged temperature estimates made from the acoustic travel-time data are consistent with direct temperature measurements made with instruments lowered from ships (Worcester
The purposes for conducting the proposed second-phase of large-scale acoustic thermometry research are: (1) To test the feasibility and value of large-scale acoustic thermometry; (2) to study the behavior of sound transmissions in the ocean over long distances; (3) to study seasonal and interannual ocean variability associated with ocean phenomena such as El Niño, La Niña, and the Pacific Decadal Oscillation; (4) to use acoustic thermometry data in combination with a variety of other data types, including satellite altimeter data, surface drifter data, surface mooring data, and others to test and constrain computer models of ocean circulation in order to gain a better understanding of ocean variability and the earth’s changing climate; and (6) to make an objective assessment of the value of acoustic methods for remote sensing of the ocean interior as one component of an integrated ocean observing system for ocean weather and climate. This second phase of acoustic research will require a long time series of acoustic measurements in order to determine whether the acoustically-derived time series of large-scale ocean temperature and heat content variability prove to be as valuable as anticipated in studying seasonal and interannual ocean variability.
Under the proposed action, which is for Scripps to operate the sound source previously installed off the north shore of Kauai by the ATOC project, the seabed power cable and sound source from the ATOC project would remain in their present locations offshore of Kauai, and transmissions would continue with approximately the same signal parameters and transmission schedule used in the earlier ATOC project. The typical schedule would consist of six 20-minute (min) transmissions (one every 4 hours), every fourth day, with each transmission preceded by a 5-min ramp-up period during which the signal intensity is gradually increased, representing an average duty cycle of 2 percent. With the possible exception of short duration testing with duty cycles of up to 8 percent, or equipment failure, this schedule would continue for a period of 5 years. In this context, short duration testing refers to a maximum of 2 months of testing per year at a duty cycle higher than 2 percent. The signals transmitted by the source would have a center frequency of 75 Hertz (Hz) and a bandwidth of approximately 35 Hz (i.e., sound transmissions are in the frequency band of 57.5-92.5 Hz). Approximately 260 watts of acoustic power would be radiated during transmission. According to Scripps, the signal parameters and source level in the ATOC project have been found to provide adequate, but not excessive, signal-to-noise ratios in the receiver ranges of interest. At 1 meter (m)(3.3 feet (ft)) from the source (at 807 m (2,648 ft) water depth), sound intensity (i.e., source level) would be about 195 decibels (dB) referenced to the intensity of a signal with a sound pressure level (SPL) of 1 microPascal (1 µPa).
Average ambient noise levels in the 60-90 Hz band offshore central Kauai can be 76-98 dB (with various degrees of shipping traffic) and are expected to be higher (ã105 dB) when humpback whales are present. At the water's surface above the NPAL source, the received level from the NPAL source is not expected to be louder than 137 dB when the source is on. The received level in the top 100 m (328.1 ft) from the water surface, when the source is on, has been measured to decrease to about 120 dB at 5 km (2.7 nm) shoreward of the source. The near-surface NPAL received level is predicted to decrease to about 120 dB at 7.5 km (4 nm) seaward of the source. Underwater sound levels in the area surrounding the NPAL source are expected to be: 140 dB at 245 m (804 ft) water depth (562 m (1844 ft) from the source); 145 dB at 491 m (1611 ft) water depth (316 m (1037 ft) from the source); 150 dB at 629 m (2064 ft) water depth (178 m (564 ft) range around the source); and 165 dB at 775 m (2543 ft) water depth (32 m (105 ft) range around the NPAL source (ONR/NMFS, 2000; ARPA/NMFS, 1995).
On December 22, 2000 (65 FR 80815), NMFS published a proposed rule to authorize Scripps to take small numbers of marine mammals incidental to the continued operation of a LF sound source previously installed off the north shore of Kauai, HI, and requested comments, information, and suggestions concerning the request and the regulations that would govern the taking by harassment of certain species of marine mammals. During the 45-day public comment period, NMFS received letters from one citizen, the Marine Mammal Commission (MMC), the Hawaii Department of Business, Economic Development and Tourism (State of Hawaii), the Humane Society of the United States (on behalf of itself, Earth Island Institute and the Natural Resources Defense Council)(HSUS), and from the Whale and Dolphin Conservation Society (WDCS). Some comments by the MMC regarding minor text edits modifications have been incorporated without further discussion in this document.
