Agricultural Marketing Service
Forest Service
Natural Resources Conservation Service
Engineers Corps
International Trade Administration
National Oceanic and Atmospheric Administration
Technology Administration
Army Department
Engineers Corps
Federal Energy Regulatory Commission
Presidential Documents
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Food and Drug Administration
Indian Health Service
Substance Abuse and Mental Health Services Administration
Fish and Wildlife Service
Mine Safety and Health Administration
Occupational Safety and Health Administration
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Food and Drug Administration
Indian Health Service
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Aviation Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Direct final rule, request for comments.
This action establishes a Class E enroute domestic airspace area beginning at 1,200 feet above ground level (AGL) in the vicinity of the Bristol Mountains, CA, to replace existing Class G uncontrolled airspace.
0901 UTC February 21, 2002.
Send comments on the direct final rule in triplicate to: Federal Aviation Administration, Attn: Manager, Airspace Branch, AWP-520, Docket No. 01-AWP-28, Air Traffic Division, P.O. Box 92007, Los Angeles, California 90009.
The official docket may be examined in the Office of the Assistant Chief Counsel, Western-Pacific Region, Federal Aviation Administration, Room 6007, 15000 Aviation Boulevard, Lawndale, California 90261.
An informal docket may also be examined during normal business hours at the Office of the Manager, Airspace Branch, Air Traffic Division at the above address.
Debra Trindle, Air Traffic Division, Airspace Specialist, AWP-520, Western-Pacific Region, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California 90261, telephone (310) 725-6613.
This action will establish a Class E enroute domestic airspace area with a base altitude of 1,200 feet AGL in the vicinity of the Bristol Mountains, CA. A review of the airspace in southern California revealed large areas of uncontrolled (Class G) airspace immediately adjacent to numerous federal airways. Because this airspace is Class G(uncontrolled) below 14,500 feet mean sea level (MSL), the Los Angeles Air Route Traffic Control Center (ARTCC) cannot initiate instrument flight rules (IFR) air traffic services within Class G airspace. IFR services may be provided to aircraft operating in Class G airspace only when the pilot requests such service. This procedure effectively limits the flexibility of Los Angeles ARTCC in providing off route vectors and direct routing to aircraft in these areas. En route domestic airspace areas are intended to create controlled airspace in those areas where there is a requirement, or need, to provide instrument Flight Rules (IFR) en route air traffic control services but the Federal airway segment is inadequate. The intended effect of this action is to establish Class E controlled airspace within the boundaries of the above-mentioned area, thereby replacing the existing uncontrolled airspace.
Class E enroute domestic airspace areas are published in Paragraph 6006 of FAA Order 7400.9J dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in this Order.
The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or argument as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
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 action 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 No. 01-AWP-28.” The postcard will be date stamped and returned to the commenter.
The regulations adopted herein will not have 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, in accordance with Executive Order 12612, it is determined that this final rule does
The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, 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.
Airspace, Incorporation by reference, Navigation (air)
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 18054, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 1200 feet above the surface bounded on the north by V8-210, bounded on the east by V514-538, bounded on the south by V264, bounded on the west by V386 and V8-21-283-587, excluding that airspace within the Twentynine Palms, CA Class E airspace area, the Sundance MOA, and that airspace designated for federal airways.
Federal Aviation Administration (FAA), DOT.
Direct final rule, request for comments.
This action revokes the Class E Surface Area airspace at Lompoc Airport in Lompoc, CA. The airport does not meet Class E Surface Area criteria due to inadequate radio communications capabilities between the Los Angeles Air Route Traffic Control Center (ARTCC) and operators on the airport surface at Lompoc, CA.
Send comments on the direct final rule in triplicate to: Federal Aviation Administration, Attn: Manager,Airspace Branch, AWP-520, Docket No. 01-AWP-23, Air Traffic Division, P.O. Box 92007, Los Angeles, California 90009.
The official docket may be examined in the Office of the Assistant Chief Counsel, Western-Pacific Region, Federal Aviation Administration, Room 6007, 15000 Aviation Boulevard, Lawndale, California 90261.
An informal docket may also be examined during normal business hours at the Office of the Manager, Airspace Branch, Air Traffic Division at the above address.
Jeri Carson, Air Traffic Division, Airspace Specialist, AWP-520, Western-Pacific Region, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California 90261, telephone (310) 725-6611.
This action revokes the Class E2 airspace designated as a Surface Area at Lompoc Airport in Lompoc, CA. Existing Class E5 airspace, extending upward from 700 feet above the surface, will continue to support instrument operations at Lompoc Airport, and will not be changed as a result of this action. The intended effect of this action is to retain only the minimum Class E airspace required to protect instrument operations at Lompoc Airport, consistent with airspace criteria contained in FAA Order 7400.2E, Procedures for Handling Airspace Matters. Class E airspace areas designated as surface areas for airports are published in Paragraph 6002 of FAA Order 7400.9J dated August 31, 2001, and effective September 16, 2001, which is incorporated by reference in 14 CFR 71.1. The Class E airspace revocation listed in this document will be published subsequently in that Order.
The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a meet final rule. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Although this action is in the form of a final rule and was not preceded by a notice of proposed rulemaking, 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 should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
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 action 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 No. 01-AWP-23.” The postcard will be date stamped and returned to the commenter.
The regulations adopted herein will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, 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.
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.
Within a 4.3-mile radius of Lompoc Airport, excluding that airspace within Restricted Areas R-2516 and R-2517. This Class E 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.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations relating to elective changes in entity classification under section 7701 of the Internal Revenue Code. The regulations apply to subsidiary corporations that elect to change their classification for Federal tax purposes from a corporation to either a partnership or disregarded entity.
Beverly Katz, (202)622-3050 (not a toll-free number).
On November 29, 1999, final regulations were published in the
On January 25, 2000, final regulations were published in the
Consistent with the commitment in the preamble to the QSub regulations, on January 17, 2001, proposed regulations were published in the
Section 301.7701-3(g)(1) describes how elective changes in the classification of an entity will be treated for tax purposes. Section 301.7701-3(g)(1)(ii) provides that an elective conversion of an association to a partnership is deemed to have the following form: the association distributes all of its assets and liabilities to its shareholders in liquidation of the association, and immediately thereafter, the shareholders contribute all of the distributed assets and liabilities to a newly formed partnership. Section 301.7701-3(g)(1)(iii) provides that an elective conversion of an association to an entity that is disregarded as an entity separate from its owner is deemed to have the following form: the association distributes all of its assets and liabilities to its single owner in liquidation of the association.
Section 332 may be relevant to the deemed liquidation of an association if it has a corporate owner. Under section 332, no gain or loss is recognized on the receipt by a corporation of property distributed in complete liquidation of another corporation if the requirements of section 332(b) are satisfied. Those requirements include the adoption of a plan of liquidation at a time when the corporation receiving the distribution owns stock of the liquidating corporation meeting the requirements of section 1504(a)(2) (i.e., 80 percent of vote and value). The elective change from an association to a partnership or to a disregarded entity results in a constructive liquidation of the association for federal tax purposes. Formally adopting a plan of liquidation for the entity, however, is potentially incompatible with an elective change under section 301.7701-3, which allows the local law entity to remain in existence while liquidating only for federal tax purposes. Accordingly, to provide tax treatment of an association's deemed liquidation that is compatible with the requirements of section 332, the regulations state that, for purposes of satisfying the requirement of adoption of a plan of liquidation under section 332(b), a plan of liquidation is deemed adopted immediately before the deemed liquidation incident to an elective change in entity classification, unless a formal plan of liquidation that contemplates the filing of the elective change in entity classification is adopted on an earlier date.
These regulations apply to elections filed on or after December 17, 2001; however, taxpayers may apply the amendments retroactively if the corporate owner claiming treatment under section 332 and its subsidiary making the election take consistent positions with respect to the Federal tax consequences of the election.
It has been determined that these regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 533(b) of the Administrative Procedures Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal authors of these regulations are Beverly M. Katz of the Office of Associate Chief Counsel (Passthroughs & Special Industries) and David J. Sotos of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and Recordkeeping requirements.
Accordingly, 26 CFR part 301 is amended as follows:
26 U.S.C. 7805 * * *
1. Redesignating the text of paragraph (g)(2) as paragraph (g)(2)(i) and adding a heading for newly designated paragraph (g)(2)(i).
2. Adding a new paragraph (g)(2)(ii).
3. Revising the first sentence of paragraph (g)(4).
The additions and revision read as follows:
(g) * * *
(2)
(ii)
(4)
Coast Guard, DOT.
Temporary final rule; request for comments.
The Coast Guard is establishing a temporary safety zone to
This regulation becomes effective at 2 p.m. on September 26, 2001 and terminates when the re-construction of the Queen Isabella Bridge is completed and certified by the Texas Department of Transportation to the satisfaction of the Captain of the Port or September 26, 2002 which ever is earlier. A document announcing the termination date will be published later in the
Any comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket COTP Corpus Christi 01-002 and are available for inspection or copying at U.S. Coast Guard Marine Safety Office Corpus Christi, 555 N. Carancahua Street, Suite 500, Corpus Christi, Texas, 78478 between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
LTJG C. J. Bright, Chief, Waterways Section, Coast Guard Captain of the Port Corpus Christi, 555 N. Carancahua St. Suite 500, Corpus Christi, Texas, 78478, (361) 888-3162
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. Publishing a NPRM and delaying its effective date would be contrary to public interest since immediate action is needed to respond to the potential safety hazards associated with emergency bridge repairs.
Under 5.U.S.C 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Although the Coast Guard has good cause in implementing this regulation, we want to afford the maritime community the opportunity to participate in this rulemaking by submitting comments and related material regarding the size and boundaries of the safety zone in order to minimize unnecessary burdens. If you do so, please include your name and address, identify the docket number for this rulemaking, COTP Corpus Christi 01-002, indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
At approximately 2:15 a.m., on September 15, 2001, the Uninspected Towing Vessel BROWN WATER V allided with the Queen Isabella Bridge in position 26°05.1′ N, 097°12.8′ W, Intracoastal Waterway Mile Marker 665 near Port Isabel, Texas. The resulting damage caused the Queen Isabella Bridge to collapse in the Intracoastal Waterway blocking the channel and severely impacting the ability to safely navigate the area encompassed by the Captain of the Port Corpus Christi Zone. As a result of the bridge collapse, the power for the lighting of the bridge and the bridge fendering system was also rendered inoperable. The re-construction of the bridge will take approximately six months to complete and will involve various construction vessels and equipment. The Texas Department of Transportation has certified to the satisfaction of the Captain of the Port that the bridge is safe for vessels to transit the Intracoastal Waterway during the re-construction. Vessels transiting the Intracoastal Waterway shall do so during daylight hours only, at a minimum and safe speed, and maintain a distance of at least 1,000 feet around construction vessels and machinery. The daylight transits restriction may be lifted when lighting for the bridge and fendering system is operational to the satisfaction of the Captain of the Port. This information will be made available by Marine Information Broadcast when the Captain of the Port removes the daylight transit restriction. A 1000 foot radius around the construction area is necessary to ensure the safety of vessels transiting the area during the re-construction, prevent any further damage to the bridge, and allow the re-construction vessels and machinery to operate safety. The 1000 foot radius will remain in effect during all hours and until the re-construction is completed. The Coast Guard is establishing a temporary safety zone in a 1000 foot radius around the re-construction of the Queen Isabella Bridge and limiting vessel transit of the Intracoastal Waterway (Mile Marker 665) through the bridge to daylight hours only, until it can be determined that the waters are safe for navigation.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. This regulation will only be in effect for a short period of time and notification to the marine community will be made through broadcast notice to mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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. The impact on small entities is expected to be minimal due to the short period of this regulation. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit the Intracoastal Waterway and the area surrounding the Queen Isabella Bridge while the safety zone is established. This safety zone will not have a significant economic impact on a
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This 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 concern 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.
We have 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. A “Categorical Exclusion Determination” is available 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)
(1) In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited except as authorized by the Captain of the Port Corpus Christi.
(2) The safety zone is in effect during all hours of the day. Vessels transiting the Intracoastal Waterway (Mile Marker 665.0) under the bridge shall proceed at minimum speed to maintain steerageway and during daylight hours only.
(3) No vessels may enter this safety zone unless specifically authorized by the Captain of the Port Corpus Christi. The Captain of the Port will notify the public of changes in the status of this zone by Marine Radio Safety Broadcast on VHF Marine Band Radio, Channel 22 (157.1 MHz).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Announcement of standard prices and fee percentage for North Pacific halibut and sablefish Individual Fishing Quota (IFQ) cost recovery program.
The National Marine Fisheries Service publishes IFQ standard prices and notification of adjustment of the IFQ fee percentage for the IFQ Cost Recovery Program in the halibut and sablefish fisheries of the North Pacific. This action is intended to provide holders of halibut and sablefish IFQs with information to calculate the payments required for IFQ cost recovery fees due by January 31, 2002.
Effective December 17, 2001.
Kristie Balovich, Fee Coordinator, 907-586-7344.
NMFS, Alaska Region, administers the halibut and sablefish IFQ programs in the North Pacific. The IFQ Programs are limited access systems authorized by section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982. Fishing under the IFQ Programs began in March 1995. Regulations implementing the IFQ Program are set forth at 50 CFR part 679.
In 1996, the Magnuson-Stevens Act was amended (by Pub. L. 104-297) to, among other things, require the Secretary of Commerce to “collect a fee to recover the actual costs directly related to the management and enforcement of any . . . individual fishing quota program” (Section 304(d)(2)(A)). Section 304(d)(2)(B) of the Magnuson-Stevens Act specifies an upper limit on these fees, when the fees must be collected, and where the fees must be deposited. Section 303(d)(4) of the Magnuson-Stevens Act allows NMFS to reserve up to 25 percent of the fees collected for use in an IFQ loan program to aid in financing the purchase of IFQ or quota share (QS) by entry-level and small-vessel fishermen.
NMFS published, on December 27, 1999 (64 FR 72302), a proposed rule to implement the IFQ Cost Recovery Program and published the final rule on March 20, 2000 (65 FR 14919). The final regulations implementing the IFQ Cost Recovery Program are set forth at 50 CFR 679.45.
Under the regulations, an IFQ permit holder incurs a cost recovery fee liability for every pound of IFQ halibut and IFQ sablefish that is landed on his or her IFQ permit(s). The IFQ permit holder is responsible for self-collecting the fee liability for all IFQ halibut and IFQ sablefish landings on his or her permit(s). The IFQ permit holder is also responsible for submitting a fee liability payment to NMFS on or before the due date of January 31 following the year in which the IFQ landings were made. The dollar amount of the fee due is determined by multiplying the annual IFQ fee percentage (3 percent or less) by the ex-vessel value of each IFQ landing made on a permit and summing the totals of each permit (if more than one).
Three percent of the ex-vessel value of IFQ halibut and IFQ sablefish harvested is the maximum fee amount allowed by section 304(d)(2)(B) of the Magnuson-Stevens Act. Regulations at § 679.45(d) allow the Administrator, Alaska Region, NMFS (Regional Administrator) to reduce the fee percentage if actual management and enforcement costs could be recovered through a lesser percentage. In this event the Regional Administrator will publish a notification of any adjustment of the IFQ fee percentage in the
For 2001, the Regional Administrator has determined that a fee of 2.0 percent (0.020) is necessary to recover the actual management and enforcement costs. Therefore, the Regional Administrator is adjusting the cost recovery fee applicable to year 2001 IFQ landings from 3 percent (0.03) to 2.0 percent (0.020).
The fee liability is based on the sum of all payments of monetary worth made to fishermen for the sale of the fish. This includes any retro-payments (e.g., bonuses, delayed partial payments, post-season payments) made to the IFQ permit holder for previously landed IFQ halibut or sablefish.
For purposes of calculating IFQ cost recovery fees, NMFS distinguishes between two types of ex-vessel value: “Actual ex-vessel value” and “standard ex-vessel value.” “Actual ex-vessel value” is the amount of money an IFQ permit holder received as payment for his or her IFQ fish sold. “Standard ex-vessel value” is the default value on which to base fee liability calculations. However, IFQ permit holders have the option of using “actual ex-vessel value” if they can satisfactorily document those values.
Regulations at § 679.45(c)(2)(i) require the Regional Administrator to publish IFQ standard prices during the last quarter of each calendar year. These standard prices are used, along with estimates of IFQ halibut and sablefish landings, to calculate standard values. The standard prices are described in U.S. dollars per IFQ equivalent pound, for IFQ halibut and IFQ sablefish landings made during the year. IFQ equivalent pound(s) means the weight amount, recorded in pounds, for an IFQ landing and calculated as round weight for sablefish and headed and gutted (“net”) weight for halibut. NMFS calculates the standard prices to reflect, as closely as possible, by month and port or port-group, the variations in the actual ex-vessel values of IFQ halibut and IFQ sablefish landings. The standard prices for IFQ halibut and IFQ sablefish are listed in the following table. Data from ports are combined as necessary to protect confidentiality of data submissions.
Agricultural Marketing Service, USDA.
Proposed rule with request for comments.
This proposed rule invites comments on procedures for a California Prune/Plum Diversion Program. The program is voluntary and would consist wholly of tree removal. The program would be implemented under clause (3) of Section 32 of the Act of August 24, 1935, as amended. The proposed program would help the California dried plum industry address its severe oversupply problems. The tree removal is expected to bring supplies into closer balance with market needs, and provide some relief to growers faced with excess supplies and acreage, and low prices.
Comments received by January 16, 2002, will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this action. Comments must be sent to the Docket Clerk, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, Room 2525—South Building, Washington, D.C. 20090-6456; Fax: (202) 720-8938; or E-mail:
Anne M. Dec, Marketing Order Administration Branch, at the above address; Telephone: 202-720-2491; Fax: 202-720-8938; or E-mail:
Small businesses may request information on the diversion program by contacting Jay Guerber at the above address, telephone, fax, or E-mail:
This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and therefore has been reviewed by the Office of Management and Budget (OMB). In accordance with Executive Order 12866, the Department of Agriculture (USDA) has prepared a regulatory cost-benefit assessment and a civil rights impact analysis. These documents can be obtained by contacting the person listed in the
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State and local governments and the private sector. Under section 202 of the UMRA, the Agricultural Marketing Service (AMS) generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State and local governments, in the aggregate, or by the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the AMS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State and local governments or the private sector of $100 million or more in any one year. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. The rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions, or which would otherwise impede its full implementation. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the reporting and recordkeeping provisions that would be generated by this proposed rule will be submitted to the Office of Management and Budget (OMB).
Two forms are needed for the administration of the tree removal program. Growers who wish to participate in the program would have to submit an “Application for Prune Tree Removal Program.” We estimate that 200 growers may submit an application, and that each form would take about 30 minutes to complete, for a total burden of 100 hours. After removing their trees, growers will then have to sign a statement stating they wish payment. No additional burden has been estimated for this second form which would require only a signature. Finally, participants will be required to retain records pertaining to the tree removal program for two years after the year of removal.
This program is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V published at 48 FR 29115 (June 24, 1983).
It has been determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various levels of government.
The proposed program is intended to reestablish prune/plum farmers' purchasing power. Programs to reestablish farmers' purchasing power are authorized by clause (3) of Section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612c)(“Section 32”). This clause of Section 32 authorizes USDA to “* * * reestablish farmers” purchasing power by making payments in connection with the normal production of any agricultural commodity for domestic consumption.” Section 32 also authorizes USDA to use Section 32 funds “* * * at such times, and in such manner, and in such amounts, as USDA finds will effectuate substantial accomplishments of any one or more of the purposes of this section.” Furthermore, “Determinations by USDA as to what constitutes * * * normal production for domestic consumption shall be final.”
Production of prune/plums for marketing as dried plums is concentrated in California. Production of dried plums during the 2000 season increased for the second consecutive year, to nearly 219,000 tons (natural condition).
Changes in growing conditions have substantially altered the production outlook for 2001. Production was originally estimated to be 220,000 tons. However, due to a lighter crop-set in major producing areas, as well as freezing temperatures and hail, production for the 2001 crop year is now estimated at about 155,000 tons. This smaller crop somewhat alleviates the oversupply situation, but does not represent a change in the longer-term oversupply situation.
When the crop was estimated at 220,000 tons in the spring of 2001, the industry discussed the use of volume control authorized under the Federal marketing order. In addition, carryin inventories from the 2000 crop year were reported at 100,829 tons. With this level of inventories and crop, the total available supply would have been 320,829 tons.
With this estimated crop size, establishing a 48 percent reserve (52 percent free tonnage) was discussed. The industry does not have a history of establishing reserve percentages, and reserve percentages were last used in the 1970's. The fact that the marketing order committee even considered use of the reserve provision indicates the gravity with which the industry views the oversupply problem. The use of marketing order reserve provisions is intended to help industries deal with surplus production and facilitate orderly marketing of their crops.
The Prune Bargaining Association (PBA) represents about 40 percent of the independent growers and negotiates a selling price for its members. With the large anticipated crop for the 2001 season and the large carryin inventory, the PBA had difficulty establishing a price with handlers. Even with the smaller crop of 155,000 tons, the PBA could only negotiate a price of $763 per ton. This compares to $845 for the 2000 season, or a decrease of 9.7 percent. Although the price has been set, not all handlers have signed the agreement. Even this lower price may be too high in the eyes of the non-signing handlers, given current supply conditions.
The smaller crop size for 2001 has provided the industry some relief in reducing total available supplies. However, there are still a large number of nonbearing acres (15,000) that will become productive over the next six years. In addition, there are many acres with older, less productive trees which could be replanted in the near future. A tree removal program would assist growers who are facing difficult replanting decisions by allowing them to receive funds for the removal of trees and, at the same time, prohibit those growers from replanting prune/plums in those orchards. Prune/plum growers also tend to be producers of almonds, walnuts, and cling peaches. Plantings of these crops could increase in future years as growers remove prune/plum acreage.
Bearing acreage expanded to a record 86,000 acres during the 2000 season and the average yield increased 19 percent. Yields are anticipated to increase further as more densely planted acres become productive over the next several years.
Nonbearing acreage, which is an indicator of future production levels, increased to an all-time high of 26,000 acres in 1998. This represented a 22-percent increase in the productive capacity of the industry. The non-bearing acres are more densely planted than in previous years which results in a higher yield per acre.
The dried plum industry faces a long-run surplus situation. For the 2000 crop year, bearing acres were 86,000 and non-bearing acres were 15,000. Bearing acres could exceed 100,000 in the near future. With yields in excess of 2.0 tons per acre, production could be expected to be above 200,000 tons in many crop years.
Total domestic shipments exceeded 100,000 tons for six seasons in the late 1980's and early 1990's, but have declined from a high of 108,085 processed tons in 1996. Per capita consumption has been steadily declining since 1980. Export shipments have been stagnant. As a result of these domestic and export trends, total shipments have never exceeded 190,000 processed tons.
Until recently, export shipments were a source of growth in the dried plum industry. In 2000, exports represented 47 percent of total shipments. However, the strong dollar and the downturn in the economies in Asia and Europe have significantly slowed export sales.
Due to the significant supply-demand imbalance, the industry anticipates several years in which the expected annual carryin inventories will exceed the industry's desirable carryin level of approximately 40,000 tons. If dried plum markets continue to be over-supplied with product, grower prices and grower relations with packers will deteriorate significantly. Even with the lower production estimate for the 2001 crop year, the carryout inventory is expected to exceed 76,000 tons.
High prices from 1992 through 1995, and a more balanced supply and demand situation, helped to stimulate investments in new acreage. This additional acreage came from a variety of sources, mainly rice and pasture land. Intensifying the anticipated surplus situation is the fact that new acres are more productive than existing acres, which causes output to grow more rapidly in proportion to acreage growth.
It takes dried plum trees 6 years to become fully productive. Many of the costs of producing plum trees are “sunk,” making it difficult to reverse decisions once those acres are planted. Because supply is slow to adjust to changing market conditions, the industry anticipates many years of production outpacing demand, resulting in continued distressed grower conditions.
From 1980 through 2000, the total cost per ton of producing dried plums exceeded the growers' season-average prices. Similarly, the total cost per acre exceeded revenue per acre.
However, it is also important to consider variable cost. In recent years, the total revenue per ton and per acre has been greater than the total variable cost per ton and per acre. Prices and revenues greater than variable costs provide some indication of why a dried plum producer continues to harvest and process a crop despite losing money.
The industry is requesting a voluntary tree removal program estimated to cost $17 million. The industry would like to
To be eligible for the proposed tree removal program, orchards must have a minimum yield of 1.5 tons per acre. With a minimum threshold yield of 1.5 tons per acre, sufficient land would be enrolled in the tree removal program to reduce annual production by approximately 30,000 tons.
The industry has estimated that it will take $8 to $9 per tree to induce growers to participate in such a program. It is believed that financial institutions that provide growers operating funds would not allow them to participate if the payment per tree is below this level.
This type of one-time decrease in production would more closely align supply with demand, while assuring an adequate supply. This would allow the industry to concentrate their efforts on rebuilding demand for future years.
The industry has already undertaken an initial smaller-scale tree removal program. However, to finance this grower-initiated tree pull program, grower assessments for promotion were reduced from $50 per ton to $30 per ton. Less money is available for promotion, but growers felt that this re-direction of funds was necessary to help redress the oversupply situation.
The tree removal program would be administered through the Agricultural Marketing Service (AMS) and the Prune Marketing Committee (Committee). The Committee is an administrative agency appointed by AMS to locally administer the terms of Federal Marketing Order No. 993.
Any prune/plum producer wishing to participate in the program would file an application with the Committee. The application period would begin 15 days after publication of the program announcement and last for 30 days.
Each applicant would provide information needed by the Committee to operate the program. This would include, for example, the number of trees the applicant wished to remove and their location. The applicant would have to certify that he/she has not contracted to sell the land or otherwise already arranged to have the trees removed. The Committee would review each application for completeness, and would make reasonable efforts to contact growers to obtain any missing information.
In order to be eligible to participate in the program, the orchards or blocks of trees being removed from production would have to have a minimum yield of 1.5 tons per net planted acre during both the 1999 and 2000 crop years. A net planted acre is the actual acreage planted with prune/plum trees. This would mean that abandoned orchards would not be eligible for participation. The Department considered establishing the minimum qualifying yield at 2.2 tons per acre, but determined that at that level, too many orchards would be ineligible for the program.
USDA has allocated $17 million for this program, including administrative costs. Applications would be approved until the level of available funding was reached. Each participating grower would have to then remove trees from production by June 30, 2002. Growers would be paid $8.50 for each eligible tree removed. This level of payment is deemed necessary for a significant number of growers to participate in the tree-removal program. It would cover most of the costs of removing the trees (bulldozing, cutting, etc.), and preparing the land for other uses. The costs vary depending on the number of acres removed. Some cost savings may accrue with larger acreage removals.
Estimated costs for removing, piling, chipping, or other disposal methods range from $142-$225 per acre or from $1.29-$2.05 per tree. Costs for removing the roots and other debris are expected to range from $163-$289 per acre or from $1.48-$2.63 per tree. Leveling of the ground is expected to cost $161-$401 per acre or $1.46-$3.65 per tree. Fumigation of the tree holes is expected to cost $550 per acre or $5.00 per tree. This would amount to $9.23-$13.33 for each tree removed. The $8.50 payment proposed under the program is expected to offset most of the grower's costs.
Each grower participating in the program would have to agree not to replant prune/plum trees on land cleared under this program through June 30, 2004. Because it takes new acres at least six years to be productive, acreage participating in the tree-removal program would not return to commercial prune/plum production for at least eight years and possibly nine years because plantings occur in January and February. Alternative crops could be planted. Additionally, the current economic conditions in the industry, specifically weak demand, reduced per capita consumption, stagnant domestic shipments and exports, and declining grower prices and revenues, would appear to limit the incentives for replanting acreage to prune/plum trees.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to actions in order that small businesses will not be unduly or disproportionately burdened.
There are approximately 1,250 producers of dried plums in California. Small agricultural producers have been defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000. An estimated 32 producers, or less than 13 percent of the 1,250 total producers, would be considered large producers with annual incomes over $750,000.
This proposed rule would establish a tree removal program diversion program for California dried prune/plums. Authority for the program is provided in clause (3) of Section 32 of the act of August 24, 1935, as amended.
Participation in the diversion program is strictly voluntary, so individual producers, both small and large, can weigh the benefits and costs for their own operations before deciding whether to participate in the program.
To assess the impact a tree removal program would have on prices growers receive for their product, impacts on grower prices and inventories with a tree removal program and without a tree removal program were estimated. An econometric model was estimated for the purpose of estimating nominal season average grower prices under both scenarios.
A tree removal program will directly reduce the number of bearing acres, but there will not be an impact until the 2002 crop year since harvesting of the 2001 crop is completed.
In 2000, there were still 15,000 non-bearing acres. The industry has indicated that no additional plantings of prune/plum trees for acreage expansion are occurring at this time. Therefore, after the 15,000 non-bearing acres come into production, the productive capacity of the industry is assumed to stay constant.
The tree removal analysis assumes that 20,000 acres are removed through the tree removal program, while 3,000 of the non-bearing acres become productive in 2002. This results in
Production for the 2001 crop year is currently estimated by the Department's National Agricultural Statistics Service (NASS) at 155,000 natural condition tons. Marketable production is generally 93 percent of total production, yielding an estimated 144,500 marketable tons for 2001. Carryin inventory for the 2001 crop year was computed by the marketing order committee at 100,829 tons as of June 30, 2001. These figures are used to derive an estimated total available supply of 244,979 tons for 2001. This level of supply accounts for the fact that a number of voluntary measures have been taken by the industry to reduce the level of production for the 2001 crop year, including crop abandonment and cutbacks on cultural practices.
Shipments are estimated to grow by 1 percent annually, which results in estimated total shipments of 165,932 tons for 2001. The one percent growth in shipments reflects decreased government surplus purchases and possible retail price effects.
For 2002, total shipments are estimated at 165,932 tons and the carryin inventory is estimated at 79,047 tons. With the tree removal diversion program reducing bearing acres to 69,000 for the 2002 crop year, total available supply is estimated at 256,900 tons. It should be noted that through 2001, carryin inventory does not exactly match the prior year's difference between total available supply and total shipments. This is due to shrinkage and other minor adjustments computed by the Federal marketing order committee. However, for this analysis, the estimated carryin from 2002 to 2007 is estimated to be the exact difference between estimated total supply and estimated shipments from the prior year.
The analysis also assumes that yields will fluctuate up and down, in keeping with the known “alternate bearing” tendency of prune/plum trees. Estimated production, computed by multiplying acreage times yield, fluctuates accordingly.
As carryin inventories are reduced, the total available supply moderates for crop years 2003 through 2007, relative to the situation without a tree removal program. This results in season average grower prices ranging from $845 to $1,084 during that same time span. It should be noted that the margin of error for these estimates becomes very large for future crop years.
Even though season-average grower prices per ton rise under the tree removal program, all product produced is not necessarily of marketable quantity. Costs are incurred on all the production, but revenue is received only on product actually marketed. Thus, the economic effect of the tree removal program on a per acre basis is to dramatically reduce losses and bring producer returns closer to a break-even level. With losses still being incurred by producers, there should be only a limited incentive to further expand production as a result of the tree removal program. It will remain for growers to control costs and to expand demand to ensure their longer-term economic stability.
Grower prices are a small component of the finished dried plum product and are not closely associated with movements in retail prices. However, the increases in grower prices estimated for crop years 2003 through 2007 may have an impact on retail prices. The extent of any retail price increases would depend on processor and retailer margins and the pricing and availability of substitute products, such as raisins or other dried fruits. It should be noted that dried plum prices are estimated to increase with or without a tree removal program, but the magnitude of the grower price increase is greater with the program.
Without a tree removal program, bearing acres are estimated to increase to 89,000 by the 2002 crop year. Production would be in excess of 200,000 tons, resulting in carryout inventories in excess of 100,000 tons in 2003. In addition, under this scenario, 2002 grower prices are estimated at $789 per ton. With high inventories and low grower prices, market forces are assumed to induce growers to remove less productive acres and the number of bearing acres is estimated to decline from 89,000 in 2002 to 84,000 in 2007. Even with the decline in bearing acres, production and inventories remain excessive from 2002 through 2007. However, in 2007, carryout inventories fall to an estimated 6,592 tons.
Under both scenarios, grower prices increase and inventories become more manageable. The difference is that, under a tree removal program, adjustments to inventories and prices occur more rapidly. This would accelerate benefits to growers, who would otherwise be struggling to break even in a depressed market, until market forces brought about a slow correction.
In addition to the direct impact on growers' prices and revenues that a tree removal program would have, there are also indirect impacts. A tree removal program assists in decreasing burdensome (undesirable) carryout inventories. Without a tree removal program, large quantities of dried plums held in packers' inventories prevent grower pools from being closed, which delays grower payments. Large amounts of undesirable inventory lead to strained grower-packer relations. In an attempt to sell the excessive inventories, packers reduce f.o.b. prices, which in turn leads to market share battles and lower prices being passed back to producers. A more balanced supply and demand situation allows growers and packers to jointly continue developing markets in ways that benefit the entire industry.
The California dried plum industry has undertaken an initiative to reduce acreage and production. The industry implemented a pre-harvest tree removal program during the 2001 crop year. The industry collected about $3 million to support this effort by reducing assessments under their California State marketing order from $50 to $30 a ton. The $20 per ton reduced assessment was used to support the industry tree removal program.
The program was successful in removing about 3,500 acres. The effects of this industry self-help diversion are included in the analysis of the Federal program.
The industry also has taken measures to stimulate demand, including: (1) The development of new products and new uses for dried plums; (2) marketing efforts to attract younger customers; and (3) domestic and export market promotion programs under the California State marketing order and the Foreign Agricultural Service's Marketing Assistance Program (MAP). One of the most recent initiatives involved securing approval from the Food and Drug Administration to change the name “dried prunes” to “dried plums.” This has allowed the industry to redirect its generic marketing efforts to attract a new generation of consumers.
The economic assessment of the tree removal program indicates that it is expected to benefit producers, particularly small, under-capitalized producers, as well as the entire dried plum industry, including packers. The per ton sales price is projected to increase from 2002-2007, reducing losses and moving producer returns closer to break-even levels. The benefit to producers from reduced losses is projected to total approximately $128
The major cost of the program would be the payment to producers for removing their prune/plum trees. A total of $17 million, less Committee administrative costs, is available for the tree removal program. Committee administrative costs for reviewing applications and verifying tree removals are expected to be about $125,000. Major expense categories for administration include costs for salaries and benefits; vehicle rental and maintenance; insurance and overhead, and supplies.
Total producer costs associated with filing applications to participate in the program and maintaining records for the period specified after tree removal are expected to be about $1,000.
Payments made through this program could help prune/plum producers by addressing the oversupply problem that is adversely affecting the dried plum industry. A tree removal program is expected to allow supply to be adjusted downward more quickly. Market forces will also result in supplies being reduced, but this adjustment may occur more slowly, likely resulting in a number of farm failures. The tree-removal program may be beneficial in reducing the risk of loan default for lenders that financed prune/plum growers. This program will likely help small, under-capitalized producers to stay in business. These producers are often efficient, but do not have adequate resources to continue to operate given the current depressed conditions within their industry.
Reducing the level of unprofitability also should provide opportunities for the industry to engage in additional demand-enhancing activities, especially directed at the domestic market. Even a moderate increase in domestic per capita consumption will have a significant, positive impact on grower returns.
Costs for the program would include the $17 million to be paid growers and to the Committee for administration costs under the Federal tree removal diversion program. Additionally, growers would incur costs totaling $1,000 to comply with the filing and record-keeping requirements of the program.
Benefits to growers under the tree removal program could total approximately $93 million. The first step in this calculation is to multiply marketable production for each of the six years (2002-2007) times the difference between grower price and variable cost, and to sum those figures. This is done for each of the two scenarios (with and without a tree pull program). The $93 million difference between those figures represents a conservative (low-end) estimate of program benefits resulting from reduced grower losses. This cost calculation assumes that the acreage on which trees are removed remain idle, and that growers must therefore absorb all fixed costs on that acreage. To the extent that the land is put to other productive uses, growers would not be absorbing all fixed costs of producing prune/plums, and grower benefits would be higher.
If growers are earning more, it follows that processors and/or retailers beyond the farmgate would pay higher raw product costs to obtain the prune/plums from the growers. These higher costs could be passed on to consumers through higher retail prices or could be absorbed as reduced operating margins for other affected sectors of the economy—processors, wholesalers, or retailers. An estimate of these costs is obtained by multiplying the estimated grower price changes over each of the six years (2002-2007) times annual shipments (an average of the prune/plum shipments with the tree pull program and without the tree pull program). That figure, summed over the six years, is approximately $68 million. However, this $68 million cost is likely overstated due to the fact that grower prices are currently less than the cost of production. Adjustments in retail prices, and retailer and processor margins, are anticipated to change with or without a tree removal program.
Another cost of the tree removal program is the reduced economic activity due to the growers purchasing fewer inputs (labor, chemicals, etc.) from the reduction in prune/plum acres managed and harvested. Input producers (laborers and agricultural chemical firms) would see less revenue because of lowered purchases of these inputs. To the extent that acreage removed is replanted in other crops, those costs could be somewhat offset by purchases of inputs to produce the alternative crops. This cost of the tree removal program is difficult to quantify and is not included in this analysis.
Savings over the same period of up to $60 million could be realized through reduced surplus removal purchases of dried plum products for Federal feeding programs. These government savings would be used to purchase other commodities for use in school and other food assistance programs.
Historically, the dried plum industry has not relied heavily on the Federal surplus removal program. Since the 1991 season, the industry has requested and received surplus removal purchases in only 4 of the past 11 seasons. Should the tree removal program be implemented and supplies be reduced as expected, it would be unlikely that the dried plum industry would seek government assistance in the form of surplus removal purchases for several years to come.
Based on this information, USDA has determined that there is a surplus of dried plums, and that reestablishment of producers' purchasing power would be encouraged by using Section 32 funds to reduce supplies under a Diversion Program for Dried Plums/Prunes consisting wholly of a tree-removal program. USDA has further determined that this program would be a long-term solution to the oversupply situation that exists in the California dried plum industry, and that it would provide relief to growers.
Administrative practice and procedures, Agriculture, Prunes, Reporting and recordkeeping requirements, Surplus agricultural commodities.
For the reasons set forth in the preamble, it is proposed that Title 7, Subtitle B, Chapter 1 be amended as follows:
1. The authority citation for 7 CFR part 81 reads as follows:
7 U.S.C. 612c.
1. In Subtitle B, Chapter 1, Part 81 is added to read as follows:
7 U.S.C. 612c.
Pursuant to the authority conferred by section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612c)(Section 32), the Secretary of Agriculture will make payment to California producers who divert prune/plums by removing trees on which the fruit is produced in accordance with the terms and conditions set forth in this part.
The program will be administered under the general direction and supervision of the Deputy Administrator, Fruit and Vegetable Programs, Agricultural Marketing Service (AMS), United States Department of Agriculture (USDA), and will be implemented by the Prune Marketing Committee (Committee). The Committee, or its authorized representatives, does not have authority to modify or waive any of the provisions of this part.
(a)
(b)
(c)
(d)
(e)
This program is implemented January 2, 2002, through June 30, 2004. Producers diverting prune/plums by removing prune-plum trees must complete the diversion no later than June 30, 2002.
(a) To be eligible for this program, during one of the last two seasons, the trees to be removed must have yielded at least 1.5 tons per net planted acre during the 1999 or 2000 crop year. A net planted acre is the actual acreage planted with prune-plum trees. Abandoned orchards and dead trees will not qualify. In new orchards diverted, qualifying trees must be at least 5 years of age (6th leaf), contain at least two scaffolds, and be capable of producing at least 1.5 tons per net planted acre. The block of trees for removal must be easily definable by separations from other blocks and contain at least 1,000 eligible trees or comprise an entire orchard.
(b) Any grower participating in this program must agree not to replant prune-plum trees on the land cleared under this program through June 30, 2004. Participants bear responsibility for ensuring that trees are not replanted, whether by themselves, or by successors to the land, or by others, until after June 30, 2004. If trees are replanted before June 30, 2004, by any persons, participants must refund any USDA payment, with interest, made in connection with this tree removal program.
(a) The rate of payment for each eligible prune-plum tree removed will be $8.50 per tree.
(b) Payment under paragraph (a) of this section will be made after tree removal has been verified by the staff of the Committee.
(c) The $8.50 per tree payment is intended to cover the costs of tree removal. USDA will make no other payment with respect to such removals. The producer will be responsible for arranging, requesting, and paying for the tree removal in the specified orchard blocks or orchard(s), as the case may be.
(a) If applications for payment do not exceed $17,000,000, less administration costs, payments will be made under this program to any producer of prune/plums who complies with the requirements in § 81.8 and all other terms and conditions in this part.
(b) If applications for participation in the program authorized by this part exceed $17,000,000, less administration costs, the Committee will approve the applications (subject to the requirements in § 81.8) in the order in which the completed applications are received in the Committee office. Applications received after total outlays exceed the amount of money available will be denied.
(a) Applications will be reviewed for program compliance and approved or disapproved by Committee office personnel.
(b) Applications for participation in the Prune-Plum Diversion Program can be obtained from the Committee office at 3841 North Freeway Boulevard, Suite 120, Sacramento, California 95834; telephone (916) 565-6235.
(c) Any producer desiring to participate in the prune-plum diversion program must file an application with the Committee prior to January 31, 2002. The application shall be accompanied by a copy of any two of the following four documents: Plat Map from the County Hall of Records; Irrigation Tax Bill; County Property Tax Bill; or any other documents containing an Assessor's Parcel Number. Such application shall include at least the following information:
(1) The name, address, telephone number and tax identification number/social security number of the producer;
(2) The location and size of the production unit to be diverted;
(3) The prune/plum production from the orchard or portion of the orchard to be diverted during the 1999-2000 and 2000-2001 seasons;
(4) A statement that all persons with an equity interest in the prune/plums in the production unit to be diverted consent to the filing of the application. That is, the applicant has clear title to the property in question, or agreement to participate in the tree removal program from lien or mortgage holders, and/or land owners, lessors, or similar parties;
(5) A statement that the applicant agrees to comply with all of the regulations established for the prune/plum diversion program;
(6) The producer applicant shall sign the application certifying that the information contained in the application is true and correct;
(7) The year that the unit of prune/plums was planted;
(8) The handlers who received the prune/plums from the producer in the last two years.
(d) After the Committee receives the producer applications, it shall review them to determine whether all the required information has been provided and that the information appears reliable.
(e) If the number of trees to be removed in such applications,
(f) After the application reviews and confirmation of eligible trees are completed, the Committee shall notify the applicant, in writing, as to whether or not the application has been approved and the number of trees approved for payment after removal. If an application is not approved, the notification shall specify the reason(s) for disapproval.
When the removal of the prune-plum trees is complete, the producer(s) will notify the Committee on a form provided by the Committee. The Committee will certify that the trees approved for removal from the block or orchard, as the case may be, have been removed, and notify AMS.
(a) To obtain payment for the trees removed, the producer must submit to the Committee by June 30, 2002, a completed form provided by the Committee. Such form shall include the Committee's certification that the qualifying trees from the blocks or orchards have been removed. AMS will then issue a check to the producer in the amount of $8.50 per eligible tree removed.
If USDA or the Committee determines that any provision of this part have not been complied with by the producer, the producer will not be entitled to diversion payments in connection with tree removal. If a producer does not comply with the terms of this part, including the requirement specified in § 80.5(b), the producer must refund any USDA payment made in connection with such tree removal, and will also be liable to USDA for any other damages incurred as a result of such failure. The Committee or USDA may deny any producer the right to participate in this program or the right to receive payments in connection with any diversion previously made under this program, or both, if the Committee or USDA determines that:
(a) The producer has failed to properly remove the prune/plum trees from the applicable block or the whole orchard regardless of whether such failure was caused directly by the producer or by any other person or persons;
(b) The producer has not acted in good faith in connection with any activity under this program; or
(c) The producer has failed to discharge fully any obligation assumed by him or her under this program.
The producer must permit authorized representatives of USDA or the Committee, at any reasonable time, to have access to their premises to inspect and examine the orchard block where trees were removed and records pertaining to the orchard to determine compliance with the provisions of this part.
(a) The producers participating in this program must keep accurate records and accounts showing the details relative to the prune/plum tree removal, including the contract entered into with the firm removing the trees, as well as the invoices.
(b) The producers must permit authorized representatives of USDA, the Committee, and the General Accounting Office at any reasonable time to inspect, examine, and make copies of such records and accounts to determine compliance with provisions of this part. Such records and accounts must be retained for two years after the date of payment to the producer under the program, or for two years after the date of any audit of records by USDA, whichever is later.
(a) Any payment or portion thereof due any person under this part shall be allowed without regard to questions of title under State law, and without regard to any claim or lien against the crop proceeds thereof in favor of the producer or any other creditors except agencies of the U.S. Government.
(b) Payments which are earned by a producer under this program may be assigned in the same manner as allowed under the provisions of 7 CFR part 1404.
(c) Prompt payment interest will not be applicable.
Any producer who is dissatisfied with a determination made pursuant to this part may make a request for reconsideration or appeal of such determination.
(a) In the event there is a failure to comply with any term, requirement, or condition for payment arising under the application of this part, and if any refund of a payment to AMS shall otherwise become due in connection with the application of this part, all payments made under this part to any producer shall be refunded to AMS together with interest.
(b) All producers signing an application for payment as having an interest in such payment shall be jointly and severally liable for any refund, including related charges, that is determined to be due for any reason under the terms and conditions of the application of this part.
(c) Interest shall be applicable to refunds required of any producer under this part if AMS determines that payments or other assistance were provided to a producer who was not eligible for such assistance. Such interest shall be charged at the rate of interest that the United States Treasury charges the Commodity Credit Corporation (CCC) for funds, as of the date AMS made benefits available. Such interest shall accrue from the date of repayment or the date interest increases as determined in accordance with applicable regulations. AMS may waive the accrual of interest if AMS determines that the cause of the erroneous determination was not due to any action of the producer.
(d) Interest determined in accordance with paragraph (c) of this section may be waived on refunds required of the producer when there was no intentional noncompliance on the part of the producer, as determined by AMS.
(e) Late payment interest shall be assessed on all refunds in accordance with the provisions of, and subject to the rates prescribed for those claims which are addressed in 7 CFR part 792.
(f) Producers must refund to AMS any excess payments, as determined by AMS, with respect to such application.
(g) In the event that a benefit under this part was provided as the result of erroneous information provided by the producer, the benefit must be repaid with any applicable interest.
In the case of death, incompetency, disappearance, or dissolution of a prune/plum producer that is eligible to receive benefits in accordance with this part, such person or persons in the same manner as specified in 7 CFR part 707 for other payments and benefits may receive such benefits, as determined appropriate by AMS.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to adopt a new airworthiness directive (AD) that would apply to certain Cessna Aircraft Company (Cessna) P206, TP206, TU206, U206, 207, T207, 210, P210, and T210 series airplanes. This proposed AD would require you to visually inspect certain horizontal stabilizer attachment reinforcement brackets for the existence of seam welds and replace any reinforcement bracket found without seam welds. This proposed AD authorizes the pilot to check the logbooks to determine whether one of the affected horizontal stabilizer attachment reinforcement brackets is installed. This proposed AD is the result of a report that certain parts were manufactured without seam welds. The actions specified by this proposed AD are intended to detect and replace structurally deficient horizontal stabilizer attachment brackets. Continued use of such brackets could result in structural failure of the horizontal stabilizer with reduced or loss of control of the airplane.
The Federal Aviation Administration (FAA) must receive any comments on this proposed rule on or before February 11, 2002.
Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2001-CE-42-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
You may get service information that applies to this proposed AD from Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517-5800; facsimile: (316) 942-9006. You may also view this information at the Rules Docket at the address above.
Al Phillips, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone: (316) 946-4116; facsimile: (316) 946-4407.
The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption
The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule.
You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.
If you want FAA to acknowledge the receipt of your comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2001-CE-42-AD.” We will date stamp and mail the postcard back to you.
Cessna notified FAA of a defect in the manufacturing of the horizontal stabilizer attachment reinforcement brackets. Cessna manufactured reinforcement brackets without seam welds on certain Cessna Model 206H and T206H airplanes. AD 2001-09-06, Amendment 39-12211, (66 FR 21278, April 30. 2001), addresses these airplanes. The seam welds help provide the required structural integrity for the horizontal stabilizer attachment bracket.
Since the issuance of AD 2001-09-06, Cessna determined that certain Model P206, TP206, TU206, U206, 207, T207, 210, P210, and T210 series airplanes may have had horizontal stabilizer attachment reinforcement brackets (part number 1232624-1) without seam welds installed as replacement parts. Cessna shipped these brackets from February 27, 1998, through March 17, 2000.
This condition, if not corrected, could result in structural failure of the horizontal stabilizer with reduced or loss of control of the airplane.
Cessna has issued Service Bulletin SEB00-10, dated November 6, 2000.
The service bulletin includes procedures for:
After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that:
This proposed AD would require you to incorporate the actions in the previously-referenced service bulletin.
Cessna requires you to inspect and, if necessary, replace the horizontal stabilizer attachment reinforcement brackets, part number 1232624-1, within 20 hours time-in-service (TIS),
We do not have justification to require this action within 20 hours TIS. Compliance times such as this are utilized when we have identified an urgent safety of flight situation. We believe that 50 hours TIS will give the owners/operators of the affected airplanes enough time to have the proposed actions accomplished without compromising the safety of the airplanes.
We estimate that this proposed AD affects 144 airplanes in the U.S. registry.
We estimate the following costs to accomplish the proposed inspection:
We estimate the following costs to accomplish any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need such replacement:
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 proposed rule would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed 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) 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 has been placed 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, under 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. FAA amends § 39.13 by adding a new airworthiness directive (AD) to read as follows:
(a)
(b)
(c)
(d)
(e)
(1) Your alternative method of compliance provides an equivalent level of safety; and
(2) The Manager, Wichita Aircraft Certification Office (ACO), approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Wichita ACO.
This AD applies to each airplane identified in paragraph (a) of this AD, 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 (e) 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 you have not eliminated the unsafe condition, specific actions you propose to address it.
(f)
(g)
(h)
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to supersede Airworthiness Directive (AD) 77-15-06, which applies to all SOCATA—Groupe Aerospatiale (Socata) Models MS 892A-150, MS 892E-150, MS 893A, MS 893E, Rallye 150T, and Rallye 150ST airplanes. AD 77-15-06 currently requires you to repetitively inspect the engine mount assembly for cracks, repair any cracks found, and modify the brackets on airplanes with right angle engine mounts. This proposed AD is the result of the French airworthiness authority's determination that updated service information and additional aircraft should be added to the applicability of AD 77-15-06. This proposed AD would retain the inspection and repair requirements of the current AD and would add the information communicated by the French airworthiness authority. The actions specified by this proposed AD are intended to detect and correct cracks in the engine mount assembly. Such a condition could cause the engine mount assembly to fail, which could result in loss of control of the airplane.
The Federal Aviation Administration (FAA) must receive any comments on this rule on or before January 11, 2002.
Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2001-CE-41-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
You may get service information that applies to this proposed AD from SOCATA Groupe Aerospatiale, Customer Support, Aerodrome Tarbes-Ossun-Lourdes, BP 930—F65009 Tarbes Cedex, France; telephone: 011 33 5 62 41 73 00; facsimile: 011 33 5 62 41 76 54; or the Product Support Manager, SOCATA—Groupe Aerospatiale, North Perry Airport, 7501 Pembroke Road, Pembroke Pines, Florida 33023; telephone: (954) 894-1160; facsimile: (954) 964-4191. You may also view this information at the Rules Docket at the address above.
Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; facsimile: (816) 329-4090.
Pursuant to this bilateral airworthiness agreement, DGAC has kept FAA informed of the situation described above.
We estimate the following costs to accomplish any necessary repairs that would be required based on the results of the proposed inspection(s). We have no way of determining the number of airplanes that may need such repair:
We estimate the following costs to accomplish any necessary replacements that would be required based on the results of the proposed inspection(s). We have no way of determining the number of airplanes that may need such replacement:
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 of the Federal Aviation Regulations as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. FAA amends Section 39.13 by removing Airworthiness Directive (AD) 77-15-06, Amendment 39-2975, and by adding a new AD to read as follows:
(a)
(b)
(c)
(d)
(e)
(1) You may use an alternative method of compliance or adjust the compliance time if:
(i) Your alternative method of compliance provides an equivalent level of safety; and
(ii) The Manager, Small Airplane Directorate, approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Small Airplane Directorate.
(2) Alternative methods of compliance approved in accordance with AD 77-15-06, which is superseded by this AD, are not approved as alternative methods of compliance with this AD.
This AD applies to each airplane identified in paragraph (a) of this AD, 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 (e) 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 you have not eliminated the unsafe condition, specific actions you propose to address it.
(f)
(g)
(h)
(i)
The subject of this AD is addressed in French AD 2001-400(A), dated September 19, 2001.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes superseding an existing airworthiness directive (AD) for MD Helicopters Inc. Model MD-900 helicopters. That AD currently requires inspecting the main rotor upper hub assembly drive plate attachment flange (flange), determining the torque of each flange nut (nut), and if a crack is found, before further flight, replacing the hub assembly. In addition to the current requirements, this action would require visually inspecting the outer surface of the flange at specified intervals and removing the drive plate and visually inspecting the flange for a crack at specified intervals and replacing any unairworthy hub assembly. This proposal is prompted by reports that cracks starting at the drive plate attachment holes were found in the main rotor hub. The actions specified by the proposed AD are intended to detect a crack in the flange and to prevent failure of the hub assembly, loss of drive to the main rotor, and subsequent loss of control of the helicopter.
Comments must be received on or before February 15, 2002.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 2001-SW-39-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. You may also send comments electronically to the Rules Docket at the following address:
Jon Mowery, Aviation Safety Engineer, FAA, Los Angeles Aircraft Certification Office, Airframe Branch, 3960 Paramount Blvd., Lakewood, California 90712, telephone (562) 627-5322, fax (562) 627-5210.
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 should 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, will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.
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 mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-39-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, Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 2001-SW-39-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.
On December 17, 1999, the FAA issued Emergency AD 99-26-20 to require certain inspections of the hub assembly for a crack, ensuring the correct torque of each nut, and replacing any cracked hub assembly with an airworthy hub assembly. That action was prompted by three occurrences of cracked hub assemblies. The FAA discovered errors after issuing Emergency AD 99-26-20 and corrected those errors by superseding that Emergency AD with AD 2001-07-09, Amendment 39-12175 (66 FR 19383, April 16, 2001). The requirements of that AD were intended to prevent failure of the hub assembly, loss of drive to the main rotor, and subsequent loss of control of the helicopter.
Since the issuance of that AD, the FAA has received reports indicating that additional cracks have been found in the main rotor hub emanating from the drive plate attachment holes.
This unsafe condition is likely to exist or develop on other MD Helicopters Inc. Model MD-900 helicopters of the same type design. Therefore, the proposed AD would supersede AD 2001-07-09 to contain the current requirements and to also require the following:
• Visually inspect the outer surface of the flange using a light and a 10x or higher magnifying glass at intervals not to exceed 100 hours TIS.
• Remove the drive plate and visually inspect the flange for a crack at intervals not to exceed 300 hours TIS.
• Replace any unairworthy hub assembly before further flight.
The FAA estimates 28 helicopters of U.S. registry would be affected by this proposed AD. It would take approximately 1 work hour per helicopter to verify the torque, 3 work hours per helicopter to perform the inspection, and 10 work hours per helicopter to replace the hub assembly,
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 removing Amendment 39-12175 (66 FR 19383, April 16, 2001), and by adding a new airworthiness directive (AD), to read as follows:
This AD applies to each helicopter 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 helicopters 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 (e) 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 failure of the hub assembly, loss of drive to the main rotor, and subsequent loss of control of the helicopter, accomplish the following:
(a) For the hub assembly, P/N 900R2101006-107,
(1) Within 6 hours time-in-service (TIS), visually inspect the main rotor upper hub assembly drive plate attach flange (flange) for a crack and determine the torque of each flange attach nut (nut) in accordance with the Accomplishment Instructions, Part I, paragraph 2.A., steps (1) through (7) of MD Helicopter Inc. Service Bulletin SB 900-072, dated December 10, 1999 (SB). If a crack is found, before further flight, remove and replace the hub assembly with an airworthy hub assembly.
(2) Within 25 hours TIS, accomplish Part II, of the Accomplishment Instructions, paragraph 2.B., steps (1) through (6), (8), and (9) of the SB. If a crack is found, before further flight, remove and replace the hub assembly with an airworthy hub assembly.
(b) For the hub assembly, P/N 900R2101006-105,
(1) Within 6 hours TIS, visually inspect the flange for a crack and determine the torque of each nut in accordance with the Accomplishment Instructions, Part I, paragraph 2.A., steps (1) through (7) of the SB.
The SB effectivity does not include hub assembly, P/N 900R2101006-105; however, certain provisions of this AD do apply to this P/N.
(2) If any nut has less than 180 inch pounds (20.34 Nm) of torque, before further flight, remove the drive plate and fretting buffer and inspect the flange in accordance with the procedures in paragraph (b)(3) of this AD. If a crack is detected, before further flight, remove and replace the hub assembly with an airworthy hub assembly. Reassemble in accordance with the procedures in paragraph (b)(3) of this AD.
(3) Within 25 hours TIS, remove the main rotor drive plate assembly and anti-fretting ring and visually inspect the main rotor hub assembly as follows:
(i) If present, remove sealant from the drive plate attachment to the hub assembly.
(ii) Mark the main rotor hub holes to correspond with the drive plate hole numbers (see Figure 1 of this AD).
(iii) Remove the main rotor drive plate (drive plate) assembly and anti-fretting ring (fretting buffer).
(iv) Inspect drive plate to rotor hub assembly mating surfaces and the fretting buffer for fretting.
(v) Using paint stripper (Consumable Item List C313 or equivalent) and cleaning solvent (C420 or equivalent), remove the paint from the upper mating surface of the hub assembly to enable an accurate visual inspection of each drive plate attachment bolt hole (bolt hole) area for cracking (Figure 1). Ensure the paint stripper and solvent DO NOT contaminate the upper bearing and upper grease seal areas.
(vi) Using a 10 × or higher magnifying glass and light, inspect the mating surface area and the area around and inside the 10 boltholes of the hub assembly for a crack. If a crack is found, prior to further flight, replace the hub assembly with an airworthy hub assembly.
(vii) If no crack is found, remove fretting debris from the mating surfaces of the hub assembly and the drive plate assembly, reassemble, fillet seal (C211 or equivalent) the surface of the drive plate to fretting buffer to hub assembly mating lines, and seal all exposed unpainted upper surfaces of the hub assembly.
(viii) Reinstall the main rotor drive plate using 10 new sets of replacement attachment hardware. Torque the nuts to 160 inch pounds above locknut locking/run-on torque in the sequence shown (Figure 1). Record in the rotorcraft logbook, or equivalent record, the locknut locking/run-on torque for each nut.
(ix) After the next flight, verify that the torque on each of the 10 nuts is at least 160 inch pounds above the locknut locking/run-on torque (minimum torque). Retorque as required without loosening nuts.
(x) Thereafter, at intervals of at least 4 hours TIS, not to exceed 6 hours TIS, verify that the torque of each of the 10 nuts is at least the minimum torque. Retorque as required without loosening nuts. This torque verification is no longer required after the torque on each of the 10 nuts has stabilized at a torque value of 160 or more inch pounds for each nut during two successive torque verifications.
(c) Within 100 hours TIS and thereafter at intervals not to exceed 100 hours TIS, visually inspect the outer surface of the flange for a crack using a light and a 10 × or higher magnifying glass. If a crack is detected, replace the unairworthy hub assembly with an airworthy hub assembly before further flight.
(d) At intervals not to exceed 300 hours TIS, remove the drive plate and visually inspect the flange for a crack using a light and a 10 × or higher magnifying glass. If a crack is detected, replace the unairworthy hub assembly with an airworthy hub assembly before further flight.
(e) 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, Los Angeles Aircraft Certification Office (LAACO), FAA. Operators shall submit their requests through an FAA Principal Maintenance Inspector, who may concur or comment and then send it to the Manager, LAACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the LAACO.
(f) If any nut torque is below minimum torque and no hub assembly crack is found before disassembly inspection, after retorque
Office of the Attorney General, Department of Justice.
Notice of proposed rulemaking.
In the Interstate Transportation of Dangerous Criminals Act of 2000 (“the Act”), Congress instructed the Department of Justice (“the Department”) to promulgate regulations providing minimum safety and security standards for private companies that transport violent prisoners on behalf of State and local jurisdictions. The Act provides that the regulations shall not impose stricter standards with respect to private prisoner transport companies than are applicable to certain Department agencies that transport violent prisoners under comparable circumstances. This rule proposes minimum standards in only those areas that Congress identified in the Act.
Please submit written comments to Lizette Benedi, Office of Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530. Comments may also be submitted by fax at (202) 353-9164 and by electronic mail at Jeannas.Act.Comments@usdoj.gov. To ensure proper handling, please reference “Jeanna's Act” on your correspondence.
For matters relating to this proposed rule, please contact Lizette Benedi, (202) 514-3824.
This rule proposes a limited number of minimum safety and security standards for private companies that engage in the business of transporting violent prisoners on behalf of State and local jurisdictions. The proposed rule requires private prisoner transport companies to establish measures designed to improve public safety by preventing escapes of violent prisoners and establishing appropriate safeguards and procedures in the event of the escape of a violent prisoner.
In addition, the rule proposes minimum standards to ensure the safety of violent prisoners during transportation.
In enacting the Interstate Transportation of Dangerous Criminals Act of 2000, Public Law 106-560 (114 Stat. 2784)(enacted December 21, 2000), Congress found that State and local jurisdictions are increasingly turning to private companies to transport their violent prisoners, and that escapes have occurred. Congress determined that minimum regulations for the private prisoner transport industry were necessary to provide protection against risks to the public that are inherent in the transportation of violent prisoners and to assure the safety of those being transported.
No. These regulations implement the Act and do not pre-empt any applicable Federal, State, or local law that may impose additional obligations on private prisoner transport companies or otherwise regulate the transportation of violent prisoners. For example, all Federal laws and regulations governing interstate commerce (
Because these regulations implement the Act, they affect only limited aspects of a private prisoner transport company's operations. Therefore, these regulations are not intended to be model guidelines or a complete set of standards for the private prisoner transport industry. Private prisoner transport companies should be aware that compliance with these regulations will mean only that they will not be subject to the sanctions established in the Act. The regulations are not meant to prevent or discourage private prisoner transport companies from adopting additional or more stringent standards relating to the transportation of prisoners. Similarly, these regulations do not limit the authority of Federal, State, or local governments to impose additional safety requirements or impose a higher standard of care upon private companies that transport violent prisoners.
The purpose of these regulations is to enhance public security and the safety of both prisoners and guards during transportation. The regulations are not intended to create a defense to any civil action, whether initiated by a unit of government or any other party. Thus, for example, compliance with these regulations is not intended to and does not establish a defense against an allegation of negligence or breach of contract. Regardless of whether a contractual agreement establishes minimum precautions, the companies affected by these regulations will remain subject to the standard of care that is imposed by statute and common law upon their activities (or other activities of a similarly hazardous nature).
This proposed rule would (1) require that private prisoner transport companies comply with minimum standards for fingerprint-based criminal background checks and preemployment drug testing for potential employees; (2) provide minimum standards for the length and type of employee training; and (3) establish restrictions on the number of hours that transportation employees can be on duty during a given time period.
This rule also proposes that private prisoner transport companies comply with minimum standards for the use of restraints while transporting violent prisoners, and it establishes categories of violent offenders required to wear identifying clothing. Further, the rule proposes a minimum guard-to-prisoner ratio that must be observed while transporting violent prisoners, and proposes that private prisoner transport companies comply with standards regarding employee uniforms and employee identification.
In addition, the rule proposes to require private prisoner transport
Finally, the rule proposes that private prisoner transport companies adopt certain minimum standards to protect the safety of violent prisoners in accordance with applicable Federal and State law.
Pursuant to section 4(c) of the Act, except for the standards regarding the categories of violent prisoners required to wear brightly colored clothing, these proposed standards are not stricter than the standards applicable to the United States Marshals Service (USMS), Immigration and Naturalization Service (INS), and the Federal Bureau of Prisons (BOP) when transporting violent prisoners under comparable circumstances.
The proposed rule only covers “private prisoner transport companies,” which are defined in Section 3 of the Act as “any entity, other than the United States, a State, or an inferior political subdivision of a State, which engages in the business of the transporting for compensation, individuals committed to the custody of any State or of an inferior political subdivision of a State, or any attempt thereof.”
Section 3 of the Act defines a “violent prisoner” as “any individual in the custody of a State or an inferior political subdivision of a State who has previously been convicted of or is currently charged with a crime of violence or any similar statute of a State or the inferior political subdivisions of a State, or any attempt thereof.”
The term “crime of violence” has the same meaning as in section 924(c)(3) of title 18, United States Code. Pursuant to this subsection, a crime of violence is an offense that is a felony and (a) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
If a company meets the definition of “private prisoner transport company” as defined in section 3(2) of the Act, the company must comply with this rule even if it does not transport prisoners across state lines. Congress passed the Act in order to impose regulations upon a previously federally unregulated industry that operates across the United States and engages in a potentially dangerous activity. In section 2 of the Act, Congress found that, “when a government entity opts to use a private prisoner transport company to move violent prisoners, then the company should be subject to regulation in order to enhance public safety.” This finding by Congress indicates that the threat that it intended to remedy was that posed by an unregulated industry engaging in business that could potentially affect the safety of citizens in all states.
Although the Act is officially titled the “Interstate Transportation of Dangerous Criminals Act of 2000,” it is the Department's view that limiting the Act's provisions to only those companies that cross state borders would create the unacceptable result of leaving unregulated certain members of the industry that Congress clearly intended to regulate. In addition, the definition that Congress provided for “private prisoner transport company” does not require that the company engage in the interstate transportation of violent prisoners in order to be covered by the Act's provisions.
The statutory direction of Congress to the Department was clear on this point. Section 4(a) of the Act states that the Department “shall promulgate regulations relating to the transportation of violent prisoners in or affecting interstate commerce.” A company that only operates intrastate can affect interstate commerce in several ways (
Section 5 of the Act states that violators shall be fined up to $10,000 per violation and the costs of prosecution. Violators also will be responsible for making restitution to any public entity that expends funds for the purpose of apprehending any violent prisoner who escaped, in whole or in part, because of a violation of the Act. As discussed above, conduct constituting a violation of these regulations may also result in unrelated penalties as a result of criminal, administrative, or civil process pursuant to local, State, or other Federal laws.
There is considerable variation in the classification of prisoners that the Department transports and the circumstances under which those prisoners are transported. For example, unlike private prisoner transport companies, INS at times transports entire family groups (of both sexes and of different ages) who have been apprehended after illegally entering the United States. Under other circumstances, INS (along with BOP and USMS) transports offenders who have committed very violent crimes and are considered to be a high security risk. Accordingly, the Department's components that transport prisoners have developed differing standards for prisoner transport that are appropriately tailored to their roles and missions.
By requiring the Department to promulgate regulations in this area, Congress appears to have at least two goals in mind. First, uniform standards for transporting prisoners serve to improve public security and the safety of the prisoners and guards during transportation. Second, by providing that the Department's regulations for the private sector not be stricter than those governing the Department's own components, Congress appears to have been concerned that the regulations not be unduly burdensome.
The Department shares Congress' concerns that any regulations that the Department issues should not unduly burden private industry, especially small entities, while still addressing the problems that motivated the passage of this Act. However, regulations that fully reflect the considerable variation of the Department's own prisoner transport activities might be so complex as to be burdensome on the affected entities and,
Therefore, consistent with section 4(c) of the Act, for some of the specific requirements of the Act (
For other requirements of the Act (
The Department also seeks comment on the potential impacts that these regulations may have on the ability of sheriffs' departments and other operators of local jails to arrange safe and efficient violent prisoner transport in response to writs or other requirements.
It is the Department's view that the provisions of the Act do not apply to the transportation of juveniles unless the juvenile has been charged or convicted as an adult for a crime of violence as defined in 18 U.S.C. § 924(c)(3).
The Act defines a violent prisoner as one “who has previously been convicted of or is currently charged with a crime of violence.” The Act gives the term “crime of violence” the same meaning as that term has in 18 U.S.C. § 924(c)(3). Section 924(c)(3) includes in its definition of “crime of violence” the requirement that it be “an offense that is a felony.” This should be understood as referring to adults convicted of or facing felony criminal charges and to juveniles who previously have been convicted of or who are being prosecuted as adults for violent felony offenses. Unless juvenile offenders have been or are being tried as adults under federal law, they generally are not considered to have been “convicted” or “charged” with a “crime of violence” as defined in 18 U.S.C. 924(c)(3). Instead, they are considered to have been adjudicated delinquent or found guilty (or found “involved”) in a juvenile delinquency proceeding, rather than convicted of a crime.
In accordance with the Act, Department of Justice officials met with several representatives of the private prisoner transport industry, the American Correctional Association (ACA), and law enforcement groups, including the National Sheriffs' Association, American Jail Association, National Association of Police Organizations, and the National Association of Government Employees International Brotherhood of Police Officers. During this rulemaking process, the Department looks forward to hearing additional comments from law enforcement groups, the public, and the private prisoner transport industry.
Under the proposed rule, potential employees of private prisoner transport companies will have to pass a preliminary fingerprint-based criminal background check prior to being hired. This background check will disqualify from employment those applicants convicted of a misdemeanor crime of domestic violence or any felony conviction. The fingerprint-based criminal background check would be performed by providing the applicant's fingerprints to the governmental agency that is contracting with the private prisoner transport company, for submission through the state history record repository to the FBI. The background check also must include a credit report check, a physical examination, and a personal interview.
Also, potential employees of private prisoner transport companies must undergo testing to detect the prior or current use of controlled substances as a condition of employment. The pre-employment drug testing must be done in accordance with applicable State law. In the event that there is no applicable State law, private prisoner transport companies must comply with the pre-employment drug testing requirements that apply to commercial drivers (
The Act states that the Department may require that employees of private prisoner transport companies participate in up to 100 hours of preservice training relating to the transportation of prisoners. This training must be in the following areas: use of restraints, searches, use of force (including use of appropriate weapons and firearms), CPR, map reading, and defensive driving. This rule proposes to require private prisoner transport companies to provide their employees with 100 hours of preservice training in those areas.
The training of Department personnel who transport violent prisoners is notably more rigorous in length and in type than the 100-hour maximum that Congress established in the Act for private prisoner transport companies. For instance, the BOP requires any employee who assists with prisoner bus transport to have successfully completed, at a minimum, one “probationary” year of service and attended 80 hours of Institutional Familiarization, 120 hours of Introduction to Correctional Techniques, 24 hours of Basic Prisoner Transport, and 80 hours of Bus Operations Training. In addition, a BOP employee must undergo 40 hours of refresher training annually and must possess a commercial drivers license.
Similarly, INS employees who transport prisoners must undergo a minimum of 196 hours of training, including 20 hours of driving-related training, 16 hours of first-aid training and CPR, 6 hours of training on conducting searches, 48 hours of training on the use of firearms, and 88
The USMS also requires that its employees who transport prisoners undergo rigorous training, including follow-up courses. As part of its required training regimen, the USMS requires over 100 hours of training in the areas of prisoner handling, prisoner searches, proper application and removal of restraints, tactical training in dealing with combative subjects, the proper escalation and de-escalation of force, vehicle operation, and firearms safety.
The proposed rule does not address the minimum quality standards required for training programs, the need for in-service training, or instructor qualifications, although these are critical factors that enable Department agencies to transport prisoners safely. In its consultations with ACA and private prisoner transport companies, the Department has learned that there is currently no accredited training program to serve the function of training the employees of private prisoner transport companies. The ACA has reported that it has begun to develop standards for such training. The Department seeks comment from the private prisoner transport industry, the public, and law enforcement officials on the manner in which this training should be conducted and its quality assured.
This proposed rule sets requirements to ensure that drivers of private prisoner transport companies comply with Federal standards that limit the amount of time a commercial driver may be on duty during a given time period. Pursuant to 49 CFR 395.3, no driver of a commercial vehicle may drive more than 10 hours following 8 consecutive hours off duty. A commercial driver will be barred from driving if the driver has been on duty (regardless of whether the employee drove) for 15 hours following 8 consecutive hours off duty.
If the motor vehicle carrier operates commercial vehicles every day of the week, a driver will be barred from driving if the driver has been on duty for 70 hours in any period of 8 consecutive days. If the motor vehicle carrier does not operate commercial vehicles every day of the week, a driver will be barred from driving if the driver has been on duty for 60 hours in any period of 7 consecutive days.
The Act directs the Department to develop minimum standards for the number of private prisoner transport personnel that must supervise violent prisoners. The Act states that these minimum standards shall not exceed a requirement of one agent for every six violent prisoners. In addition, the Act states that the Department must not impose stricter standards on private prisoner transport companies than are applicable, without exception, to the USMS, BOP, and INS. As a minimum standard, the Department believes that a one-agent-to-six-violent-prisoner ratio is the most appropriate standard to protect the public from the threat of violent prisoner escapes.
Although the Act states that the Department should establish a minimum guard-to-prisoner ratio, the Act also permits the Department to give private prisoner transport companies “appropriate discretion” in this area. The Department seeks comment from law enforcement entities, private prisoner transport industry members, and the public as to the proper level of discretion that private prisoner transport companies should have in relation to the one-guard-to-six-violent-prisoner ratio proposed by this regulation.
When Justice Department components transport high-risk, maximum custody, or violent offenders, the guard-to-prisoner ratios are often significantly more strict than one guard for every six prisoners. For instance, when BOP personnel transport their maximum custody inmates on escorted trips (for medical treatment or other purposes), the BOP policy guidelines require that for each such inmate, there must be three BOP staff escorts, one of whom must be a Lieutenant. The guidelines also require that additional BOP staff ride along for the duration of the trip in a follow vehicle. Because BOP policy guidelines recommend that two BOP staff ride in the follow vehicle, the guard-to-prisoner ratio in this case is five guards to one prisoner. BOP policy guidelines require that this guard-to-prisoner ratio be maintained regardless of the number of prisoners being transported. When BOP transports prisoners who do not pose the highest security risk (regardless of the purpose of the trip), the BOP still requires that two employees ride in the van or car in which the prisoners are being transported, but without a requirement for a follow vehicle.
Similarly, when USMS transports prisoners in a sedan (with a maximum capacity of three prisoners), USMS guidelines require a minimum of two armed deputies, for a minimum ratio of two guards to three prisoners. If only two prisoners are being transported by the USMS in a sedan, the two-deputy requirement still applies, yielding a ratio of one guard to one prisoner. If, for any reason, a sedan or van with a safety screen is not available, USMS guidelines require a minimum of a one-guard-to-one-prisoner ratio. Similar to the BOP policy, when the USMS transports prisoners in a van, USMS guidelines require that a minimum of two armed deputies accompany the prisoner. The resulting ratio will be at least two armed USMS deputies for 12 prisoners, yielding a ratio of one guard for six prisoners.
INS guidelines require that if an INS detainee is being transported in an unsecured sedan, van, or utility vehicle by one INS officer, there is a minimum guard-to-detainee ratio of one guard for every two INS detainees. If there are more than two INS detainees being transported, there must be another INS guard present. The maximum capacity of an unsecured INS van is six detainees, resulting in a minimum possible guard-to-detainee ratio of one guard to three detainees for travel in an unsecured INS van. For secured sedans, vans, and utility vehicles, there is a minimum requirement of one officer unless the trip is over a long distance or requires stops for food or fuel. In that case, another officer would normally be required.
There are instances where Department personnel must transport prisoners in buses, and in these cases, the guard-to-prisoner ratio typically diminishes. At times, this ratio may decrease to less than one guard for every six prisoners. The BOP guidelines require that three BOP staff accompany bus movements (not including the transportation of high risk offenders described above). Similarly, USMS policy mandates that a minimum of two armed deputies and a driver be used during bus transportation. Regulations of the INS require a minimum of two INS agents on each bus; however, the regulations also state that the minimum number of agents should be increased, or an escort vehicle added, if INS agents determine that the risk level of detainees warrants it.
Despite any decrease in the guard-to-prisoner ratio, there are numerous Department operating procedures that are not required of private prisoner transport companies that ensure the security of the Department vehicles,
As discussed in the preceding paragraphs, the Department's guard-to-prisoner ratio varies depending upon the nature and security classification of the offender, the escape risk, and other factors. This ratio is often significantly more strict than the maximum ratio the Act permits the Department to require for private companies. The Department's ratio is also sometimes less strict than the one-to-six ratio referred to in the Act. The Department's own excellent record in transporting prisoners safely and securely with ratios lower than one guard to six prisoners is due in large measure to the extensive training that custodial and transport personnel receive (training that greatly exceeds the maximum training that the Department is permitted to require by regulation), to the carefully designed physical configuration of the transport vehicles, and to the elaborate procedures set forth in the Department's guidelines.
It should be noted that this proposed rule does not require that private transport companies adhere to all of the Department's own guidelines regarding prisoner transport. Compliance with such guidelines would likely be very expensive for private companies. Further, a multi-tiered approach that the Department follows for conducting its own transport of prisoners would be administratively burdensome for private companies and require them to obtain information about each prisoner (such as their escape risk or security classification) which they are not at present likely to receive from the committing authority. But in the absence of mandated compliance with all of these safeguards, private prisoner transport does not involve “comparable circumstances” that would permit use of ratios more lenient than one to six.
In an effort to comply both with the statutory requirement that the guard-to-prisoner ratio not exceed one to six and the statutory requirement that the Department not impose on private companies stricter requirements than it adheres to without exception, the Department proposes to require that private companies transporting offenders not exceed a ratio of one agent to six violent prisoners.
The Department believes that this ratio provides a security level consistent with congressional intent but without imposing an elaborate set of multi-tiered ratios, compliance with which would be complex for private entities lacking the Department's resources. The Department further believes that the circumstances under which it transports prisoners with a ratio less stringent than one to six are fully justified by the additional security precautions that the Department takes that will not be imposed upon private companies.
The Department recognizes that the private prisoner transport industry may experience significant variations in the carrying capacity of vehicles used, the number of prisoners transported per trip, and the security levels of the prisoners being transported. The variation among these factors may complicate the construction of a workable guard-to-violent-offender ratio; therefore, the Department seeks input from industry, law enforcement, and the public as to the factors that should guide the development of a minimum guard-to-violent-prisoner ratio.
The rule proposes to require that private prisoner transport companies comply with certain minimum requirements for employee uniforms and identification. These standards will require the wearing of a uniform with a badge or insignia that identifies to the prisoners and others that the employee is a transportation officer.
While engaged in the transportation of violent prisoners, private prisoner transport company employees must wear a uniform that clearly identifies them as such. The uniforms should be readily distinguishable in color and style from uniforms worn by Department of Justice personnel who transport violent prisoners.
The rule also proposes that private prisoner transport companies require their employees to have identification credentials on their uniform that are visible at all times while engaged in the transportation of violent prisoners. The identification credentials must have a photograph of the employee that is at least one inch square, and a printed personal description of the employee, including the employee's name, the signature of the employee, and date of issuance. This standard is in accordance with Department regulations that require Department employees to carry proper identification (and a badge under certain circumstances).
While Department regulations require its employees to possess proper identification at all times, under the proposed rule private prisoner transport company employees will only be required to possess and display proper identification while transporting violent prisoners.
The Act directs the Department to create standards establishing categories of violent prisoners required to wear brightly colored clothing clearly identifying them as prisoners. Congress has observed that a number of violent prisoners have escaped from private prisoner transport companies while wearing civilian clothing. An escaped violent prisoner wearing civilian clothing presents a much more serious risk to the public than an escaped prisoner who is clearly identified as a prisoner. The absence of any requirement for transported prisoners to wear distinctive and brightly colored clothing has unnecessarily hindered law enforcement officers in their search for escaped prisoners.
After consulting with representatives of the law enforcement community, the private prisoner transport industry, and the ACA, the Department has determined that the category of prisoners required to wear distinctive prisoner uniforms should consist of all violent prisoners covered by the Act. Therefore, this rule proposes to require all violent prisoners transported by private prisoner transport companies to wear distinctive clothing that clearly identifies them as prisoners. As currently defined, this category is sufficiently broad to encompass those prisoners who may constitute a threat to public safety without requiring private companies to conduct intensive individualized risk assessments for each prisoner transported. This rule will not prohibit or in any way impede the
The Department recognizes that there are circumstances when it may be inappropriate or impractical to transport violent prisoners in distinctive brightly colored clothing (
The Department also learned from its consultations with the industry that it might be advisable for the Department to establish a standardized, brightly colored, and distinctive prisoner uniform that all private prisoner transport companies would be required to use. Industry representatives indicated that a standardized style, color, or pattern of prisoner uniform could have practical advantages, such as being easier and less expensive for the companies to purchase in bulk and making a more definite impression in the mind of the public to help them easily identify a prisoner in transit. The Department seeks comment from all interested parties as to whether a standardized prisoner uniform would be a useful or valuable element of prisoner transportation by private companies.
From those entities who believe that the concept of a standardized prisoner uniform should be pursued, the Department welcomes recommendations as to the color (bright yellow, black and white striped, etc.) as well as style (jump-suits, two-piece uniforms that accommodate restraints, etc.) of prisoner uniform that should be adopted. Any recommendations for a particular color or style of standardized prisoner uniform should consider that the prisoner uniform must be distinctive without being confusingly similar to uniforms in use by other public or private entities. Such recommendations should also be distinctive from brightly colored clothing worn by law-abiding citizens, such as the “blaze orange” worn by hunters and road crews or the bright yellow clothing worn by certain firefighters.
The Department requests comments on whether private prisoner transport companies that currently require violent prisoners to wear distinctive uniforms should be required to purchase new uniforms to comply with a new standard (if a new standard is established). As an alternative to the Department requiring the immediate replacement of currently-used brightly colored prisoner uniforms with some standard uniform, the Department requests comments on whether it should permit those companies that currently use prisoner uniforms to continue to use their current inventory until the uniforms are replaced in the ordinary course of business before being required to comply with any new standard. Under this alternative, the regulations would only require that any new uniforms that are purchased (or new contracts for the purchase of uniforms entered into) after the effective date must conform to the standard uniform described in the regulations.
This part of the proposed rule would require that private prisoner transport companies take precautions that are similar to those taken by Department agencies must ensure that violent prisoners wear brightly colored clothing that identifies them as prisoners when they are being transported. Absent extenuating circumstances, the BOP requires that all inmates who travel on BOP buses be transported in government-issued clothing, including shoes. The INS requires violent prisoners to wear orange or red uniforms and less dangerous offenders to wear blue or yellow uniforms.
The Department agencies that transport violent prisoners have similar policies governing the type of restraints that must be used on violent prisoners, during transportation. Violent prisoners, and those defined by the BOP to be “Maximum Custody” prisoners, are to be transported in handcuffs, leg irons, and waist chains. This rule proposes to apply this standard to private prisoner transport companies. Violent prisoners are to be transported in handcuffs, leg irons, and waist chains unless the use of all three restraints would create a serious health risk to the prisoner, or unless extenuating circumstances make the use of all three restraints impracticable. Examples of such exceptions would include the pregnancy or physical disability of a violent prisoner.
The Department is considering the implementation of additional minimum requirements for private prisoner transport companies concerning the use of restraints. These additional minimum requirements would be similar to certain guidelines used by Department agencies during transportation of violent prisoners. For example, Department agencies have regulations that dictate when and how a violent prisoner is to be restrained during movement to the bus and during rest stops. Department agencies are also required to maintain an adequate supply of all types of restraint equipment on the bus. Each BOP bus is required to carry a minimum of two sets of modified leg irons to be used as handcuffs for large inmates. In addition, each BOP bus is required to have a 35-foot long chain and padlock in the event that a mass emergency evacuation of the bus is required.
Department agencies also adhere to standards concerning the maintenance of restraints. All restraining equipment is to be inspected daily while the bus is operational. This inspection is necessary to avoid the use of restraining equipment that may have been altered during a previous trip. Comment is requested on the potential inclusion of one or more of these additional requirements as part of the minimum transportation requirements.
When a prisoner transport vehicle is stopped, the risk of escape is greatest because prisoners may be boarding or exiting the vehicle and guards may be distracted while getting food, fueling the vehicle, or attending to medical or other emergencies. In the Act, Congress found that the private prisoner transport process can last for weeks as violent prisoners are dropped off and picked up at a network of hubs nationwide. Because each stop involves a potentially high security risk, Congress has imposed a requirement that when transporting violent prisoners, private prisoner transport companies are to notify local law enforcement officials 24 hours prior to a scheduled stop in their jurisdiction.
For the purposes of this proposed rule, a “scheduled stop” is defined as a predetermined stop at a State, local, or private correctional facility for the purpose of loading or unloading prisoners or using such facilities for overnight, meal, or restroom breaks. Scheduled stops do not include routine fuel stops or emergency stops. Notice is
There is no comparable requirement for Department agencies to provide advanced notice of scheduled stops because the transporting agency is a law enforcement entity. Any emergency or other disturbance may be instantaneously reported to other law enforcement entities through the Emergency Alert System that links all BOP buses with the central office. There is no need for BOP buses to relate their location to local law enforcement because the BOP central office is able to locate the bus via the Global Positioning System that is installed on each BOP bus.
The rule will not propose that the use of specific technological equipment be required of private prisoner transport companies, such as the installation of a satellite tracking system that is linked to law enforcement. However, the rule will propose to require that notice of scheduled stops be given to local law enforcement 24 hours prior to the stop.
In the event of the escape of a violent prisoner, the private prisoner transport company must immediately notify appropriate law enforcement officials in the jurisdiction where the escape occurred, and also contact the governmental entity that contracted with the transport company. Private prisoner transport companies should be sufficiently equipped to provide immediate notification to law enforcement in the event of a prisoner escape. Law enforcement officials must receive notification no later than 15 minutes after an escape is detected unless the company can demonstrate that extenuating circumstances necessitated a longer delay.