In this context, a behavioral pattern means a composite of biological traits characteristic of an individual or of a species. Therefore, to disrupt a behavioral pattern, the activity would need to disrupt an animal's normal pattern of biological traits or behavior, not just cause a momentary reaction on the part of a marine mammal. Therefore, if the only reaction to an activity on the part of the marine mammal is within the normal repertoire of actions that are required to carry out the behavioral pattern for that species of marine mammal, NMFS considers the activity not to have caused an incidental disruption of the behavioral pattern, provided the animal’s reaction is not otherwise significant enough to be considered disruptive due to length or severity. For example, if there is a short-term change in breathing rates or a somewhat shortened or lengthened diving sequence that is within the animal's normal range of breathing patterns and diving cycles but there is not a disruption to the animal's overall behavioral pattern (i.e., the changes are not biologically significant), then these responses do not rise to a level requiring a small take authorization or, if under a small take authorization, does not constitute an incidental take.
Examples of significantly disruptive or severe behavior would be where pinnipeds flee a haulout beach or rookery en mass due to a disturbance, or animals either leave an area of habitation for a period of time, or diverge significantly from their migratory path to avoid either an acoustic or a visual interference. For these two mentioned situations, non-significant behavioral responses would be when only a few pinnipeds leave the haulout or mill-about, but many pinnipeds alert to the disruption; or when marine mammals make minor course corrections that are not discernable either to observers or directional plotting, and which require statistical manipulation in order to determine that a course correction has taken place. For the action under consideration in this document, it is the behavioral response of the humpback and possibly sperm whale to the NPAL signal that is the biological response that is considered to be a taking by harassment.
Because of this conservative approach, and because of the relatively low intensity of the NPAL source, and the depth of water in which the source is anchored (further attenuating the SPL), NMFS does not need to apply additional precautions, such as considering all, or a portion of, TTS to be Level A harassment.
In its final EIS, ONR responded to the MMC concern about random distribution by noting that the “incidental take” analysis did not include an assumption that animals are distributed uniformly or randomly throughout their range in the North Pacific, but that the best scientific data for each species was used to model their individual dive profiles and distributions in the modeled areas. This precludes homogeneously distributed animal densities in the three dimensions profiled. Therefore, animal distribution on the large scale reflects known concentrations of animals, and distribution on the small scale represents the patchiness that is observed in the field. In reviewing the available data and information, NMFS believes that the population assessments of marine mammals, that were provided by ONR and Scripps, are the most realistic estimates available, as they are based on recent aerial surveys conducted by Hawaii-based marine mammal researchers, conducted over several years (see Mobley
NMFS believes however, that the NRC is overly cautious in its choice of 10 dB of TTS as being a safe level. NMFS' review of Liberman and Dodds (1987) and Ahroon
The problem of determining the same values for marine mammals with their marine-adapted ears remains to be solved. However, because the onset of PTS in marine mammals would be expected to be quite variable dependent upon the ear structure of the mammalian group (mysticetes, odontocetes, pinnipeds) and species-specific sensitivity, the health of the individual animal, and the characteristics of both the water and the acoustic source, there may not be a single value to establish for determining onset PTS. Therefore, in the absence of comparable data for marine mammals, NMFS believes it is precautionary to define the onset of PTS for marine mammals to be 20 dB of TTS. This level would be conservative for chinchillas, and would likely be conservative for marine mammals.
To account for the longer duration NPAL signal however, ONR and Scripps use the 180-dB SPE as the level for the onset of “harm” or TTS. An SPE is defined as the summation of the intensities for all received brief acoustic sounds into an equivalent exposure from one ping, which is always at a higher level than the highest individual ping received. In other words, an animal exposed to a single 1-minute ping at 180 dB could incur TTS, an animal exposed to 10 1-minute pings at 170 dB could incur TTS, and an animal exposed to 20 1-minute pings (the length of the standard NPAL signal) at 167 dB could incur TTS. This, NMFS believes, is precautionary and, notes that for the first time, a small take applicant has taken into account the duration of the signal when calculating impacts on marine mammals.
However, because the Ridgway
There are no studies of TTS and PTS in mysticetes. However, studies of human hearing indicate that the normal process of hearing loss with age (presbycusis) can be accelerated by chronic exposure to sounds 80 dB above the absolute threshold of hearing (Richardson
In response to comment PRC6, NMFS concurred with ONR that a marine mammal exposed to 20 1-minute pings (the length of the standard NPAL signal) at 167 dB could incur TTS, or Level B harassment. The 167-dB isopleth is only 25 m (82 ft) around the NPAL source at its 807 m (2,648 ft) depth, meaning that a marine mammal would need to dive to a minimum depth of 782 m (2,565 ft) and remain within that small area for the entire 20-min transmission in order to theoretically incur a TTS impairment. Theoretically then, the marine mammal would need to do this dive repeatedly, time after time, year after year, to incur a PTS injury from the NPAL source. Therefore, NMFS believes that, considering the migratory behavior and transitory nature of those marine mammal species likely to be impacted, and other reasons including dive profiles, it would be very unlikely a marine mammal would incur a TTS impairment and virtually impossible for a marine mammal to incur a PTS injury from the NPAL source.
Second, NMFS does not agree that affecting a marine mammal's survival or future productivity would require a taking to rise to Level A harassment (injury), unless the activity directly affected in some injurious way, either the mammal's ability to reproduce, or it's newborn or unborn offspring. To the extent possible, what NMFS is evaluating under Level B harassment is the lost opportunity to mate, primarily as demonstrated by using the AIM.
While bowheads and belugas have been shown to have a behavioral reaction to received SPLs at or below 120 dB, NMFS would not characterize the avoidance reactions as being strong. For bowhead whales at least, it has been necessary to apply strong statistical analyses in order to determine that bowheads in the Beaufort Sea north of Alaska reacted to seismic pulses at distances where received levels were on the order of 120 dB. Richardson
Also, there is no evidence in the record to support limiting the NPAL power source to 230 Watts, as opposed to the stated operating power of 260 Watts. The NPAL sound source has been designed to operate at the minimum power level necessary to support large-scale acoustic thermometry and long-range sound transmission objectives. It should be recognized that signal length and power trade off with each other; a shorter signal length would require increased power to accomplish the project's objectives. Mitigation measures are also described under “Mitigation” in the preamble to both the proposed rule, and this document.
Because the smaller whales and dolphins are not expected to be sensitive (e.g., react) to the Kauai NPAL acoustic source transmission, and because the required humpback whale aerial surveys will also detect other marine mammal species, NMFS also does not believe that conducting boat-based surveys for these species is warranted.
If a dead or disabled animal is observed during the visual aerial surveys, this information would be provided to the Kauai stranding coordinator, who would follow his/her agency's protocols for handling of a dead or disabled animal.
NMFS does not believe that the level of data from the monitoring program will allow determinations to be made that the NPAL acoustic source was responsible for any decreases in abundance of humpback whales or other marine mammals in the vicinity of the source. At this time, evidence indicates that the numbers of humpback whales and Hawaiian monk seals off Kauai are increasing, however, it is unclear whether this is due to total abundance increases or geographic shifts due to oceanographic changes. Similarly, a cause and effect between operation of the NPAL source and any decrease in abundance of marine mammals in the offshore Hawaiian Islands over the short-term period of 5 years is unlikely.
The aerial monitoring program is designed to detect a change in distribution and abundance of humpback whales in the vicinity of the NPAL source due to the source being on at the time of overflight versus the acoustic source being off. This will be done by “distance from shore” analyses. The aerial monitoring program will not detect changes in distribution for other marine mammals because the numbers of animals detected will be too low. However, the best scientific information indicates that these other species will not be affected by the NPAL acoustic source.
NMFS believes that the NPAL monitoring program has been designed to conform to the greatest extent practicable with the guidelines found in the MMC's monitoring paper by Swartz and Hofman (1991). By using the information collected over the past five years, along with information collected by the aerial monitoring program north of Kauai and the Hawaii-wide aerial surveys, NMFS believes that determinations in trends in abundance for humpback whales will be attainable.
It is not clear to NMFS how locating the source at Midway would be contrary to NEPA and the ESA. The draft and final EISs prepared for this action by ONR describe the impacts of locating the source at either Kauai or Midway. The Council on Environmental Quality regulations implementing NEPA (40 CFR 1502.22) addressed the issue of proceeding with incomplete or inadequate information.