Congress imposed this requirement because there was at least one occasion when a violent prisoner's escape from a private transport company was not reported to law enforcement until hours after the escape was detected. Such a delay placed the public at risk and irreparably harmed the ability of law enforcement to secure the area, establish roadblocks, conduct intensive searches in the vicinity, notify the public about the possibility of danger, and identify relevant witnesses who could have aided in the capture of the prisoner.
All Department agencies that transport violent offenders have guidelines that require providing notice to other law enforcement agencies in the event of a prisoner escape during transit. The USMS regulations require that prisoner escapes and attempted escapes immediately be reported to the United States Marshals Communications Center and the U.S. Marshal, Chief Deputy U.S. Marshal, or Supervisory Deputy U.S. Marshal. The United States Marshals Communications Center will then notify the Investigative Services Division and the Prisoner Services Division of the USMS. Similarly, in the event of a prisoner escape from a BOP vehicle, the BOP is required to contact the USMS and the nearest BOP institution, which will begin notifications up the chain of command as necessary. State and local law enforcement will also typically be contacted.
Department agencies have adopted a uniform rule in the event of a prisoner escape that the first priority is to secure the remaining prisoners and transport them to their final destination. Under no circumstances will the supervision of the other inmates be relaxed in order to pursue an escaping inmate. The Department is considering proposing that private prisoner transport companies adopt similar procedures.
Congress has determined that private prisoner transport companies must provide standards of safety for violent prisoners in accordance with applicable Federal and State law. Department agencies have implemented extensive requirements to ensure the safety of violent prisoners who are transported. In addition to the protections provided by existing State and Federal laws, the Department may propose that private prisoner transport companies adopt some of the safety measures that Department agencies have adopted including: requiring safety equipment on buses (including first-aid kits, extra blankets, sirens, and extra restraining devices); abiding by rigid maintenance schedules for vehicles; mandatory inspections of vehicles; requirements for communications systems on vehicles; prohibitions on tobacco use in vehicles; seating arrangements to accommodate troublesome prisoners or those with medical needs; and requirements that prisoners be searched and restrained in a professional, systematic, methodical, and consistent manner.
Similarly, Department agencies engaged in prisoner transport have procedures to conduct searches of vehicles and prisoners as needed to ensure that no contraband or weapons are brought onto the vehicle. To protect the safety of prisoners, Department personnel are rigorously trained in the proper use of firearms and the appropriate use of force. Also, to protect prisoners, appropriate forms and records must be filed prior to the use of specialized restraints on a prisoner and after a strip search that occurs for reasons other than receipt of a new prisoner (this report documents the identity of the prisoner searched, date, place, time, and duration of the search, reason for the search, names of those present, and a description of any weapons, evidence, or contraband found). The final rule may adopt all or some of the safety measures discussed above that have been implemented by Department agencies.
This rule is designed to have the lowest possible impact on businesses that transport violent prisoners while still protecting the safety of the public. This proposed rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804, and it will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
By this rule, the Department is proposing to implement the requirements of the Act, which imposes minimum security and safety standards upon private companies transporting violent offenders. The Act's requirements as implemented by these regulations may increase the operating costs of some of these private companies. While State and local governments are the primary entities that contract with private prisoner transport companies, this proposed rule does not impose any direct requirements upon State or local governments or upon their law enforcement offices.
The Act requires potential private company employees to undergo a background check. Federal law does not permit dissemination of criminal history records to private employers for screening unless statutorily authorized. Because current statutory law does not grant private entities the authority to request Federal criminal history records, the private prisoner transport companies must arrange to do so with the contracting State or local
Local law enforcement agencies routinely provide fingerprinting services for various public purposes (e.g. teacher applicants and bar examinations). If a governmental agency wishes to contract its prisoner transport obligations out to a private company, it will need to make arrangements for submitting the applicant's fingerprints to the FBI to conduct a criminal history background check on the applicant. The governmental agency submitting the fingerprints would incur the initial financial responsibility associated with these applications. The cost of the background check is determined by individual State procedure, not Federal procedure, and thus will vary from State to State. The Department has been informed that such application fees range from $14 to $95. However, even assuming the highest fee, the Department does not anticipate that this requirement will have a significant financial affect on State or local entities. Because of Federal limitations upon dissemination of background information, the Department does not believe that there are other viable options that would allow private companies to meet the background investigation requirement.
The Department has no evidence to indicate how much of any possible cost increases upon private businesses—from mandatory background checks or any other requirements imposed by this proposed rule—will be passed along as price increases to the State and local jurisdictions contracting with them. However, because of the relatively small number of private prisoner transport companies and the number of people employed by these companies, the Department believes that this proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments.
The Department of Justice has reviewed this proposed rule in light of Executive Order 12866, Section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and, accordingly, this rule has been reviewed by the Office of Management and Budget.
The proposed rule only covers the business practices of private companies. This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This proposed rule meets the applicable standards set forth in Sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform.
This rule imposes no new information collection requirements.
The Department of Justice drafted this rule in a way to minimize its impact on small businesses while meeting its intended objectives. Based upon the preliminary information available to the Department at this time, we are unable to state with certainty that this rule, if promulgated, will not have the effect on small businesses of the type described in 5 U.S.C. 605. Accordingly, the Department has prepared the following initial Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 603.
This proposed rule will implement the Act, which requires the Attorney General to establish regulations imposing minimum safety and security standards on private companies engaged in transporting violent prisoners for State and local jurisdictions.
The Act reflects Congress' concerns about the growing number of State and local jurisdictions that are utilizing the services of private companies as an alternative to sworn law enforcement officers when transporting violent prisoners. Congress found that violent prisoners have escaped from private transport companies and that these escapes have led to further crimes committed by the escaped prisoners as well as significant expenditures by law enforcement units attempting to capture the escapees. As a result of these findings, Congress determined that it was necessary to regulate the private prisoner transport industry in order to enhance public safety.
Congress required that the Department consult with the ACA and the private prisoner transport industry in promulgating these regulations. On March 30, 2001, Department of Justice officials met in Washington, DC, with representatives of the ACA and the private prisoner transport industry. Several representatives who were not able to attend the meeting in person participated through a conference call. The ACA, and each participating industry representative, agreed that higher standards in this area are much needed. In addition, the consultations provided the Department with information that indicates that the minimum standards imposed by the proposed rules will have little economic impact on these particular companies. Most of the standards proposed in this rule are already followed by the industry leaders and, in many cases, the standards followed by the companies in the private prisoner transport industry are much stricter than those found in this proposed rule.
As is discussed more fully below, the Department has been informed that the private prisoner transport industry includes a large number of small entities. Many of these entities are smaller than those having Washington-based or other staff representatives whom the Department could identify and with whom it could consult in the limited time available under this Act to promulgate regulations.
A “small business” is defined by the Regulatory Flexibility Act (RFA) to be the same as a “small business concern” under the Small Business Act (“SBA”), 15 U.S.C. 32. Under the SBA, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the SBA.
Based upon the information available to the Department at present, there appear to be two distinct groups of businesses in the private prisoner transport industry: Larger companies that contract with various jurisdictions nationwide, and smaller entities often made up of a few individuals who provide transportation for law enforcement departments on an as-needed basis. Both groups of private transport companies would be regulated by this proposed rule and both fall under the definition of a “small business” pursuant to the RFA. The discussion in this section will first focus on the larger companies involved in transporting violent prisoners and then examine issues specific to the smaller companies.
Although the Department consulted with some of the affected entities it was able to identify during the drafting of this proposed rule, the Department realizes that not all interested persons and entities may have been fully represented prior to the publication of this proposal. Therefore, the Department is requesting that further comments be submitted to help ensure that the concerns of all interested parties are considered. Commenters may wish to identify the type of industry, including: The number of companies/individuals involved and the annual income of business they conduct; how the proposed regulatory requirements would impact that industry; and, within the statutory requirements, any suggestions or comments on how the final regulations might be better tailored to the industry without compromising the basic intent of the law which is to enhance public safety by imposing minimum standards on private companies engaged in the transport of violent prisoners.
Commenters should note that the submission of any comments or information on these or other matters addressed by this proposed rule is entirely
Pursuant to the RFA and public policy concerns, the Department encourages all affected commercial entities and law enforcement agencies to provide
In passing the Act, Congress specifically called upon the Attorney General to consult with the ACA and the private prisoner transport industry while drafting this proposed rule. During these consultations, the Department learned that there are approximately 10 to 12 larger private prisoner transport companies currently operating in the United States. However, there is no public or private entity that monitors when a private prisoner transport business enters or exits the industry. Therefore, it is difficult to accurately estimate the number of industry participants.
The Department has drafted this proposed rule to have the minimum possible impact on these businesses while still complying with the intent of the Act. During the Department's consultations, it was informed that many of the proposed minimum standards contained in this proposed rule are already followed by the larger companies. In some instances, the larger industry participants have actually adopted more stringent internal standards than those that would be imposed by the proposed rule. Where the proposed rule would require companies to implement a practice not currently followed, industry opinion was taken into consideration so as to impose no greater burden than necessary.
In addition to the larger private companies that transport prisoners, the Department believes that there is a large number of smaller entities that contract with State and local authorities to transport prisoners. Although the Department does not have an exact number of smaller companies, the ACA and industry leaders estimated that 500 such entities may exist. The Department was informed that these entities are often composed of merely one or two people who enter into contracts with sheriffs' offices on an as-needed basis. It is therefore difficult to address the impact that the proposed regulation would have on the smaller participants in the industry without knowing approximately how many of these smaller entities transport violent prisoners (and therefore would be regulated) or what their current safety and security practices are.
However, the Department is concerned that these smaller companies will experience the greatest impact as a result of these regulations. For example, a minimum standard that imposes a ratio of at least one guard for every six violent prisoners might be a greater burden to a smaller entity that lacks the personnel resources of a larger company. Similarly, the need to possess a sufficient amount of specialized equipment, as required by these regulations, could create a greater economic burden on smaller entities. Because the Department has not been able to identify such entities, we are specifically requesting comment on the impact that this proposed rule would have on them.
In section 3(2) of the Act, Congress specifically exempted from the minimum standards any Federal, State, or local governmental entity engaged in the transport of violent prisoners. The proposed rule would not regulate these entities. However, the Department is cognizant of the possibility that these regulations may place a burden on small governmental entities that contract with private prisoner transport companies. The Department therefore has consulted with the National Sheriffs' Association and the American Jail Association, as well as representatives from local police departments, to gain a better understanding of the impact this proposed rule will have on their operations.
Some of the minimum standards proposed by this rule might require private companies to purchase various pieces of equipment, thereby causing an increase in expenditures. The standards regarding mandatory restraints, uniforms for agents, identification credentials for agents, and uniforms for violent prisoners fall into this category. By imposing these standards, companies that are not already in possession of these items, or not in possession of a sufficient quantity, would have to purchase them in order to satisfy the requirements of the regulations.
However, after consulting with representatives from the industry, the Department believes that the proposed rule will not have a significant economic impact on the larger entities in the private prisoner transport industry. With the exception of prisoner uniforms, all companies consulted indicated that they currently require the
The larger companies in the industry do not currently require prisoner uniforms for all violent prisoners. This rule proposes to implement a mandatory provision of the Act that requires violent prisoners to be transported in brightly colored clothing that clearly identifies the wearer as a violent prisoner. Because there is no current policy on prisoner attire, this standard would require companies to invest in a sufficient number of prisoner uniforms.
As is discussed elsewhere in this proposed rule, the Department believes that a standardized uniform for violent prisoners might benefit all interested parties, but most importantly, the public. If one were established, a standardized uniform would be able to be produced in larger quantities by clothing manufacturers at a lower cost to the private transport industry. Further, once the color/pattern of uniform for violent prisoners in private transit became widely known, it would become easier both for law enforcement and the general public to identify such prisoners in the event of an escape. Finally, by proposing a single standardized color/pattern for violent prisoners, the Department would hope to avoid any confusion with brightly colored articles of clothing worn by law abiding members of the community engaged in particular activities (
This rule proposes to require private companies to train their employees in six enumerated areas for a minimum of 100 total hours of training before the employee may transport violent prisoners. This standard might require private companies to incur the cost of training where their current practices fail to meet the standard. Companies would need to engage qualified instructors with the ability to properly train personnel. However, all of the companies consulted by the Department currently have training procedures in place, many of which are more extensive than those required by the proposed rule. Most of the companies indicated that they require firearms training equivalent to the training received by law enforcement officers. In addition, all of the companies consulted require their personnel to undergo follow-up training during the course of employment. It is therefore unlikely that the new training standards will have a significant impact on the larger industry participants.
The rule proposes to require a minimum ratio of one guard for every six violent prisoners during transport. It is possible that this standard would require companies to increase their personnel in order to meet the mandated ratio. However, all the companies consulted indicated that they already impose minimum guard-to-prisoner ratios, all of which are more stringent than the one proposed in this rule.
Many of the minimum standards in this proposed rule will place affirmative duties on private prisoner transport companies. The standards dealing with pre-employment background checks and drug testing, notification of local law enforcement 24 hours before scheduled stops, and immediate notification of law enforcement should an escape occur all fall into this category. Of these, only the first standard regarding conducting background checks and drug testing carries with it the possibility of increased expenditures. While the notification requirements in this proposed rule do place an affirmative duty on the companies, they do not impose any economic burden on the companies.
The Department does not have any specific information about how much of an economic impact this rule might have on the smaller industry participants in the foregoing areas: specialized equipment, training, personnel, background checking, and drug testing. However, it is reasonable to assume some aspects of this rule may have a proportionately larger economic impact upon small entities. For example, this may be the case with respect to equipment purchases where, typically, the larger the quantity purchased, the lower the per unit cost becomes. Given the inexpensive nature of handcuffs, leg irons, and waist chains, however, the additional cost burden should not be significant, especially because private prisoner transport companies are likely already to possess this equipment.
With respect to the training requirements, there may be a greater impact on a small prisoner transport entity that might have only one or two employees. Such an entity might temporarily have to suspend operations while its agents undergo training. On the other hand, a larger entity with more employees might be able to continue operations while its employees rotate through training. Similarly, it might be easier for larger entities to meet the minimum guard-to-prisoner ratio than it would be for smaller entities.
It should be stressed, however, that in proposing these regulations, the Department is merely implementing the mandatory requirements of the Act and that it has attempted to do so with the least economic impact upon any entity, large or small.
This proposed rule does not impose any additional reporting or recordkeeping requirements on private prisoner transport companies or on the State and local entities that contract with them.
While consulting with representatives of the larger companies, the Department was apprised of an issue concerning the impact that this proposed rule would have on sheriffs' departments that employ private companies to transport violent prisoners. According to information provided to the Department, many of the local law enforcement offices across the nation employ smaller entities to transport prisoners, not the major companies, when the need arises. The Department, however, cannot exempt these smaller entities from the standards because they clearly fall into the definition of “private prisoner transport company” provided by Congress in the Act.
It is important to note that this proposed rule does not impose any minimum standards on governmental entities nor on their employees engaged in official conduct. However, the Department acknowledges the possibility that these entities may be
An alternative suggestion was made during a consultation meeting between the Department and industry representatives concerning whether the Department should provide more guidance as to the quality of training required by this proposed rule. It was suggested an association, such as the ACA, develop an accredited training program and that any final rule should require private companies to receive accreditation from such a program. While the Department believes that this suggestion is worth further consideration, there is currently no such program in place and it is the Department's understanding that the earliest date by which the ACA could develop such a program would be January of 2002. Absent a standardized quality assurance program, the Department declines at this time to impose any requirements regarding the quality of training.
A second alternative that was suggested pertained to the requirement that private companies notify local law enforcement when traveling through a jurisdiction. Initially, the Department intended to require 24 hour advance notification to local law enforcement of any scheduled stop within a jurisdiction, with “scheduled stop” broadly defined. However, it was suggested during the Department's consultations with law enforcement and industry leaders that the definition of “scheduled stop” should be more narrowly defined. Law enforcement groups and industry leaders agreed that if a transport company had to provide notification for any stop, including for such things as refueling, eating, and bathroom trips, the notification requirement could pose a security threat. Therefore, the Department proposes to construe more narrowly the definition of “scheduled stop” so that the regulations would apply only to predetermined stops at State, local, or private correctional facilities for the purpose of loading or unloading prisoners, or using such facilities for overnight, meal, or restroom breaks.
A third alternative was suggested that would have delayed the implementation and enforcement of these provisions to allow smaller entities a longer period with which to comply with the new regulations. The Act provides no authority for delayed implementation or delayed enforcement of the new regulations. It is the Department's view that public safety would be most effectively protected if these minimum safety and security standards are applied to all private prisoner transportation companies equally, without regard to the size of the company.
The Department believes that, given the mandatory nature of the Act, this proposed rule meets its stated objectives while reducing as much as possible the burden imposed on private companies engaged in the private transport of violent prisoners. As statutorily required, the Department consulted with industry leaders and the ACA in developing this rule. The Department took into account their concerns, as well as the concerns of law enforcement representatives, in drafting the proposed rule. The Department intends to maintain an on-going dialogue with the affected industry and law enforcement entities. In addition, the Department is attempting to identify additional entities that might be affected by this proposed rule and looks forward to receiving additional comments to this proposed rule.
Business and industry, Penalties, Prisoners, Transportation.
Accordingly, for the reasons set forth in the preamble, part 97 of chapter I of Title 28 of the Code of Federal Regulations is proposed to be added to read as follows:
Public Law 106-560, 114 Stat. 2784 (42 U.S.C. 13726b).
This part implements the provisions of The Interstate Transportation of Dangerous Criminals Act of 2000 (the Act), Public Law 106-560, 114 Stat. 2784 (42 U.S.C. 13726b) (enacted December 21, 2000), to provide minimum security and safety standards for private companies that transport violent prisoners on behalf of State and local jurisdictions.
(a)
(b)
(c)
Private prisoner transport companies must adopt pre-employment screening measures for all potential employees. The pre-employment screening measures must include a background check and a test for use of controlled substances. The failure of a potential employee to pass either screening measure will act as a bar to employment.
(a) Background checks must include:
(1) A fingerprint-based criminal background check that disqualifies persons with either a prior felony conviction or a State or Federal conviction for a misdemeanor crime of
(2) A Credit Report check;
(3) A physical examination; and
(4) A personal interview.
(b) Testing for controlled substances must be in accordance with applicable State law. In the event that there is no applicable State law, private prisoner transport companies must test potential employees for controlled substances in accordance with 49 CFR 382.301.
(c) The criminal background check references in paragraph (a)(1) of this section may not be submitted directly to the FBI or any other Federal agency. The private prisoner transport companies must work out the procedures for accomplishing the criminal background checks with their contracting governmental agencies.
Private prisoner transport companies must require the completion of a minimum of 100 hours of employee training before an employee may transport violent prisoners. Training must include instruction in each of these six areas:
(a) Use of restraints;
(b) Searches of prisoners;
(c) Use of force, including use of appropriate weapons and firearms;
(d) Cardiopulmonary resuscitation (CPR);
(e) Map reading; and
(f) Defensive driving.
Companies covered under this part must adhere to the maximum driving time provisions applicable to commercial motor vehicle operators, under 49 CFR 395.3.
Companies covered under this part must adhere to certain minimum standards with respect to the number of employees required to monitor violent prisoners during transportation. Private prisoner transport companies must ensure that at least one guard be on duty for every six violent prisoners transported. This requirement does not preclude a contracting entity from establishing more stringent guard-to-prisoner ratios.
(a)
(1) Uniforms must be readily distinguishable in style and color from official uniforms worn by United States Department of Justice employees who transport violent offenders;
(2) Uniforms must prominently feature a badge or insignia that identifies the employee as a prisoner transportation employee; and
(3) Uniforms must be worn at all times while the employee is engaged in the transportation of violent prisoners.
(b)
(1) The identification credentials must clearly identify the employee as a transportation employee. The credentials must have a photograph of the employee that is at least one inch square, a printed personal description of the employee including the employee's name, the signature of the employee, and date of issuance; and
(2) The employee must display proper identification credentials on his or her uniform and ensure that the identification is visible at all times during the transportation of violent prisoners.
Companies covered under this part must ensure that all violent prisoners they transport are clothed in brightly colored clothing that clearly identifies them as violent prisoners, unless security or other specific considerations make such a requirement inappropriate.
Companies covered under this part must, at a minimum, require that violent prisoners be transported wearing handcuffs, leg irons, and waist chains unless the use of all three restraints would create a serious health risk to the prisoner, or extenuating circumstances (such as pregnancy or physical disability) make the use of all three restraints impracticable.
When transporting violent prisoners, private prisoner transport companies are required to notify local law enforcement officials 24 hours in advance of any scheduled stops in their jurisdiction. For the purposes of this part, a scheduled stop is defined as a predetermined stop at a State, local, or private correctional facility for the purpose of loading or unloading prisoners or using such facilities for overnight, meal, or restroom breaks. Scheduled stops do not include routine fuel stops or emergency stops.
Private prisoner transport companies must be sufficiently equipped to provide immediate notification to law enforcement in the event of a prisoner escape. Law enforcement officials must receive notification no later than 15 minutes after an escape is detected unless the company can demonstrate that extenuating circumstances necessitated a longer delay. In the event of the escape of a violent prisoner, a private prisoner transport company must:
(a) Ensure the safety and security of the remaining prisoners;
(b) Provide notification within 15 minutes to the appropriate State and local law enforcement officials;
(c) Provide notification as soon as practicable to the governmental entity that contracted with the transport company; and
(d) Provide complete descriptions of the escapee and the circumstances surrounding the escape to State and local law enforcement officials if needed.
Companies covered under this section must comply with applicable State and federal laws that govern the safety of violent prisoners during transport. In addition, companies covered under this section are to ensure that:
(a) Protective measures are in place to ensure that all vehicles are safe and well-maintained;
(b) Vehicles are equipped with efficient communications systems that are capable of immediately notifying State and local law enforcement officials in the event of a prisoner escape;
(c) Policies are in effect to ensure the health and physical safety of the prisoners during transport, including a first-aid kit and employees who are qualified to dispense medications and administer CPR and emergency first-aid;
(d) Policies are in effect to prohibit the mistreatment of prisoners, including prohibitions against covering a prisoner's mouth with tape, and against the use of excessive force and sexual misconduct;
(e) Policies are in effect to ensure that juvenile prisoners are separated from adult prisoners during transportation, where practicable;
(f) Policies are in effect to ensure that female prisoners be separated from male prisoners during transportation, where practicable;
(g) Policies are in effect to ensure that female guards are on duty to supervise the transportation of female violent prisoners, where practicable; and
(h) Staff are well trained in the handling and restraint of prisoners, including the proper use of firearms and other restraint devices, and have received specialized training in the area of sexual harassment.
The regulations in this part implement the Act and do not pre-empt any applicable federal, State, or local law that may impose additional obligations on private prisoner transport companies or otherwise regulate the transportation of violent prisoners. All federal laws and regulations governing interstate commerce (
The regulations in this part on private prisoner transport companies are not intended to create a defense to any civil action, whether initiated by a unit of government or any other party. Compliance with the regulations in this part is not intended to and does not establish a defense against an allegation of negligence or breach of contract. Regardless of whether a contractual agreement establishes minimum precautions, the companies affected by the regulations in this part will remain subject to the standards of care that are imposed by constitutional, statutory and common law upon their activities (or other activities of a similarly hazardous nature).
Any person who is found in violation of the regulations in this part will:
(a) Be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each violation;
(b) Be liable to the United States for the costs of prosecution; and
(c) Make restitution to any entity of the United States, of a State, or of an inferior political subdivision of a State, that expends funds for the purpose of apprehending any violent prisoner who escapes from a prisoner transport company as the result, in whole or in part, of a violation of the regulations in this part promulgated pursuant to the Act.
Occupational Safety and Health Administration (OSHA), Labor.
Withdrawal of proposal.
OSHA is withdrawing its Indoor Air Quality proposal and terminating the rulemaking proceeding. In the years since the proposal was issued, a great many state and local governments and private employers have taken action to curtail smoking in public areas and in workplaces. In addition, the portion of the proposal not related to environmental tobacco smoke (ETS) received little attention during the rulemaking proceedings, and much of that consisted of commenters calling into question significant portions of the proposal. As a result, record evidence supporting the non-ETS portion of the proposal is sparse.
Withdrawal of this proposal will also allow the Agency to devote its resources to other projects. The Agency's current regulatory priorities, as set forth in the Regulatory Agenda, include a number of important occupational safety and health standards. This document does not preclude any agency action that OSHA may find to be appropriate in the future.
The withdrawal is made on December 17, 2001.
Bonnie Friedman, Director, OSHA Public Affairs Office, Occupational Safety and Health Administration, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; Telephone (202) 693-1999; Fax (202) 693-1634.
This document was prepared under the direction of John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor. It is issued pursuant to section 6(b) of the Occupational Safety and Health Act of 1970 (84 Stat. 1594, 29 U.S.C. 655) and 29 C.F.R. 1911.18.
Federal Communications Commission.
Proposed rule; extension of comment period.
This document grants a motion requesting an extension of the comment period established in the above-captioned docket. The order grants a 21-day extension to both the comment and reply comment deadlines.
Comments are due January 22, 2002 and Reply Comments are due February 12, 2002.
Cathy Carpino, Attorney Advisor, Policy and Program Planning Division, Common Carrier Bureau, (202) 418-1580.
1. On November 19, 2001, the Commission released a Notice of Proposed Rulemaking (66 FR 59759 (November 30, 2001)) establishing the pleading cycle for comments and reply comments in the above-captioned docket. The deadline for comments was established as December 31, 2001, and January 22, 2002 for reply comments.
2. On December 3, 2001, the United States Telecom Association (USTA) filed a Motion for Extension of Time to extend the date for comments and reply comments by 30 days. According to USTA, it seeks this extension to permit its membership the opportunity “to undertake the dialogue necessary to pursue an industry wide solution” to unbundled network element (UNE) performance standards in response to the
3. On December 4, 2001, BellSouth Corporation (BellSouth) filed comments in support of USTA's extension request, noting that during this holiday season, many of BellSouth's personnel who are necessary to address the issues raised in this proceeding are often unavailable. BellSouth argues that affording the parties additional time to prepare comments will facilitate the development of a more complete record that will, in turn, enable the Commission to conclude this proceeding in a reasonable and timely manner. On December 5, 2001, the Competitive Telecommunications Association (CompTel) filed similar comments in support of the USTA Motion. Like BellSouth, CompTel contends that a modest extension of the comment period would permit interested parties to provide more substantive and complete comments on the complex issues raised in the
4. It is the policy of the Commission that extensions of time are not routinely granted. In this instance, however, the Bureau finds that USTA, BellSouth, and CompTel have shown good cause for a limited extension of the deadline for filing comments and reply comments in this proceeding. Because of the complexity and the sheer number of issues presented in the
5. Accordingly, pursuant to authority found in section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and sections 0.91, 0.291 and 1.46 of the Commission's rules, 47 CFR 0.91, 0.291, 1.46, USTA's Motion for Extension of Time
Forest Service, USDA.
Notice of meeting.
The Giant Sequoia National Monument Scientific Advisory Board (Scientific Advisory Board) will meet at the Visalia Convention Center in Visalia, California, January 10 and 11, 2002. The purpose of the meeting is to hear comments from the public and consider alternatives to the Proposed Action as presented by the Planning Team.
The meeting will be held Thursday and Friday, January 10 and 11, from 8 a.m. to 5 p.m.
The meeting will be held at the Visalia Convention Center, 303 E. Acequia Avenue, Visalia, California, in room San Joaquin D.
To receive further information, contact Arthur L. Garrfrey, 559-784-1500.
The meeting is open to the public. If you are planning to attend, 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 January 10; when registering, participants must provide 9 written copies of their presentation, one copy for each member of the Board and one copy to be included 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 a previous 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.
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
Natural Resources Conservation Service (NRCS), Agriculture.
Notice of availability of a proposed change in Section IV of the FOTG of the NRCS in Oregon for review and comment.
It is the intention of NRCS in Oregon to issue a revision to Conservation Practice Standard 702, Agrichemical Handling Facility, in Section IV of the State Technical Guide in Oregon. This practice may be used in conservation systems that treat highly erodible land.
Comments will be received on or before January 16, 2002. Once the review and comment period is over and the standard is finalized, it will be placed in the individual Field Office Technical Guide in each field office.
Address all requests and comments to Roy M. Carlson, Jr., Leader for Technology, Natural Resources Conservation Service (NRCS), 101 SW Main Street, Suite 1300, Portland, Oregon 97204. Copies of this standard will be made available upon written request. You may submit electronic requests and comments to
Roy M. Carlson, Jr., 503-414-3231.
Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 states that revisions made after enactment of the law, to NRCS state technical guides used to carry out highly erodible land and wetland provisions of the law, shall be made available for public review and comment. For the next 30 days, the NRCS in Oregon will receive comments relative to the proposed changes. Following that period, a determination will be made by the NRCS in Oregon regarding disposition of those comments and a final determination of changes will be made. In Oregon, “technical guides” refers to the Field Office Technical Guide maintained at each NRCS Field Office in Oregon.
Import Administration, International Trade Administration, U.S. Department of Commerce.
On September 6, 2001, the Department of Commerce (the Department) published the preliminary results of its new shipper review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (PRC).
Based on our analysis of comments received, we have made changes to the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margin for the reviewed firm is listed below in the section entitled “Final Results of Review.”
December 17, 2001.
Matthew Renkey or Mark Hoadley; Office of Antidumping/Countervailing Duty Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone (202) 482-2312 and (202) 482-0666, 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. In addition, unless otherwise indicated, all citations to the Department's regulations are to the provisions codified at 19 CFR part 351 (2000).
The company covered by this new shipper review is Shanghai Taoen International Trading Co., Ltd. (Shanghai Taoen). Since the publication of the Preliminary Results, the following events have occurred. On September 26, 2001, we received a timely submission of publicly available information on the surrogate values for whole live crawfish and crawfish scrap from the Crawfish Processors Alliance (petitioner) and the Louisiana Department of Agriculture & Forestry and Bob Odom, Commissioner. On October 9, 2001, we received a case brief from the petitioner. On October 15, 2001, we received a rebuttal brief from Shanghai Taoen. The Department has now completed this review in accordance with section 751 (a)(2)(B) of the Act.
The product covered by this review is freshwater crawfish tail meat, in all its forms (whether washed or with fat on, whether purged or unpurged), grades, and sizes; whether frozen, fresh, or chilled; and regardless of how it is packed, preserved, or prepared. Excluded from the scope of the order are live crawfish and other whole crawfish, whether boiled, frozen, fresh, or chilled. Also excluded are saltwater crawfish of any type, and parts thereof. Freshwater crawfish tail meat is currently classifiable in the Harmonized Tariff Schedule of the United States (HTS) under item numbers 1605.40.10.10 and 1605.40.10.90, which are the new HTS for prepared foodstuffs, indicating peeled crawfish tail meat and other, as introduced by the U.S. Customs Service in mid-year 2000, and HTS items 0306.19.00.10 and 0306.29.00, which are reserved for fish and crustaceans in general. The HTS subheadings are provided for convenience and Customs purposes only. The written description of the scope of this order is dispositive.
All issues raised in the briefs filed by parties to this new shipper review are addressed in the
A list of the issues which parties have raised and to which we have responded, all of which are in the
Based on our analysis of comments received, we have made certain changes in the margin calculations. For a discussion of the issues and changes made, refer to the
We determine that the following weighted-average margin exists for the period September 1, 1999 through September 30, 2000:
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. We have calculated importer-specific per kilogram assessment rates for Shanghai Taoen. We will direct the Customs Service to assess the per kilogram rate against the entered customs quantity for each entry of subject merchandise from Shanghai Taoen during the review period.
The following deposit requirement will be effective upon publication of this notice of new shipper review for all shipments exported by Shanghai Taoen of freshwater crawfish tail meat from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: the per kilogram cash deposit rate for Shanghai Taoen will be the total amount of dumping margins calculated for the POR divided by the total quantity it sold during the POR.
The following rates are in effect and remain unaffected by the results of this new shipper review: (1) For previously-reviewed PRC and non-PRC exporters with separate rates, the cash deposit rate will be the company-specific rate established for the most recent period; (2) for all other PRC exporters, the rate will be the current PRC-wide ad valorem rate, 201.63 percent, established in the most recently completed administrative review (
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and subsequent
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with § 351.305(a)(3) of the Department's regulations. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This new shipper review and notice are in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of extension of time limit for preliminary results of administrative review.
December 17, 2001.
Sally C. Gannon at (202) 482-0162, Abdelali Elouaradia at (202) 482-1374, or Julio Fernandez at (202) 482-0190, AD/CVD Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230.
Unless otherwise indicated, all citations to the statute are references to the Tariff Act of 1930 (the Act), as amended. In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR part 351 (2001).
The Department of Commerce (the Department) received a request from ALZ N.V. (ALZ) and TrefilARBED, Inc., and from petitioners, on May 16, 2001, and May 31, 2001, respectively, for an administrative review of the antidumping duty order on stainless steel plate in coils from Belgium. On June 19, 2001, the Department published a notice of initiation of this administrative review covering the period of May 1, 2000 through April 30, 2001 (66 FR 32934).
Pursuant to section 751(a)(3)(A) of the Act, the Department shall make a preliminary determination in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order. The Act further provides, however, that the Department may extend that 245-day period to 365 days if it determines it is not practicable to complete the review within the foregoing time period.
In light of the complexity of analyzing ALZ's cost reconciliation, it is not practicable to complete this review by the current deadline of January 31, 2002.
Therefore, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time limit for the preliminary results by 120 days, until no later than May 31, 2002. The final results continue to be due 120 days after the publication of the preliminary results.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review of stainless steel sheet and strip from the Republic of Korea.
On August 8, 2001, the Department of Commerce (“the Department”) published in the
Based on our analysis of the comments received, we have made changes in the margin calculations for POSCO. Therefore, the final results differ from the preliminary results of review. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of the Review.” In addition, we are rescinding the review with respect to Sammi.
December 17, 2001.
Stephen Shin (“Samwon”), Catherine Bertrand (“DMC”), Brandon Farlander (“Sammi”) or Laurel LaCivita (“POSCO”), Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0413, (202) 482-3207, (202) 482-0182, or (202) 482-4243, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments
On August 8, 2001, the Department published
For purposes of this administrative review, the products covered 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 review is classified in the
Excluded from the scope of this review 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 (
In response to comments by interested parties, the Department has determined that certain specialty stainless steel products are also excluded from the scope of this review. These excluded products are described below.
Flapper valve steel 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 review. 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 steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this review. 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
Certain electrical resistance alloy steel is also excluded from the scope of this review. 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 review. 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 review. These include stainless steel strip in coils used in the production of textile cutting tools (
In the
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (“
Based on our analysis of comments received, we have made changes in the margin calculations for POSCO. The changes to POSCO's margin calculations are listed below:
• We adjusted POSCO's reported costs to include an amortized portion of its deferred foreign exchange losses.
• We adjusted POSCO's reported foreign exchange ratio to include gains and losses associated with cash, A/P, “other” accounts, and loans payable in the numerator.
• We reversed our position on affiliated party inputs from the preliminary results and, for these final results, we are not making an adjustment to POSCO's costs for affiliated party inputs.
• We revised the calculation of POSCO's per-unit G&A expense to apply POSCO's G&A ratio to the sum of the revised cost of manufacturing plus packing.
• We calculated an adjustment for warranty expense and included it as an adjustment to U.S. price.
• We have recalculated home market credit for POSCO's U.S. dollar home market sales using POSAM's U.S. dollar interest rate instead of POSCO's Korean won interest rate.
• We have recalculated POSAM's indirect selling expenses to adjust the amount of interest expense applicable to U.S. sales of subject merchandise and to take into account an offset for imputed credit.
• We have revised our calculations to deduct U.S. indirect selling expenses from U.S. starting price rather than add them.
• We have revised the total cost of production included in both our cost and constructed value calculations to include interest expenses (“INTEX”), which were erroneously omitted from the calculation in our preliminary results of review.
We made no changes to Daiyang's or Samwon's calculations for the final results of review.
We determine that the following percentage margin exists for the period January 4, 1999 through June 30, 2000:
The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the Customs Service. For duty-assessment purposes, we will calculate importer-specific assessment rates by dividing the dumping margins calculated for each importer by the total entered value of sales for each importer during the period of review.
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of stainless steel sheet and strip from the Republic of Korea entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for POSCO, Samwon and DMC will be the rates shown above; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in these or any previous reviews conducted by the Department, the cash deposit rate will be the “all others” rate, which is 12.12 percent.
These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties or countervailing duties occurred and the subsequent assessment of double antidumping duties or countervailing duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 771(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of committee meeting.
The North Pacific Fishery Management Council’s (Council) Observer Committee will meet in Seattle, WA.
The meeting will be held on January 7-8, 2002.
The meeting will be held at the Alaska Fisheries Science Center (Center), 7600 Sand Point Way NE, Seattle, WA.
Nicole Kimball, North Pacific Fishery Management Council; telephone: 907-271-2809.
The meeting will begin at 9 a.m. on Monday, January 7, continue through Monday, January 8. The committee’s agenda includes the following issues:
1. Review draft analysis for three regulatory changes to the North Pacific Groundfish Observer Program, and
2. Review the goals and objectives of the North Pacific Groundfish Observer Program.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Helen Allen, 907-271-2809, at least 5 working 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) Ad Hoc Groundfish Multi-Year Management Committee (GMMC) will hold a work session, which is open to the public.
The GMMC will meet Thursday, January 10, 2002, from 10 a.m. until 5 p.m; and Friday, January 11, 2002, from 8 a.m. until business for the day is completed.
The work session will be held at the Pacific Fishery Management Council, West Conference Room, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220; 503-326-6352.
Dan Waldeck or Don McIsaac, Pacific Fishery Management Council, 503-326-6352.
The formation of this ad hoc committee is in response to the Council’s request for a committee to scope multi-year management approaches for the West Coast groundfish fishery. Multi-year management of the groundfish fishery would be synchronized with a multi-year groundfish stock assessment schedule. Full accommodation of federal notice and comment requirements would also be incorporated into the multi-year cycle. This is the second meeting of the committee, and the primary purpose of the meeting is to further develop the purpose and objectives of multi-year management, as well as alternative multi-year management approaches.
Although nonemergency issues not contained in the GMMC meeting agenda may come before the GMMC for discussion, those issues may not be the subject of formal GMMC action during the meeting. GMMC action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document 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 GMMC's intent to take final action to address the emergency.
The 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Pacific Fishery Management Council's (Council) Salmon Technical Team (STT) and Scientific and Statistical Committee (SSC) Salmon Subcommittee will hold two joint work sessions, which are open to the public.
The work sessions will be held Thursday, January 3, 2002, from 8:30 a.m. to 5 p.m., and Wednesday, February 6, 2002, from 8:30 a.m. to 5 p.m.
Both work sessions will be held at the Embassy Suites Hotel, 7900 NE 82nd Ave., Portland, OR 97220.
Council address: Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 200, Portland, OR 97220-1384.
Mr. Chuck Tracy, Salmon Management Staff Officer, Pacific Fishery Management Council (503) 326-6352.
The purpose of the work session is to brief the STT and SSC on changes made to or proposed for the coho Fishery Regulation Assessment Model (FRAM) and the Klamath Ocean Harvest Model (KOHM), review the scientific bases for those changes, and compare results from the updated model with those from the previous version. The coho FRAM will be reviewed on January 3, 2002 and the KOHM will be reviewed on February 6, 2002.
Although non-emergency issues not contained in the meeting agendas may come before the STT and the SSC subcommittee for discussion, those issues may not be the subject of formal action during these meetings. 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 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.
Technology Administration, Commerce.
Proposed collection; Comment request.
The Department of Commerce (DOC), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the continuing and proposed information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before February 15, 2002.
Direct all written comments to Madeleine Clayton, Departmental Forms Clearance Officer, Department of Commerce, Room 6086, 1401 Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at MClayton@doc.gov).
Requests for additional information should be directed to the attention of Mildred Porter, Director, National Medal of Technology Program, Technology Administration, 1401 Constitution Avenue, NW., Room 4226, Washington, DC 20230. In addition, written comments may be sent via fax, (202) 501-8153, and e-mail to mporter@ta.doc.gov.
This information collection is critical for the Nomination Evaluation Committee to determine nomination eligibility and merit according to specified criteria or the annual selection of the Nation's leading technological innovators honored by the President of the United States. The information is needed to comply with Pub. L. 96-480 and Pub. L. 105.309. Comparable information is not available on a standardized basis.
By mail, but the nomination forms and instructions are electronically posted on the National Medal of Technology web site so interested parties can review criteria and informational requirements.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Defense Security Cooperation Agency, Department of Defense.
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 02-13 with attached transmittal and policy justification.
Department of Defense (DoD).
Notice of establishment.
The Defense Business Practice Implementation Board (DSPIB) is being established in consonance with the public interest and in accordance with the provisions of Pub. L. 92-463, the “Federal Advisory Committee Act,” title 5 U.S.C., Appendix 2. The DBPIB will make recommendations to the Secretary's Executive Council (SEC) on effective strategies to adopt best business practices of interest to the Department of Defense.
The Panel will consist of approximately 20 members selected on the basis of their preeminence in the fields of management, production, logistics, personnel leadership, and the defense industrial base. Consultants with special expertise also may be designated to assist the Board on and ad hoc basis.
Louis Douglas, Office of the Under Secretary of Defense (Comptroller/Chief Financial Officer), on 703-602-0193.
Advisory Group on Electron Devices, Department of Defense.
Notice.
The DoD Advisory Group on Electron Devices (AGED) announces a closed session meeting.
The meeting will be held at 0900, Wednesday, January 9, 2002.
The meeting will be held at Palisades Institute for Research Services, Inc. 1745, Jefferson Davis Highway, Suite 500, Arlington, VA 22202.
Mr. Eliot Cohen, AGED Secretariat, 1745, Jefferson Davis Highway, Crystal Square
The mission of the Advisory Group is to provide advice to the Under Secretary of Defense for Acquisition and Technology, to the Director of Defense Research and Engineering (DDR&E), and through the DDR&E to the Director, Defense Advanced Research Projects Agency and the Military Departments in planning and managing an effective and economical research and development program in the area of electron devices.
The AGED meeting will be limited to review of research and development programs which the Military Departments propose to initiate with industry, universities or in their laboratories. The agenda for this meeting will include programs on Radiation Hardened Devices, Microwave Tubes, Displays and Lasers. The review will include details of classified defense programs throughout.
In accordance with section 10(d) of Pub. L. 92-463, as amended, (5 U.S.C. App. sec. 10(d)), it has been determined that this Advisory Group meeting concerns matters listed in 5 U.S.C. 552(b)(1), and that accordingly, this meeting will be closed to the public.
Advisory Group on Electron Devices, Department of Defense.
Notice.
Working Group A (Microwave Devices) of the DoD Advisory Group on Electron Devices (AGED) announces a closed session meeting.
The meeting will be held at 0900, Tuesday, January 8, 2002.
The meeting will be held at Palisades Institute for Research Services, Inc., 1745 Jefferson Davis Highway, Suite 500, Arlington, VA 22202.
David Cox, AGED Secretariat, 1745 Jefferson Davis Highway, Crystal Square Four, Suite 500, Arlington, VA 22202.