In addition, NMFS has completed consultation under section 7 of the ESA on conducting the activity off Kauai. If Scripps and ONR decided to relocate the activity to Midway, then ONR would need to reinitiate consultation under section 7 of the ESA. In addition, because this small take rule has now been finalized, a new rule would need to be proposed in order for a small take authorization to be issued for NPAL operations at Midway.
A summary of the marine mammal species that may potentially be found in the vicinity of the NPAL acoustic source at either Kauai or Midway is presented here. For more detail on marine mammal abundance, density, and the methods used to obtain this information, reviewers are requested to refer to ONR's draft EIS. For general information on North Pacific Ocean marine mammals, reviewers may refer
Six species of baleen whales, humpback (
Sixteen species of odontocetes (toothed whales, dolphins and porpoises) may be found in the Kauai and Midway areas. These species are sperm whales (
The Hawaiian monk seal (
The effects of underwater noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson
Few data on the effects of non-explosive sounds on hearing thresholds of marine mammals have been obtained. However, in terrestrial mammals (and presumably in marine mammals), received sound levels must far exceed the animal's hearing threshold for there to be any TTS and must be even higher for there to be risk of PTS (Richardson
In order to understand the biological significance of the risk of Level A or Level B harassment, it is necessary to determine how this risk might affect a population of marine mammals, starting with acoustic criteria. First, the marine mammal must be able to hear LF sound. Second, the animal must incur a reaction to the LF sound that is more than momentary. Third, any effect from LF sound must involve a significant behavioral change in a biologically important activity, such as feeding, breeding, or migration, all of which are potentially important for reproductive success of the population.
Based on California and Hawaii ATOC MMRPs, Scripps found no overt or obvious short-term changes: (1) In the abundance and distribution of marine mammals in response to the ATOC transmissions (intensive statistical analyses of aerial survey data showed some subtle shifts in distribution of humpback (and possibly sperm) whales away from the California site (Calambokidis
To assess the potential environmental impact of the NPAL sound source on marine mammals, it was necessary for Scripps to predict the sound field that a given marine mammal species could be exposed to over time. This is a multi-part process involving (1) the ability to measure or estimate an animal’s location in space and time, (2) the ability to measure or estimate the three-dimensional sound field at these times and locations, (3) the integration of these two data sets to estimate the potential impact of the sound field on a specific animal in the modeled population, and (4) the conversion of the resultant cumulative exposures for a modeled population into an estimate of the level of risk associated with a disruption of a biologically important activity.
Next, a methodology for converting the resultant cumulative exposures for a modeled population into an estimate of the risk to the entire population associated with a significant disruption in a biologically important activity and or injury was developed. This process
Taken together, the recent results on marine mammals from LF sounds, the acoustical modeling, and the risk assessment, provide an estimate of potential environmental impacts to marine mammals.
The acoustical modeling process was accomplished by Scripps using the U.S. Navy’s standard acoustical performance prediction transmission loss model-Parabolic Equation (PE) version 3.4. The results of this model are the primary input to the AIM model. AIM was used in this analysis to estimate marine mammal sound exposures and integrate simulated characteristics of marine mammals (e.g., species distribution, density, dive profiles, and general movement), NPAL sound transmissions (e.g., duty cycle, transmission length), and the predicted sound field for each transmission to estimate acoustic exposure during a typical NPAL source transmission. A description of the PE and AIM models (including AIM input parameters for animal movement, diving behavior, and marine mammal distribution, abundance, and density) and the risk continuum analysis are described in detail in the Scripps' application and ONR's final EIS and are not discussed further in this document. For copies of these documents see
Scripps has drawn some general conclusions about the potential impact of the NPAL sound source on marine mammals from the relative abundance of various marine mammal species in relationship to the NPAL sound field. The only mysticete (baleen) whale species expected in the waters off the north shore of Kauai in substantial numbers is the humpback whale. Scripps believes however, that because humpback whales usually prefer nearshore locations (inside the 100-fathom (188 m) depth contour) and not the offshore location of the NPAL source, few humpbacks are expected to be exposed to received levels greater than 120 dB (i.e, the SPL level presumed by Scripps in its risk continuum (explained in Scripps' application) to be almost zero for marine mammals to have a potential to incur significant behavioral disturbance). Similarly, sperm whales are the most common deep-diving odontocete (toothed) whale in Hawaiian Islands area, but because they usually prefer offshore waters (i.e., water depths greater than 4,000 m (12,700 ft)), few are expected to be exposed to received levels greater than 120 dB. According to Scripps, these distributional preferences are supported by the Kauai ATOC MMRP (Mobley, 1999).