The mission of the Advisory Group is to provide advice to the Under Secretary of Defense for Acquisition and Technology, to the Director of Defense Research and Engineering (DDR&E), and through the DDR&E to the Director, Defense Advanced Research Projects Agency (ARPA) and the Military Departments in planning and managing an effective and economical research and development program in the area of electron devices.
The Working Group A meeting will be limited to review of research and development programs which the Military Departments propose to initiate with industry, universities or in their laboratories. This microwave device area includes programs on developments and research related to microwave tubes, solid state microwave devices, electronic warfare devices, millimeter wave devices, and passive devices. The review will include details of classified defense programs throughout.
In accordance with section 10(d) of Pub. L. 92-463, as amended (5 U.S.C. App. sec. 10(d) it has been determined that this Advisory Group meeting concerns matters listed in 5 U.S.C. 552b(c)(1), and that accordingly, this meeting will be closed to the public.
Advisory Group on Electron Devices, Department of Defense.
Notice.
Working Group B (Microelectronics) of the DoD Advisory Group on Electron Devices (AGED) announces a change to a closed session meeting.
The meeting will be held at 1400, Wednesday, January 9, 2002.
The meeting will be held Palisades Institute for Research Services, 1745 Jefferson Davis Highway, Suite 500, Arlington, VA 22202.
Elise Rabin, AGED Secretariat, 1745 Jefferson Davis Highway, Crystal Square Four, Suite 500, Arlington, Virginia 22202.
The mission of the Advisory Group is to provide advice to the Under Secretary of Defense for Acquisition and Technology, to the Director Defense Research and Engineering (DDR&E), and through the DDR&E, to the Director Defense Advanced Research Projects Agency and the Military Departments in planning and managing an effective research and development program in the field of electron devices.
The Working Group B meeting will be limited to review of research and development programs which the military proposes to initiate with industry, universities or in their laboratories. The microelectronics area includes such programs on semiconductor materials, integrated circuits, charge coupled devices and memories. The review will include classified program details throughout.
In accordance with section 10(d) of Pub. L. 92-463, as amended, (5 U.S.C. App. sec. 10(d)), it has been determined that this Advisory Group meeting concerns matters listed in 5 U.S.C. 552b(c)(1), and that accordingly, this meeting will be closed to the public.
Advisory Group on Electron Devices, Department of Defense.
Notice.
Working Group C (Electro-Optics) of the DoD Advisory Group on Electron Devices (AGED) announces a closed session meeting.
The meeting will be held at 0900, Wednesday, January 30, 2002.
The meeting will be held at Palisades Institute for Research Services, 1745 Jefferson Davis Highway, Suite 500, Arlington, VA 22202.
Elise Rabin, AGED Secretariat, 1745 Jefferson Davis Highway, Crystal Square Four, Suite 500, Arlington, Virginia 22202.
The mission of the Advisory Group is to provide advice to the Under Secretary of Defense for Acquisition and
The Working Group C meeting will be limited to review of research and development programs which the Military Departments propose to initiate with industry, universities or in their laboratories. This opto-electronic device area includes such programs as imaging device, infrared detectors and lasers. The review will include details of classified defense programs throughout.
In accordance with Section 10(d) of Pub. L. 92-463, as amended, (5 U.S.C. App. sec. 10(d)), it has been determined that this Advisory Group meeting concerns matters listed in 5 U.S.C. 552b(c)(1), and that accordingly, this meeting will be closed to the public.
Department of Defense
Notice of advisory committee meetings.
The Defense Science Board (DSB) Task Force on Enduring Freedom Lessons Learned will meet in closed session on January 5-15, 2002, at various locations within the U.S. Central Command's area of responsibility; and January 17-18, 2002, at IDA, 1801 N. Beauregard Street, Alexandria, VA. This Task Force will review current activities of Operation Enduring Freedom to determine both near and longer-term technical and operational considerations that could be used to improve this operation and future campaigns initiated in the War Against Terrorism.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board Task Force will review and evaluate operational policy and procedures, command and control, intelligence, combat support activities, weapon system performance, and science and technology requirements.
In accordance with section 10(d) of the Federal Advisory Committee Act, P.L. No. 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Science Board Task Force meetings concern matters listed in 5 U.S.C. 552b(c)(1) and that, accordingly, these meetings will be closed to the public.
Office of the Secretary, DoD.
Notice to alter a system of records.
The Office of the Secretary of Defense proposes to alter a 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 alteration adds a new category of records being maintained and a new purpose for these records.
The changes will be effective on January 16, 2002 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) 601-4722 x124.
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 systems being altered are set forth below followed by the notices, as amended, published in their entirety.
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, were submitted on October 24, 2001, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
DOD National Media Pool Files (February 22, 1993, 58 FR 10227).
Delete entry and replace with “DoD National Media Pool and Pentagon Correspondent Files”.
Add a new paragraph to entry “Pentagon correspondents who may conduct interviews with Pentagon executive level personnel.”
Add a new paragraph to entry “Pentagon correspondents files consist of their photographs and biographies.”
Delete entry and replace with “Media Pool Files are used to issue Pentagon building passes, Media Pool Press Passes, orders, to arrange foreign country clearances and visas, and to determine individual's suitability/preparedness for deployment with the media pool.
“Pentagon correspondent records are used by Pentagon executive level personnel to provide a brief summary of a correspondent's professional experience and background.”
Delete entry and replace with “Paper records are retrieved by individual’s last name, Social Security Number, bureau, or organization. Electronic records are retrieved by last name, Social Security Number and/or news organization.”
Add to entry “Electronic records are accessible only by the Directorate of
DoD National Media Pool and Pentagon Correspondent Files.
Office of the Assistant Secretary of Defense (Public Affairs), Directorate for Plans, Room 2D757, 1400 Defense Pentagon, Washington, DC 20301-1400 for Media Pool records.
Office of the Assistant Secretary of Defense (Public Affairs), Directorate of Defense Information, 1400 Defense Pentagon, Room 2E765, Washington, DC 20301-1400 for the Pentagon Correspondent records.
Civilian media representatives nominated by their respective bureaus to be members of the DoD National Media Pool.
Pentagon correspondents who may conduct interviews with Pentagon executive level personnel.
DoD National Media Pool files consist of accreditation and other questionnaires and forms soliciting the media correspondent’s name, age, nationality, Social Security Number, office and home addresses and phone numbers, passport information, medical information, and person to be notified in an emergency effecting individual.
Pentagon correspondent files consist of their photographs and biographies.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 138; and E.O. 9397 (SSN).
Media Pool Files are used to issue Pentagon building passes, Media Pool Press Passes, orders, to arrange foreign country clearances and visas, and to determine individual's suitability/preparedness for deployment with the media pool.
Pentagon correspondent records are used by Pentagon executive level personnel to provide a brief summary of the correspondent's professional experience and background.
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.
Paper records in file folders and computerized electronic records.
Paper records are retrieved by individual's last name, Social Security Number, bureau, or organization. Electronic records are retrieved by last name, Social Security Number, and/or news organization.
Records are accessed by authorized personnel with an official need-to-know who have been trained for handling Privacy Act information. Electronic records are accessible only by the Directorate of Defense Information administrative staff.
National media files are cut off annually and kept in the office for 5 years. Files are then transferred to the Washington National Records Center for 25 years. They are then offered to the National Archives for permanent retention after 25 years.
Pentagon correspondent files disposition pending (until NARA has approved a retention and disposition schedule, records will be treated as permanent).
For DoD National Media Pool files: Office of the Assistant Secretary of Defense (Public Affairs), Directorate for plans, Room 2D757, 1400 Defense Pentagon, Washington, DC 20301-1400.
Deputy Director, Directorate for Defense Information, Office of the Assistant Secretary of Defense (Public Affairs), 1400 Defense Pentagon, Room 2E765, Washington, DC 20301-1400.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the appropriate System manager above.
The request should contain individual's full name, individual's Social Security Number, and bureau or organization where employed.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the appropriate System manager above.
The request should contain individual's full name, individual's Social Security Number, and bureau or organization where employed.
The OSD 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.
Accreditation and other questionnaires and forms completed or provided by the individual and information provided by the individual's employer or bureau.
None.
Headquarters, Military Traffic Management Command, DOD.
Notice of intent.
The Military Traffic Management Command (MTMC) proposes to revise transportation services associated with the Defense Transportation Tracking System (DTTS) by requiring carriers to incorporate any charges for Satellite Motor Surveillance Service (SNS) into the basic linehaul transportation rate for motor freight shipments. This proposed revision applies to the movement of arms, ammunition and explosives (AA&E) shipments.
The policy proposed by this notice shall be effective no earlier than February 15, 2002. Interested parties are requested to submit comments on this notice. All comments submitted within 60 days of publication of this notice will be carefully considered before a final decision is made on the matter.
Comments should be addressed to Headquarters, Military Traffic Management Command, Hoffman Building II, 200 Stovall Street,
Mr. Frank Galluzzo, (703) 428-2327.
The Defense Transportation Tracking System (DTTS) provides satellite tracking of domestic motor shipments while enroute (between origin and destination) and increases security and response capability for AA&E shipments in the event of accident or incident. SNS is a transportation protective service that permits Department of Defense (DOD) to obtain periodic in-transit reports and messages on shipment movements in the DTTS. Since its inception in February 1989, the DTTS has been expanded to cover a large number of shipments involving Security Risk Categorized (CAT) munitions. It is the DOD policy to track all CAT I through IV and Uncategorized Munitions shipments using SNS. Included in these categories are most types of arms, ammunition and explosives shipped by DOD or DOD contractor-sponsored shipments.
On July 6, 1993 MTMC published a
MTMC has reconsidered the policy of separate SNS charges, and now proposes that SNS accessorial charges be discontinued for AA&E shipments. SNS services would still be required on AA&E shipments. However, in lieu of an accessorial charge, each carrier would include all costs of providing satellite tracking service in the carrier's basic linehaul transportation rate. At one time many munitions shipments did not require SNS service. Transportation Officers ordered SNS as needed, on a shipment-by-shipment basis. Thus, it was not logical or economical to include such charges in the linehaul rate. An agreed stipulation signed in December 1994 by the Munitions Carriers Conference and the United States provided that SNS would be continued at that time as a separate accessorial charge. Thee stipulation also provided that it would not prevent MTMC from making any policy change which it determines to be necessary to protect the public interest or the fiscal and operational requirements of the DOD.
MTMC now proposes to change this policy for AA&E shipments since it is expected to result in operational efficiencies and lower overall transportation costs to the public, thus furthering the public interest and protecting the fiscal requirement of the DOD. Satellite tracking devices are now in universal use by motor carriers. MTMC requires satellite tracking be provided routinely on all DOD motor freight shipments of arms, ammunition and similarly classified commodity categories. There is no longer any reason to maintain a separate accessorial charge for a service that is considered essential to these shipments and can be included in the carriers' basic linehaul rate.
MTMC requirements and standards for SNS and related services can be found at
This proposed policy change applies only to the movement of AA&E shipments. MTMC will continue to maintain an accessorial service in the Freight Traffic Rules Publication No. 1Bb for shippers to order motor surveillance service (SNS) for certain types of shipments which require this type of surveillance. Typically these shipments may include historical and high value articles, one of a kind items or other items of a unique nature that require SNS during the transportation process. SNS for these articles will be ordered by the shipper on a case-by-case basis and only from carriers who provide this service and have a rate on file with MTMC. MTMC will develop and publish a in the Freight Traffic Rules Publication No. 1B an accessorial item for this service.
Army Corps of Engineers, DoD.
Notice of availability.
The Corps of Engineers, Nashville District, and the Tennessee Valley Authority (Cooperating Agency) has prepared a Draft Supplemental Environmental Impact Statement (DSEIS) to the 1995 Environmental Impact Statement titled Chickamauga Dam—Navigation Lock Project Final Environmental Impact Statement (FEIS). This supplement is necessary to provide information unknown and not required at the time the FEIS was completed.
Written comments must be received by the Corps of Engineers on or before January 29, 2002.
Written comments on issues to be considered in the SEIS shall be mailed to: Wayne Easterling or Patty Coffey, Project Planning Branch, Nashville District Corps of Engineers, PO Box 1070 (PM-P), Nashville, Tennessee 37202-1070.
For additional information concerning the notice, please contact Wayne Easterling, Environmental Team, (615) 736-7847, or Patty Coffey, Environmental Team, (615) 736-7865.
1. The intent of the Supplemental EIS is to provide National Environmental Policy Act coverage for the Chickamauga Lock project on issues that were unknown or not required when the original EIS was prepared. The original EIS for Chickamauga Lock was completed in 1995 and a Record of Decision signed in 1996. The original EIS considered four alternatives including no action (closing the existing lock), constructing a new 110 × 600 foot lock (preferred alternative), constructing a new 60 × 360 foot lock (replacement in kind) and constructing a new 75 × 400 foot lock. The SEIS now proposed will cover cumulative effects and compliance with section 106 of the Historic Preservation Act. Coordination with the U.S. Fish and Wildlife Service will include a Biological Assessment/Opinion for Endangered Species Act and a Fish and Wildlife Coordination Act Report.
2. This notice serves to solicit comments from the public; federal, state and local agencies and officials; Indian
Department of Education.
Correction notice.
On December 4, 2001, a 60-day notice inviting comment from the public was published for “An Assessment of the Rehabilitation Services Administration (RSA) Pre-Service Training Program” in the
Office of Environmental Management, DOE.
Notice of wetland involvement.
The U.S. Department of Energy (DOE) is proposing to implement a Reindustrialization Program at the Portsmouth Gaseous Diffusion Plant (PORTS) in Piketon, Ohio. The PORTS facility contains a number of wetlands. The Reindustrialization Program would enable DOE to transfer real and personal property (
Comments are due to the address below no later than January 2, 2002.
Comments should be addressed to Ms. Kristi Wiehle, U.S. Department of Energy, Portsmouth Gaseous Diffusion Plant, PO Box 700, 3930 U.S. Route 23, Perimeter Road, Piketon, OH 45661-0700. Comments may be faxed to (740) 897-5020.
Ms. Kristi Wiehle, U.S. Department of Energy, Portsmouth Gaseous Diffusion Plant, PO Box 700, 3930 U.S. Route 23, Perimeter Road, Piketon, OH 45661-0700, (740) 897-5020.
For Further Information on General DOE Wetland Environmental Review Requirements, contact: Carol M. Borgstrom, Director, Office of NEPA Policy and Assistance, EH-42, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 200585, (202) 586-4600 or (800) 472-2756.
In accordance with the National Environmental Policy Act (NEPA), the Council on Environmental Quality regulations (40 CFR parts 1500-1508) and the DOE NEPA Implementing Regulations (10 CFR 1021), DOE has prepared a draft Environmental Assessment (EA) to evaluate the proposed action. The draft EA was issued for public review and comment on May 9, 2001, via a notice placed in three Portsmouth area newspaper. As a part of the EA (DOE/EA-1346), DOE is including a wetlands assessment to assess the existing wetlands environment as well as the potential impact of the proposed Reindustrialization Program implementation. (The wetlands assessment is available by contracting the PORTS representative named above.) DOE proposes to implement and conduct the Reindustrialization Program in a manner that avoids or minimizes potential adverse effects to the wetlands at the site. Reindustrialization would enable DOE to transfer real and personal property by lease and/or disposal. Under the program, DOE would transfer the property to a community reuse organization, to other federal agencies, or to other interested persons and entities, should DOE determine them suitable. Transferred land and facilities may then be developed or utilized for a range of industrial and commercial uses including, but not limited to manufacturing, warehousing, office/business park, rail and intermodal transportation, and retail and service operations.
Land and facilities presently available for transfer occupy approximately 526.1 hectares (ha) [1300 acres (ac)] or about 35% of the 1503 ha (3714 ac) of PORTS. For the most part, this area is comprised of previously industrialized areas, infrastructure corridors, roads, loading and parking areas, and open and forested buffer areas. Of the land available for transfer, there are 41 wetlands under the jurisdictional regulation of the U.S. Army Corps of Engineers and 4 non-jurisdictional wetlands totaling 13.92 ha (34.36 ac). In addition to regulation by the Corps, the State of Ohio also regulates wetlands in a “tiered” approach structured around avoidance, minimization, mitigation, and compensation, where avoidance is the most desirable means to protect and preserve the resource and compensation the least desirable. The majority of the wetlands are associated with wet fields, areas of previous disturbance, drainage ditches, or wet areas along roads and railway tracks.
The potential for and degree of impacts to the wetlands could result from a variety of actions that might occur, depending upon how the tenant or new owner proposes to use the land. Some or all of the wetlands could potentially experience impacts by development in the wetlands themselves or by Reindustrialization activities in nearby areas. The worst-case scenario would involve filling the wetlands. Other lesser impacts could result from siltation due to poor soil erosion control measures at nearby locations, spills or leaks of oil or other chemicals, overuse of pesticides or herbicides that could lead to contamination and potentially harm animal species that use the wetlands for cover or forage, etc., planting of exotic
For purposes of the environmental restoration activities ongoing at PORTS, the site is divided into 4 “Quadrants” based on groundwater flow patterns. Quadrant I (the southern part of the site) has 13 jurisdictional wetlands totaling 5.22 ha (12.91ac). The wetlands in Quadrant I range in size from .093 ha (.0230 ac) in a drainage ditch to one that is 1.874 ha (4.626 ac), that is the former site of a never-completed building project. Of the 13 wetlands, 5 are associated with roadways and ditches and the remaining 8 are the result of site preparation, grading and drainage alternation for building construction. None of the wetlands are hydrologically connected although they do periodically support wetland plant species and may exhibit hydric soil conditions.
Quadrant II, the eastern part of the site, contains 3 jurisdictional wetlands with a total area of 5.2 ha (12.86 ac). The wetlands in Quadrant II range in size from the smallest, .182 ha (.45 ac), associated with an area of previous disturbance, to .821 ha (2.028 ac) in a radiologically contaminated area, to one that is 4.203 ha (10.378 ac), and that is within the Little Beaver Creek drainage. Only 1 of the 3 wetlands is within an area considered for Reindustrialization.
Quadrant III, the central and western part of the site, has 6 jurisdictional wetlands totaling 0.82 ha (2.02 ac). The smallest wetland in Quadrant III is .015 ha (.036 ac) and the largest is .486 ha (1.201 ac). Of the 6 wetlands, 4 are associated with roads and ditches, and the remaining 2 with previously disturbed areas, one of which is radiologically contaminated. Only 1 of these 6 wetlands is within an area proposed for Reindustrialization. None of the wetlands are hydrologically connected although they do periodically support wetland plant species and may exhibit hydric soil conditions.
Quadrant IV, the northern section of the site, has 19 jurisdictional wetlands and 4 non-jurisdictional wetlands totaling 2.66 ha (6.58 ac). The 4 non-jurisdictional wetlands are associated with active sludge lagoons. The smallest wetland in Quadrant IV is .005 ha (.012 ac) and 15 of the 19 jurisdictional wetlands are less than .1 ha (~
In accordance with DOE regulations for compliance with wetlands environmental review requirements (10 CFR part 1022), a wetland assessment will be included within the Environmental Assessment for the Reindustrialization Program at the Portsmouth Gaseous Diffusion Plant (DOE/EA-1346).
Issued in Oak Ridge, Tennessee, on November 13, 2001.
Idaho Operations Office, Department of Energy.
Notice of availability of solicitation number DE-PS07-02ID14271.
The American Forest and Paper Association in cooperation with the U.S. Department of Energy, is seeking applications for cost-shared research and development of technologies, which will reduce energy consumption, enhance economic competitiveness, and reduce environmental impacts of the Forest Products Industry. The research is to address research priorities in the higher value through sustainable forestry, gasification, fiber modification and VOC and HAP emission technology areas.
The deadline for receipt of applications is 5 p.m. EST on April 15, 2002.
Applications should be submitted to: David Friedman, American Forest and Paper Association, 1111 19th Street, NW., Suite 800, Washington, DC 20036.
Carol Van Lente, Contract Specialist, at
The statutory authority for this program is the Federal Non-Nuclear Energy Research & Development Act of 1974 (P.L. 93-577). Approximately $2,000,000 in federal funds is expected to be available to fund the first year of selected research efforts. DOE anticipates making three cooperative agreement awards each being $500,000 to $700,000 per year with a duration of three to five years. Collaborations between industry, university, and National Laboratory participants are encouraged. The solicitation is available in full text via the Internet at the following address:
Office of Fossil Energy, DOE.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during November 2001, it issued Orders granting, amending, and transferring authority to import and export natural gas. These Orders are summarized in the attached appendix and may be found on the FE web site at
Take notice that the following filings have been made with the Commission:
Take notice that on November 30, 2001, Northwest Natural Gas Company (NW Natural) and Portland General Electric Company (PGE) (collectively, the Applicants) filed with the Federal Energy Regulatory Commission (Commission) an application pursuant to Section 203 of the Federal Power Act for authorization of a disposition of jurisdictional facilities whereby Northwest Natural Holding Company (NW Natural Holdco), a newly-formed holding company, will acquire all of the outstanding common stock of PGE.
The Applicants state that the transaction will not have an adverse effect on competition, will not have an adverse effect on rates, and will not have an adverse effect on competition.
Take notice that on December 5, 2001, Entergy Power Ventures, L.P., 20 Greenway Plaza, Suite 1025, Houston, Texas 77046, filed with the Federal Energy Regulatory Commission an amendment to its application for determination of exempt wholesale
Take notice that on November 30, 2001, Duke Energy Arlington Valley, LLC (Duke Arlington Valley) filed an application with the Federal Energy Regulatory Commission (the Commission) for determination of exempt wholesale generator status pursuant to Section 32 of the Public Utility Holding Company Act of 1935, as amended, and part 365 of the Commission's regulations.
Duke Arlington Valley is a Delaware limited liability company that will be engaged directly and exclusively in the business of owning and operating all or part of one or more eligible facilities to be located in Maricopa County, Arizona. The eligible facilities will consist of an approximately 1,200 MW natural gas-fired, combined cycle electric generation plant and related interconnection facilities. The output of the eligible facilities will be sold at wholesale.
Take notice that on November 30, 2001, FPL Energy Marcus Hook, L.P. (Applicant), with its principal office at 700 Universe Boulevard, Juno Beach, FL 33408, tendered for filing with the Federal Energy Regulatory Commission (Commission), an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
Applicant states that it is a Delaware limited partnership engaged directly and exclusively in the business of developing and operating an approximately 740 MW generating facility to be located in Marcus Hook, Pennsylvania. Electric energy produced by the facility will be sold at wholesale or at retail exclusively to foreign consumers.
Take notice that on December 3, 2001, ISO New England Inc. (the ISO) tendered for filing with the Federal Energy Regulatory Commission (Commission) a compliance filing in response to the August 28, 2001 order in the referenced proceeding.
Take notice that on December 4, 2001, Liberty Electric Power, LLC, which will own and operate a natural gas-fired electric generating facility in the Borough of Eddystone, Pennsylvania submitted for filing with the Federal Energy Regulatory Commission (Commission) its Supplement No. 1 to its FERC Electric Tariff Original Volume No. 1, in compliance with the Commission's November 20, 2001 letter order to include a code of conduct reflecting Liberty Electric's pending affiliation with Reliant HL&P.
Take notice that on December 4, 2001, Colton Power L.P. (Applicant) tendered for filing with the Federal Energy Regulatory Commission (Commission) a further amended market-based rate schedule under section 205 of the Federal Power Act in order to comply with the Federal Energy Regulatory Commission's Order Establishing Refund Effective Date and Proposing to Revise Market-Based Rate Tariffs and Authorization issued in Docket No. EL01-118 on November 20, 2001.
Take notice that on December 4, 2001, the New York Independent System Operator, Inc. (NYISO) submitted with the Federal Energy Regulatory Commission (Commission) a report on the status of its demand side management programs and the status of the addition of new generation resources in New York State in compliance with the Commission's October 25, 2001 Order in this proceeding. The NYISO has served a copy of this filing upon all parties that have executed service agreements under the NYISO's Open Access Transmission Tariff and Market Administration and Control Area Services Tariff.
Take notice that on December 4, 2001, the Mid-Continent Area Power Pool (MAPP), tendered for filing with the Federal Energy Regulatory Commission (Commission) on behalf of its members that are subject to Commission jurisdiction as public utilities under section 201(e) of the Federal Power Act, tendered for filing, pursuant to Order No. 614, Cover Sheets for the termination of Short-Term and Non-Firm Point-To-Point Transmission Service Agreements between MAPP and El Paso Merchant Energy, L.P., formerly Coastal Merchant Energy, L.P. and originally Engage Energy US, L.P.
Take notice that on November 30, 2001, the New England Power Pool (NEPOOL) Participants Committee filed for acceptance materials (1) to permit NEPOOL to expand its membership to include Mohawk River Funding III, L.L.C. (Mohawk); and (2) to terminate the membership of IRATE, Inc (IRATE). The Participants Committee requests an effective date of February 1, 2002 for commencement of participation in NEPOOL by Mohawk and December 1, 2001 for the termination of IRATE.
The Participants Committee states that copies of these materials were sent to the New England state governors and regulatory commissions and the Participants in NEPOOL.
Take notice that on November 29, 2001, Carolina Power & Light Company (CP&L) tendered for filing an executed Service Agreement between CP&L and the following eligible buyer, Florida Power Corporation. Service to this eligible buyer will be in accordance with the terms and conditions of CP&L's Market-Based Rates Tariff, FERC Electric Tariff No. 5. Copies of the filing were served upon the North Carolina Utilities Commission and the South Carolina Public Service Commission.
CP&L requests an effective date of November 8, 2001 for this Service Agreement.
Take notice that on November 29, 2001, Commonwealth Edison Company (ComEd) submitted for filing with the Federal Energy Regulatory Commission (Commission) a Form of Service Agreement for Short-Term Firm Point-To-Point Transmission Service and a Form of Service Agreement for Non-Firm Point-To-Point Transmission Service (Service Agreements) between ComEd and Dominion Nuclear Marketing II, Inc. (Dominion Nuclear) under the terms of ComEd's Open Access Transmission Tariff (OATT). Copies of this filing were served on Dominion Nuclear.
ComEd requests an effective date of November 1, 2001, and accordingly seeks waiver of the Commission's notice requirements.
Electric Cooperative
Take notice that Wayne-White Counties Electric Cooperative (Wayne-White or Cooperative) on November 29, 2001, tendered for filing an executed Service Agreement for Firm Point-to-Point Transmission Service with Illinois Power Company. Under the Service Agreement, Wayne-White will provide firm point-to-point transmission service to Illinois Power Company under the Cooperative's Open Access Transmission Tariff. Wayne-White requests an effective date of January 1, 2002, the date service will be first provided.
A copy of the filing was served upon Illinois Power Company.
Take notice that on November 30, 2001, the Midwest ISO Transmission Owners submitted their transmission loss factors that will be used in connection with the loss recovery methodology of the Midwest Independent Transmission System Operator, Inc. (Midwest ISO). The Midwest ISO Transmission Owners state that the loss factors are calculated in the same manner as those filed on April 28, 2000 in Docket No. ER98-1438-006 and approved by the Commission's Opinion No. 453, but have been revised and supplemented to reflect the significant changes in the composition of the membership of the Midwest ISO Transmission Owners since April 28, 2000.
In addition, the Midwest ISO and Midwest ISO Transmission Owners jointly submitted related changes to Attachment M of the Midwest ISO Open Access Transmission Tariff, to clarify the handling of losses for transmission transactions occurring solely within a single control area or within certain transmission zones that each will be treated as a “control area” for purposes of Attachment M.
The Midwest ISO and Midwest ISO Transmission Owners propose an effective date of January 1, 2002 for these tariff sheets, to ensure that loss factors that are compatible with the loss calculation methodology in the Midwest ISO tariff are effective on the same day that tariff becomes effective.
Take notice, that on November 30, 2001, Southern California Edison Company (SCE) tendered for filing the Amended and Restated Winter Power Sales (Agreement) between SCE and PacifiCorp, which provides the terms to revise the pricing and scheduling provisions to the Winter Sale Power Agreement (Original Agreement) to take into account the changes in the market since the California Power Exchange closed and to provide for use of certain California Independent System Operator markets and/or scheduling protocols in the implementation of the Original Agreement for the delivery season beginning October 15, 2001.
SCE requests the Commission to assign an effective date October 15, 2001 to the Agreement.
Copies of this filing were served upon the Public Utilities Commission of California and PacifiCorp.
Take notice that on November 30 , 2001, Southern California Edison Company (SCE) submitted a Letter Agreement between SCE and Whitewater Energy Corporation (Whitewater). The Letter Agreement specifies the terms and conditions under which SCE will provide pre-interconnection activities including engineering, design, and procurement.
Copies of this filing were served upon the Public Utilities Commission of the State of California and Whitewater.
Take notice that the California Independent System Operator Corporation, (ISO) on November 30, 2001, tendered for filing with the Federal Energy Regulatory Commission (Commission) a Participating Generator Agreement between the ISO and CalPeak Power—Panoche LLC for acceptance by the Commission.
The ISO states that this filing has been served on CalPeak Power—Panoche 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 November 26, 2001.
Take notice that on November 30, 2001, New England Power Company (NEP) submitted Second Revised Service Agreement No. 4 (Service Agreement) between NEP and
The terms of the amended agreement are identical to the terms of the original agreement, except for an address correction and a change in the agreement's expiration date. NEP requests an effective date of November 30, 2001.
NEP states that a copy of this filing has been served upon the Department of Telecommunications and Energy of the Commonwealth of Massachusetts and parties to the agreement.
Take notice that on November 30, 2001, Duke Energy Arlington Valley, LLC (Duke Arlington Valley) tendered for filing pursuant to Section 205 of the Federal Power Act its proposed FERC Electric Tariff No. 1.
Duke Arlington Valley seeks authority to sell energy and capacity, as well as ancillary services, at market-based rates, together with certain waivers and preapprovals. Duke Arlington Valley also seeks authority to sell, assign, or transfer transmission rights that it may acquire in the course of its marketing activities. Duke Arlington Valley seeks an effective date 60 days from the date of filing for its proposed rate schedules.
Take notice that on November 30, 2001, Constellation Power Source Generation, Inc. submitted for filing a First Amendment to Power Sales Agreement between Constellation Power Source Generation, Inc. and Constellation Power Source, Inc. effective November 1, 2001.
Take notice that on November 30, 2001, Calvert Cliffs Nuclear Power Plant, Inc. submitted for filing a First Amendment to Power Sales Agreement between Calvert Cliffs Nuclear Power Plant, Inc. and Constellation Power Source, Inc. effective November 1, 2001.
Take notice that on November 30, 2001, the California Independent System Operator Corporation, (ISO) tendered for filing a Meter Service Agreement for ISO Metered Entities between the ISO and CalPeak Power—Panoche LLC for acceptance by the Commission.
The ISO states that this filing has been served on CalPeak 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 November 26, 2001.
Take Notice that on November 29, 2001, Midwest Energy, Inc. (Midwest) tendered for filing with the Federal Energy Regulatory Commission (Commission) the Transaction Service Agreement entered into between Midwest and Southwestern Public Service Company governing the sale of power under Midwest's Wholesale Service Tariff.
Take notice that on November 29, 2001, Tucson Electric Power Company (Tucson), tendered for filing the Second Amended and Restated Wholesale Power Supply Agreement between Tucson Electric Power Company and Navajo Tribal Utility Authority dated November 1, 2001. The Second Amended and Restated Wholesale Power Supply Agreement is a result of a re-negotiation of the power supply arrangement between Tucson and the Navajo Tribal Utility Authority. Tucson has mailed a copy of the filing to the Navajo Tribal Utility Authority.
Take notice that on November 30, 2001, PG&E Dispersed Generating Company, LLC (PG&E Dispersed Gen) tendered for filing a service agreement for power sales (Service Agreement) with its affiliate, PG&E Energy Trading-Power, L.P. (PGET) pursuant to which PG&E Dispersed Gen will sell capacity, energy and ancillary services to PGET at market-based rates according to its FERC Electric Tariff, Original Volume No. 1.
Take notice that on November 30, 2001, PJM Interconnection, L.L.C. (PJM), tendered for filing an executed service agreement for firm point-to-point transmission service for ODEC.
Copies of this filing were served upon ODEC and the state commissions within the PJM control area.
Take notice that on November 30, 2001, American Transmission Company LLC (ATCLLC) tendered for filing an executed Distribution-Transmission Interconnection Agreement between ATCLLC and City of Menasha. ATCLLC requests an effective date of June 25, 2001.
Take notice that on November 29, 2001, Exelon Generation Company, LLC (Exelon Generation), submitted for filing a power sales service agreement between Exelon Generation and City of Rochelle under Exelon Generation's wholesale power sales tariff, FERC Electric Tariff Original Volume No. 1.
Take notice that on November 30, 2001, Conectiv Bethlehem, Inc. (CBI), filed an application for market-based rate authority pursuant to section 205 of
Take notice that on November 30, 2001, West Penn Power Company, Monongahela Power Company, and The Potomac Edison Company, all doing business as Allegheny Power filed a Network Integration Transmission Service Agreement and a Network Operating Agreement for service to Allegheny Electric Cooperative, Inc. and an unexecuted network integration transmission service agreement for service to Allegheny Electric Cooperative, Inc. Allegheny Power requests an effective date of December 1, 2001.
Take notice that on November 30, 2001, Pacific Gas and Electric Company (PG&E) and PG&E Corporation (Parent), on behalf of its subsidiaries, ETrans LLC (ETrans) and Electric Generation LLC (Gen) (collectively, the Applicants), submitted for filing, pursuant to section 204 of the Federal Power Act, and part 34 of the Commission's regulations, an Application for the issuance of securities and the assumption of liabilities, and waiver of the Commission's competitive bidding and negotiated placement requirements under section 34.2 of the Commission's regulations, in connection with the proposed “Plan of Reorganization under Chapter 11 of the Bankruptcy Code for Pacific Gas and Electric Company” (Plan) jointly filed by PG&E and Parent with the Bankruptcy Court on September 20, 2001, as it may be amended from time-to-time.
Applicants require authority to issue long-term notes in an amount not to exceed $1.415 billion for ETrans, $2.59 billion for Gen and $5.585 billion for PG&E, as well as $345 million of long-term mortgage bonds for PG&E. Applicants also seek authority to issue short-term notes in an amount not to exceed $500 million for ETrans, $350 million for Gen and $2.0 billion for PG&E (the amount of these short-term notes, together with all long-term notes issued, also is not to exceed the amount listed above for long-term notes). Applicants further seek authority to make drawings and provide letters of credit pursuant to short-term working capital facilities in an amount not to exceed $380 million for ETrans, $180 million for Gen and $1.2 billion for PG&E. In addition, Applicants seek authority for assumptions of liabilities in an amount not to exceed $105 million for ETrans, $264 million for Gen and $401 million for PG&E. Finally, PG&E requests authority to issue up to 170 million shares of its common stock and to distribute stock purchase rights to each of its shareholders, and ETrans seeks authority to issue additional equity in an amount not to exceed $200 million.
Applicants request that the Commission's authorization be effective on the later of the date on which Applicants notify the Commission that the Bankruptcy Court has issued an order authorizing issuances of securities in connection with the Plan or the date of the Commission's order authorizing these transactions (which is requested to be issued no later than July 30, 2002) and extending for three years from the effective date of the authorization. Applicants provide pursuant to section 34.4 of the Commission's regulations historical financial statements for PG&E and projected financial statements for each of the Applicants.
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
The following notice of meeting is published pursuant to section 3(A) of the government in the Sunshine Act (Pub. L. No. 94-409), 5 U.S.C 552B:
Federal Energy Regulatory Commission.
December 19, 2001, 10:00 a.m.
ROOM 2C, 888 First Street, N.E. Washington, D.C. 20426.
OPEN.
Agenda * Note—Items listed on the agenda may be deleted without further notice.
Linwood A. Watson, Jr., Acting Secretary, Telephone (202) 208-0400. For a recording listing items stricken from or added to the meeting, call (202) 208-1627.
This is a list of matters to be considered by the Commission. It does not include a listing of all papers relevant to the items on the agenda; however, all public documents may be examined in the Reference and Information Center.
E-29.
Environmental Protection Agency (EPA).
Notice; Approval of revision of the South Dakota NPDES Program under the Clean Water Act.
On October 22, 2001, the Acting Regional Administrator for Region VIII of the Environmental Protection Agency (EPA) approved a revision to the existing South Dakota Pollutant Discharge Elimination System program. With this revision, the State of South Dakota is now authorized to administer and enforce a sludge management (biosolids) program where the State has jurisdiction. This program will be administered by the South Dakota Department of Environment and Natural Resources (SDDENR).
Bob Brobst, Water Permits Team (8P-W-P), US EPA, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466; telephone number (303) 312-6129; email address
Under Section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, the EPA may issue permits allowing discharges of pollutants from point sources into waters of the United States, subject to various requirements of the CWA. These permits are known as National Pollutant Discharge Elimination System (NPDES) permits. Section 402(b) of the CWA, 33 U.S.C. 1342(b), allows states to apply to the EPA for authorization to administer their own NPDES permit programs. In 1993, South Dakota applied to the EPA for authority to administer the South Dakota Pollutant Discharge Elimination System (SDPDES) program. The EPA approved South Dakota's application on December 30, 1993, as described in a January 11, 1994
Section 405 of the CWA, 33 U.S.C. 1345, authorizes the EPA to issue permits for the disposal of sewage sludge. Section 405(c) of the CWA, 33 U.S.C. 1345(c), authorizes any state desiring to administer its own permit program for the sludge disposal to do so in accordance with Section 402 of the CWA. On August 12, 1998, South Dakota submitted such an application to the EPA, requesting that the State's original NPDES authorization be amended to include a state sludge management program described in an accompanying proposal dated March 23, 1998.
The EPA, having found that South Dakota's application meets all pertinent requirements in the CWA and the EPA's regulations, particularly 40 CFR parts 123 and 501, has approved South Dakota's application for primary authority to administer a sludge management program.
The EPA provided two periods for any interested member of the public to comment on this application. No comments were received.
Initially, the EPA described this application in a
On June 29, 2000, following discussions with representatives of the EPA, the Field Supervisor of the South Dakota Field Office of the United States Fish and Wildlife Service concurred with the EPA's determination that approving South Dakota's biosolids program application was unlikely either to jeopardize the continued existence of any species listed as threatened or endangered under the Endangered Species Act, 16 U.S.C. 1531
On November 5, 1999, the South Dakota State Historical Society provided the EPA with a written determination that the addition of the biosolids program to the SDPDES program would have no effect on historic properties in South Dakota.
South Dakota is not authorized to carry out its biosolids program in Indian Country, as defined in 18 U.S.C. 1151. This includes, but is not limited to: Lands within the exterior boundaries of the following Indian reservations located within the State of South Dakota:
A. Cheyenne River Indian Reservation,
B. Crow Creek Indian Reservation,
C. Flandreau Indian Reservation,
D. Lower Brule Indian Reservation,
E. Pine Ridge Indian Reservation,
F. Rosebud Indian Reservation,
G. Standing Rock Indian Reservation, and
H. Yankton Indian Reservation.
The EPA has long considered a determination to approve or deny a State NPDES program submission to constitute an adjudication, not a rulemaking. This is because an “approval,” as that term is used in the Administrative Procedure Act, 5 U.S.C. 551
The EPA has determined that there is no need for an Information Collection Request under the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
As Acting Regional Administrator for EPA Region VIII, I hereby certify, pursuant to 5 U.S.C. 605(b), that this action will not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA is generally required to prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. The EPA's approval of South Dakota's program is not a “Federal mandate,” because there is no federal mandate for states to establish sludge management programs.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 section 12(d) (15 U.S.C. 272 note), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards,
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether its regulatory actions are “significant” and therefore subject to review by the OMB. The EPA has determined that this approval action is not “significant” for purposes of Executive Order 12866 because, as mentioned above, South Dakota has adopted the EPA's sludge management regulations.
Executive Order No. 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” dated February 11, 1994, focuses federal attention on the environmental and human health conditions of minority populations and low-income populations with the goal of achieving environmental protection for all communities. Today's action will not diminish the health protection to minority and low-income populations because, as mentioned above, it will not impose any different requirements than those already in effect for sludge management facilities.
Executive Order No. 13045, dated April 23, 1997 (62 FR 19885), applies to any rule that (1) is determined to be “economically significant” as defined in Executive Order No. 12866, and (2)
Under Executive Order No. 13175, no federal agency may issue a regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments or the agency consults with tribal officials early in the process of developing the proposed regulation. This action will not significantly affect any Indian tribe. As indicated above, South Dakota is not authorized to implement its sludge management program in Indian Country. The EPA will continue to administer the existing sludge management program in Indian Country in South Dakota.
Executive Order No. 13132, entitled “Federalism,” dated August 10, 1999 (64 FR 43255), requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The phrase “policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have any substantial direct effects on the States, on the relationship between States and the national government, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order No. 13132. It will merely put in place a State regulatory program that is identical to the existing federal program.
Because it is not a “significant regulatory action” under Executive Order No. 12866, this action is not subject to Executive Order No. 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001).
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the Commonwealth of Puerto Rico (FEMA-1396-DR), dated November 28, 2001, and related determinations.
November 28, 2001.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or madge.dale@fema.gov.
Notice is hereby given that, in a letter dated November 28, 2001, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the Commonwealth of Puerto Rico, resulting from severe storms, flooding, mudslides and landslides on November 7, 2001, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5206 (the Stafford Act). I, therefore, declare that such a major disaster exists in the Commonwealth of Puerto Rico.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the Commonwealth, and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance or Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
Notice is hereby given that pursuant to the authority vested in the Director of the Federal Emergency Management Agency under Executive Order 12148, I hereby appoint Justo Hernández of the Federal Emergency Management Agency to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the Commonwealth of Puerto Rico to have been affected adversely by this declared major disaster:
Barranquitas, Bayamón, Ciales, Corozal, Jayuya, Juncos, Morovis, Naranjito, San Lorenzo, and Utuado Municipalities for Public Assistance.
All municipalities within the Commonwealth of Puerto Rico are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster for the Commonwealth of Puerto Rico (FEMA-1396-DR), dated November 28, 2001, and related determinations.
November 29, 2001.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or madge.dale@fema.gov.
Notice is hereby given that the incident period for
In the
Licensee Unitrans International Corporation, License Number 1989F, address 709 S. Hindry Avenue, Inglewood, CA 90301 remains duly licensed by the Federal Maritime Commission with a branch office located at 461 Littlefield Avenue, South San Francisco, CA 94080.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 10, 2002.
Board of Governors of the Federal Reserve System.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 639-7090.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 639-7090. CDC is requesting an emergency clearance for this data collection and that OMB act on this package 3 weeks after the publication of this
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 14 days of this notice.
In order to evaluate this program, a telephone interview will be administered to persons who were recommended to receive 60 days of antibiotics after potential exposure to anthrax. The purpose of this interview will be to assess the provision of stockpile medications at 60 days after initiation of prophylactic campaigns for inhalation anthrax, assess the number of antibiotic-related adverse events, and determine the adherence to antimicrobial regimens. Results of this evaluation will be an important tool to determine the level and characteristics of technical assistance that the NPS and CDC will need to provide with any future anthrax post-exposure prophylaxis campaigns. This systematic approach to evaluation of an essential organization practice in public health will be used to improve public health actions. There is no cost to the respondent.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “FDA Recall Regulations” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In the
Indian Health Service, HHS.
Notice of availability of funds for Health Professions Preparatory, Pregraduate, and Indian Health Professions Scholarship Programs for Fiscal Year (FY) 2002.
The Indian Health Service (IHS) is publishing a Notice of Availability of Funds for Health Professions Preparatory, Pregraduate, and Indian Health Professions Scholarship Programs for Fiscal Year (FY) 2002.
The IHS announces the availability of approximately $3,750,800 to fund scholarships for the Health Professions Preparatory and Pregraduate Scholarship Programs for FY 2002 awards. These programs are authorized by section 103 of the Indian Health Care Improvement Act (IHCIA), Pub. L. 94-437, as amended by Pub. L. 100-713, Pub. L. 102-573, and Pub. L. 104-313.
The Indian Health Scholarship (Professions), authorized by section 104 of the IHCIA, Pub. L. 94-437, as amended by Pub. L. 100-713, by Pub. L. 102-573, and by Pub. L. 104-313 has approximately $8,215,500 available for FY 2002 awards.
Full-time and part-time scholarships will be funded for each of the three scholarship programs.
The Indian Health Professions Preparatory Scholarship is listed as No. 93.123 in the Office of Management and Budget
The Public Health Service (PHS) is committed to achieving the health promotion and disease prevention objectives of
The application deadline for both new and continuing applicants is April 1, 2002. If April 1 falls on the weekend, the application will be due on the following Monday. Applications shall be considered as meeting the deadline if they are received by the appropriate Scholarship Coordinator on the deadline date or postmarked on or before the deadline date. (Applicants should request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or U.S. Postal Service. Private metered postmarks shall not be acceptable as proof of timely mailing.) Applications received after the announced closing date will be returned to the applicant and will not be considered for funding.
Application packets may be obtained by calling or writing to the addresses listed below. The application form number is IHS 856, 856-2 through 856-8, 815, 816, 818 (approved under OMB No. 0917-0006).
Please address application inquiries to the appropriate Indian Health Service Area Scholarship Coordinator. Other programmatic inquiries may be addressed to Mr. Darrell Pratt, Team Leader, Health Professions Support, Indian Health Service, 801 Thompson Avenue, Suite 120, Rockville, Maryland, 20852; Telephone 301-443-6197. (This is not a toll free number.) For grants information, contact Mr. Al Whiteman, Grants Management Officer, Grants Management Branch, Division of Acquisition and Grants Operations, Indian Health Service, 801 Thompson Avenue, Suite 120, Rockville, Maryland, 20852; Telephone 301-443-5204. (This is not a toll-free number.)
A.
B.
1. The Health Professions Preparatory Scholarship awards are made to American Indians or Alaska Natives who meet the criteria in section 4(c) of the IHCIA, as amended, who have successfully completed high school education or high school equivalency and who have been accepted for enrollment in a compensatory, pre-professional general education course or curriculum. Support is limited to 2 years for full-time students and the part-time equivalent of 2 years not to exceed 4 years for part-time students.
2. The Health Professions Pregraduate Scholarship awards are made to American Indians or Alaska Natives who meet the criteria in section 4(c) of the IHCIA, as amended, who have successfully completed high school education or high school equivalency and who have been accepted for enrollment or are enrolled in an accredited pregraduate program leading to a baccalaureate degree in pre-medicine or pre-dentistry. Support is limited to 4 years for full-time students and the part-time equivalent of 4 years not to exceed 8 years for part-time students.
3. The Indian Health Scholarship (Professions) may be awarded only to an individual who is a member of a federally recognized tribe as provided by section 104, 4(c), and 4(d) of the IHCIA. Membership in a Tribe recognized only by a state does not meet this statutory requirement. To receive an Indian Health Scholarship (Professions) an otherwise eligible individual must be enrolled in an appropriately accredited school and pursuing a course of study in a health profession as defined by section 4(n) of the IHCIA. Support is limited to 4 years for full-time students and the part-time equivalent of 4 years not to exceed 8 years for part-time students.
Awards for the Indian Health Scholarships (Professions) will be made in accordance with 42 CFR 36.330. Recipients shall incur a service obligation prescribed under section 338C of the Public Health Service Act (43 U.S.C. 244m) which shall be met by service:
(1) In Indian Health Service;
(2) In a program conducted under a contract or compact entered into under the Indian Self-Determination Act;
(3) In a program assisted under title V of the Indian Health Care Improvement Act (Pub. L. 94-437) and its amendments; and
(4) In private practice of his or her profession, if the practice (a) is situated in a health professional shortage area, designated in regulations promulgated
Pursuant to the Indian Health Amendments of 1992 (Pub. L. 104-313), a recipient of an Indian Health Professions Scholarship may, at the election of the recipient, meet his/her active duty service obligation prescribed under section 338c of the Public Health Service Act (42 U.S.C. 254m) by a program specified in options (1)—(4) above that:
(i) Is located on the reservation of the Tribe in which the recipient is enrolled; or
(ii) Serves the Tribe in which the recipient is enrolled.
In summary, all recipients of the Indian Health Scholarship (Professions) are reminded that recipients of this scholarship incur a service obligation. Moreover, this obligation shall be served at a facility determined by the Director, IHS, consistent with IHCIA, Pub. L. 94-437, as amended by Pub. L. 100-713, and Pub. L. 102-573.
C.
Approximately 393 awards, 179 of which are continuing, will be made under the Indian Health Scholarship (Professions) Program. Awards will be made to both full-time and part-time students. The awards are for 12 months in duration and the average award to a full-time student is for approximately $23,000. In FY 2002, approximately $3,410,000 is available for continuation awards, and $4,485,000 is available for new awards.
No more than 20% of available funds will be used for part-time scholarships this fiscal year. Students are considered part-time if they are enrolled for a minimum of 6 hours of instruction and are not considered in full-time status by their college/university. Documentation must be received from part-time applicants that their school and course curriculum allows less than full-time status.
D.
1. Needs of the IHS. Applicants are considered for scholarship awards based on their desired career goals and how these goals relate to current Indian health manpower needs. Applications for each health career category are reviewed and ranked separately.
2. Academic Performance. Applicants are rated according to their academic performance as evidenced by transcripts and faculty evaluations. In cases where a particular applicant's school has a policy not to rank students academically, faculty members are asked to provide a personal judgment of the applicant's achievement. Health Professions applicants with a cumulative GPA below 2.0 are not eligible to apply.
3. Faculty/Employer Recommendations. Applicants are rated according to evaluations by faculty members and current and/or former employers regarding the applicant's potential in the chosen health related professions.
4. Stated Reasons for Asking for the Scholarship and Stated Career Goals. Applicants must provide a brief written explanation of reasons for asking for the scholarship and of career goals. The applicant's narrative will be judged on how well it is written and content.
5. Applicants who are closest to graduation or completion are awarded first. For example, senior and junior applicants under the Health Professions Pregraduate Scholarship receive funding before freshmen and sophomores.
1. Health Professions Preparatory Scholarship Scholarships (Below is the list of disciplines to be supported and priority is based on academic level.)
2. Health Professions Pregraduate Scholarships. (Below is the list of disciplines to be supported and priority is based on academic level: Senior, Junior, Sophomore, Freshman).
3. Indian Health Scholarships (Professions). (Below is a list of disciplines to be supported and priority is based on academic level, unless specified: Graduate, Senior, Junior, Sophomore, Freshman.
Interested individuals are reminded that the list of eligible health and allied health professions is effective for applicants for the 2002-2003 academic year. These priorities will remain in effect until superseded. Applicants for health and allied health professions not on the above priority list will be considered pending the availability of funds and dependent upon the availability of qualified applicants in the priority areas.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a list of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (301) 443-7978.
From 2001-2003, the NSDUH plans a two-phase Clinical Validation Study of Substance Dependence and Abuse Measures. Specific aims are to achieve the best overarching format, and the best wording and ordering for the assessment questions. The goal is quicker administration time, improved validity, and reduced respondent burden.
Half of all subject will be between 12 and 17, and half 18 years of age or older; subjects will be recruited from the Research Triangle and the Triad areas of North Carolina. In Phase 1, subjects, recruited through fliers and newspaper ads, will be asked (1) demographic information and (2) questions from two self-administered sections of the NSDUH questionnaire: questions about the quantity and frequency of use of drugs and alcohol, and questions about symptoms of substance dependence and abuse. A semi-structured clinical interview will then be administered to these same subjects by a trained clinician to determine the presence or absence of substance dependence and abuse. The clinical instruments used to assess subjects will be the substance abuse modules from the Structured Clinical Interview for DSM-IV (SCID) (for adults) and the Kiddie Schedule for Affective Disorders and Schizophrenia (K-SADS ) (for those between 12 and 17 years of age). The correspondence of the diagnosis of substance dependence and abuse between the clinical and survey interview will then be compared.
Information from Phase 1 will then be used to assess if a lack of correspondence exists between the clinical and survey measures. If there is a lack of sufficient correspondence, we will then examine reasons for any lack of correspondence, and make decisions about how to modify the NSDUH questions on substance dependence and abuse to achieve better correspondence. This information will then be used to develop a revised NSDUH substance dependence and abuse module.
In Phase 2, a second clinical validation study will be conducted using the same procedures as Phase 1. This will allow a determination of the correspondence (kappa) between the revised diagnosis obtained from the NSDUH substance dependence and abuse module and the diagnosis from the structured clinical interviews. Final revisions to the survey instrument will be made based on findings from Phase 2. All decisions about final revisions to the module will balance the need for correspondence across different groups. The following table summarizes the total burden associated with this two-year project.
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: Lauren Wittenberg, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
The public is invited to comment on the following application(s) for a permit to conduct certain activities with endangered species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973,
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The U.S. Fish and Wildlife Service has information collection approval from OMB through March 31, 2004, OMB Control Number 1018-0093. Federal Agencies may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a current valid OMB control number.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203, telephone 703/358-2104 or fax 703/358-2281.
The public is invited to comment on the following application(s) for a permit to conduct certain activities with endangered species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests the re-issuance of its permit to re-export and re-import Asian elephants (
The applicant requests a permit to export and re-import captive-born tigers (Panthera tigris) and progeny of the animals currently held by the applicant and any animals acquired in the United States by the applicant to/from worldwide locations to enhance the survival of the species through conservation education. This notification covers activities conducted by the applicant over a three year period.
The applicant requests a permit to re-export and re-import Asian elephants (
The applicant requests a permit to import 50 non-viable eggs/egg shells of Aplomado falcons (
The applicant requests a permit to import 1.1 hoolock gibbons (Hylobates hoolock) of wild origin from the Yangon Zoological Garden, Myanmar, for the purpose of scientific research and enhancement of the propagation of the species and enhancement of the survival of the species through conservation education.
The applicant requests a permit to import 0.2 Asian elephants (Elephas maximus) of captive bred origin from India for the purpose of scientific research and enhancement of the propagation of the species.
The U.S. Fish and Wildlife Service has information collection approval from OMB through March 31, 2004, OMB Control Number 1018-0093. Federal Agencies may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a current valid OMB control number.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203, telephone 703/358-2104 or fax 703/358-2281.
Fish and Wildlife Service, Interior.
Notice of receipt.
The following applicant has applied for a permit to conduct certain activities with an endangered species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973, as amended.
The applicant requests authorization to take (harm, harass, and kill) 12,000 eyed eggs of the Atlantic salmon (Salmo salar). The eggs were captively bred at the U.S. Fish and Wildlife Service's Craig Brook National Fish Hatchery, East Orland, Maine, and will be transferred to the Conte Anadromous Fish Research Center, Turners Falls, Massachusetts to conduct specific research activities.
Written data or comments should be submitted to the Regional Permits Coordinator, U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts, 01035, and must be received within 30 days of the date of this publication.
Documents and other information submitted with this application are available for review by any party who submits a written request for a copy of such documents to the following office within 30 days of the date of publication of this notice: U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035. Attention: Diane Lynch, Regional Permits Coordinator. Telephone: 413-253-8628; Fax: 413-253-8482.
On September 25, 2001, a notice was published in the
Notice is hereby given that on November 21, 2001, as authorized by the provisions of the Marine Mammal Protection Act of 1972,
Documents and other information submitted for these applications are available for review by any party who submits a written request to the U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203, telephone (703) 358-2104 or fax (703) 358-2281.
Fish and Wildlife Service, Interior.
Notice of meeting.
The Fish and Wildlife Service (hereinafter Service) will conduct an open meeting on January 24, 2002, to identify and discuss preliminary issues concerning the 2002-03 migratory bird hunting regulations.
The meeting will be held January 24, 2002.
The Service Regulations Committee will meet at the Arlington Square Building, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 200 A/B, Arlington, Virginia.
Jonathan Andrew, Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, ms 634-ARLSQ, 1849 C Street, NW., Washington, DC 20240, (703) 358-1714.
Representatives from the Service, the Service's Migratory Bird Regulations Committee, and Flyway Council Consultants will meet on January 24, 2002, at 8:30 a.m. to identify preliminary issues concerning the 2002-03 migratory bird hunting regulations for discussion and review by the Flyway Councils at their March meetings.
In accordance with Departmental policy regarding meetings of the Service Regulations Committee attended by any person outside the Department, these meetings are open to public observation. Members of the public may submit written comments on the matters discussed to the Director.
The Presidential Task Force on Employment of Adults with Disabilities (Task Force) was established by Executive Order 13078. The primary purpose of the Task Force is “* * * to create a coordinated and aggressive national policy to bring adults with disabilities into gainful employment at a rate that is as close as possible to that of the general adult population.”
Task Force membership includes the following Executive Branch positions: Secretary of Labor; Secretary of Education, Secretary of Veterans Affairs; Secretary of Health and Human Services; Commissioner of the Social Security Administration; Secretary of the Treasury; Secretary of Commerce; Secretary of Transportation; Secretary of Housing and Urban Development, Secretary of the Interior, Secretary of Agriculture, the Attorney General of the United States; Director of the Office of Personnel Management; Administrator of the Small Business Administration; Chair of the Equal Employment Opportunity Commission; Chair of the Federal Communications Commission; and Chair of the National Council on
An open meeting of the Task Force will take place on Monday, January 28, 2002 from 9 a.m. to 12 noon at the U. S. Chamber of Commerce, 1615 H Street, NW., Washington, DC 20062.
This being the first Task Force meeting since the introduction of the President's
Any individuals wishing to attend the Task Force meeting who need special accommodations or require further information should contact Mr. Paul Bennett at 202/693-4939 (voice), 202/693-4929 (fax), or 202/693-4920 (TTY) by Friday, January 18, 2001.
Mine Safety and Health Administration (MSHA), Labor.
Notice of affirmative decisions issued by the Administrators for Coal Mine Safety and Health and Metal and Nonmetal Mine Safety and Health on petitions for modification of the application of mandatory safety standards.
Under section 101 of the Federal Mine Safety and Health Act of 1977, the Secretary of Labor (Secretary) may allow the modification of the application of a mandatory safety standard to a mine if the Secretary determines either that an alternate method exists at a specific mine that will guarantee no less protection for the miners affected than that provided by the standard, or that the application of the standard at a specific mine will result in a diminution of safety to the affected miners.
Final decisions on these petitions are based upon the petitioner's statements, comments and information submitted by interested persons, and a field investigation of the conditions at the mine. MSHA, as designee of the Secretary, has granted or partially granted the requests for modification listed below. In some instances, the decisions are conditioned upon compliance with stipulations stated in the decision. The term “FR Notice” appears in the list of affirmative decisions below. The term refers to the
Petitions and copies of the final decisions are available for examination by the public in the Office of Standards, Regulations, and Variances, MSHA, Room 627, 4015 Wilson Boulevard, Arlington, Virginia 22203. Contact Barbara Barron at 703-235-1910.
Summary of Findings: The petitioner's proposal is to use one twenty-or two ten-pound portable chemical fire extinguishers on each Mescher Jeep, to have the fire extinguishers readily accessible to the equipment operator, to instruct the equipment operator to inspect each fire extinguisher on a daily basis and replace all defective fire extinguishers prior to entering the mine, and to maintain records of all inspections. This is considered an acceptable alternative method for the Mine No. 1. MSHA grants the petition for modification for the Mine No. 1 with conditions.
The following parties have filed petitions to modify the application of existing safety standards under section 101(c) of the Federal Mine Safety and Health Act of 1977.
Wabash Mine Holding Company, One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, Pennsylvania 15219 has filed a petition to modify the application of 30 CFR 75.332(a)(2) (working sections and working places) to its Wabash Mine (I.D. No. 11-00877) located in Wabash County Illinois. The petitioner requests that Item 29 of the Proposed Decision and Order for its previously granted petition for modification, docket number M-1999-095-C be amended to permit the scrubber system to be operational and maintained to provide 6,500 cfm instead of 7,500 cfm of output capacity while cleanup is being performed. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Hopkins County Coal, LLC, P.O. Box 711, Madisonville, Kentucky 42431 has filed a petition to modify the application of 30 CFR 75.364(b)(2) (weekly examination) to its Island Mine No. 1 (I.D. No. 15-17515) located in Hopkins County, Kentucky. The petitioner requests a modification of the standard to permit evaluation points (A, inby and B, outby) in lieu of traveling approximately 75 feet of the return air course. The petitioner states that due to deteriorating roof conditions, traveling the affected area would be unsafe. The petitioner proposes to: (1) Establish evaluation points outby the #3 entry at/near spad #22+21/3 and inby at/near spad #23+21/3, to provide ingress/egress to the outby evaluation point (B) at crosscut #43 and to provide ingress/egress to the inby evaluation point (A) at crosscut #51; (ii) post signs in strategic locations that would direct personnel to each evaluation point; and (iii) have a certified person examine the evaluation points on a weekly basis to determine methane and oxygen concentrations, quantity of air, and to determine if the air is moving in the proper direction and record the results of the examinations in a book maintained on the surface. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
San Juan Coal Company, P.O. Box 561, Waterflow, New Mexico 87421 has filed a petition to modify the application of 30 CFR 75.362(d)(2) (on-shift examination) to its San Juan South Mine (I.D. No. 29-02170) and San Juan Deep Mine (I.D. No. 29-02201) both located in San Juan County, New Mexico. The petitioner proposes to: (i) Equip each continuous miner with a General Monitor S800 Methane Monitor with detection sensors near the cutter drum and one sensor on each side of the machine; (ii) equip each roof-bolting machine with a General Monitors S800 Methane Monitor that would have detection sensors on ATRS for a total of one sensor; and (iii) to conduct tests every twenty minutes at the operator's station while operating the roof-bolting machine on or inby the last open crosscut. The petitioner states that the methane monitor would provide a visual alert when the methane concentration reaches 1 percent and provide automatic shutdown when the methane concentration reaches 2 percent at any of the sensors, the monitors would provide continuous monitoring of the methane content rather than just testing every twenty minutes and would test for methane near the roof where methane is likely to be found, the monitors would calibrated with a known concentration of methane at intervals not to exceed 31 days, and that calibration would be performed by a certified person. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Canyon Fuel Company, LLC, P.O. Box 1029, Wellington, Utah 84542 has filed a petition to modify the application of 30 CFR 75.500(d) (permissible electric equipment) to its Dugout Canyon Mine (I.D. No, 42-01890) located in Carbon County, Utah. The petitioner proposes to use the following non-permissible low-voltage or battery powered electronic testing and diagnostic equipment inby the last open crosscut: Lap top computers, oscilloscopes, vibration analysis machines, cable fault detectors, point temperature probes, infrared temperature devices and recorders, pressure and flow measurement devices, signal analyzer devices, ultrasonic thickness gauges, electronic component testers, and electronic tachometers, and may use other testing and diagnostic equipment if approved by the District Office. The petitioner states that all other tests and diagnostic equipment use in or inby the last open crosscut will be permissible. The petitioner has listed in this petition for modification specific procedures that would be followed when using this equipment. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Canyon Fuel Company, LLC, P.O. Box 1029, Wellington, Utah 84542 has filed a petition to modify the application of 30 CFR 75.1001-1(a) (location of other electric equipment; requirements for permissibility) to its Dugout Canyon Mine (I.D. No. 42-01890) located in Carbon County, Utah. The petitioner proposes to use the following non-permissible low-voltage or battery powered electronic testing and diagnostic equipment in by the last open crosscut: Lap top computers, oscilloscopes, vibration analysis machines, cable fault detectors, point temperature probes, infrared temperature devices and recorders, pressure and flow measurement devices, signal analyzer devices, ultrasonic thickness gauges, electronic component testers, and electronic tachometers, and may use other testing and diagnostic equipment if approved by the District Office. The petitioner states that all other test and diagnostic equipment use in or in by the last open crosscut will be permissible. The petitioner has listed in this petition for modification specific procedures that would be followed when using this equipment. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Consol Pennsylvania Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh, Pennsylvania 15241-1421 has filed a petition to modify the application of 30 CFR 75.312 (c) and (d) (main mine fan examinations and records) to its Enlow Fork Mine (I.D. No. 36-07416) located in Greene County, Pennsylvania. The petitioner requests a modification of the standard to permit testing of the automatic closing door(s) and the automatic fan signal device at least every 31 days without shutting down the fan and without removing miners from the mine. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Oxbow Mining, Inc., 3737 Hwy 133, P.O. Box 535, Somerset, Colorado 81434 has filed a petition to modify the application of 30 CFR 75.1002 (location of trolley wires, trolley feeder wires, high-voltage cables and transformers) to its Elk Creek Mine (I.D. No. 05-04674) located in Gunnison County, Colorado. The petitioner proposes to use a 2,400-volt longwall power circuit in the active pillar workings. The petitioner has listed in this petition specific procedures for implementing its proposed alternative method. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard and has listed specific procedures in this petition for modification for implementing the alternative method.
Oxbow Mining, Inc., 3737 Hwy 133, P.O. Box 535, Somerset, Colorado 81434 has filed a petition to modify the application of 30 CFR 75.804(a) (underground high-voltage cables) to its Elk Creek Mine (I.D. No. 05-04674) located in Gunnison County, Colorado. The petitioner requests a modification of the standard to allow the use of a No. 16 A.W.G. ground check conductor in a high-voltage cable. The petitioner proposes to use the following flame-resistant cables on the high-voltage longwall system(s): Anaconda Type SHD+GC, Pirelli Type SHD-Center-GC, Tiger Brand Type SHD-CGC, and other brands of cable of identical construction. The petitioner asserts that these brands of cable utilize a flexible No. 16 A.W.G. ground check conductor for the ground continuity check circuit and that the proposed alternative method would provide at least the same measure of protection as the existing standard.
FMC Westvaco, FMC Corporation, Box 872, Green River, Wyoming 82935 has filed a petition to modify the application of 30 CFR 57.22305 (approved equipment (III mines)) to its FMC Trona Mine (I.D. No. 48-00152) located in Sweetwater County, Wyoming. The petitioner requests a modification of the standard to permit the use of portable low power 0.5-2.0 watt radios for communication in face areas. The petitioner proposes to use (Audiovox, or equivalent) radios inby the last open break or face areas of the time to improve communications, conduct examinations to test for methane in the mine atmosphere at least every ten minutes before using the radios in the face area, and instruct all mine employees in the petition requirements and complete training forms before using the radios. The petitioner states that these radios would not be used where methane is 1.0 percent or more, or in the same mining section where blasting is taking place. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Persons interested in these petitions are encouraged to submit comments via e-mail to “
National Archives and Records Administration.
Notice of opening of materials.
This notice announces the opening of additional Nixon presidential historical materials. Notice is hereby given that, in accordance with section 104 of Title I of the Presidential Recordings and Materials Preservation Act (PRMPA, 44 U.S.C. 2111 note) and section 1275.42(b) of the PRMPA Regulations implementing the Act (36 CFR Part 1275), the agency has identified, inventoried, and prepared for public access approximately 494 hours of Nixon White House tape recordings among the Nixon Presidential historical materials.
The National Archives and Records Administration (NARA) intends to make the materials described in this notice available to the public beginning February 28, 2002. In accordance with 36 CFR 1275.44, any person who believes it necessary to file a claim of legal right or privilege concerning access to these materials should notify the Archivist of the United States in writing of the claimed right, privilege,
The materials will be made available to the public at the National Archives at College Park research room, located at 8601 Adelphi Road, College Park, Maryland, beginning at 8:45 a.m. on February 28, 2002.
In accordance with 36 CFR 1275.44, petitions asserting a legal or constitutional right or privilege which would prevent or limit access must be sent to the Archivist of the United States, National Archives at College Park, 8601 Adelphi Road, College Park, Maryland 20740-6001.
Karl Weissenbach, Director, Nixon Presidential Materials Staff, 301-713-6950.
NARA is proposing to open approximately 4,125 conversations which were recorded at the Nixon White House from January 1972 to June 1972. These tape segments total approximately 425 hours of listening time. In addition, the National Archives is proposing to open 360 declassified segments of conversations recorded in the Cabinet Room at the Nixon White House from February 1971—July 1973. These segments total approximately 69 hours of listening time. These previously restricted segments were reviewed for release and declassified in accordance with the mandatory review provisions of Executive Order 12958 and 36 CFR 1275.56 (Public Access Regulations.).
This is the ninth opening of Nixon White House tapes since 1980. Previous releases included conversations constituting “abuses of governmental power” and conversations recorded in the Cabinet Room of the Nixon White House. The tapes now being proposed for opening consist of the third of five segments comprising the remaining hours of conversations, processed for release in chronological order starting with February 1971.
There are no transcripts for these tapes. Tape logs, prepared by NARA, are offered for public access as a finding aid to the tape segments and a guide for the listener. There is a separate tape log entry for each segment of conversation released. Self-service copying of the tapes will be permitted. Researchers must bring their own recording equipment and blank tapes. Each tape log entry includes the names of participants; date, time, and location of the conversation; and an outline of the content of the conversation.
The tape recordings will be made available to the general public in the research room at 8601 Adelphi Road, College Park, Maryland, Monday through Friday between 8:45 a.m. and 4:30 p.m. Researchers must have a NARA researcher card, which they may obtain when they arrive at the facility. Listening stations will be available for public use on a first come, first served basis. NARA reserves the right to limit listening time in response to heavy demand. Copies of the tape log will be available for a fee in accordance with 36 CFR 1258.12.
Exelon Generation Company, LLC (Exelon) and PSEG Nuclear LLC (the licensees) are the holders of Facility Operating Licenses Nos. DPR-44 and DPR-56, which authorize operation of the Peach Bottom Atomic Power Station, Units 2 and 3 (Peach Bottom or the facilities). The licenses provide, among other things, that the facilities are subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC or the Commission) now or hereafter in effect.
The facilities consist of two boiling water reactors located at the licensees' site in York County, Pennsylvania.
Section III.F of Appendix R to Title 10 of the Code of Federal Regulations (10 CFR), part 50, requires that automatic fire detection systems (capable of operating with or without offsite power) be installed in all areas of the plant that contain or present an exposure fire hazard to safety-related or safe shutdown systems or components. By letter dated June 15, 2001, Exelon requested an exemption from Section III.F of Appendix R regarding the provisions for an automatic fire detection capability in room 222, a Unit 2 feedwater heater room in the turbine building, and room 429, the Unit 2 and Unit 3 turbine generator hall in the turbine building.
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50 when (1) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present. Under 10 CFR 50.12(a)(2)(ii), special circumstances are present when application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule. The underlying purpose of the rule is to reasonably assure the capability to achieve and maintain safe shutdown in the event of a fire.
The NRC staff examined Exelon's rationale to support the exemption request and concluded that notwithstanding the absence of an automatic fire detection system in rooms 222 and 429, given the circumstances discussed below, the underlying purpose of 10 CFR 50, Appendix R, section III.F would still be met with respect to those rooms.
Room 222 is a feedwater heater room located in the Unit 2 turbine building on elevation 135. Exelon has determined that the only safe shutdown or safety-related systems or components located in this room susceptible to fire damage are circuits associated with offsite power. This room has not been provided with automatic fire detection in accordance with the provisions specified in section III.F of Appendix R. The fire hazards in this room consist solely of electrical cables located in three cable trays that are, or will be provided with metal covers. There are no transient combustibles stored in this area during plant operation. When hot work is performed in this room, a continuous fire watch is stationed in the room. The cables located in the trays are either qualified in accordance with the flame test provisions specified in Institute of Electrical and Electronics Engineers (IEEE) Standard 383, “Standard for Type Test of Class 1E Electric Cables, Field Splices, and Connections for Nuclear Power Generating Stations,” or qualified to a flame test equivalent to the one adopted by IEEE-383. There are no fire protection systems or features provided in this room. Due to the high radiation field present in this area during plant operation, this room is normally locked
Room 429 is located in the common area of the Peach Bottom turbine building, elevation 165, and Exelon has determined that the only safe shutdown and/or safety-related systems or components located in this room susceptible to fire damage are circuits associated with the #343-SU offsite power to the 4kV safeguard switchgear, and reactor vessel pressure and level instrumentation. This room has not been provided with full area automatic fire detection in accordance with the provisions specified in Section III.F of Appendix R. The fire hazards in this area consist of turbine lube oil, hydrogen used for generator cooling, two maintenance office/shop structures, electrical cabinets and cable trays. The circuits associated with offsite power are located in three conduits routed along the west wall of room 429. Exelon has determined that the circuits in this room related to reactor vessel pressure and level instrumentation identified in a previous submittal dated December 31, 1998, as supplemented on January 14 and April 14, 2000, are “associated circuits” as defined in Generic Letter 81-12, “Fire Protection Rule,” dated February 20, 1981, and Exelon has committed to perform an analysis to ensure that the failure of these circuits (i.e. hot shorts, open circuits, or shorts to ground) will not adversely impact the operation of the instrumentation required to achieve and maintain safe shutdown following a fire event. Exelon has committed to make a physical plant change if necessary to assure safe shutdown capability following the completion of the analysis. However, the instrumentation circuits are not within the scope of Section III.F of Appendix R and thus are not being assessed by the NRC staff in this exemption request. Fire protection systems and features in this room include sprinkler protection on the turbine bearings, smoke detection over each turbine bearing lift pump, hydrogen pressure monitoring, and sprinkler systems in the maintenance office and shops. The conduits containing the offsite power cables are located at least 30 feet horizontally from the significant fire hazards in this room. Exelon has determined that in the event that fire damages the conduits located in this room, a separate offsite power source is available to achieve and maintain safe shutdown. The conduits of interest in this area are adjacent to the entrance to the main control room and this is a high-traffic area for plant personnel. Due to the personnel passing through, a fire would not go undetected for very long. The spatial separation of over 30 feet from the conduits to the significant fire hazards present in this room, the high ceilings and large volume above the turbine operating floor, the fire protection provided on the significant hazards present in this room (i.e. turbine bearings, lift pumps, offices/shops and hydrogen system), and the high-personnel traffic through the area provide reasonable assurance that a fire that has the potential to damage the conduits associated with offsite power located on the west wall will be detected by the existing fire protection systems, or plant personnel prior to damaging the offsite power cables. The existing fire suppression systems in conjunction with the plant fire brigade should be effective in controlling and extinguishing fires prior to damage occurring to the conduits located on the west wall of room 429. In the event that the existing fire suppression systems, or the plant fire brigade is not able to prevent damage to the conduits containing the cables related to offsite power, Exelon has determined that an alternate offsite power supply to the 4kV safeguard switchgear is available and will remain free of fire damage. The transfer from the #343-SU offsite power located in room 429, to the #2-SU offsite power is automatic; therefore the transfer does not require any additional operator actions. Therefore, based on the information provided by Exelon, the NRC staff concludes that pursuant to 10 CFR 50.12(a)(2)(ii) additional fire detection in room 429 is not necessary to achieve the underlying purpose of section III.F of Appendix R, the NRC's principles of defense-in-depth are satisfied without the addition of full area fire detection capability, and the lack of full area fire detection in room 429 does not present an undue risk to the public health and safety.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12, the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present in that application of the regulation in the particular circumstances is not necessary to achieve the underlying purpose of the rule. Therefore, the
Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant effect on the quality of the human environment (66 FR 50696).
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of an amendment to Facility Operating License No. DPR-70, issued to PSEG Nuclear LLC (the licensee), for operation of the Salem Nuclear Generating Station, Unit No. 1 (Salem Unit 1), located in Salem County, New Jersey.
The proposed amendment would allow a one-time change to the Technical Specification (TS) Action Statement for the Service Water System (SWS). The proposed change would revise TS 3/4.7.4, “Service Water System,” by increasing the allowed outage time for one nuclear header out of service from 72 hours to 10 days. The proposed amendment would modify the present Action Statement for TS 3.7.4.1, to include a note that would allow operation with only the 11 SWS loop for up to 10 days. This note would be applicable for one-time use during Salem Unit 1, Cycle 15.
The licensee has requested that this amendment be approved under exigent circumstances. On November 30, 2001, PSEG operations personnel noted water rising up through the gravel in front of the Service Water intake structure. The water was located approximately 5 feet from the building. The 12 SWS nuclear header is located below the location where the water was observed, and was considered to be a likely source of the leak.
The licensee subsequently determined that the leak is associated with the 12 SWS nuclear supply header. PSEG is currently postulating that the leak is coming from an underground mechanical joint or mechanical connection associated with the buried portion of the 12 SWS nuclear supply header located near the service water structure. In the area where the leak is suspected, the service water nuclear supply header is 24” nominal diameter buried piping. This piping design is pre-stressed concrete cylindrical water pipe, which uses either standard flanged fittings, or flexible tied extensible bell bolt type joints for the major connections.
While the 12 SWS nuclear supply header is currently considered operable, PSEG believes that repairs will be required before the next scheduled refueling outage. Approval of this license amendment request under exigent circumstances would allow the licensee to repair the leaking header during more advantageous weather and river water temperature conditions. This, in turn, would likely minimize the duration that the 12 SWS header would be inoperable.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act) and the Commission's regulations.
Pursuant to 10 CFR 50.91(a)(6) for amendments to be granted under exigent circumstances, the NRC staff must determine that the amendment request involves no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The Service Water System (SWS) will remain capable of performing its required safety function. The proposed change results in an insignificant increase in the incremental conditional core damage probability and so does not involve a significant increase in the probability of an accident. The proposed change to extend the allowed outage time from 72 hours to 10 days does not significantly increase consequences of an accident previously evaluated, since the capability of SWS is maintained.
Therefore, the proposed change will not significantly increase the probability or consequences of any accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously analyzed?
The completion of the maintenance activity, the post maintenance testing, and the surveillance testing associated with demonstrating OPERABILITY of 12 service water nuclear header will not result in the plant being operated in a manner that will create the possibility of a new or different kind of accident from any previously evaluated. While repair to the buried portion of the 12 service water nuclear header is in progress, the service water system will be operated as described in the Updated Final Safety Analysis Report. This configuration does not create a new failure mechanism, malfunction or accident initiator.
Therefore, the proposed change will not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The 11 service water nuclear header will remain operational and capable of performing its required safety functions. Sufficient safety-related equipment and systems will remain available to ensure that the consequences of design basis transients and accidents are mitigated as assumed in the Salem UFSAR. Preventive maintenance activities that could adversely affect the reliability of the Unit 1 service water system, Emergency Diesel Generators, 4kv vital buses or offsite A.C. electrical power sources will be controlled during the extended allowed outage time.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 14 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By January 16, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or electronically on the Internet at
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If the amendment is issued before the expiration of the 30-day hearing period, the Commission will make a final determination on the issue of no significant hazards consideration. If a hearing is requested, the final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and to Jeffrie J. Keenan, Esquire, PSEG Nuclear—N21, P.O. Box 236, Hancocks Bridge, NJ 08038, attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
Further details with respect to this action, see the application for amendment dated December 10, 2001, which is available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor),
For the Nuclear Regulatory Commission,
In the Matter of Rochester Gas and Electric Corporation (R.E. Ginna Nuclear Power Plant).
Rochester Gas and Electric Corporation (RG&E or the licensee) is licensed by the U.S. Nuclear Regulatory Commission (NRC or Commission) to possess, maintain, and operate the R. E. Ginna Nuclear Power Plant (Ginna) under Facility Operating License No. DPR-18, issued by the Commission on December 10, 1984. The facility is located in Wayne County, New York.
By application dated June 22, 2001, RG&E requested that the Commission consent to the indirect transfer of the facility operating license for Ginna. The indirect transfer would result from the planned acquisition of RG&E's parent company, RGS Energy Group, Inc. (RGS), by Energy East Corporation (Energy East).
According to the application, on February 16, 2001, RGS and Energy East entered into an agreement pursuant to which RGS would be merged with and into a wholly owned subsidiary of Energy East. After the planned merger transaction, RG&E will continue to exist as a wholly owned indirect subsidiary of Energy East. RG&E would continue to own Ginna following approval of the proposed indirect transfer of the license, and would continue to be exclusively responsible for the operation, maintenance, and eventual decommissioning of the facility. No physical changes to the facility or operational changes were proposed in the application.
Approval of the indirect transfer of the operating license was requested by RG&E pursuant to 10 CFR 50.80. Notice of the request for approval and an opportunity for a hearing was published in the
Pursuant to 10 CFR 50.80, no license, or any right thereunder, shall be transferred, directly or indirectly, through transfer of control of the license, unless the Commission shall give its consent in writing. After reviewing the information in the application from RG&E and other information before the Commission, the NRC staff has determined that the acquisition by Energy East of RGS resulting in the establishment of Energy East as the new ultimate indirect parent of RG&E will not affect the qualifications of RG&E as the holder of the license, and that the indirect transfer of the license, to the extent effected by the foregoing transaction, is otherwise consistent with applicable provisions of law, regulations, and orders issued by the Commission, subject to the conditions set forth below. The foregoing findings are supported by a safety evaluation dated December 10, 2001.
Accordingly, pursuant to sections 161b, 161i, 161o, and 184 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2201(b), 2201(i), 2201(o), and 2234, and 10 CFR 50.80,
(1) RG&E shall provide the Director of the Office of Nuclear Reactor Regulation a copy of any application, at the time it is filed, to transfer (excluding grants of security interests or liens) from RG&E to any direct or indirect parent, or to any other affiliated company, facilities for the production, transmission, or distribution of electric energy having a depreciated book value exceeding ten percent (10%) of RG&E's consolidated net utility plant, as recorded on RG&E's books of account.
(2) Should the planned acquisition by Energy East of RGS not be completed by December 31, 2002, this Order shall become null and void, provided, however, upon written application and for good cause shown, such date may in writing be extended. This Order is effective upon issuance.
For further details with respect to this action, see the application dated June 22, 2001, and the safety evaluation dated December 10, 2001, which are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of an amendment to Facility Operating License No. NPF-90 issued to Tennessee Valley Authority (TVA or the licensee) for operation of Watts Bar Nuclear Plant (WBN), Unit 1, located in Rhea County, Tennessee.
The proposed amendment would revise the Final Safety Analysis Report to reflect a change in the spent fuel pool (SFP) cooling analysis methodology. TVA proposes to increase the existing WBN SFP heat load limit from its current value of 32.6 MBTU/HR to 47.4 MBTU/HR. The proposed change would give TVA the capability to off-load the core during outages as early as 100 hours after shutdown. In addition, the change would compensate for the projected increase in SFP decay heat from tritium production activities.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act) and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
A. The proposed methodology change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The spent fuel pool cooling and cleanup system (SFPCCS) will see higher heat loading for the spent fuel as a result a 100[-]hour core offload as well as tritium producing burnable rod (TPBAR) irradiation. The analysis methodology change takes advantage of operating data as input into the SFP cooling analysis assumptions. Specifically, by taking credit for actual (lower) fouling of the SFPCCS heat exchangers and using actual component cooling system (CCS) temperatures, higher allowable heat loads can be safely placed within the SFP without exceeding existing design limitations. The increased quantity of heat being rejected to the CCS system is well within the system's design capability. The actual SFP cooling system is not being modified from what was previously evaluated and will continue to provide cooling as previously described. Existing maximum SFP temperatures will not be exceeded. Should loss of all cooling (loss of two trains) occur, ample time and sources for providing makeup water, are available, therefore there is no increased probability for SFP boil-off to uncover the stored spent fuel. Since the stored fuel will remain covered, there is no increase in radiological effects of such an event.
Therefore, the proposed methodology change does not increase the probability or consequences of an accident previously evaluated.
B. The proposed methodology change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The SFP cooling system will see higher heat loading for the spent fuel as a result a 100 hour core offload as well as TPBAR irradiation, the methodology change takes advantage of operating data as input into the SFP cooling analysis assumptions. The actual SFP cooling system is not being modified from what was previously evaluated and will continue to provide cooling as previously described. The current UFSAR [Updated Final Safety Analysis Report] recognizes that a complete loss of SFP cooling (loss of two trains) would ultimately result in a SFP boiling condition. However, the revised analysis has shown that even with higher allowable decay heat loads placed in the SFP, adequate sources for makeup exists to allow reasonable time (over three days) to mitigate such an event, without reducing the SFP water level to unacceptable levels (10 feet above fuel storage racks).
Loss of one train of cooling remains within the piping design analysis basis and the pool liner structural analysis since the peak temperatures projected are the same.
An error in the determination of the heat exchanger fouling factor would be detected by comparing trends from past determinations and through measured pool temperature.
Therefore, the proposed methodology change does not create a new or different kind of accident from any accident previously evaluated.
C. The proposed methodology change does not involve a significant reduction in a margin of safety.
This methodology change further refines assumptions made in the SFP cooling analysis based upon operating data. The SFP cooling system is not being modified and will continue to provide cooling as previously described. The current UFSAR recognizes that a complete loss of SFP cooling (loss of two trains) would ultimately result in a SFP boiling condition. However, the revised analysis has shown that even with higher allowable decay heat loads placed in the SFP, adequate sources for makeup exist to allow adequate time (over three days) to mitigate such an event, without reducing the SFP water level to unacceptable levels (10 feet above fuel storage racks). While the revised analysis has shown a decrease in the time to react to a complete loss of SFP cooling, the resulting time available to mitigate such an event is acceptable. Additionally, the analyses for loss of cooling events all considered steady state heat loads from the fuel. Since a loss of two trains must first be postulated, over three days exists to restore cooling, heat load decreases over the three days, and multiple sources of makeup (one qualified) exist, adequate assurance is provided that the proposed change will not involve a significant reduction in any margin of safety related to SFPCCS operation or storage of spent fuel.
The higher heat loads rejected to the CCS system are well within its design basis allowable heat loads experienced in other operating modes, therefore the CCS system can safety remove the increased decay heat from the SFP.
Therefore, this proposed methodology change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By January 16, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and to the General Counsel, Tennessee Valley Authority, 400 West Summit Hill Drive, ET 10H, Knoxville, Tennessee 37902, attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment dated April 20, 2001, which is available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC web site
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering issuance of an amendment to Facility Operating License Nos. DRP-77 and DRP-79 issued to the Tennessee Valley Authority (TVA or the licensee) for operation of the Sequoyah Nuclear Plant (SQN), Units 1 and 2, located in Soddy-Daisy, Tennessee.