Using the risk continuum and acoustic modeling, Scripps estimated the potential for biologically significant reactions by marine mammals under the proposed action. Scripps determined that of all the species found in the NPAL source area only humpback whales that remain in the vicinity of the sound source for a full day of transmissions may potentially experience any effect from the source transmissions. However, humpback whales typically travel parallel to the coast of Kauai, and, therefore, Scripps believes, would probably not receive sound from more than a single transmission. NMFS, having reviewed Mobley
Scripps' proposed action includes mitigation that would minimize the potential effects of the NPAL sound source to marine mammals. First, the sound source would operate at the minimum duty cycle (2 percent during the humpback whale season) necessary to support the large-scale acoustic thermometry and long-range propagation objectives (described previously in this document). Any increases in the duty cycle beyond the nominal 2 percent (with a maximum of 8 percent) would not occur during the humpback whale season (January-April). However the proposed action includes the possibility of an 8-percent duty cycle for up to 2 months out of each year; this action, which would not occur during the period of time humpback whales inhabit Hawaiian waters. Second, NPAL transmissions would continue with approximately the same transmission schedule as that used during the first feasibility phase of the ATOC study. Third, the sound source would operate at the minimum power level necessary to support large-scale acoustic thermometry and long-range sound transmission objectives (It should be recognized that signal length and power trade off with each other; a shorter signal length would require increased power to accomplish the project's objectives-for that reason it is considered as a mitigation measure to prevent potential injury to marine mammals). The fourth mitigation measure proposed is to ramp-up the NPAL sound source transmissions over a 5-min period. This is believed to reduce the potential for startling marine mammals in the vicinity of the NPAL sound source and provides them an opportunity to move away from the sound source before transmitting at the maximum power levels.
In an effort to understand the potential for long-term effects of man-made sound on marine mammals, Scripps will monitor the distribution and abundance of marine mammals in the vicinity of the sound source by conducting eight surveys each year from February through early April. In order to maintain a basis for comparison with previous aerial surveys conducted in the area off the north shore of Kauai, the proposed survey protocol would follow the protocol used in the earlier 1993-1998 surveys (see Mobley
The 8 aircraft surveys would be scheduled eight days apart to match the NPAL transmission schedule. Based on an average of seven humpback sightings per survey observed during the 1998 season, and assuming a moderate sized effect due to NPAL transmissions, eight surveys should produce a minimum of 56 sightings of humpback whales, which would result in an estimated power of 0.80 (i.e., there would be an 80- percent probability of detecting a change in distribution if an effect is present). The estimate of 56 sightings is presumed to be a minimum, given previously reported evidence that the Hawaiian wintering population of humpback whales is increasing (Mobley
During the aerial surveys, the location (lat/long) of each sighting of a marine mammal or sea turtle will be recorded with GPS. Therefore, since the lat/long
If humpback whales, or other marine mammals, are observed exhibiting avoidance reactions in response to NPAL source transmissions, the received level at the whale must be estimated and included in the required annual report. If acute effects such as injury or mortality of listed species are observed relative to the initiation of the sound source, then Scripps must immediately initiate the source shut-down procedure in the research protocol. Avoidance reactions must also be reported in the annual reports. Finally, since the aerial surveys will be scheduled to coincide with days that the source will be transmitting, if any injured or dead animals are observed, the Kauai stranding coordinator must be notified and informed of the location of the stranding, or the offshore location of the animal.
A report on activities will be provided to NMFS annually upon the conclusion of that year's aerial surveys. Reports on the aerial survey results will be available to the public.
The ONR has released a final EIS under NEPA (see
On June 23, 2000, ONR submitted a Biological Assessment to NMFS to initiate consultation under section 7 of the ESA. In that regard, NMFS concluded consultation with ONR on this action on April 26, 2001. The finding of that consultation was that funding, and continuation of, the NPAL sound source located off Kauai, HI and the issuance by NMFS of a small take authorization for this activity are not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS. A copy of the Biological Opinion issued as a result of that consultation is available upon request (see
Based on the scientific analyses detailed in Scripps' application and further supported by information and data contained in ONR's final EIS, and discussed in this document, NMFS has determined that the taking of marine mammals potentially harassed incidental to the continued operation of an LF acoustic source previously installed off the north shore of Kauai by the NPAL project would result in only small numbers (as the term is defined in § 216.103) of marine mammals being taken. In addition, this incidental harassment would have no more than a negligible impact on the affected marine mammal stocks or habitats and would not have an unmitigable adverse impact on Arctic subsistence uses of marine mammals.