The proposed amendments would change Technical Specifications (TSs) to allow SQN to provide incore irradiation services for the U.S. Department of Energy (DOE). This change would allow TVA to insert up to 2256 tritium-producing burnable absorber rods (TPBARs) into the reactor cores to support DOE in maintaining its tritium inventory for national defense purposes. Each SQN core contains 193 fuel assemblies and each fuel assembly contains 264 fuel rods. In this amendment request, TVA proposes to insert up to 24 TPBARs in selected fuel assemblies (adjacent to but not in place of the 264 fuel rods). The TPBARS absorb neutrons and are similar to (and would replace) normal burnable neutron absorber rods that serve to shape neutron flux in the core. The TPBARs
Before issuance of the proposed license amendments, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act) and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration in its application dated September 21, 2001, which is presented below:
A. The proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The backup source range monitors are for indication of unit shutdown conditions only and do not perform any trip or mitigation functions. The monitors are not active components such that they could initiate a postulated accident and are not considered a contributor to accident generation. Therefore, the lowering of the indication range for this monitor will not increase the probability of an accident.
Since the monitor has only an indication function, it does not serve to mitigate postulated accidents. While the indications from this monitor can help to identify changing core conditions and promote actions to prevent undesired conditions, this is not a mitigation function credited in the accident analysis and is considered a diverse capability of the plant instrumentation system. Therefore, the proposed change will not impact any credited accident mitigation functions, and by improving shutdown monitoring capability, will not [involve a significant] increase [in] the [probability or] consequences of an accident [previously evaluated].
The accumulator boron concentration does not affect any initiating event for accidents currently evaluated in the Updated Final Safety Analysis Report (UFSAR). The increased concentrations will not adversely affect the performance of any system or component which is placed in contact with the accumulator water. The integrity and operability of the stainless steel surfaces in the accumulator and affected nuclear steam supply system (NSSS) components/systems will be maintained. The decrease in solution pH is small and will not degrade the stainless steel. Also, the integrity of the Class 1E instrumentation and control equipment will be maintained since the lower sump pH, resulting from the increased boron concentrations, is still within the applicable equipment qualification limits. These limits are set to preclude the possibility of chloride[-]induced stress corrosion cracking and assure that there is no significant degradation of polymer materials. The design, material and construction standards of all components which are placed in contact with the accumulator water remain unaffected. Therefore, the possibility [probability] of an accident has not been increased.
The consequences of an accident previously evaluated in the UFSAR will not be increased. The change in the concentrations increase the amount of boron in the sump during a loss-of-coolant accident (LOCA). The increased boron in the sump is sufficient to maintain the core in a subcritical condition. Testing has indicated that TPBARs can experience cladding breach at Large Break LOCA (LBLOCA) conditions if the cladding temperature and internal pressure of the TPBARs reach limiting values. Consequently, the post-LOCA critical boron calculations account[ed] for the potential loss of a LiAlO2 [lithium aluminate] pencil, as well as partial leaching of lithium from the remaining pencils. Based on conservative assumptions, the calculations confirm that the tritium production core will remain subcritical following a LOCA. Also, a revised hot leg switchover time has been calculated and will be implemented in the plant emergency operating procedures (EOPs). Thus, there will be no added post-LOCA long-term cooling problems associated with boron precipitation in the core following a large break LOCA (LBLOCA).
An evaluation of the non-LOCA events shows that the accumulators do not actuate. An increase in accumulator boron concentration would have no effect on either the steam line break (SLB) at hot zero power event, the feedwater line break event, or the spurious operation of safety injection (SI) system event (events in which an SI signal does occur). Therefore, there is no increase in consequences of the non-LOCA events associated with the proposed increase in accumulator boron concentration.
The accumulators are not assumed to actuate in the steam generator tube rupture (SGTR) event analysis, and the SLB mass and energy (M&E) release evaluation relies on control rods for shutdown margin and assumes a minimum boron concentration. In addition, the increase in accumulator boron concentrations and subsequent slight decrease in containment sump and spray pH does not impact the LOCA dose evaluation since the analysis of record does not credit sump pH as an input or assumption regarding volatile iodine removal efficiencies. Therefore, the present analysis remains bounding. Also, the slight decrease in sump, core and spray fluid pH has been evaluated to not significantly impact the corrosion rate (and subsequent generation of hydrogen) of aluminum and zinc inside containment. Further, the decreased sump, core and spray fluid pH has been evaluated to not affect the amount of hydrogen generated from the post-LOCA radiolytic decomposition of the sump and core solution. The likelihood of containment failure due to hydrogen deflagration is therefore not impacted by pH changes.
In view of the preceding, it is concluded that the proposed change in accumulator boron concentration will not increase the radiological [probability or] consequences of an accident previously evaluated in the UFSAR.
The RWST boron concentration does not affect any initiating event for accidents
The consequences of an accident previously evaluated in the UFSAR will not be increased. The change in the RWST boron concentration increases the amount of boron in the sump following a LOCA. The increased boron in the sump is sufficient to maintain the core in a subcritical condition. Testing has indicated that TPBARs can experience cladding breach at Large Break LOCA (LBLOCA) conditions if the cladding temperature and internal pressure of the TPBARs reach limiting values. Consequently, the post-LOCA critical boron calculations accounted for the potential loss of a LiAiO
An evaluation of the non-LOCA events indicates that an SI initiation occurs in the SLB at hot zero power event, the feedwater line break event, and the spurious operation of the SI system event. An increase in the RWST boron concentration would effectively reduce the return to power subsequent to a SLB. Boration is not credited in the feedwater line break analysis and the proposed boron increase is conservatively bounded by the boron inputs to the spurious SI system operation analysis. Therefore, there is no increase in consequences of the non-LOCA events associated with the proposed increase in RWST boron concentration.
The SLB M&E release evaluation relies on control rods for shutdown margin and assumes a minimum boron concentration. For the SGTR, the boron concentration in the accumulators and the RWST are not modeled. In addition, the increase in RWST boron concentrations and subsequent slight decrease in containment sump and spray pH does not impact the LOCA dose evaluation. While higher pH helps maintain volatile iodine in solution and lower pH drives the equilibrium to favor volatile iodine in a gaseous state, the change in sump pH is not sufficient to result in any measurable change in post-LOCA releases.
Furthermore, current radiological analyses do not take credit for volatile iodine removal efficiencies based on sump pH. Therefore, since the change in pH is minimal, and no credit is taken in release analysis, the present analysis remains bounding. Also, the slight decrease in sump, core and spray fluid pH has been evaluated to not significantly impact the corrosion rate (and subsequent generation of hydrogen) of aluminum and zinc inside containment and the present analysis remains bounding. Further, the decreased sump, core and spray fluid pH has been evaluated to not affect the amount of hydrogen generated from the radiolytic decomposition of the sump and core solution and therefore will not challenge containment integrity.
In view of the preceding, it is concluded that the proposed change in RWST boron concentration will not increase the radiological [probability or] consequences of an accident previously evaluated in the UFSAR.
This change removes the provisions that allow and support the storage of spent fuel in the cask pit pool. By eliminating this provision, the potential for criticality events associated with stored fuel in the cask pit pool is no longer credible. Not having boron concentration requirements for the cask pit for storage considerations is acceptable based on the removal of TS provisions that would allow such storage. The boron concentration requirement is not considered a contributor to accident generation and therefore, this deletion does not increase the potential [probability] for accident generation because spent fuel will not be stored in this location. Likewise, the consequences of an accident [previously evaluated] will not be [significantly] increased because the dose generation source, in the form of spent fuel stored in the cask pit, will not be allowed.
The insertion of TPBARs into the SQN reactor core does not adversely affect reactor neutronic or thermal-hydraulic performance; therefore, they do not significantly increase the probability of accidents or equipment malfunctions while in the reactor. The neutronic behavior of the TPBARS mimics that of standard burnable absorbers with only slight differences which are accommodated in the core design. The reload safety analysis performed for SQN Units 1 and 2 prior to each refueling cycle will confirm that any minor effects of TPBARS on the reload core will be within fuel design limits.
As described in the [Department of Energy's] tritium production core (TPC) topical [report, NDP-98-181, Revision 1], the TPBAR design is robust to all accident conditions except the large break LOCA (LBLOCA) where the rods are susceptible to failure. However, the failure of TPBARs has been determined to have an insignificant effect on the thermal hydraulic response of the core to this event, and analysis has shown that the core will remain subcritical following a LOCA.
The impacts of TPBARs on the radiological consequences for all evaluated events are very small, and they remain within [well below] 10 CFR 100 regulatory limits. The additional offsite doses due to tritium are small with respect to LOCA source terms and are well within regulatory limits.
The TPBAR[s] could result in an increase in combustible gas released to the containment in a LBLOCA. This increase was found to be approximately 1495 scf which remains within the capability of the recombiners.
Analysis has shown that TPBARs are not expected to fail during Condition I through IV events [as described in Chapter 15 of the UFSAR, Condition I being normal operation and operational transients, Condition II being faults of moderate frequency, Condition III being infrequent faults, and Condition IV being limiting faults] with the exception of a LBLOCA and a fuel handling accident. The radiological consequences of these events are [well] within 10 CFR 100 limits. Therefore, there is no significant increase in the [probability or] consequences of these previously evaluated accidents.
A specified amount of soluble boron is needed in the spent fuel pool to provide margin to criticality sufficient to mitigate the effects of the most serious spent fuel pool accident condition. Previous spent fuel pool criticality safety analyses (for Type A fuel) [spent fuel that has not hosted TPBARs] determined the required amount of soluble boron to be 700 parts per million (ppm). The new spent fuel pool criticality safety analysis accounting for storage of Type T fuel [spent fuel that has hosted TPBARS] confirmed that 700 ppm soluble boron still provides the required margin to criticality. Therefore, there is no significant increase in the consequences of previously evaluated accidents postulated for the spent fuel pool. Additionally, the administrative controls for loading the spent fuel pool are not changed and will continue to maintain acceptable storage configurations consistent with the analysis. Therefore, the proposed change will not [involve a significant] increase [in] the probability [or consequences] of an accident [previously evaluated].
TPBAR consolidation and associated handling activities are designed to be consistent with the existing fuel handling and heavy load handling processes and equipment currently utilized at the facility, and are designed to preclude increased probability of an accident previously evaluated.
Consequences of a fuel handling accident for fuel containing TPBARs is evaluated and does not result in exceeding [or even approaching]10 CFR Part 100 limits for off-site dose. All consolidation and heavy load handling activities are designed such that the current fuel handling accident scenario
B. The proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The backup source range monitors are for indication of unit shutdown conditions only and do not perform any trip or mitigation functions. The monitors are not active components such that they could initiate a postulated accident and are not considered a contributor to accident generation. Therefore, the lowering of the indication range for this monitor will not create the possibility of a new or different kind of accident [from any accident previously evaluated].
The change to the accumulator concentration does not cause the initiation of any accident nor create any new credible limiting single failure. The change does not result in a condition where the design, material, and construction standards of the accumulators and other potentially affected NSSS components, that were applicable prior to the changes, are altered. The integrity and operability of the stainless steel surfaces in the accumulator and affected NSSS components/systems will be maintained. The decrease in solution pH is small and will not degrade the stainless steel. Also, the integrity of the Class 1E instrumentation and control equipment will be maintained during a LOCA since the lower sump pH, resulting from the increased boron concentrations, is still within the applicable equipment qualification limits. These limits are set to preclude the possibility of chloride[-]induced stress corrosion cracking and assure that there is no significant degradation of polymer materials.
The changes in the concentrations increase the amount of boron in the sump following a LOCA. The increased boron in the sump is sufficient to maintain the core in a subcritical condition. Also, a revised hot leg switchover time has been calculated and will be implemented in the plant EOPs. Thus, there will be no boron precipitation in the core following a LOCA.
All systems, structures, and components previously required for the mitigation of an event remain capable of fulfilling their intended design function. The proposed change has no adverse a[e]ffect on any safety-related system or component and does not challenge the performance or integrity of any safety[-]related system. Therefore, the proposed increase in accumulator boron concentration does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The change to the RWST concentration does not cause the initiation of any accident nor create any new credible limiting single failure. The change does not result in a condition where the design, material, and construction standards of the RWST and other potentially affected NSSS components, that were applicable prior to the changes, are altered. The integrity and operability of the stainless steel surfaces in the RWST and affected NSSS components/systems will be maintained. The decrease in solution pH is small and will not degrade the stainless steel. Also, the integrity of the Class 1E instrumentation and control equipment will be maintained during a LOCA since the lower sump pH, resulting from the increased boron concentrations, is still within the applicable equipment qualification limits. These limits are set to preclude the possibility of chloride[-]induced stress corrosion cracking and assure that there is no significant degradation of polymer materials.
The changes in the concentrations increase the amount of boron in the sump following a LOCA. The increased boron in the sump is sufficient to maintain the core in a subcritical condition. Also, a revised hot leg switchover time has been calculated and will be implemented in the plant EOPs. Thus, there will be no boron precipitation in the core following a LOCA.
All systems, structures, and components previously required for the mitigation of an event remain capable of fulfilling their intended design function. The proposed change has no adverse affect on any safety-related system or component and does not challenge the performance or integrity of any safety[-]related system. Therefore, the proposed increase in RWST boron concentration does not create the possibility of a new or different kind of accident from any accident previously evaluated.
This change removes the provisions that allow and support the storage of spent fuel in the cask pit pool. By eliminating this provision, the potential for criticality events associated with stored fuel in the cask pit pool is no longer credible. The boron concentration requirement for the cask pit pool is not considered a contributor to accident generation and therefore, this deletion does not increase the [possibility of] potential for [a new or different kind of] accident [from any accident previously evaluated] generation because spent fuel will not be stored in this location.
TPBARS have been designed to be compatible with existing fuel assemblies supplied by Framatome-ANP and its predecessor Framatome Cogema Fuels and with conventional Burnable Poison Rod Assembly (BPRA) handling tools, equipment, and procedures. Therefore, no new [or different kind of] accidents or equipment malfunctions are created by the handling of TPBARs. * * *
TPBARs use materials with known and predictable performance characteristics and are compatible with pressurized water reactor coolant. The TPBAR design has specifically included material similar to those used in standard burnable absorber rods with the exception of internal assemblies used in the production and retention of tritium. As described in the TPC Topical Report, these materials are compatible with the reactor coolant system (RCS) and core design. Therefore, no new accidents or equipment malfunctions are created by the presence of the TPBARs in the RCS.
Mechanical design criteria have been established to ensure that TPBARs will not fail during Condition I or II events. Analysis has shown that TPBARs, appropriately positioned in the core, operate within the established thermal-hydraulic criteria. Due to the expected high reliability of TPBAR components, the frequency of TPBAR cladding failures is very small, such that multiple adjacent TPBAR failures in limiting locations is not considered credible. In addition, analysis has shown that if a single TPBAR fails catastrophically in a high power location during normal operation and the lithium is leached out, the global reactivity increase is negligible and the local power peaking is small enough that DNBR [departure from nucleate boiling ratio] limits and fuel rod integrity are not challenged. Therefore, no new [or different kind of] accidents or equipment malfunctions are created by the presence of the TPBARs in the reactor.
Analysis has shown that TPBARs will not fail during Condition III and IV events with the exception of a LBLOCA and a fuel handling accident. The radiological consequences of these events are within 10 CFR 100 limits. Therefore, there is no significant increase in consequences of these previously evaluated accidents.
TPBARs do not adversely affect reactor neutronic [or] thermal-hydraulic performance, therefore they do not create the possibility of [new or different kinds of] accidents or equipment malfunctions of a different type [of accident] than previously evaluated while in the reactor.
The storage in the spent fuel pool of spent fuel that has contained TPBARs is not a fundamental change in the use of the spent fuel pool. Specific provisions have been made for burnup and cooling time requirements in allowable configurations to ensure safe storage. The same administrative program to control storage requirements in the spent fuel pool will be utilized to handle Type A and Type T spent fuel. Therefore, the possibility of a new or different [kind of] accident than [any accident] previously evaluated has not been created.
The consolidation and handling systems are designed to preclude the possibility of a consolidating and/or handling event which could damage more than 24 TPBARs. Therefore, this proposed amendment does not create the possibility of a new or different kind of accident from any [accident] previously evaluated.
C. The proposed amendment does not involve a significant reduction in a margin of safety.
The backup source range monitors are for indication of unit shutdown conditions only and do not perform any trip or mitigation functions. The lowering of the monitor's range does allow improved indication of core conditions with the TPCs. While this monitor does not have any trip or accident mitigation functions, this change will improve the ability to assess the conditions of the unit such that necessary actions can be initiated to prevent undesired conditions. Therefore, the proposed change will not reduce [does not involve a significant reduction in] a margin of safety.
The change does not invalidate any of the non-LOCA safety analysis results or conclusions, and all of the non-LOCA safety analysis acceptance criteria continue to be met. The licensing basis small break LOCA (SBLOCA) analysis does not credit the accumulator boron and is not affected by the proposed change. Therefore, there is no reduction in the margin to the peak clad temperature (PCT) limit for the SBLOCA. There is no increase in the LBLOCA PCT; therefore, the ECCS acceptance criteria limit, dictated by 10 CFR 50.46, is not exceeded with regard to the LBLOCA analysis. The increased boron concentration is sufficient to maintain subcriticality during the LBLOCA, and a post-LOCA long-term core cooling analysis demonstrated that the post-LOCA sump boron concentration is sufficient to prevent recriticality. The revised hot leg switchover time, which will be implemented in the EOPs, will prevent long-term cooling problems associated with boron precipitation in the reactor vessel and core. The licensing analyses for containment, equipment qualification, and environmental consequences remain bounding and applicable and the acceptance criteria of the related events continue to be met. The proposed increase in accumulator boron concentration, therefore, does not involve a significant reduction in a margin of safety.
The change does not invalidate any of the non-LOCA safety analysis results or conclusions, and all of the non-LOCA safety analysis acceptance criteria continue to be met. The licensing basis SBLOCA analysis does not credit the RWST boron and is not affected by the proposed change. Therefore, there is no reduction in the margin to the PCT limit for the SBLOCA. There is no increase in the LBLOCA PCT; therefore, the ECCS acceptance criteria limit, dictated by 10 CFR 50.46, is not exceeded with regard to the LBLOCA analysis. The increased boron concentration is sufficient to prevent recriticality. The revised hot leg switchover time, which will be implemented in the EOPs, will prevent boron precipitation. The licensing analyses for containment, equipment qualification, and environmental consequences remain bounding and applicable and the acceptance criteria of the related events continue to be met. The proposed increase in RWST boron concentration, therefore, does not involve a significant reduction in a margin of safety.
This change removes the provisions that allow and support the storage of spent fuel in the cask pit pool. This change will not alter plant systems, operating methods, or plant setpoints that maintain the margin of safety. Boron concentration will continue to be properly maintained for the storage of spent fuel in the spent fuel pool as required by the analysis to control inadvertent criticality events. Therefore, this change will not reduce [does not involve a significant reduction in] the margin of safety.
TPBARs have been designed to be compatible with existing fuel assemblies. TPBARs do not adversely affect reactor neutronic or thermal-hydraulic performance. Analysis indicates that reactor core behavior and offsite doses remain relatively unchanged. For these reasons, the proposed amendment does not involve a significant reduction in a margin of safety.
Addition of fuel assemblies containing TPBARs to the spent fuel pool is consistent with the pool design function. Specific provisions have been made as a result of reanalysis of spent fuel pool criticality safety analysis to limit storage configurations and burnup or cooling time requirements to those that will provide for safe storage of fresh and spent fuel. Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The changes do not affect the safety-related performance of any plant operations, system, structures, or components. Therefore, there is no [it does not involve a] significant reduction in the margin of safety.
The NRC staff has reviewed the no significant hazards consideration analysis provided by TVA with respect to the three criteria listed in 10 CFR 50.92(c). The staff's safety evaluation is in its early stages and will require several months to complete. However, in terms of 10 CFR 50.92(c), the staff finds that the TVA application addresses all applicable accidents discussed in the UFSAR, including LOCAs, SGTRs, and fuel handling considerations. Insertion of the TPBARS for the purpose of producing tritium (which is sealed inside the TPBARs) requires a higher degree of fuel enrichment with uranium-235. Because the TPBARs neither contain fissile material nor replace normal reactor fuel, and because the TPBARs will not adversely affect reactor neutronic or thermal-hydraulic performance, their presence in the core should have no effect upon the probability or consequences of previously analyzed accidents, including fuel handling accidents. For the same reasons, the possibility of a new or different kind of accident would not be expected to result from irradiation of the TPBARS in the SQN reactor cores. TVA's analysis of a possible reduction in safety margins addressed PCT limits resulting from an SBLOCA and the increased boron concentration to maintain subcriticality.
Based on the NRC staff's review of the analysis provided by the licensee, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By January 16, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and to General Counsel, Tennessee Valley Authority, ET 11A, 400 West Summit Hill Drive, Knoxville, TN 37902, attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
Further details with respect to this action may be found in the application for amendment dated September 21, 2001, which is available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering issuance of an amendment to Facility Operating License No. NPF-90 issued to the Tennessee Valley Authority (TVA or the licensee) for operation of the Watts Bar Nuclear Plant (WBN), Unit 1, located in Rhea County, Tennessee.
The proposed amendment would change Technical Specifications (TSs) to allow WBN to provide incore irradiation services for the U.S. Department of Energy (DOE). This change would allow TVA to insert up to 2304 tritium-producing burnable absorber rods
Before issuance of the proposed license amendments, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act) and the Commission's regulations.
The Commission has made a proposed determination that the amendment request involves no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration in its application dated August 20, 2001, which is presented below:
A. The proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The accumulator boron concentration does not affect any initiating event for accidents currently evaluated in the Updated Final Safety Analysis Report (UFSAR). The increased concentrations will not adversely affect the performance of any system or component which is placed in contact with the accumulator water. The integrity and operability of the stainless steel surfaces in the accumulator and affected Nuclear Steam Supply System (NSSS) components/systems will be maintained. The decrease in solution pH is small and will not degrade the stainless steel. Also, the integrity of the Class 1E instrumentation and control equipment will be maintained since the lower sump pH, resulting from the increased boron concentrations, is still within the applicable equipment qualification limits. These limits are set to preclude the possibility of chloride[-]induced stress corrosion cracking and assure that there is no significant degradation of polymer materials. The design, material and construction standards of all components which are placed in contact with the accumulator water remain unaffected. Therefore, the possibility [probability] of an accident has not been [significantly] increased.
The consequences of an accident previously evaluated in the UFSAR will not be [significantly] increased. The change in the concentrations increase the amount of boron in the sump during a Loss of Coolant Accident (LOCA). The increased boron in the sump is sufficient to maintain the core in a subcritical condition. Testing has indicated that TPBARs can experience cladding breach at Large Break LOCA (LBLOCA) conditions if the cladding temperature and internal pressure of the TPBARs reach limiting values. Consequently, the post-LOCA critical boron calculations account[ed] for the potential loss of a LiAlO
The only non-LOCA event that assumes accumulator actuation is the Major Rupture of a Main Steamline event, however, it assumes a minimum amount of boron. Furthermore, there is no impact on the SGTR [steam generator tube rupture] event since the accumulators are not assumed to be actuated, and the SLB [steam line break] M&E [mass and energy] release evaluation relies on control rods for shutdown margin and assumes a minimum boron concentration.
In addition, the increase in accumulator boron concentrations and subsequent slight decrease in containment sump and spray pH does not impact the LOCA dose evaluation since the analysis of record does not credit sump pH as an input or assumption regarding volatile iodine removal efficiencies. Therefore, the present analysis remains bounding. Also, the slight decrease in sump, core and spray fluid pH has been evaluated to not significantly impact the corrosion rate (and subsequent generation of Hydrogen) of Aluminum and Zinc inside containment. Further, the decreased sump, core and spray fluid pH has been evaluated to not affect the amount of hydrogen generated from the post-LOCA radiolytic decomposition of the sump and core solution. The likelihood of containment failure due to hydrogen deflagration is therefore not impacted by pH changes.
In view of the preceding, it is concluded that the proposed change will not [significantly] increase the radiological [probability or] consequences of an accident previously evaluated in the FSAR.
The RWST boron concentration does not affect any initiating event for accidents currently evaluated in the UFSAR. The increased concentration will not adversely affect the performance of any system or component which is placed in contact with the RWST water. The integrity and operability of the stainless steel surfaces in the RWST and affected NSSS components/systems will be maintained. The decrease in solution pH is small and will not degrade the stainless steel. Also, the integrity of the Class 1E instrumentation and control equipment will be maintained since the lower sump pH, resulting from the increased boron concentrations, is still within the applicable equipment qualification limits. These limits are set to preclude the possibility of chloride[-induced stress corrosion cracking and assure that there is no significant degradation of polymer materials. The design, material and construction standards of all components which are placed in contact with the RWST water remain unaffected. Therefore, the probability of an accident has not changed.
The consequences of an accident previously evaluated in the UFSAR will not be [significantly] increased. The change in the concentrations increases the amount of
The Inadvertent Operation of Emergency Core Cooling System (ECCS) event is the only non-LOCA event which assumes the maximum RWST boron concentration, and an evaluation has shown that the proposed increase does not cause an adverse impact on this transient.
The Steam Line Break (SLB) mass and energy (M&E) release evaluation relies on control rods for shutdown margin and assumes a minimum boron concentration. For the Steam Generator Tube Rupture (SGTR) event, the increased boron concentration will help maintain adequate shutdown margin, which will be evaluated as part of the reload process.
In addition, the increase in RWST boron concentrations and subsequent slight decrease in containment sump and spray pH does not impact the LOCA dose evaluation. While higher pH helps maintain volatile iodine in solution and lower pH drives the equilibrium to favor volatile iodine in a gaseous state, the change in sump pH is not sufficient to result in any measurable change in post LOCA releases.
Furthermore, current radiological analyses do not take credit for volatile iodine removal efficiencies based on sump pH. Therefore, since the change in pH is minimal, and no credit is taken in release analysis, the present analysis remains bounding. Also, the slight decrease in sump, core and spray fluid pH has been evaluated to not significantly impact the corrosion rate (and subsequent generation of Hydrogen) of Aluminum and Zinc inside containment and the present analysis remains bounding. Further, the decreased sump, core and spray fluid pH has been evaluated to not affect the amount of hydrogen generated from the radiolytic decomposition of the sump and core solution and therefore will not challenge containment integrity.
In view of the preceding, it is concluded that the proposed change will not [significantly] increase the radiological probability or consequences of an accident previously evaluated in the FSAR.
The Region 2 burnup credit racks described in TS section 4.3.3 are not currently installed in the plant. Since the time that these racks were licensed, TVA has determined not to install or utilize this storage option. Therefore, since they are not installed, there is no [significant] increase in the probability or consequences of an accident previously evaluated.
The insertion of TPBARs into the WBN reactor core does not adversely affect reactor neutronic or thermal-hydraulic performance; therefore, they do not significantly increase the probability of accidents or equipment malfunctions while in the reactor. The neutronic behavior of the TPBARS mimics that of standard burnable absorbers with only slight differences which are accommodated in the core design. The reload safety analysis performed for WBN Unit 1 prior to each refueling cycle will confirm that any minor effects of TPBARS on the reload core will be within fuel design limits.
As described in the [Department of Energy's] TPC [Tritium Production Core] Topical [Report, NDP-98-181, Revision 1], the TPBAR design is robust to all accident conditions except the large break LOCA where the rods are susceptible to failure. However, the failure of TPBARs has been determined to have an insignificant effect on the thermal hydraulic response of the core to this event, and analysis has shown that the core will remain subcritical following a LOCA.
The impacts of TPBARs on the radiological consequences for all evaluated events are very small, and they remain within [well below]10 CFR 100 regulatory limits. The additional offsite doses due to tritium are small with respect to LOCA source terms and are well within regulatory limits.
The TPBAR could result in an increase in combustible gas released to the containment in a large break LOCA. This increase was found to be approximately 1474 scf [standard cubic feet] which remains within the capability of the recombiners.
Analysis has shown that TPBARs are not expected to fail during Condition I through IV events [as described in Chapter 15 of the UFSAR, Condition I being normal operation and operational transients, Condition II being faults of moderate frequency, Condition III being infrequent faults, and Condition IV being limiting faults]. TPBARs may fail during a LBLOCA or as a result of fuel handling accident. The radiological consequences of these events are [well] within 10 CFR 100 limits. Therefore, there is no significant increase in the [probability or] consequences of these previously evaluated accidents.
The Region 2 burnup credit racks described in this TS section are not currently installed in the plant. Since the time that these racks were licensed, TVA has determined not to install or utilize this storage option. Due to the deletion of the Region 2 racks, the additional detail provided clarifies existing storage restrictions. Therefore, since they are not installed, there is no [significant] increase in the probability or consequences of an accident previously evaluated.
Due to the increase of the boron concentration in the RWST and the accumulators, initial mixed boron concentrations are higher and the precipitation concentration is reached sooner. As a result, the hot leg switchover is being shortened. However, the time being shortened does not change the switchover function. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
This change is administrative in nature and involves only identifying another source of hydrogen gas (tritium) to the bases. The functions for the hydrogen recombiners remain the same. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
TPBAR consolidation and associated handling activities are designed to be consistent with the existing fuel handling and heavy load handling processes and equipment currently utilized at the facility, and are designed to preclude increased probability of an accident previously evaluated.
Consequences of a fuel handling accident for fuel containing TPBARs is evaluated and does not result in exceeding [or even approaching] 10 CFR Part 100 limits for off-site dose. All consolidation and heavy load handling activities are designed such that the current fuel handling accident scenario remains bounding. Therefore the consequences of an accident previously evaluated remains within acceptable limits.
B. The proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The change to the accumulator concentration does not cause the initiation of any accident nor create any new credible limiting single failure. The change does not result in a condition where the design, material, and construction standards of the accumulators and other potentially affected NSSS components, that were applicable prior to the changes, are altered. The integrity and operability of the stainless steel surfaces in the accumulator and affected NSSS components/systems will be maintained. The decrease in solution pH is small and will not degrade the stainless steel. Also, the integrity of the Class 1E instrumentation and control equipment will be maintained during a LOCA since the lower sump pH, resulting from the increased boron concentrations, is still within the applicable equipment qualification limits. These limits are set to preclude the possibility of chloride[-]induced stress corrosion cracking and assure that there is no significant degradation of polymer materials.
The changes in the concentrations increase the amount of boron in the sump following
All systems, structures, and components previously required for the mitigation of an event remain capable of fulfilling their intended design function. The proposed change has no adverse affect on any safety-related system or component and does not challenge the performance or integrity of any safety related system. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The change to the RWST concentration does not cause the initiation of any accident nor create any new credible limiting single failure. The change does not result in a condition where the design, material, and construction standards of the RWST and other potentially affected NSSS components, that were applicable prior to the changes, are altered. The integrity and operability of the stainless steel surfaces in the RWST and affected NSSS components/systems will be maintained. The decrease in solution pH is small and will not degrade the stainless steel. Also, the integrity of the Class 1E instrumentation and control equipment will be maintained during a LOCA since the lower sump pH, resulting from the increased boron concentrations, is still within the applicable equipment qualification limits. These limits are set to preclude the possibility of chloride-induced stress corrosion cracking and assure that there is no significant degradation of polymer materials.
The changes in the concentrations increase the amount of boron in the sump following a LOCA. The increased boron in the sump is sufficient to maintain the core in a subcritical condition. Also, a revised hot leg switchover time has been calculated and will be implemented in the plant EOPs. Thus, there will be no boron precipitation in the core following a LOCA.
All systems, structures, and components previously required for the mitigation of an event remain capable of fulfilling their intended design function. The proposed change has no adverse affect on any safety-related system or component and does not challenge the performance or integrity of any safety[-]related system. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The Region 2 burnup credit racks described in section 4.3.3 are not currently installed in the plant. Since the time that these racks were licensed, TVA has determined not to install or utilize this storage option. Therefore, since they are not installed, this change would not create the possibility of a new or different kind of accident from any accident previously evaluated.
TPBARS have been designed to be compatible with existing Westinghouse 17x17 fuel assemblies and conventional Burnable Poison Rod Assembly (BPRA) handling tools, equipment, and procedures, and therefore, no new [or different kind of] accidents or equipment malfunctions are created by the handling of TPBARs * * *
TPBARs use materials with known and predictable performance characteristics and are compatible with pressurized water reactor (PWR) coolant. The TPBAR design has specifically included material similar to those used in standard burnable absorber rods with the exception of internal assemblies used in the production and retention of tritium. As described in the TPC Topical Report, these materials are compatible with the reactor coolant system (RCS) and core design. Therefore, no new [or different kind of] accidents or equipment malfunctions are created by the presence of the TPBARs in the RCS.
Mechanical design criteria have been established to ensure that TPBARs will not fail during Condition I or II events. Analysis has shown that TPBARs, appropriately positioned in the core operate within the established thermal-hydraulic criteria. Due to the expected high reliability of TPBAR components the frequency of TPBAR cladding failures is very small, such that multiple adjacent TPBAR failures in limiting locations is not considered credible. In addition, analysis has shown that if a single TPBAR fails catastrophically in a high power location during normal operation and the lithium is leached out, the global reactivity increase is negligible and the local power peaking is small enough that DNBR [departure from nucleate boiling ratio] limits and fuel rod integrity are not challenged. Therefore, no new [or different kind of] accidents or equipment malfunctions are created by the presence of the TPBARs in the reactor.
Analysis has shown that TPBARs will not fail during Condition III and IV events. TPBARs may fail during a cold leg large break loss-of-coolant-accident or as a result of a fuel handling accident. The radiological consequences of these events are within 10 CFR 100 limits. Therefore, there is no significant increase in consequences of these previously evaluated accidents.
TPBARs do not adversely affect reactor neutronic or thermal-hydraulic performance; therefore they do not create the possibility of accidents or equipment malfunctions of a [new or] different type than previously evaluated while in the reactor.
The Region 2 burnup credit racks described in this section are not currently installed in the plant. Since the time that these racks were licensed, TVA has determined not to install or utilize this storage option. Due to the deletion of the Region 2 racks, the additional detail provided clarifies existing storage restrictions. Therefore, since they are not installed, this change would not create the possibility of a new or different kind of accident from any accident previously evaluated.
Due to the increase of the boron concentration in the RWST and the accumulators, initial mixed boron concentrations are higher and the precipitation concentration is reached sooner. As a result, the hot leg switchover value is being shortened. This time being shortened does not change the switchover function. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
This change is administrative in nature and only involves only identifying another source of hydrogen gas (tritium) to the bases. The functions for the hydrogen recombiners remain the same. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The consolidation and handling activities are bounded by current fuel handling evaluations. Therefore, this proposed amendment does not create the possibility of a new or different kind of accident from any previously evaluated.
C. The proposed amendment does not involve a significant reduction in a margin of safety.
The change does not invalidate any of the non-LOCA safety analysis results or conclusions, and all of the non-LOCA safety analysis acceptance criteria continue to be met. The licensing basis SBLOCA analyses does not credit the accumulator boron and is not affected by the proposed change.
Therefore, there is no reduction in the margin to the Peak clad temperature (PCT) limit for the SBLOCA. There is no increase in the Best Estimate LBLOCA PCT; therefore, there continues to be a high level of probability that the ECCS acceptance criteria limit is not exceeded with regard to the LBLOCA analysis. The increased boron concentration is sufficient to maintain subcriticality during the LBLOCA, and a post-LOCA long term core cooling analysis demonstrated that the post-LOCA sump boron concentration is sufficient to prevent recriticality. The revised hot leg switchover time, which will be implemented in the EOPs, will prevent boron precipitation. The licensing basis containment and SLB M&E releases remain bounding, and the SGTR event acceptance criteria continue to be met. Furthermore, the changes do not affect the safety[-]related performance of the accumulator or related NSSS components. Therefore, there is no significant reduction in the margin of safety.
The change does not invalidate any of the non-LOCA safety analysis results or
The Region 2 burnup credit racks described in section 4.3.3 are not currently installed in the plant. Since the time that these racks were licensed, TVA has determined not to install or utilize this storage option. Therefore, since they are not installed, this change would not involve a [significant] reduction in a margin of safety.
TPBARs have been designed to be compatible with existing fuel assemblies. TPBARs do not adversely affect reactor neutronic or thermal-hydraulic performance. Analysis indicates that reactor core behavior and offsite doses remain relatively unchanged. For these reasons, the proposed amendment does not involve a significant reduction in a margin of safety.
The Region 2 burnup credit racks described in section 4.3.3 are not currently installed in the plant. Since the time that these racks were licensed, TVA has determined not to install or utilize this storage option. Due to the deletion of the Region 2 racks, the additional detail provided clarifies existing storage restrictions and does not reduce the margin of safety in existing storage requirements. Therefore, since they are not installed, this change would not involve a [significant] reduction in a margin of safety.
Due to the increase of the boron concentration in the RWST and the accumulators, initial mixed boron concentrations are higher and the precipitation concentration is reached sooner. As a result, the hot leg switchover value is being shortened. This time being shortened does not change the switchover function. Therefore, this change does not involve a [significant] reduction in the margin of safety.
This change is administrative in nature and only involves only identifying another source of hydrogen gas (tritium) in the bases. The functions for the hydrogen recombiners remain the same. Therefore, this change does not involve a [significant] reduction in the margin of safety.
The changes do not significantly affect the safety[-]related performance of any plant operations, system, structures, or components. The consolidation activity is bounded by current fuel handling evaluations. Therefore, there is no [does not involve a] significant reduction in the margin of safety.
The NRC staff has reviewed the no significant hazards consideration analysis provided by TVA with respect to the three criteria listed in 10 CFR 50.92(c). The staff's safety evaluation is in its early stages and will require several months to complete. However, in terms of 10 CFR 50.92(c), the staff finds that the TVA application addresses all applicable accidents discussed in the UFSAR, including LOCAs, SGTRs, and fuel handling considerations. Insertion of the TPBARS for the purpose of producing tritium (which is sealed inside the TPBARs) requires a higher degree of fuel enrichment with U-235. Because the TPBARs neither contain fissile material nor replace normal reactor fuel, and because the TPBARs will not adversely affect reactor neutronic or thermal-hydraulic performance, their presence in the core should have no effect upon the probability or consequences of previously analyzed accidents, including fuel handling accidents. For the same reasons, the possibility of a new or different kind of accident would not be expected to result from irradiation of the TPBARS in the WBN reactor core. TVA's analysis of a possible reduction in safety margins addressed PCT limits resulting from an SBLOCA and the increased boron concentration to maintain subcriticality.
Based on the NRC staff's review of the analysis provided by the licensee, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By January 16, 2002, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or electronically on the Internet at the NRC Web site
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made party to the proceeding; (2) the nature and extent of the petitioner's
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and to General Counsel, Tennessee Valley Authority, ET 11A, 400 West Summit Hill Drive, Knoxville, TN 37902, attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
Further details with respect to this action may be found in the application for amendment dated August 20, 2001, which is available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room, or electronically on the Internet at the NRC Web site
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of December 17, 24, 31, 2001, January 7, 14, 21, 2002.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the Week of December 17, 2001.
There are no meetings scheduled for the Week of December 24, 2001.
There are no meetings scheduled for the Week of December 31, 2001.
9:30 a.m. Meeting with Advisory Committee on Nuclear Waste (ACNW) (Public Meeting) (Contact: John Larkins, 301-415-7360).
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of Janaury 14, 2002.
There are no meetings scheduled for the Week of January 21, 2002.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: David Louis Gamberoni (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like
December 3, 2001.
Closed.
66 FR 59035, November 26, 2001.
Rate Case R2001-1.
At its meeting on December 3, 2001, the Board of Governors of the United States Postal Service voted unanimously to add this item to the agenda of its closed meeting and that no earlier announcement was possible. The General Counsel of the United States Postal Service certified that in her opinion discussion of this item could be properly closed to public observation.
David G. Hunter, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza, SW., Washington, DC.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under sections 6(c) and 6(e) of the Investment Company Act of 1940 (the “Act”) exempting an escrow account established by the applicant from all provisions of the Act, except section 9 and sections 36 through 53 of the Act, and the rules and regulations under those sections.
Applicant requests an order on behalf of an escrow account (the “Escrow Account”) to be established in connection with applicant's conversion to a stock life insurance company and its subsequent acquisition by Anthem Insurance Companies, Inc. (“Anthem”). The Escrow Account will hold a portion of the cash consideration from the sale pending the resolution of a specified litigation matter involving applicant. The order would exempt the Escrow Account from certain provisions of the Act and the rules and regulations under those provisions.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicant: Kenneth J. Berman, Debevoise & Plimpton, 555 13th Street, NW., Washington, DC 20004.
Jaea F. Hahn, Senior Counsel, at (202) 942-0614, or Nadya B. Roytblat, Assistant Director, at (202) 942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (tel. 202-942-8090).
1. The Company is a Kansas mutual life insurance company that proposes to convert to a stock life insurance company (the “Conversion”) pursuant to a plan of conversion (the “Plan”) in accordance with Kansas law. As a mutual life insurance company, the Company has no authorized, issued or outstanding capital stock. The policyholders of the Company, through the purchase of insurance policies and contracts, acquire insurance coverage and “Membership Interests” which consist principally of the right to vote in the election of directors of the Company and the right to share in any residual value of the Company if the Company were to undergo liquidation in the future.
2. Pursuant to an Alliance Agreement between the Company and Anthem, an Indiana stock insurance company (the “Alliance Agreement”), Anthem or an affiliate of Anthem will acquire the Company upon the Company's Conversion (the “Acquisition”). On the date of effectiveness of the Conversion and the closing of the Acquisition (the “Conversion Date”), the Membership Interests of the Company policyholders will be extinguished, the Company's policyholders eligible to vote and receive consideration in the Conversion (“Eligible Policyholders”) will be entitled to receive consideration as provided in the Alliance Agreement and the Plan, and the Company will become a direct or indirect wholly-owned subsidiary of Anthem.
3. The Company's board of directors has adopted the Plan. The Plan has been submitted to the Commissioner of Insurance of the State of Kansas (the “Commissioner”) for approval. Article 40 of Chapter 40 of the Kansas Statutes Annotated (the “Kansas Conversion Law”) requires the Commissioner to hold a public hearing at which the Company's policyholders would have the right to appear and be heard. The Commissioner must approve the Plan if the Commissioner finds that (a) the Plan is fair and equitable to policyholders, (b) the Plan complies with the provisions of the Kansas Conversion Law, (c) the Plan does not unjustly enrich any director, officer, agent or employee of the Company and (d) the Company would meet minimum requirements to be issued a certificate of authority by the Commissioner to transact business in Kansas and the continued operations of the Company would not be hazardous to existing or future policyholders or the public.
4. Eligible Policyholders also must approve the Plan, including the establishment of the Escrow Account. As required by the Kansas Conversion Law, Eligible Policyholders will have received from the Company a comprehensive information booklet
5. Under the proposed transaction, Eligible Policyholders will be entitled to receive $142 million of the $190 million purchase price paid by Anthem for the stock of the Company upon the Conversion, with the remaining $48 million of the purchase price deposited into the Escrow Account on the Conversion Date. The Escrow Account will be established to address issues arising from a subpoena, dated February 28, 2001, that the Company received from the Office of the Inspector General, U.S. Department of Health and Human Services (the “Contingent Litigation Matter”).