The following factors have been considered when making the determination that the taking by the NPAL acoustic source at Kauai would result in small numbers being harassed and having no more than a negligible impact: (1) The limited duty cycle of the source (2-8 percent); (2) the information that most species of marine mammals are relatively insensitive to acoustic sounds as low as the NPAL source; (3) the fact that relatively few marine mammals that inhabit the acoustic source area are known to dive to depths that would put them in the proximity of sound fields that could disrupt biologically significant behavior; and (4) the low potential that a marine mammal actually would be within the acoustic sound field during sound transmissions. In consideration of these factors, NMFS has concluded that the operation of the acoustic source at Kauai would result in no more than small numbers of marine mammals being affected, and that the operation of the NPAL source offshore Kauai, HI for the next five years would have a negligible impact on affected marine mammal species and stocks. Finally, because no marine mammals potentially affected by the NPAL acoustic source are also utilized for subsistence by Alaskan natives, the NPAL project will not have an unmitigable adverse impact on subsistence uses of marine mammals. Therefore, in accordance with section 101(a)(5)(A) of the MMPA, a Letter of Authorization for the taking of small numbers of marine mammals incidental to operation of the NPAL source off Kauai, HI can be issued to Scripps under these regulations.
In addition to allowing Scripps to take a small number of marine mammals incidental to conducting scientific research using the NPAL acoustic source off Hawaii, this rule would require Scripps to provide NMFS and the public with information on the NPAL source’s effect on certain species of marine mammals. Without an authorization under the MMPA, NMFS and the public might not receive this information. NMFS believes that obtaining this information is important because scientific findings resulting from the monitoring program are likely to be directly applicable to other oceanographic research activities that employ LF acoustic sources. The cost to ONR and Scripps cannot be fully determined at this time but these costs would be incurred through implementation of the aerial monitoring program that will be required under this proposed rule. Preliminarily, NMFS estimates that the cost would be approximately $300,000 during the 5-year program.
Finally, NMFS agrees with Scripps and ONR that, while direct effects on the economy could occur through a reduction in whale-watching and other tourism if changes in marine mammal abundance or behavior occurred, because the Kauai ATOC MMRP demonstrated that no overt or obvious short-term change in abundance, distribution, or behavior occurred as a result of the ATOC sound transmissions, no effects on the economy are anticipated.
This action has been determined to be not significant for purposes of Executive Order 12866.
The Assistant General Counsel for Legislation and Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration, at the proposed rule stage, that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities since it would apply only to Scripps and would have no effect, directly or indirectly, on small businesses. It will also affect a small number of contractors providing services related to reporting the impact of the NPAL source on marine mammals. Some of the affected contractors may be small businesses, but the number involved would not be
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This proposed rule contains collection-of-information requirements subject to the provisions of the PRA. This collection has been approved previously by OMB under section 3504(b) of the PRA issued under OMB control number 0648-0151. These requirements include an application for an LOA and an annual report on monitoring. Other information requirements in the rule are not subject to the PRA since they apply only to a single entity and, therefore, are not contained in a rule of general applicability.
The reporting burden for this collection is estimated to be approximately 80 hours, including the time for gathering and maintaining the data needed, and completing and reviewing the collection of information. It does not include time for monitoring the activity.
Administrative practice and procedure, Imports, Indians, Marine mammals, Penalties, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the incidental taking of small numbers of marine mammals specified in paragraph (b) of this section by U.S. citizens engaged in conducting acoustic research using a moored, low-frequency acoustic source by the North Pacific Acoustic Laboratory off Kauai, Hawaii.
(b) The incidental harassment of marine mammals under the activity identified in paragraph (a) of this section is limited to small numbers of the following species: humpback whales (
Regulations in this subpart are effective from September 17, 2001, through September 17, 2006.
(a) Under a Letter of Authorization issued pursuant to §§ 216.106 and 216.176, the Holder of this Letter of Authorization may incidentally, but not intentionally, take marine mammals by harassment within the area described in § 216.170(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the Letter of Authorization.