6. The Escrow Account will be a separately designated investment account established on or prior to the Conversion Date pursuant to an escrow agreement (the “Escrow Agreement”) to be entered into among the Company, Anthem and an escrow agent (the “Escrow Agent”). The Escrow Agent will be a bank, savings and loan association or trust company. The sole purpose of the Escrow Account will be to liquidate its assets and distribute the income to the Eligible Policyholders in as prompt and orderly a fashion as possible following the resolution of the Contingent Litigation Matter. Amounts held in the Escrow Account will be invested by the Escrow Agent solely in obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States of America or an agency or instrumentality thereof with a maturity date of one year or less from the date of the investment (“Government Securities”). The Escrow Agent will not have the authority to borrow funds from, or on behalf of the Escrow Account, sell securities to, or acquire securities from, the Escrow Account, or, acquire any other assets except for Government Securities. The rights of the Eligible Policyholders to amounts held in the Escrow Account will not be represented by any form of certificate or instrument and will not be transferable or assignable except by will, the laws of intestacy or by other operation of law. The Commissioner will retain regulatory oversight over the Escrow Account, including the investment and distribution of the assets held in the Escrow Account to ensure that the interests of Eligible Policyholders are protected.
7. The Escrow Account will continue until the Contingent Litigation Matter has been finally disposed of by binding settlement, court order or otherwise, all tax amounts have been finally determined, all amounts that are reasonably recoverable from any insurer in respect of the Contingent Litigation Matter are recovered, and all amounts in the Escrow Account have been paid or distributed by the Escrow Agent in accordance with the Escrow Agreement and the Alliance Agreement. Any amounts remaining in the Escrow Account will be distributed to Eligible Policyholders in accordance with the distribution principles set forth in the Plan.
1. Section 3(a)(1)(A) of the Act defines the term “investment company” to include an issuer that is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting or trading in securities. Because the assets held in the Escrow Account will be invested exclusively in Government Securities and the Escrow's sole source of income will be investment income attributable to such securities, applicant states that it is possible that the Escrow Account could be deemed to be an investment company as defined in section 3(a)(1)(A).
2. Section 6(c) of the Act provides, in relevant part, that the Commission may exempt any person or persons, or any transaction or transactions, from any provisions of the Act if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Section 7 of the Act generally prohibits investment companies that are not registered under section 8 of the Act from selling or redeeming their securities.
Applicant agrees that any order granting the requested relief shall be subject to the following conditions:
1. The Escrow Account will not hold itself out as being an investment company, but instead will hold itself out as an escrow account in the process of liquidating and distributing its assets to the Eligible Policyholders.
2. The Escrow Account will be limited to making temporary investments in Government Securities.
3. The Escrow Account will terminate, in accordance with the terms of the Escrow Agreement, upon final disposition of the Contingent Litigation Matter by binding settlement, court order or otherwise, final determination of certain tax matters, reasonable recovery from any insurer of costs associated with the Contingent Litigation Matter and distribution of all amounts in the Escrow Account by the Escrow Agent.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission.
Cautionary advice regarding disclosure about critical accounting policies.
The Securities and Exchange Commission is issuing a statement regarding the selection and disclosure by public companies of critical accounting policies and practices.
Robert A. Bayless, Special Assistant to the Chief Accountant, 202-942-4400.
As public companies undertake to prepare and file required annual reports with us, we wish to remind management, auditors, audit committees, and their advisors that the selection and application of the company's accounting policies must be appropriately reasoned. They should be aware also that investors increasingly demand full transparency of accounting policies and their effects.
Reported financial position and results often imply a degree of precision, continuity and certainty that can be belied by rapid changes in the financial and operating environment that produced those measures. As a result, even a technically accurate application of generally accepted accounting principles (“GAAP”) may nonetheless fail to communicate important information if it is not accompanied by appropriate and clear analytic disclosures to facilitate an investor's understanding of the company's financial status, and the possibility, likelihood and implication of changes in the financial and operating status.
Of course, public companies should be mindful of existing disclosure requirements in GAAP and our rules. Accounting standards require information in financial statements about the accounting principles and methods used and the risks and uncertainties inherent in significant estimates.
We have observed that disclosure responsive to these requirements could be enhanced. For example, environmental and operational trends, events and uncertainties typically are identified in MD&A, but the implications of those uncertainties for the methods, assumptions and estimates used for recurring and pervasive accounting measurements are not always addressed. Communication between investors and public companies could be improved if management explained in MD&A the interplay of specific uncertainties with accounting measurements in the financial statements. We intend to consider new rules during the coming year to elicit more precise disclosures about the accounting policies that management believes are most “critical”—that is, they are both most important to the portrayal of the company's financial condition and results, and they require management's most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain.
Even before new rules are considered, however, we believe it is appropriate to alert companies to the need for greater investor awareness of the sensitivity of financial statements to the methods, assumptions, and estimates underlying their preparation. We encourage public companies to include in their MD&A this year full explanations, in plain English, of their “critical accounting policies,” the judgments and uncertainties affecting the application of those policies, and the likelihood that materially different amounts would be reported under different conditions or using different assumptions. The objective of this disclosure is consistent with the objective of MD&A.
Investors may lose confidence in a company's management and financial statements if sudden changes in its financial condition and results occur, but were not preceded by disclosures about the susceptibility of reported amounts to change, including rapid change. To minimize such a loss of confidence, we are alerting public companies to the importance of employing a disclosure regimen along the following lines:
As part of the normal audit process, auditors must obtain an understanding of management's judgments in selecting and applying accounting principles and methods. Special attention to the most critical accounting policies will enhance the effectiveness of this process. Management should be able to defend the quality and reasonableness of the most critical policies, and auditors should satisfy themselves thoroughly regarding their selection, application and disclosure.
To enhance investor understanding of the financial statements, companies are encouraged to explain in MD&A the effects of the critical accounting policies applied, the judgments made in their application, and the likelihood of materially different reported results if different assumptions or conditions were to prevail.
Consistent with auditing standards, audit committees should be apprised of the evaluative criteria used by management in their selection of the accounting principles and methods.
We encourage all those whose responsibility it is to report fairly and accurately on a company's financial condition and results to seek out our staff's assistance. We are committed to providing that assistance in a timely fashion; our goal is to address problems before they happen.
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change concerns the closing of DTC's Mortgage-Backed Securities Division (“MBS Division”).
In its filing with the Commission, DTC 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. DTC 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 is to obtain Commission approval of DTC's closing the operations of its MBS Division. Currently, among other things, the MBS Division issues and settles mortgage-backed securities that are guaranteed by the Government National Mortgage Association (“GNMA”). However, GNMA wishes to transfer the settlement of these mortgage-backed securities to the Fedwire system of the Federal Reserve Board.
GNMA announced its plans to move its securities to Fedwire in May 2000. The conversion plans were developed in consultation with a task force organized by The Bond Market Association (“BMA”) that consisted of representatives from broker-dealers, custodial banks, GNMA, the Federal Reserve Banks, the Mortgage Bankers Association, DTC, and the BMA. The force formed a GNMA Conversion Subcommittee to develop a conversion plan and implementation schedule. In February 2001, the subcommittee issued its Conversion Plan.
The conversion is taking place in phases over a series of weekends beginning October 6, 2001, and is scheduled for completion by March 31, 2002. During this period, different classes of GNMA securities will be moved electronically from the MBS Division to Fedwire in accordance with delivery instructions provided to the MBS Division by the MBS Division's participants. Other securities issued and settled on the books of the MBS Division, namely securities guaranteed by the Department of Veterans Affairs and a limited number of FNMA and FHLMC securities which are collateralized by GNMA securities, will also move to Fedwire at some time during the GNMA conversion or immediately after on dates to be determined.
Shortly after the completion of the payment of principal and interest with respect to securities last converted to Fedwire, DTC will close the transaction processing system of the MBS Division, return the MBS Division participant fund deposits to the MBS Division's participants, and amend DTC's rules to delete the rules that apply to the MBS Division. After the conversion, FNMA securities will remain eligible for processing on DTC's main system in the same manner as other Fedwire securities are currently processed at DTC. Fedwire securities processed at DTC must be deposited and withdrawn free of payment over Fedwire to and from DTC's Fedwire account. Once deposited at DTC, Fedwire-eligible securities will be processed among DTC participants subject to DTC's rules and procedures without additional restrictions.
In connection with the conversion of GNMA securities to Fedwire, DTC considered expanding its processing to permit GNMA securities to be delivered versus payment into and from DTC's Fedwire account subject to regulatory approval. DTC solicited comments from its participants, but fewer than a dozen
DTC will notify the MBS Division's participants and the Commission upon the completion of the closure of the MBS Division.
DTC believes that the proposed rule change is consistent with the requirements of section 17(A)(b)(3)(A) of the Act and the rules and regulations thereunder applicable to DTC because it promotes and accurate clearance and settlement of securities transactions.
DTC perceives no impact on competition by reason of the proposed rule change.
DTC solicited written comments from its participants on GNMA's proposal to move its securities to Fedwire in DTC Important Notice No. 0057 dated June 1, 2000.
Within thirty-five 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 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 rue 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, 450 Fifth Street, NW., Washington, DC. Copies of such filing will also be available for inspection and copying at DTC's principal office. All submissions should refer to File No. SR-DTC-2001-14 and should be submitted by January 7, 2002.
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 amend Article III, Section 2(b) of the PCX Constitution and PCX rule 1.1(h) to provide for the eligibility of inactive lessors to serve on the PCX Board of Governors (“Board”). Below is the text of the proposed rule change. Text in italics indicates material to be added.
SEC. 2(b). Any member, allied member or person who is an officer or director of the parent or subsidiary corporation of a member firm, or a general partner in a partnership which owns or is wholly owned by a member firm, or an officer or director of a member firm or of a participant firm of any subsidiary of the Exchange performing depository or clearing functions, or an officer, director or general partner of the parent or a subsidiary corporation of such clearing member firm or depository participant firm,
Rule 1.1(h). Inactive Lessor: The term “inactive lessor” shall refer to a natural person, firm or other such entity as the Board may approve, who owns or inherits a membership for the sole purpose of acting as a lessor.
In the 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 PCX 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 amend the PCX Constitution and Rules to clearly establish that PCX inactive lessors are eligible to serve on the Exchange's Board. An inactive lessor is defined in the PCX Constitution as “a natural person, firm or other such entity as the Board may approve, who owns or inherits a membership for the sole purpose of acting as a lessor.”
The PCX requirements relating to the eligibility of persons to serve on the Board is set forth in Article III, Section 2(b) of the PCX Constitution, which provides, in part, as follows:
“Any member,
Article III, Section 2(a) of the PCX Constitution provides that the Exchange's elected Governors are divided into three classes, each of which is composed of seven Governors. At each Annual Meeting of the PCX, a new class (consisting of seven Governors) is elected. Pursuant to Article III, Section 2(b), of the seven Governors elected at each Annual Meeting, at least one must be a member of the Exchange; at least one must be an office member or office allied member of the Exchange; and at least three must be representatives of the public. This leaves two slots per class (and a total of six slots on the Board at any given time) that may be filled by other qualified persons. Under the proposal, an inactive lessor would be qualified to fill one of these open slots. However, the Exchange notes that Article III, Section 2(b) requires that these open slots must otherwise be filled when necessary to meet other requirements set forth in Section 2(b), namely that there must be at least two floor members on the Board at all times (one of which must be an Equity Trading Permit Holder, an Equity-ASAP Holder or an Allied Person of an ETP Firm or an Equity ASAP Holder) and that, beginning in the year 2001, there must be eleven representatives of the public on the Board at all times.
The proposed rule change is not intended to permit any change to the number of public representatives eligible to serve on the PCX's Board. The Exchange represents that it will not place an inactive lessor on the Board in order to fill a slot designated for a “representative of the public.” According, the Exchange proposes to amend PCX Rule 1.1(h), which defines the term “inactive lessor,” to clarify that for purposes of the composition of the PCX's Board, inactivee lessors are not deemed to be representatives of the public.
Inactive lessors have an interest in the activities of the Exchange because they have a financial interest in the Exchange by virtue of owning a membership. The value of their investments is directly tied to decisions made by the Board. The PCX Constitution, Article III, Section 2(c), states that care should “be taken to have the various interest of the membership represented on the Board of Governors.”
Finally, the Exchange notes that the Constitution of the Chicago Board Options Exchange (“CBOE”) has a similar provision that permits service by a “lessor director” on its Board of Directors. Specifically, the CBOE provision permits service by a member “who directly or indirectly owns and controls a membership with respect to which he acts solely as lessor and who is not actively engaged in business as a ‘person associated with a broker-dealer’ as those terms are defined in the Securities Exchange Act of 1034. * * *”
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 the furtherance of the purposes of the Act.
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 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 PCX. All submissions should refer to File No. SR-PCX-2001-45 and should be submitted by January 2, 2002.
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”),
SCCP has adopted a new fee schedule for SCCP participants for trades executed on the Philadelphia Stock Exchange, Inc. (“Phlx”) for Electronic Communications Networks (“ECNs”).
After the initial pilot period, an ECN will be eligible for the new fee schedule only if it has achieved average daily equity volume on the Phlx of at least 5,000 trades and 5,000,000 shares in the twelfth month after the ECN first became subject to the ECN fee schedule.
In its filing with the Commission, SCCP 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. SCCP has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The proposed changes to SCCP's fee schedule are intended to attract equity order flow from ECNs to Phlx by substituting a more competitive fee schedule tied to high volume targets. The high volume targets would be triggered in the twelfth month of the fee. Should an ECN not meet the targeted volume numbers described above, it
SCCP believes that the ECN fee schedule provides competitive fees with appropriate incentives, thus providing a reasonable method to attract large order flow providers such as ECNs to the Exchange. Additional order flow should enhance liquidity and improve Phlx's and SCCP's competitive position in equity trading and clearance.
SCCP believes that the proposed changes to its fee schedule are consistent with section 17A of the Act because that they provide for the equitable allocation of reasonable dues, fees, and other charges in order to attract a new form of order flow to Phlx.
SCCP does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were solicited or received.
The proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning 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 Phlx's principal office. All submissions should refer to File No. SR-SCCP-2001-01 and should be submitted by January 7, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
As a result of the President's major disaster declaration on December 7, 2001, I find that Autauga, Blount, Butler, Calhoun, Cherokee, Clay, Dale, DeKalb, Etowah, Fayette, Jefferson, Lamar, Lawrence, Madison, Marion, Marshall, St. Clair, Talladega and Winston Counties in the State of Alabama constitute a disaster area due to damages caused by severe storms and tornadoes occurring on November 24-25, 2001. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on February 5, 2002 and for economic injury until the close of business on September 9, 2002 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 2 Office, One Baltimore Place, Suite 300, Atlanta, GA 30308.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the above location: Barbour, Bibb, Chilton, Cleburne, Coffee, Colbert, Conecuh, Coosa, Covington, Crenshaw, Cullman, Dallas, Elmore, Franklin, Geneva, Henry, Houston, Jackson, Lauderdale, Limestone, Lowndes, Monroe, Montgomery, Morgan, Pickens, Pike, Randolph, Shelby, Tallapoosa, Tuscaloosa, Walker and Wilcox counties in the State of Alabama; Chattooga, Dade, Floyd, Polk and Walker counties in the State of Georgia; Itawamba, Lowndes and Monroe counties in the State of Mississippi; Franklin and Lincoln counties in the State of Tennessee.
The interest rates are:
The number assigned to this disaster for physical damage is 338411. For economic injury the number is 9N7600 for Alabama; 9N7700 for Georgia; 9N7800 for Mississippi; and 9N7900 for Tennessee.
Shelby County and the contiguous counties of Bartholomew, Decatur, Hancock, Johnson, Marion and Rush in the State of Indiana constitute a disaster area due to damages caused by severe storms and tornadoes that occurred on November 24, 2001. Applications for loans for physical damage may be filed until the close of business on February 11, 2002 and for economic injury until the close of business on September 11, 2002 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 2 Office, One Baltimore Place, Suite 300, Atlanta, GA 30308.
The interest rates are:
The number assigned to this disaster for physical damage is 338511 and for economic injury is 9N8000.
As a result of the President's major disaster declaration on December 7, 2001, I find that Bolivar, DeSoto, Hinds, Humphreys, Madison, Panola, Quitman, Sunflower, Tate and Washington Counties in the State of Mississippi constitute a disaster area due to damages caused by severe storms, tornadoes and flooding that occurred on November 24, 2001 and continue. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on February 5, 2002 and for economic injury until the close of business on September 9, 2002 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 2 Office, One Baltimore Place, Suite 300, Atlanta, GA 30308.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the above location: Attala, Claiborne, Coahoma, Copiah, Holmes, Issaquena, Lafayette, Leake, LeFlore, Marshall, Rankin, Scott, Sharkey, Simpson, Tallahatchie, Tunica, Warren, Yalobusha and Yazoo in the State of Mississippi; Chicot, Crittenden, Desha and Phillips counties in the State of Arkansas; East Carroll parish in the State of Louisiana; and Shelby county in the State of Tennessee.
The interest rates are:
The number assigned to this disaster for physical damage is 338311. For economic injury the number is 9N7200 for Mississippi; 9N7300 for Arkansas; 9N7400 for Louisiana; and 9N7500 for Tennessee.
Office of the United States Trade Representatives.
Notice.
The United States Trade Representative (“the USTR”) has determined that the effective date of the “Agreement between the United States and the Socialist Republic of Vietnam on Trade Relations” (“the Agreement”), and, the grant of nondiscriminatory tariff treatment to the products of Vietnam is December 10, 2001. This determination is made pursuant to the terms of the Agreement and as required in Presidential proclamation 7449 (66 FR 31375).
Elena Bryan, Director for India and Indochina Affairs, Office of the United States Trade Representative, (202) 395-6813.
On July 13, 2000, the United States and Vietnam concluded the Agreement in accordance with the requirements of the Trade Act of 1974, as amended (19 U.S.C. 2431
President Bush signed Proclamation 7449 on June 8, 2001, and transmitted the Agreement to Congress on that date for its approval. In the proclamation, the President directed the USTR to publish notice of the effective date of the Agreement. Congress approved the Agreement on October 3, 2001 and the President signed the legislation approving the Agreement on October 16, 2001. The National Assembly of Vietnam approved the resolution ratifying the Agreement on November 28, 2001 and the President of Vietnam signed the legislation on December 4, 2001.
Chapter VII, Article 8:1 of the Agreement provides that it shall enter into force on the date of exchange of written notices of acceptance by the two Governments. On December 10, 2001, Ambassador Robert B. Zoellick, the United States Trade Representative and Vu Khoan, Minister of Trade of the Socialist Republic of Vietnam, exchanged written notices of acceptance, thus implementing the Agreement. Thus, in accordance with the terms of the Agreement, the effective date of nondiscriminatory treatment for products of Vietnam is December 10, 2001.
Coast Guard, DOT.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, this request for comments announces that the Coast Guard has forwarded one
Please submit comments on or before January 16, 2002.
To make sure that your comments and related material do not enter the docket [USCG 2001-10613] more than once, please submit them by only one of the following means:
(1)(a) By mail to the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001. (b) OIRA, 725 17th Street NW., Washington, DC 20503, to the attention of the Desk Officer for the Coast Guard. Caution: Because of recent delays in the delivery of mail, your comments may reach the Facility more quickly if you choose one of the other means described below.
(2)(a) By delivery to room PL-401 at the address given in paragraph (1)(a), next above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329. (b) OIRA, at the address given in paragraph (1)(b), next above, to the attention of the Desk Officer for the Coast Guard.
(3) By fax to (a) the Docket Management Facility at 202-493-2251 or (b) OIRA 202-395-7285, attention: Desk Officer for the Coast Guard.
(4)(a) Electronically through the Web Site for the Docket Management System at
The Docket Management Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 (Plaza level), 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http://dms.dot.gov.
Copies of the complete ICR are available for inspection and copying in public dockets. A copy of it is available in docket USCG 2001-10613 of the Docket Management Facility between 10 a.m. and 5 p.m., Monday through Friday, except Federal holidays; for inspection and printing on the internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on this document; Dorothy Beard, Chief, Documentary Services Division, U.S. Department of Transportation, 202-366-5149, for questions on the docket.
This request constitutes the 30-day notice required by OIRA. The Coast Guard has already published [66 FR 48157 (September 18, 2001)] the 60-day notice required by OIRA. That notice elicited no comments.
The Coast Guard invites comments on the proposed collection of information to determine whether the collection is necessary for the proper performance of the functions of the Department. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the collection; (2) the accuracy of the Department's estimated burden of the collection; (3) ways to enhance the quality, utility, and clarity of the information that is the subject of the collection; and (4) ways to minimize the burden of collection on respondents, including the use of automated collection techniques or other forms of information technology.
Comments, to DMS or OIRA, must contain the OMB Control Number of the ICR addressed. Comments to DMS must contain the docket number of this request, USCG 2001-10613. Comments to OIRA are best assured of having their full effect if OIRA receives them 30 or fewer days after the publication of this request.
1.
Coast Guard, DOT.
Notice of meeting; request for comments.
The Coast Guard is holding a public workshop to discuss security procedures, programs, and capabilities within marine transportation systems. Discussions will focus on identifying possible security measures, standards, and responses to threats and acts of crime and terrorism. We encourage interested parties to attend the workshop and submit comments for discussion during the workshop. We also seek comments to the docket, especially from any party unable to attend the workshop.
The public workshop will be held on January 28 through 30, 2002, from 9 a.m. to 5 p.m., at The Grand Hyatt Washington at Washington Center in Washington DC. We may end the workshop early, if we have covered all of the agenda topics and if the people attending have no further comments. Persons wishing to make presentations must contact CDR Mike Rand by January 7, 2002. Comments and related material must reach the Docket Management Facility on or before February 14, 2002.
The workshop will be held at the following location: Grand Hyatt Washington at Washington Center, 1000 H Street, NW., Washington DC., 20001, Phone (202) 582-1234.
You may submit your comments directly to the Docket Management Facility. To make sure that your comments and related material do not
(1) Electronically through the Web Site for the Docket Management System at
(2) By fax to the Docket Management Facility at 202-493-2251.
(3) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(4) By mail to the Docket Management Facility, (USCG-2001-11137), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
The Docket Management Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this notice in the docket on the Internet at
For information concerning this notice or the public workshop, write or call CDR Mike Rand, at the Vessel and Facility Security Division (G-MP), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20590, mrand@comdt.uscg.mil, or at 202-267-6853. For questions on viewing or submitting material to the docket, call Dorothy Beard, Chief of Dockets, Department of Transportation, at 202-366-5149.
We encourage you to participate in this workshop by submitting comments and related material. If you do so, please include your name and address, identify the docket number [USCG-2001-11137] and give the reason for each comment. You may submit your comments and material electronically, by fax, by delivery, or by mail to the Docket Management Facility at the address under
The Coast Guard encourages owners and operators of vessels, offshore platforms, and facilities, agencies in law enforcement and emergency planning, port authorities, shipping agents, insurance companies, Protection and Indemnity Clubs, and other interested persons to attend the workshop. Workshop attendees will have the opportunity to verbally comment on topics scheduled for discussion on the agenda. We may ask questions to clarify comments given by an attendee. The workshop will be held January 28 through 30 from 9 a.m. to 5 p.m. each day at The Grand Hyatt Washington at Washington Center in Washington DC. Separate sessions discussing threats to the marine transportation system's security in such areas as physical security, operational measures, and access control will be held simultaneously each day to allow for comments and/or presentations on these topics. The completed agenda will be placed on the docket approximately two weeks before the workshop. We also will announce the availability of the agenda on the docket in a notice published in the
For those wishing to make a presentation at the workshop, please notify CDR Mike Rand with the following information:
(1) The topic you wish to talk about;
(2) The date and time you would like to schedule the presentation; and
(3) Any materials (such as video and audio equipment) you might need to conduct your presentation.
Persons wishing to make presentations must contact CDR Mike Rand by January 7, 2002. Information on how to contact him is under
To obtain information on facilities or services for individuals with disabilities or to ask that we provide special assistance at the workshop, please notify CDR Mike Rand at the address or phone number under
The terrorist attacks of September 11, 2001, and the attack on USS COLE, a Navy ship moored in Yemen that killed 17 sailors and injured 37 in October of 2000, make it clear that the marine transportation system faces unprecedented threats.
The United States can ill afford to ignore the potential vulnerability of its marine transportation system (MTS). More than 95 percent of U.S. foreign trade by volume now travels by sea. The MTS, whether at port facilities in coastal waters or along inland waterways, plays a vital role in America's transportation network.
In addition, U.S. ports handle more than 17 million containers each year. Containers raise a specific concern because they are, by design, intermodal. A container unloaded at a port on one day is often deployed deep into America's heartland soon thereafter by truck or rail. With only a small percentage of those containers currently being inspected by federal agencies, the potentiality for illegal activities is enormous.
Ports are not the only potential maritime targets; other such targets include but are not limited to—tank vessels, passenger vessels, cargo vessels, facilities for exploration and production of oil, power plants, bridges, other critical infrastructure, and the marine environment also need protection. Furthermore, the United States has more than 95,000 miles of coastline, providing many infiltration routes into the country.
It is important to note that the Coast Guard and Congress were concerned about MTS security even before September 11, 2001. Indeed, the Port and Maritime Security Act was introduced at the close of the 106th Congress. If passed, the Act would, among other things, authorize the Coast Guard to establish an MTS security task force in consultation with the U.S. Customs Service, and the Maritime Administration.
The proposed Act was prompted by the work of the President's Interagency Commission on Crime and Security in U.S. Seaports, which subsequently issued a report highlighting the threats to our nation's ports. The Commission found that:
• The state of security in U.S. seaports generally ranges from poor to fair, and, in a few cases, good. There are no widely accepted standards or guidelines for physical, procedural, and personnel security for seaports, although some ports are making outstanding efforts to improve security. Control of access to the seaport or sensitive areas within it is often lacking. Practices to restrict or control the access of vehicles to vessels, the receipt and
• Vessel manifests, import and export, are sometimes deficient for import risk assessment and export control. Information from them is easier to use for drug enforcement and commercial compliance if it is received as electronic data before the arrival of vessels.
• Although the Federal government has established formal structures for coordinating governmental efforts and has developed national strategies to address drug trafficking, terrorism, other domestic and international crime, and to guarantee economic mobility, seaport security per se has not been adequately addressed. Stronger and more focused coordination among agencies and between the public and private sectors to enhance Security is needed.
The Coast Guard is conducting this workshop to assess existing MTS security standards and measures to gather ideas on possible improvements. To facilitate discourse during the workshop attendees should, before attending the workshop, evaluate threats to MTS security in such areas as physical security, operational measures, and access control. After recognizing threats to MTS security, the public should evaluate existing MTS security standards and measures to identify vulnerabilities, and then develop possible adjustments to decrease those vulnerabilities. The workshop will provide the public an opportunity to present ideas and to discuss the threats, vulnerabilities, and adjustments to MTS security. In the future we may propose new or amendatory rules that would address issues broached during the workshop.
Three general areas of MTS security, to wit, physical security, operational measures, and access control, will almost certainly arise during the workshop. Persons planning to attend the workshop should be prepared to discuss these general areas as they relate to security, protection, and economic performance of the maritime industry. Workshop attendees will be asked to discuss a host of possible costs and benefits that could result from identifying and addressing physical security, operational measures, and access-control vulnerabilities.
We request information about all current Federal, State, and local governmental laws, procedures, regulations, and standards that are either functioning or that are planned. We also request industry to provide any current and planned standards and procedures covering the security of vessels and facilities. Finally, we request recommendations toward needed improvement or added regulations. Examples of the types of information we are interested in receiving are:
• Measures and standards currently being used at a facility or on board a vessel.
• Criteria for measures and standards at a facility or on board a vessel such as fences, gates, alarms, lighting, antennas, and personnel on watch.
• Security technologies currently used or possible to make ports, facilities, and vessels more secure against the threat or commission of crimes or terrorism.
• Effectiveness of existing passenger terminals and passenger vessels security plan requirements.
• Effectiveness of existing terminal and security plans for ports, vessels, offshore platforms, and industry.
• Facilities and vessels, other than passenger terminals and passenger vessels regulated in 33 CFR parts 120 and 128, which should have security plans.
• Response plans in place to prevent criminal and terrorist acts and threats.
• Details of measures taken in response to such acts and threats.
• Necessity of MTS security committees and the sharing of intelligence and threat advisories between the Coast Guard and industry.
• Criteria and need for a tracking system for vessels trafficking the navigable waters of the United States.
• Criteria and process for background check prior to employment.
• Check points that screen personnel, passengers, cargo, and baggage.
• Additional information, currently used or deemed necessary to document or certificate personnel, facilities, and vessels.
• Types of credentials (such as identification cards, employment cards, and access passes) used to limit access.
Federal Aviation Administration (FAA), DOT.
The FAA is issuing this notice to advise the public that a meeting of the Federal Aviation Administration Air Traffic Procedures Advisory Committee (ATPAC) will be held to review present air traffic control procedures and practices for standardization, clarification, and upgrading of terminology and procedures.
The meeting will be held from January 14-17, 2002, from 8 a.m. to 4 p.m. each day.
The meeting will be held at the McCarran International Airport, Main Terminal (Second Floor), Mezzanine Rooms 2 & 3, 5757 Wayne Newton Blvd., Las Vegas, NV 89111.
Mr. Eric Harrell, Executive Director, ATPAC, Air Traffic Planning and Procedures, 800 Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-9155.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. 2), notice is hereby given of a meeting of the ATPAC to be held January 14 through January 17, 2002, at the McCarran International Airport, Main Terminal (Second Floor), Mezzanine Rooms 2 & 3, 5757 Wayne Newton Blvd., Las Vegas, NV 89111.
The agenda for this meeting will cover: a continuation of the Committee's review of present air traffic control procedures and practices for standardization, clarification, and upgrading of terminology and procedures. It will also include:
1. Approval of Minutes.
2. Submission and Discussion of Areas of Concern.
3. Discussion of Potential Safety Items.
4. Report from Executive Director.
5. Items of Interest.
6. Discussion and agreement of location and dates for subsequent meetings.
Attendance is open to the interested public but limited to the space available. With the approval of the Chairperson, members of the public may present oral statements at the meeting. Persons desiring to attend and persons desiring to present oral statements should notify the person listed above not later than January 11, 2002. The next quarterly meeting of the FAA ATPAC is planned to be held from April 16-19, 2002, in Washington, DC.
Any member of the public may present a written statement to the Committee at any time at the address given above.
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to impose at Albuquerque Sunport and use the revenue from a PFC at Albuquerque International Sunport and Double Eagle II Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before January 16, 2002.
Comments on this application may be mailed or delivered in triplicate copies to the FAA at the following address: Mr. G. Thomas Wade, Federal Aviation Administration, Southwest Region, Airports Division, Planning and Programming Branch, ASW-611, Fort Worth, Texas 76193-0610.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Dewey V. Cave, Manager of Albuquerque International Sunport at the following address: Mr. Dewey V. Cave, Airport Manager, Albuquerque International Sunport, PO Box 9948, Albuquerque, NM 87119-1048.
Air carriers and foreign air carriers may submit copies of the written comments previously provided to the Airport under Section 158.23 of Part 158.
Mr. G. Thomas Wade, Federal Aviation Administration, Southwest Region, Airports Division, Planning and Programming Branch, ASW-611, Fort Worth, Texas 76193-0610, (817) 222-5613.
The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose the revenue from a PFC at Albuquerque International Sunport (ABQ) and use the revenue at Albuquerque International Sunport (ABQ) and Double Eagle II Airport (AEG) under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158).
On December 6, 2001, the FAA determined that the application to impose and use the revenue from a PFC submitted by the Airport was substantially complete within the requirements of § 158.25 of part 158. The FAA will approve or disapprove the application, in whole or in part, no later than April 5, 2002.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person or Albuquerque International Sunport.
Issued in Fort Worth, Texas on December 6, 2001.
Federal Aviation Administration, DOT
Notice of availability for public comment.
This notice announces the availability of and requests comments on a proposed Technical Standard Order (TSO) pertaining to integrated modular avionics hardware elements (IMA). The proposed TSO prescribes the criteria for the minimum performance standard (MPS) that IMA hardware element equipment must meet to be identified with the appropriate TSO marking.
Comments must be received on or before January 16, 2002.
Send all comments on the proposed technical standard order to: Technical Programs & Continued Airworthiness Branch, AIR-120, Aircraft Engineering Division, Aircraft Certification Service, Federal Aviation Administration, 800 Independence Avenue, SW., Room 815, Washington,
Mr. John Lewis, Technical Programs & Continued Airworthiness Branch, AIR-120, Aircraft Engineering Division, Aircraft Certification Service, Federal Aviation Administration, 800 Independence Avenue, SW., Room 815, Washington, DC 20591; Telephone No.—(202) 493-4841; FAX No.—(202) 267-5340; E-mail address—
Interested persons are invited to comment on the proposed TSO listed in this notice by submitting such written data, views, or arguments as they desire to the above specified address. Comments received on the proposed TSO may be examined, before and after the comment closing date, in Room 815, FAA Headquarters Building (FOB-10A), 800 Independence Avenue, SW., Washington, DC 20591, weekdays except Federal holidays, between 8:30 a.m. and 4:30 p.m. All communications received on or before the closing date for comments specified above will be considered by the Director, Aircraft Certification Service before issuing the final TSO.
Traditionally, avionics systems consisted of dedicated Line Replaceable Units (LRUs) which performed specific functions such as autoflight, flight management, and flight deck display. TSOs were written for these LRUs and their functions. Advancements in digital technology have created a trend toward higher levels of integration and modularity. In many modern integrated systems software determines functionality, while hardware serves as a platform for input, output, data storage, and software execution. Since these basic attributes tend to be similar for various applications, efficiencies can be gained by using various types of generic airborne hardware elements to execute these functions.
This TSO refers to these generic hardware elements as “IMA hardware elements”, which includes modules, cabinets, or racks. A module may contain software to enable electronic part marking and/or future loading of functional software. These modules will not function without being installed in specific cabinets or racks. Module types may include data processing modules, power supply modules, communication and data bus modules, or others. Cabinets or racks are use to host IMA modules. These cabinets or racks may be simple mechanical enclosures, or they may incorporate active cooling elements, power supplies, communication interfaces, backplanes for data and power, or any combination of these features.
You may obtain a copy of the proposed TSO via Internet (
You may inspect the RTCA documents at the FAA office location listed under
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 Form 8879, IRS e-file Signature Authorization.
Written comments should be received on or before February 15, 2002 to be assured of consideration.
Direct all written comments to George Freeland, Internal Revenue Service, room 5577, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carol Savage, (202) 622-3945, Internal Revenue Service, room 5242, 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
In notice document 01-30727 beginning on page 64274 in the issue of Wednesday, December 12, 2001, make the following correction:
On page 64274, in the third column, in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendment 61 to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area, Amendment 61 to the Fishery Management Plan for Groundfish of the Gulf of Alaska, Amendment 13 to the Fishery Management Plan for Bering Sea and Aleutian Islands King and Tanner Crab, and Amendment 8 to the Fishery Management Plan for the Scallop Fishery off Alaska (FMPs). These amendments incorporate the provisions of the American Fisheries Act (AFA) into the FMPs and their implementing regulations. Proposed management measures to implementing the AFA include: Regulations limiting entry by vessels and processors into all sectors of the Bering Sea and Aleutian Islands (BSAI) pollock fishery, a new formula allocating the BSAI pollock total allowable catch (TAC) among the inshore, catcher/processor, and mothership processing sectors and the Community Development Quota (CDQ) Program, regulations governing the formation and operation of fishery cooperatives (cooperatives) in the BSAI pollock fishery, harvesting and processing limits known as “sideboards” to protect vessels and processors in other fisheries from spillover effects resulting from the rationalization and privatization of the BSAI pollock fishery, observer coverage requirements for vessels and processors in the BSAI pollock fishery, catch weighing and scale requirements for BSAI pollock processors, vessel monitoring system (VMS) requirements for AFA catcher vessels and AFA catcher/processors fishing for groundfish in the BSAI and GOA; and a 2-year extension of the inshore/offshore regime for pollock and Pacific cod in the Gulf of Alaska (GOA). These amendments are necessary to implement the AFA and are intended to do so in a manner consistent with the environmental and socioeconomic objectives of AFA, the Magnuson-Stevens Fishery Management and Conservation Act (Magnuson-Stevens Act), the FMPs, and other applicable laws.
Comments on the proposed rule must be received on or before January 31, 2002.
Comments must be sent to Sue Salveson, Assistant Administrator, Sustainable Fisheries Division, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to Federal Building, Fourth Floor, 709 West 9th Street, Juneau, AK, and marked Attn: Lori Gravel. Copies of the Environmental Impact Statement/ Regulatory Impact Review/ Initial Regulatory Flexibility Analysis (EIS/RIR/IRFA) prepared for Amendments 61/61/13/8 may be obtained from NMFS at the above address or online at
Kent Lind, 907-586-7228 or kent.lind@noaa.gov
NMFS manages the groundfish fisheries in the exclusive economic zone (EEZ) of the BSAI and Gulf of Alaska (GOA) under the FMPs for groundfish in the respective areas. With Federal oversight, the State of Alaska (State) manages the commercial king crab and Tanner crab fisheries in the BSAI and the commercial scallop fishery off Alaska under the FMPs for those fisheries. The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the FMPs under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801
On October 21, 1998, the President signed into law the AFA (Div. C, Title II, Pub. L. No. 105-277, 112 Stat. 2681 (1998)). The AFA is divided into two subtitles establishing certain requirements for fishery endorsements for all U.S. fishing vessels, and providing for the reorganization and rationalization of the BSAI pollock fishery, respectively.
Congress identified two primary objectives in passing the AFA. The first objective was to complete the process begun in 1976 to give U.S. interests a priority in the harvest of U.S. fishery resources. This objective was accomplished through the restrictions on foreign ownership and control that are set out in Subtitle I of the AFA. The second objective was to significantly decapitalize the Bering Sea pollock fishery. This objective was addressed by Subtitle II of the AFA. Under the council system established by the Magnuson-Stevens Act, Congressional action is generally not needed to address fishery conservation and management issues in specific fisheries. However, Congress believed that the overcapacity in the BSAI pollock fishery prior to the AFA was due, in part, to mistakes in, and misinterpretations of, the 1987 Commercial Fishery Industry Vessel Anti-Reflagging Act (Anti-Reflagging Act). In passing the AFA, Congress noted that the Anti-Reflagging Act had allowed a flood of foreign-rebuilt catcher/processors into the BSAI pollock fishery and did not limit foreign control of such vessels in the manner in which Congress had intended. Without Subtitle II, the Council and NMFS did not have authority to provide funds under the Federal Credit Reform Act to buy out and retire vessels from the BSAI pollock fishery, to strengthen U.S. controlling interest standards for fishing vessels, or to implement the inshore cooperative program contained in the AFA.
Subtitle 2 of the AFA contains numerous provisions that affect the management of the groundfish and crab fisheries off Alaska. Key provisions include:
1. The buyout of nine pollock catcher/processors and the subsequent scrapping of eight of these vessels through a combination of $20 million in Federal appropriations and $75 million in direct loan obligations;
2. A new allocation scheme for BSAI pollock that allocates 10 percent of the BSAI pollock total allowable catch (TAC) to the CDQ program, and after allowance for incidental catch of pollock in other fisheries, allocates the remaining TAC as follows: 50 percent to vessels harvesting pollock for processing by inshore processors, 40 percent to vessels harvesting pollock for processing by catcher/processors, and 10 percent to vessels harvesting pollock for processing by motherships;
3. A fee of six-tenths (0.6) of one cent for each pound round weight of pollock harvested by catcher vessels delivering to inshore processors for the purpose of repaying the $75 million direct loan obligation;
4. A prohibition on entry of new vessels and processors into the BSAI pollock fishery. The AFA lists by name vessels and processors and/or provides qualifying criteria for those vessels and processors eligible to participate in the non-CDQ portion of the BSAI pollock fishery;
5. New observer coverage and scale requirements for AFA catcher/processors;
6. New standards and limitations to guide the creation and operation of fishery cooperatives in the BSAI pollock fishery;
7. An individual fishing quota program for inshore catcher vessel cooperatives under which NMFS grants individual allocations of the inshore BSAI pollock TAC to inshore catcher vessel cooperatives that are formed around a specific inshore processor and that agree to deliver at least 90 percent of their pollock catch to that processor;
8. The establishment of harvesting and processing limits known as “sideboards” on AFA pollock vessels and processors to protect the interests of fishermen and processors in other fisheries from spillover effects resulting from the rationalization of the BSAI pollock fishery; and
9. A 17.5 percent excessive share harvesting cap for BSAI pollock and a requirement that the Council develop excessive share caps for BSAI pollock processing and for the harvesting and processing of other groundfish.
Some of the above provisions of the AFA already have been implemented by NMFS and other agencies. The buyout of the nine ineligible factory trawlers and their subsequent scrapping was completed by NMFS in 1999 under the schedule mandated by the AFA. This action was accomplished by contract with the vessel owners rather than regulation. The inshore pollock fee program required by the AFA was implemented by NMFS through final regulations published February 3, 2000 (65 FR 5278). MARAD has implemented the new U.S. ownership requirements and size restrictions for U.S. fishing vessels through final regulations published July 19, 2000 (65 FR 44860). MARAD's regulations also set out procedures for review of compliance with excessive share harvesting limits contained in this proposed rule.
Since the passage of the AFA in October 1998, NMFS and the Council have undertaken an extensive public process to develop the management program proposed under Amendments 61/61/13/8. Amendments 61/61/13/8 were prepared and revised during the course of 12 Council meetings over the past 2 years and have been the subject of numerous additional public meetings held by the Council and NMFS to address specific aspects of the AFA. While the permanent management program proposed under Amendments 61/61/13/8 was under analysis and development by the Council and NMFS, the statutory deadlines in the AFA were met on an interim basis through several emergency interim rules that were extended through the end of 2001 by Pub. L. No. 106-554, which mandated that all management measures in effect as of July 2000 be extended through the end of 2001. The following time line provides a summary of the 2-year public process through which NMFS and the Council prepared Amendments 61/61/13/8.
The Council has submitted Amendments 61/61/13/8 for Secretarial review and a Notice of Availability of the FMP amendments was published in the Federal Register on November 27, 2001, with comments on the FMP amendments invited through January 28, 2002. Comments may address the FMP amendments, the proposed rule, or both, but must be received by January 28, 2002, to be considered in the approval/disapproval decision on the FMP amendments. All comments received by January 28, 2002, whether specifically directed to the FMP amendments or the proposed rule, will be considered in the approval/disapproval decisions on the FMP amendments.
The following is a summary of the major elements of the proposed rule to implement Amendments 61/61/13/8.
Amendments 61/61/13/8 would establish permit requirements for AFA catcher/processors, AFA catcher vessels, AFA motherships, AFA inshore processors, and AFA inshore cooperatives. Once issued, AFA vessel and processor permits would be valid until December 31, 2004, which is the expiration date for section 208 of the AFA. Any vessel used to engage in directed fishing for a non-CDQ allocation of pollock in the BSAI and any processor that receives pollock in a non-CDQ directed pollock fishery in the BSAI would be required to maintain a valid AFA permit onboard the vessel or at the processor location at all times that non-CDQ pollock is being harvested or processed. In addition, these new AFA permits would not exempt a vessel operator, vessel owner, or pollock processor from any other applicable permit or licensing requirements required by State or Federal regulations. Finally, the AFA does not limit who may participate in the CDQ pollock fishery. Therefore, vessels or processors participating in the pollock CDQ fishery would not be required to have AFA permits.