(b) The activities identified in § 216.170(a) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.
Notwithstanding takings authorized by § 216.170(b) and by a Letter of Authorization issued under §§ 216.106 and 216.176, no person in connection with the activities described in § 216.170(a) shall:
(a) Take any marine mammal not specified in § 216.170(b);
(b) Take any marine mammal specified in § 216.170(b) other than by incidental, unintentional harassment;
(c) Take any marine mammal specified in § 216.170(b) if such take results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§ 216.106 and 216.176.
As described in the Letter of Authorization issued under §§ 216.106 and 216.176., the North Pacific Acoustic Laboratory acoustic source must:
(a) Operate at the minimum duty cycle necessary for conducting large-scale acoustic thermometry and long-range propagation objectives.
(b) Not increase the duty cycle during the months of January through April.
(c) Operate at the minimum power level necessary for conducting large-scale acoustic thermometry and long-range propagation objectives, but no more than 260 Watts.
(d) Precede all transmissions from the acoustic source by a 5-minute ramp-up of the acoustic source's power.
(a) The holder of the Letter of Authorization is required to cooperate with the National Marine Fisheries Service and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. The holder must notify the Southwest Regional Administrator at least 2 weeks prior to commencing monitoring activities.
(b) The Holder of this Authorization must conduct a minimum of eight
(c) The Holder of this Authorization must, through coordination with marine mammal stranding networks in Hawaii, monitor strandings of marine mammals to detect long-term trends in stranding and the potential relationship to the North Pacific Acoustic Laboratory acoustic source.
(d) Activities related to the monitoring described in paragraphs (b) and (c) of this section, or in the Letter of Authorization issued under §§ 216.106 and 216.176 may be conducted without the need for a separate scientific research permit.
(e) In coordination and compliance with marine mammal researchers operating under this subpart, at its discretion, the National Marine Fisheries Service may place an observer on any aircraft involved in marine mammal surveys in order to monitor the impact on marine mammals.
(f) The holder of a Letter of Authorization must annually submit a report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 120 days after the conclusion of the humpback whale aerial survey monitoring program. This report must contain all the information required by the Letter of Authorization, including the results, if any, of coordination with coastal marine mammal stranding networks.
(g) A final comprehensive report must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service no later than 240 days after completion of the final year of humpback whale aerial survey monitoring conducted under § 216.175. This report must contain all the information required by the Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be valid for a period of time specified in the Letter of Authorization but may not exceed the period of validity of this subpart.
(b) A Letter of Authorization with a period of validity less than the period of validity of this subpart may be renewed subject to renewal conditions in § 216.177.
(c) A Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic area for taking;
(3) Means of effecting the least practicable adverse impact on the species of marine mammals authorized for taking and its habitat; and
(4) Requirements for monitoring and reporting incidental takes.
(d) Issuance of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, and that the number of marine mammals taken by the activity, specified in § 216.170(b), as a whole, will have no more than a negligible impact on the species or stocks of affected marine mammal(s).
(e) Notice of issuance or denial of a Letter of Authorization will be published in the
(a) A Letter of Authorization issued under § 216.106 and § 216.176 for the activity identified in § 216.170(a) will be renewed annually upon:
(1) Notification to the National Marine Fisheries Service that the activity described in the application for a Letter of Authorization submitted under § 216.176 will be undertaken and that there will not be a substantial modification to the described work, mitigation, or monitoring undertaken during the upcoming season;
(2) Timely receipt of the monitoring reports required under § 216.175, which have been reviewed by the National Marine Fisheries Service and determined to be acceptable;
(3) A determination by the National Marine Fisheries Service that the mitigation, monitoring, and reporting measures required under §§ 216.174 and 216.175 and the Letter of Authorization were undertaken and will be undertaken during the upcoming period of validity of a renewed Letter of Authorization; and
(4) Renewal of a Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity continues to be small and that the number of marine mammals taken by the activity, specified in § 216.170(b), will have no more than a negligible impact on the species or stock of affected marine mammal(s).
(b) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(a) In addition to complying with the provisions of §§ 216.106 and 216.176, except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization issued pursuant to §§ 216.106 and 216.176 and subject to the provisions of this subpart shall be made by the National Marine Fisheries Service until after a notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 216.177 without modification, except for the period of validity, is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.170(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.176 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the