NMFS has already issued interim AFA permits to owners of AFA catcher vessels, AFA catcher/processors, AFA motherships, and AFA inshore processors under the emergency interim rule published January 5, 2000 (65 FR 380). Under this proposed rule, these interim permits would expire 60 days after the effective date of the final rule and the owners of AFA catcher vessels, AFA catcher/processors, AFA motherships, and AFA inshore processors would be required to re-apply for final AFA permits. These final AFA permits would be valid for the duration of section 208 of the AFA that extends through December 31, 2004. The owners of all AFA vessels and processors would be required to re-apply for their AFA permits because this proposed rule requires submission of additional ownership information on AFA permit applications that was not collected under the emergency interim rule.
The deadline for application for all new AFA vessel and processor permits would be 60 days after the effective date of the final rule. This deadline would apply to the owners of any vessels and processors for which NMFS has not already received a permit application under the emergency interim rule but would not apply to replacement vessel permit applications. NMFS would not accept applications for new AFA vessel and processor permits after this date and any owners of vessels or processors who have not already been issued AFA permits under the emergency interim rule or for which an application has not been received by this date would be permanently ineligible to receive AFA permits for those respective vessels and/or processors. The purpose of this application deadline is to finalize the list of vessels and processors to which AFA fishing privileges and sideboard restrictions apply. A final list of AFA-permitted vessels is necessary because inshore cooperative allocations and catcher vessel sideboards are based on the aggregate catch histories of the various AFA-permitted fleets.
Under the proposed rule, AFA vessel and processor permits could not be used on or transferred to another vessel or processor, except under the replacement vessel provisions outlined below. However, AFA permits may be amended to reflect any change in the ownership of the vessel or processor. In contrast to vessel and processor permits, AFA inshore cooperative permits, discussed below, are valid only for the fishing year for which they are issued. However inshore cooperative fishing permits would be renewable on an annual basis following approval of a submitted permit application.
Application forms for all AFA permits would be available upon request from the NMFS Alaska Region (see
Subsection 208(e) of the AFA, which took effect on January 1, 1999, lists by name catcher/processors that are eligible to harvest the catcher/processor sector BSAI pollock directed fishing
All owners of AFA catcher/processors would be required to reapply for their AFA permits under this proposed rule because this proposed rule requires the additional submission of vessel ownership information that was not previously collected. All applicants for AFA catcher/processor permits would be required to disclose the identities of all persons who hold a 10 percent or greater direct or indirect interest in the vessel in question. This information is necessary for NMFS to track compliance with the 17.5 percent excessive harvesting share limit established under the AFA and discussed below in the section on excessive shares.
Under the AFA, a catcher vessel is qualified to engage in directed fishing for BSAI pollock if it is listed by name in subsections 208(b), 208(c), or 211(e) of the AFA, or if its history of participation in the BSAI pollock fishery meets certain criteria set out in subsections 208(a), 208(b), or 208(c) of the AFA. Under this proposed rule, AFA catcher vessel permits would be endorsed to authorize directed fishing for pollock for delivery to one or more of the three processing sectors: Catcher/processors, inshore processors, and motherships. Under the AFA, a catcher vessel may be authorized to engage in directed fishing for pollock for delivery to both AFA inshore processors and AFA motherships, depending on its qualifying catch history. However, a vessel that is eligible to deliver to catcher/processors is ineligible for an endorsement to deliver to inshore processors or motherships. In addition, a catcher vessel would not need an AFA catcher vessel permit to participate in the CDQ sector of the BSAI pollock fishery because the AFA does not limit participation in the CDQ pollock fishery.
All owners of AFA catcher vessels would be required to reapply for their AFA permits under this proposed rule because this proposed rule requires the additional submission of vessel ownership information that was not previously collected. All applicants for AFA catcher vessel permits would be required to disclose the identities of all persons who hold a 10 percent or greater direct or indirect interest in the vessel in question. This information is necessary for NMFS to track compliance with the 17.5 percent excessive harvesting share limit established under the AFA and discussed below in the section on excessive shares. NMFS has created an official AFA record that includes the relevant catch histories of all potentially qualifying catcher vessels and will review for verification all claims of endorsement qualification against the official AFA record.
Under subparagraph 211(c)(1)(A) of the AFA, the Council is required to recommend measures to limit the participation of AFA catcher vessels in BSAI crab fisheries. Subparagraph 211(c)(2)(C) of the AFA also prohibits section 208(b) catcher vessels (i.e., AFA catcher vessels eligible to deliver to catcher/processors) “from participating in a directed fishery for any species of crab in the Bering Sea and Aleutian Islands Management Area unless the catcher vessel harvested crab in the directed fishery for that species of crab in such Area during 1997.” At its June 1999 and June 2000 meetings, the Council developed final recommendations under Amendments 61/61/13/8 for limits on the participation of AFA catcher vessels in BSAI crab fisheries in order to comply with these two provisions of the AFA. These recommendations would apply to all AFA catcher vessels and would supersede the crab sideboards set out in subparagraph 211(c)(2)(C) of the AFA that apply to section 208(b) vessels only.
Under the proposed rule, NMFS would implement these catcher vessel crab sideboard limits through crab sideboard endorsements on AFA catcher vessel permits. The owner or operator of a catcher vessel who wishes to participate in a BSAI king or Tanner crab fishery would be required to have a sideboard endorsement for that crab species on the vessel's AFA catcher vessel permit. An AFA catcher vessel permit would be endorsed for the Bristol Bay Red King Crab (BBRKC), St. Matthew Island blue king crab, Pribilof Island red or blue king crab, Aleutian Islands brown king crab, Aleutian Islands red king crab, Opilio Tanner crab, and Bairdi Tanner crab fisheries based on the vessel's history of participation in such crab fisheries. The specific qualifying criteria for each fishery are set out in § 679.4(l)(3)(ii)(D) of this proposed rule.
The Council based some of its crab sideboard recommendations on whether a particular vessel is “LLP qualified” for a particular crab fishery. To implement this recommendation, the AFA catcher vessel permit application includes questions related to vessel catch history using the same qualifying years as the LLP program. This rule would require an applicant for an AFA catcher vessel permit to indicate on the permit application which AFA crab sideboard endorsements the vessel qualifies for based on the qualifying criteria set out in this rule. NMFS would verify all claims of qualification.
Finally, the Council recommended exempting from all crab harvesting sideboards, any AFA catcher vessel that made a legal landing of crab in every BBRKC, Opilio Tanner crab, and Bairdi Tanner crab fishery opening from 1991-1997. A vessel qualifying for this exemption would receive an AFA catcher vessel permit with an endorsement indicating that the vessel is exempt from all crab harvesting sideboards. The Council recommended the exemption to mitigate the adverse effect of crab sideboards on vessels that are almost exclusively crab vessels but, due to a small amount of pollock landings, fell within the criteria for AFA eligibility. The exemption would mitigate the adverse effect of the crab sideboard restrictions on such vessels.
An owner of a catcher vessel should be aware that qualification for a crab sideboard endorsement would not, in and of itself, provide sufficient authorization to participate in a BSAI crab fishery. To participate in a BSAI crab fishery, the operator of an AFA catcher vessel would be required to have a valid LLP license for that crab fishery as well as an AFA catcher vessel permit naming that vessel and containing an endorsement for that crab fishery.
Under this proposed rule, groundfish catcher vessel harvest sideboard limits detailed below would apply to all AFA catcher vessels in the aggregate regardless of sector and regardless of participation in a cooperative, except the Council recommended that catcher vessels less than 125 ft (38.1 m) whose annual BSAI pollock landings averaged less than 1700 mt from 1995-1997 (i.e., landed less than 5,100 mt of pollock
In recommending these exemptions, the Council noted that many of the AFA catcher vessels with relatively low catch histories of BSAI pollock have traditionally targeted BSAI Pacific cod and GOA groundfish during much of the year and may be only minor participants in the BSAI pollock fishery. The Council believed that imposing aggregate sideboards on such vessels in the BSAI Pacific cod fishery and GOA groundfish fisheries could severely harm the owners of such vessels given their historic high levels of participation in non-pollock fisheries, and the fact that their historic dedication to groundfish fisheries other than the BSAI pollock fishery fisheries may account for their lower catch histories of BSAI pollock during the AFA qualifying years. The owners of vessels who believe their vessel may be eligible for one or both of these exemptions would have to apply for the sideboard exemption on their AFA catcher vessel permit application form.
Under subsection 208(d) of the AFA, three named vessels are eligible for AFA permits that authorize them to process pollock harvested in the BSAI directed pollock fishery for delivery to motherships. Under this proposed rule, NMFS would issue to the owner of a mothership an AFA mothership permit if the mothership is listed by name in paragraphs 208(d)(1) through (3) of the AFA and the owner applies for such permit. However, the owner of a mothership wishing to process pollock harvested by a fishery cooperative also would need to apply for and receive a cooperative processing endorsement on its AFA mothership permit. This requirement is necessary because NMFS must identify and issue crab processing restrictions to any AFA entity that owns or controls an AFA mothership or an AFA inshore processor that receives pollock harvested by a cooperative.
Subparagraph 211(c)(2)(A) of the AFA imposes crab processing restrictions on the owners of AFA mothership and AFA inshore processors that receive pollock from a fishery cooperative. Under the AFA, these processing limits extend not only to the AFA processing facility itself, but also to any entity that directly or indirectly owns or controls a 10-percent or greater interest in the AFA mothership or in the AFA inshore processor. To implement the crab processing restrictions contained in subparagraph 211(c)(2)(A) of the AFA, NMFS would require that applicants for AFA mothership and AFA inshore processor permits disclose on their permit applications all entities directly or indirectly owning or controlling a 10-percent or greater interest in the AFA mothership or AFA inshore processor and the names of BSAI crab processors in which such entities directly or indirectly own or control a 10-percent or greater interest. An applicant for an AFA mothership or an AFA inshore processor permit who did not disclose this crab processor ownership information could still receive an AFA mothership permit or an AFA inshore processor permit but would be denied an endorsement authorizing the processor to receive and process pollock harvested by a fishery cooperative.
Under the AFA, shoreside processors and stationary floating processors (collectively known as inshore processors) may be authorized to receive and process BSAI pollock harvested in the directed fishery, based on their levels of processing in both 1996 and 1997. An inshore processor would be eligible for an unrestricted AFA inshore processing permit if the facility annually processed more than 2,000 mt round weight of pollock harvested in the BSAI inshore directed pollock fishery in both 1996 and 1997. An inshore processor would be eligible for a restricted AFA inshore processor permit if the facility processed pollock harvested in the inshore directed pollock fishery during 1996 or 1997, but did not process annually more than 2,000 mt round weight of pollock in both 1996 and 1997. A restricted AFA inshore processor permit would prohibit the inshore processing facility from processing more than 2,000 mt round weight of BSAI pollock harvested in the directed fishery in any one calendar year.
The owner of an AFA inshore processor wishing to process pollock harvested by a fishery cooperative would need a cooperative processing endorsement on the AFA inshore processing permit. The requirements for an AFA inshore processor cooperative processing endorsement are the same as those listed for AFA motherships above.
Finally, AFA inshore processors would be restricted to processing BSAI pollock in a single geographic location in State waters during a fishing year. The purpose of this restriction is to implement subparagraph 208(f)(1)(A) of the AFA, which includes in the category of AFA inshore processors, vessels that operate in a single geographic location in State waters. Under the proposed rule, shoreside (land-based) processors would be restricted to operating in the physical location in which the facility first processed pollock during a fishing year. Stationary floating processors would be restricted to receiving and processing BSAI pollock in a location within Alaska state waters that is within 5 nautical miles (nm) of the position in which the stationary floating processor first processed BSAI pollock during a fishing year. NMFS believes that 5 nm is an appropriate distance for this requirement because it allows the operator of a floating processor some flexibility in choosing an appropriate anchorage, but it still requires that the processor be located in the same body of water for the duration of a fishing year while receiving and processing BSAI pollock.
Paragraph 208(f)(2) of the AFA provides that:
Upon recommendation by the North Pacific Council, the Secretary may approve measures to allow catcher vessels eligible under subsection (a) to deliver pollock harvested from the directed fishing allowance under section 206(b)(1) to shoreside processors not eligible under paragraph (1) if the total allowable catch for pollock in the Bering Sea and Aleutian Islands Management Area increases by more than 10 percent above the total allowable catch in such fishery in 1997, or in the event of the actual total loss or constructive total loss of a shoreside processor eligible under paragraph (1)(A).
To implement this provision of the AFA, the proposed rule provides a mechanism for the Council to recommend that NMFS issue AFA inshore processor permits to inshore processors that would not otherwise be eligible under the AFA. In the event that the BSAI pollock TAC exceeds 1,274,900 mt (10 percent above the 1997 combined BSAI TAC of 1,159,000 mt), or in the event of the actual total loss or constructive loss of an AFA inshore processor, the Council may recommend that an additional inshore processor (or processors) be issued AFA inshore processing permits. The Council's recommendation to NMFS must identify (1) the processor (or processors) that would be issued AFA inshore
The proposed rule provides that in the event of the actual total loss or constructive total loss of an AFA catcher vessel, AFA mothership, or AFA catcher/processor, the owner of such vessel may designate a replacement vessel that would be eligible in the same manner as the original vessel after submission of an application for an AFA replacement vessel that is subsequently approved by NMFS. The AFA contains specific restrictions on replacement vessels that are set out in detail in the proposed rule regulatory text at § 679.4(l)(7). Paragraph 208(g)(5) of the AFA states that a vessel may be used as a replacement vessel if:
the eligible vessel is less than 165 feet in registered length, of fewer than 750 gross registered tons, and has engines incapable of producing less than 3,000 shaft horsepower, the replacement vessel is less than each of such thresholds and does not exceed by more than 10 percent the registered length, gross registered tons or shaft horsepower of the eligible vessel;
NMFS believes that Congress intended this clause to apply to eligible vessels with engines incapable of producing more than 3,000 shaft horsepower rather than engines incapable of producing less than 3,000 shaft horsepower. No catcher vessel operating in Alaska has engines incapable of producing less than 3,000 shaft horsepower, and construing this clause literally would make this provision a nullity. Any vessel engine regardless of size is capable of producing less than 3,000 shaft horsepower at less than full throttle or at idle. Therefore, NMFS is using the phrase “incapable of producing more than 3,000 shaft horsepower” to implement paragraph 208(g)(5) of the AFA.
In the event of the loss of an approved AFA replacement vessel, the owners of the replacement vessel may designate a subsequent replacement vessel provided that the original replacement vessel is lost under conditions that meet the criteria set out in the AFA for lost vessels. In the event of multiple vessel replacements, the length, horsepower, and tonnage limits for any subsequent replacement vessels would be based on the length, horsepower, and tonnage of the originally qualifying AFA vessel.
Under the proposed rule, any vessel that meets the replacement vessel criteria may be designated as a replacement for a lost vessel including an existing AFA vessel. In the event that an existing AFA catcher vessel is designated as a replacement for a lost AFA catcher vessel, the catch histories of the two vessels would be merged for the purpose of making inshore cooperative allocations, crab sideboard endorsements, and groundfish sideboard exemptions. However the catch histories of two vessels would not be merged until NMFS receives and approves an application for a replacement vessel from the owner(s) of the affected vessels.
In order to issue AFA permits, NMFS is compiling available information about vessels and processors that were used to participate in the BSAI pollock fisheries during the qualifying periods. Information in the official AFA record includes vessel ownership information, documented harvests made from vessels during AFA qualifying periods, vessel characteristics, and documented amounts of pollock processed by pollock processors during AFA qualifying periods. Under this proposed rule, the official AFA record would be presumed to be correct for the purpose of determining eligibility for AFA permits. An applicant for an AFA permit would have the burden of proving correct any information submitted in an application that is inconsistent with the AFA official record.
This proposed rule also would establish an appeals process under which the owners of vessels and processors may appeal NMFS determinations about either AFA eligibility or inshore cooperative allocations. The appeals process for AFA permits and inshore cooperative allocations would be based on the existing appeals process in place for the individual fishing quota and LLP programs.
This proposed rule also contains a revision to the LLP program for groundfish and crab that would prevent LLP licenses earned on AFA vessels from being used on non-AFA vessels. The purpose of this restriction is to prevent the owners of retired AFA vessels from re-deploying the LLP license in the groundfish and/or crab fisheries off Alaska on a new vessel that would not be subject to the same sideboard restrictions as the retired AFA vessel. Without this restriction, owners of AFA vessels would be able to evade the harvesting sideboard restrictions contained in this rule by using the LLP licenses from their AFA vessels to deploy new vessels into the groundfish and crab fisheries that are not subject to AFA sideboards.
Under this proposed restriction, no person could use an LLP license that was derived in whole or in part from the qualifying fishing history of an AFA catcher vessel or a listed AFA catcher/processor to fish for groundfish or crab on a non-AFA catcher vessel or non-AFA catcher/processor. NMFS would identify all such licenses affected by this restriction and inform the holders of such licenses of this restriction through a letter to the permit holder and/or an endorsement printed on the face of the license. Persons would be able to file an administrative appeal of NMFS' determination under § 679.4(l)(8).
Under this proposed rule, the procedures for allocating pollock TAC among industry sectors and apportioning each sector's TAC between seasons and/or areas would be revised to incorporate the changes required by the AFA. Ten percent of the pollock TAC specified for the Bering Sea (BS) subarea and the Aleutian Islands (AI) subarea would be allocated to the CDQ program. The remaining TAC for each subarea, after establishment of an incidental catch allowance for pollock harvested as incidental catch in other groundfish fisheries, would be allocated 50 percent to AFA catcher vessels harvesting pollock for processing by AFA inshore processors; 40 percent to AFA catcher/processors and AFA catcher vessels harvesting pollock for processing by AFA catcher/processors, with not less than 8.5 percent of this allocation made available to AFA catcher vessels delivering to catcher/processors; and 10 percent to AFA catcher vessels harvesting pollock for processing by AFA motherships. The inshore pollock TAC would be further divided into two allocations; one allocation to vessels participating in inshore fishery cooperatives, and one allocation to vessels not participating in a fishery cooperative. The annual allocation to inshore cooperatives would be equal to the aggregate annual allocations made to each inshore cooperative. The annual allocation to
Under subsection 210(c) of the AFA “not less than 8.5 percent of the [catcher/processor sector] directed fishing allowance . . . shall be available for harvest only by the catcher vessels eligible under section 208(b).” Subsection 210(c) further provides that “The owners of such catcher vessels may participate in a fishery cooperative with the owners of the catcher/processors eligible under paragraphs (1) through (20) of section 208(e).” NMFS is proposing to implement these two related provisions by establishing two different procedures based on whether such catcher vessels are members of a cooperative with AFA catcher/processors during a given fishing year.
Under paragraph 208(e)(21) of the AFA, unlisted catcher/processors are “prohibited from harvesting in the aggregate a total of more than one-half (0.5) of a percent of the pollock apportioned to the [AFA catcher/processor sector].” Under the proposed rule, this 0.5 percent limit would be apportioned seasonally using whatever seasonal apportionment formula is in effect for the overall catcher/processor sector. This is to prevent unlisted catcher/processors from taking their entire 0.5 percent limit during the A/B season when pollock have higher value. However, NMFS would allow for the rollover of any uncaught amount of this 0.5 percent limit from the A/B to the C/D season so that unlisted catcher/processors could take their entire annual limit during the C/D season if they so choose. This 0.5 percent limit is not a separate allocation to unlisted AFA catcher/processors but rather a cap on their harvest activity within the overall catcher/processor sector allocation. Consequently, if unlisted AFA catcher/processors chose not to fish, this opportunity would be foregone in favor of other AFA catcher/processors and AFA catcher vessels delivering to catcher/processors.
Subparagraph 210(b)(1)(B) of the AFA sets out a specific formula for determining the allocation of pollock to each inshore cooperative. Under this subparagraph:
the Secretary shall allow only such catcher vessels . . . to harvest the aggregate percentage of the directed fishing allowance under section 206(b)(1) in the year in which the fishery cooperative will be in effect that is equivalent to the aggregate total amount of pollock harvested by such catcher vessels . . . in the directed pollock fishery for processing by the inshore component during 1995, 1996, and 1997 relative to the aggregate total amount of pollock harvested in the directed pollock fishery for processing by the inshore component during such years and shall prevent such catcher vessels . . . from harvesting in aggregate in excess of such percentage of such directed fishing allowance.
In other words, under the AFA, each inshore cooperative's pollock allocation is a percentage of the inshore sector allocation that is equal to the aggregate inshore landings by all member vessels in the cooperative from 1995-1997 relative to the total inshore landings during that same period.
However, paragraph 213(c)(3) of the AFA provides the Council with the authority to recommend an alternative allocation formula:
The North Pacific Council may recommend and the Secretary may approve conservation and management measures in accordance with the Magnuson-Stevens Act . . . that supersede the criteria required in paragraph (1) of section 210(b) to be used by the Secretary to set the percentage allowed to be harvested by catcher vessels pursuant to a fishery cooperative under such paragraph.
Using the authority provided in paragraph 213(c)(3) of the AFA, the Council has recommended three changes that would supersede the inshore cooperative allocation formula set out in the AFA. These changes are contained in the proposed rule and described below.
Any contract implementing a fishery cooperative under paragraph (1) which has been entered into by the owner of a qualified catcher vessel eligible under section 208(a) that harvested pollock for processing by catcher/processors or motherships in the directed pollock fishery during 1995, 1996, and 1997 shall, to the extent practicable, provide fair and equitable terms and conditions for the owner of such qualified catcher vessel.
The Council believed that catcher vessels with sustained participation delivering to catcher/processors, but excluded from delivering to catcher/processors under subsection 208(b) of the AFA, should not be disadvantaged by the new management regime. The Council chose 499 mt as the threshold based on information presented in the EIS/RIR/IRFA, which indicated that 499 mt provided a good “break point”
Using the best 2 of 3 years from 1995-1997. The second change recommended by the Council at its June, 1999, meeting, would modify the allocation formula so that the share of the BSAI pollock TAC that each catcher vessel brings into a cooperative would be based on average annual pollock landings in its best 2 out of 3 years from 1995 through 1997. This change, along with the offshore compensation formula, was unanimously endorsed by industry representatives during public testimony at the June 1999 Council meeting. These changes were viewed as a more equitable method of allocating pollock catch because some vessels may have missed all or part of the inshore fishery in a given year due to unavoidable circumstances such as vessel breakdowns or lack of markets.
Each sector's annual Bering Sea Subarea allocation of pollock also would be further apportioned among fishing seasons. In a separate action, NMFS is implementing management measures to temporally and spatially disperse the BSAI pollock fishery to implement reasonable and prudent alternatives (RPAs) to protect endangered Steller sea lions. These temporal and spatial dispersion measures would be applied to each sector's BSAI pollock allocations in the manner set out in regulations implementing the Steller sea lion RPAs.
SEC 501. TREATMENT OF VESSEL AS AN ELIGIBLE VESSEL.Notwithstanding paragraphs (1) through (3) of sections 208(a) of the American Fisheries Act . . . the catcher vessel HAZEL LORRAINE . . . and catcher vessel PROVIDIAN . . . shall be considered to be vessels that are eligible to harvest the directed fishing allowance under section 206(b)(1) of that Act pursuant to a Federal fishing permit in the same manner as, and subject to the same requirements and limitations on that harvesting as apply to, catcher vessels that are eligible to harvest that directed fishing allowance under section 208(a) of that Act.
After reviewing the legislative history of this statute including a statement by Senator Snow in the Congressional Record (S. 11894, December 15, 2000), NMFS has determined that Pub. L. 106-562 directs NMFS to include both the F/V HAZEL LORRAINE and F/V PROVIDIAN as eligible vessels and directs NMFS to use the 1992 through 1994 pollock catch history of the F/V OCEAN SPRAY instead of 1995 through 1997 catch history of the F/V PROVIDIAN for the purpose of determining inshore cooperative quota allocations. Consequently, the proposed regulations provide that the 1992 through 1994 catch history of the F/V OCEAN SPRAY would be used to determine inshore cooperative allocations for any cooperative for which the F/V PROVIDIAN is a member.
HARVESTING. No particular individual, corporation, or other entity may harvest, through a fishery cooperative or otherwise, a total of more than 17.5 percent of the pollock available to be harvested in the directed pollock fishery.
To implement this provision of the AFA, NMFS would publish in the annual harvest specifications, the tonnage amount that equates to 17.5 percent of the pollock available to be harvested in the directed pollock fishery excluding CDQ. The proposed rule also contains a definition of “AFA entity” to identify which entities are affected by this 17.5 percent excessive harvesting share limit. The proposed definition of AFA entity is discussed in detail in the definitions section.
Under the authority of section 301(a)(4) of the Magnuson-Stevens Act (16 U.S.C. 1851(a)(4)), the North Pacific Council is directed to recommend for approval by the Secretary conservation and management measures to prevent any particular individual or entity from processing an excessive share of the pollock available to be harvested in the directed pollock fishery. In the event the North Pacific Council recommends and the Secretary approves an excessive processing share that is lower than 17.5 percent, any individual or entity that previously processed a percentage greater than such share shall be allowed to continue to process such percentage, except that their
At its October 2000 meeting, the Council considered various options for processing excessive share limits for the BSAI pollock fishery and adopted a BSAI pollock excessive processing share limit of 30 percent of the non-CDQ directed fishing allowance. The Council also recommended that the same 10 percent entity rules established for excessive harvesting shares be used for excessive processing shares as well. Under this proposed rule, NMFS would publish in the annual harvest specifications, the excessive processing share limit in tons that equates to 30 percent of the pollock available to be harvested in the non-CDQ directed pollock fishery. An AFA entity would be prohibited from processing BSAI pollock from the BSAI directed pollock fishery that was in excess of this excessive processing share limit.
This proposed rule contains regulations that would govern the formation and operation of fishery cooperatives. The first set of regulations are filing deadlines and annual reporting requirements that would apply to all cooperatives operating in the BSAI pollock fishery regardless of sector. The second set of regulations are required provisions of cooperative contracts that would be required to be included in all catcher vessel cooperatives operating in the BSAI pollock fishery that are intended to govern the harvest of sideboard species by catcher vessel cooperatives. The third set of regulations would be specific requirements and restrictions on inshore catcher vessel cooperatives that are applying for an inshore cooperative fishing permit to receive an annual allocation of the inshore sector BSAI pollock TAC.
The following proposed regulations would apply to all fishery cooperatives formed for the purpose of managing directed fishing for pollock within any sector of the BSAI pollock fishery.
The preliminary and final written reports would be required to contain, at a minimum: (1) The cooperative's
The purpose of this proposed annual report requirement is to assist the Council and NMFS in meeting the requirements of paragraph 210(a)(1) of the AFA, which requires that NMFS make such information available to the public in a manner that NMFS and the Council decide is appropriate. Section 210(a) requires the release of this information, despite the confidentiality provisions of the Magnuson-Stevens Act or any other law. It requires that the Secretary and Council take into account the interest of parties to any cooperative contract in protecting the confidentiality of propriety information. The Secretary and the Council have no discretion in whether to release this information, despite the possibility that it might be confidential commercial or financial information.
After analyzing various methods of providing this information to the public, the Council determined that the most appropriate method for disseminating information about each cooperative would be to require an annual report from each cooperative that could be reviewed by the Council and distributed to the public. The information that would be released is based on observer data and, except for the exception in section 210(a), such information may have been protected from public disclosure under the Freedom of Information Act.
During the development of this proposed reporting requirement, pollock industry representatives did not present to NMFS or the Council concerns about these reporting requirements, and have not indicated that disclosure of such information could reasonably be expected to cause substantial competitive harm. In addition, the annual report does require the release of observer data on specific hauls (e.g., haul location, fishing depth, and catch composition) that might disclose confidential information on specific fishing operations. The requirement that each cooperative report the actual retained and discarded catch of pollock, sideboard species, and PSC on an area-by-area and vessel-by-vessel basis would not disclose when and where individual vessels fished and what they caught at those locations which could have disclosed to competitors the identity of fishing grounds. Therefore, NMFS believes the disclosure of catch and bycatch information on an annual basis and by large management areas would not identify any vessel's specific fishing grounds and what was harvested at those specific locations.
For these reasons, NMFS has concluded that the annual reporting requirements as proposed by the Council are an appropriate way to comply with the public disclosure requirements of paragraph 210(a)(1) of the AFA.
In addition to the general regulations described above that would apply to all fishery cooperatives operating in the BSAI directed pollock fishery, this proposed rule would impose additional contract requirements for all cooperatives that contain AFA catcher vessels. These regulations would apply to catcher vessel cooperatives operating in all sectors of the BSAI pollock fishery. The purpose of these regulations is to hold catcher vessel cooperatives responsible for managing the harvest of groundfish sideboard species and prevent an all out race for sideboard species by AFA catcher vessels.
Under the proposed rule, a cooperative contract that includes AFA catcher vessels must include adequate provisions to prevent each non-exempt member catcher vessel from exceeding an individual vessel sideboard limit for each BSAI or GOA sideboard species or species group that is issued to the vessel by the cooperative in accordance with the following criteria: (1) The aggregate individual vessel sideboard limits issued to all member vessels in a cooperative must not exceed the aggregate contributions of each member vessel towards the overall groundfish sideboard amount as announced by NMFS, or (2) in the case of two or more cooperatives that have entered into an inter-cooperative agreement, the aggregate individual vessel sideboard limits issued to all member vessels subject to the inter-cooperative agreement must not exceed the aggregate contributions of each member vessel towards the overall groundfish sideboard amount as announced by NMFS.
This requirement that catcher vessel cooperatives address the issue of sideboard management in their cooperative contracts was recommended by the Council at its December 1999 meeting as a means to prevent increased competition for sideboard species. To comply with this requirement, each cooperative contract must have penalty provisions on individual vessels that would be payable to owners of vessels outside the cooperative. The amount and type of such penalties are left to the discretion of the cooperatives. However, NMFS may disapprove an inshore cooperative fishing permit application if the Regional Administrator determines that such penalties are inadequate.
Under the AFA, a fundamental difference exists between the fishery cooperatives authorized to operate in the AFA catcher/processor and AFA mothership sectors, and the fishery cooperatives authorized to operate in the inshore sector. AFA catcher/processor and AFA mothership cooperatives operate at the sector level and NMFS does not make sub-allocations of each sector's BSAI pollock TAC to individual cooperatives. Inseason management of the AFA catcher/processor and AFA mothership sectors would continue to occur at the sector level regardless of the presence or absence of fishery cooperatives.
However, the inshore catcher vessel cooperatives authorized by the AFA require an entirely different management structure. Subsection 210(b) of the AFA requires that NMFS make separate TAC allocations to inshore catcher vessel cooperatives that form around an AFA inshore processor and that meet certain restrictions. For this reason, inshore cooperatives require substantially greater regulatory and management infrastructure than AFA catcher/processor and AFA mothership sector cooperatives. This proposed rule implements the following inshore cooperative management measures as required by subsection 210(b) of the AFA.
As part of the application for an inshore cooperative fishing permit, the cooperative's designated representative, who is signing the permit application on behalf of the various members, would be required to certify that: (1) Each catcher vessel in the cooperative is a “qualified catcher vessel” according to the definition of qualified catcher vessel described below, (2) the cooperative contract was signed by the owners of at least 80 percent of the qualified catcher vessels that delivered pollock harvested in the BSAI directed pollock fishery to the cooperative's designated AFA inshore processor during the year prior to the year in which the cooperative fishing permit would be in effect, (3) the cooperative contract requires that the cooperative deliver at least 90 percent of its BSAI pollock catch to its designated AFA processor, and (4) each member vessel has no permit sanctions or other type of sanctions against it that would prevent it from fishing for groundfish in the BSAI. A catcher vessel that cannot legally harvest BSAI pollock due to enforcement action, permit sanctions, lack of a valid AFA catcher vessel permit, or lack of other required permit, would be barred from membership in an inshore cooperative that receives an inshore cooperative fishing permit.
To add or subtract a qualified catcher vessel, the cooperative would be required to submit a new application prior to the December 1 deadline, and the new application must be subsequently approved by the Regional Administrator.
QUALIFIED CATCHER VESSEL. For the purposes of this subsection, a catcher vessel shall be considered a “qualified catcher vessel” if, during the year prior to the year in which the fishery cooperative will be in effect, it delivered more pollock to the shoreside processor to which it will deliver pollock under the fishery cooperative in paragraph (1) than to any other shoreside processor.
The effect of this definition was to prevent the retirement of catcher vessels that are no longer needed to harvest a cooperative's annual allocation of pollock because each vessel was required to make a qualifying landing every year to remain in the cooperative in each subsequent year. At its June 2000, meeting, the Council recommended that this definition be replaced with a new definition under which an inactive vessel would remain qualified to join the cooperative that is associated with the processor where it delivered more pollock to than any other inshore processor in the last year in which the vessel participated in the inshore sector of the BSAI directed pollock fishery. The Council's recommended change would not affect vessels that were active in the BSAI pollock fishery during the year prior to the year in which the cooperative fishing permit would be in effect.
The Council derives its authority to recommend an alternative definition of “qualified catcher vessel” from paragraph 213(c)(1) of the AFA, which provides the Council with the authority to recommend measures to supersede certain provisions of the AFA. Paragraph 213(c)(1) provides that:
CHANGES TO FISHERY COOPERATIVE LIMITATIONS AND POLLOCK CDQ ALLOCATION. The North Pacific Council may recommend and the Secretary may approve conservation and management measures in accordance with the Magnuson-Stevens Act
(1) that supersede the provisions of this title, except for sections 206 and 208, for conservation purposes or to mitigate adverse effects in fisheries or on owners of fewer than three vessels in the directed pollock fishery caused by this title or fishery cooperatives in the directed pollock fishery, provided such measures take into account all factors affecting the fisheries and are imposed fairly and equitably to the extent practicable among and within the sectors in the directed pollock fishery;
In making the recommendation under Amendments 61/61/13/8 to supersede the AFA definition of “qualified catcher vessel” the Council determined that this change would mitigate adverse effects on some owners of fewer than three catcher vessels. Some independently owned AFA catcher vessels are relatively small vessels that may be less safe to operate at great distances from shore under the new Steller sea lion RPA protection measures which have closed many nearshore areas to pollock fishing. A requirement that all such vessels fish each year to remain qualified to join a cooperative each following year would impose unnecessary risks that could be mitigated with a revision to the definition of qualified catcher vessel. In addition, some catcher vessels that are eligible to fish for pollock under the AFA have since been lost or may no longer be safe to operate without major rebuilding. Under this change, the owners of such vessels could remain in cooperatives without the need to rebuild or deploy new vessels into the BSAI pollock fishery. In making this recommendation, the Council also noted that a primary objective of the AFA is to reduce excess capacity in the BSAI pollock fishery and that changing the definition of “qualified catcher vessel” would further that objective.
This proposed rule also makes an additional clarification to the definition of “qualified catcher vessel.” Under the proposed rule, only pollock harvested in the BSAI directed pollock fishery would be used to determine vessel qualification. Pollock that is landed as incidental bycatch in other fisheries would not be used to determine which cooperative a catcher vessel is qualified to join and a catcher vessel cannot qualify to join a cooperative based on incidental catch of pollock in other fisheries. This clarification is necessary to prevent a vessel's incidental bycatch of pollock in other fisheries from inadvertently affecting its cooperative qualification. Counting pollock bycatch could create the unintended effect of restricting the ability of catcher vessels to deliver non-pollock groundfish to other markets. Because pollock is a common bycatch species in the Pacific cod fishery and other groundfish fisheries, AFA catcher vessels fishing for Pacific cod may land significant amounts of pollock as incidental bycatch that would be counted against the pollock incidental catch allowance and not the vessel's cooperative quota. The AFA makes no restrictions on either the delivery or processing of non-pollock groundfish species in the BSAI. Consequently, AFA catcher vessels fishing for Pacific cod are free to deliver their Pacific cod and associated incidental catch of pollock to any processor, not just to one of the eight AFA processors that are authorized to receive pollock harvested in the BSAI directed pollock fishery.
If an AFA vessel's cooperative qualification were based on all catch of pollock and not just pollock harvested in the directed fishery, then an AFA catcher vessel fishing for Pacific cod and delivering to a processor other than its AFA pollock processor could inadvertently disqualify itself from its cooperative of choice due to incidental pollock harvests in other fisheries. In fact, because Pacific cod processors other than the eight AFA inshore pollock processors also operate in the BSAI, an active AFA catcher vessel delivering Pacific cod to a non-AFA processor could inadvertently find itself ineligible to join any inshore cooperative because the processor to
The AFA requires that harvesting and processing limits be placed on AFA vessels and processors in other groundfish, crab, and scallop fisheries to protect the participants in other fisheries from spillover effects resulting from the rationalization of the BSAI pollock fishery and the formation of fishery cooperatives in the BSAI pollock fishery. Potential spillover effects could take many forms. Most obviously, excess harvesting and processing capacity from the rationalization of the BSAI pollock fishery could flood into other fisheries as a result of the AFA to the detriment of current participants in other fisheries. In addition, fishery cooperatives provide vessels with greater flexibility to schedule their fishing activity because they are no longer racing for pollock at the start of every season. As a result, vessels in cooperatives would have the ability to enter other fisheries that might previously have been conducted concurrent with the BSAI pollock fishery. Finally, companies involved in the AFA pollock fishery are expected to benefit financially from the formation of fishery cooperatives and non-AFA companies fear that such profits may be used to expand into other groundfish and crab fisheries.
To address these potential negative effects of the AFA on the participants in other groundfish, crab, and scallop fisheries, the AFA sets out a complex set of harvest and processing restrictions, which have become known as “sideboards”. These sideboard measures have been further refined by the Council's recommendations for catcher/processor and catcher vessel sideboards under Amendments 61/61/13/8. The Council's recommendations have been incorporated into this proposed rule and are summarized below.
The AFA establishes harvest restrictions or “sideboards,” that restrict the participation of listed AFA catcher/processors in other BSAI groundfish fisheries and completely prohibit listed AFA catcher/processors from fishing in the GOA. These sideboards apply only to AFA catcher/processors listed in paragraphs 208(e)(1) through (20) of the AFA and are not extended to unlisted AFA catcher/processors that qualify to fish for pollock under paragraph 208(e)(21) of the AFA. The language establishing catcher/processor harvest caps is set out in paragraphs 211(b)(1) and (2) of the AFA as follows:
(b) CATCHER/PROCESSOR RESTRICTIONS.—
(1) GENERAL. The restrictions in this sub-section shall take effect on January 1, 1999 and shall remain in effect thereafter except that they may be superceded (with the exception of paragraph (4)) by conservation and management measures recommended after the date of the enactment of this Act by the North Pacific Council and approved by the Secretary in accordance with the Magnuson-Stevens Act.
(2) BERING SEA FISHING. The catcher/processors eligible under paragraphs (1) through (20) of section 208(e) are hereby prohibited from, in the aggregate
(A) exceeding the percentage of the harvest available in the offshore component of any Bering Sea and Aleutian Islands groundfish fishery (other than the pollock fishery) that is equivalent to the total harvest by such catcher/processors and the catcher/
(B) exceeding the percentage of the prohibited species available in the offshore component of any Bering Sea and Aleutian Islands groundfish fishery (other than the pollock fishery) that is equivalent to the total of the prohibited species harvested by such catcher/processors and the catcher/processors listed in section 209 in the fishery in 1995, 1996, and 1997 relative to the total amount of prohibited species available to be harvested by the offshore component in the fishery in 1995, 1996, and 1997; and
(C) fishing for Atka mackerel in the eastern area of the Bering Sea and Aleutian Islands and from exceeding the following percentages of the directed harvest available in the Bering Sea and Aleutian Islands Atka mackerel fishery
(i) 11.5 percent in the central area; and
(ii) 20 percent in the western area.
For the 1999 fishing year, NMFS implemented these provisions by publishing the harvest limits in the 1999 BSAI harvest specifications and prohibiting listed AFA catcher/processors from engaging in directed fishing for a groundfish species or species group when NMFS determined that the sideboard limit was likely to be met or exceeded. For the 2000 and 2001 fishing years these limits were set out by emergency interim rule (65 FR 4520, January 28, 2000; extended at 65 FR 39107, June 23, 2000; and 66 FR 7276, January 22, 2001).
At its June 1999 meeting, the Council recommended that catcher/processor harvest limits for BSAI groundfish other than Atka mackerel be based on the 1995 through 1997 retained catch of such groundfish species by the 20 listed AFA catcher/processors listed in paragraphs 208(e)(1) through (20) of the AFA and the nine ineligible catcher/processors listed in section 209 of the AFA, except for Pacific cod which would be based on 1997 retained catch only. The Council made a distinction between retained and total catch for the purpose of calculating sideboards and felt that AFA vessels should not receive sideboard credit for groundfish that was discarded and not utilized. Given NMFS' and the Council's longstanding emphasis on reduction of discards and waste in the groundfish fisheries off Alaska, the Council believed it was reasonable not to allow the members of a sector of the groundfish fleet to claim fishing privileges based on catch that they discarded and did not utilize, especially given that such discards may have resulted in foregone catch and loss of fishing opportunities for other sectors of the industry.
In addition, the Council recommended several other relatively minor changes to the catcher/processor sideboard formula set out in the AFA. The Council recommended that only 1997 catch history be used to determine Pacific cod harvest limits, because 1997 was the first year in which the BSAI Pacific cod trawl gear allocation was split between catcher/processors and catcher vessels. Prior to 1997 the BSAI Pacific cod TAC was not allocated between catcher/processors and catcher vessels, meaning that pre-1997 Pacific cod TACs and harvest percentages by AFA catcher/processors are not directly comparable to present day Pacific cod allocations. The Council also recommended that only the years 1996 and 1997 be used to calculate Pacific ocean perch (POP) sideboard amounts because 1996 was the first year in which the POP TAC was divided between the Bering Sea and Aleutian Islands subareas.
The Atka mackerel catcher/processor sideboard percentages set out in subparagraph 211(b)(1)(C) of the AFA would be implemented unchanged. The AFA catcher/processor sideboard limit for Atka mackerel would be zero percent of the Bering Sea subarea and Eastern Aleutians annual TAC, 11.5 percent of the Central Aleutians annual TAC, and 20 percent of the Western Aleutians annual TAC. These Atka mackerel sideboard amounts would be divided by area and season and would be limited inside critical habitat in the same manner as the overall Atka mackerel TAC for each area.
The Council did not recommend any changes to the formula for establishing prohibited species catch (PSC) bycatch limits set out in subparagraph 211(b)(2)(B) of the AFA. However, the Council recommended that NMFS not implement catcher/processor sideboards for salmon and herring because extensive management measures are already in place to limit bycatch of those PSC species in the BSAI pollock fishery and incidental bycatch of salmon or herring is primarily a concern in the pollock fishery and not in the directed fisheries for other groundfish species.
Under this proposed rule, catcher/processor sideboards would be managed through directed fishing closures. NMFS would evaluate each groundfish harvest limit specified according to the formula outlined previously and would authorize directed fishing by listed AFA catcher/processors only for those BSAI groundfish species for which the harvest limit is large enough to support a directed fishery by listed AFA catcher/processors. Groundfish species for which the catcher/processor harvest limit is too small to support a directed fishery would be closed to directed fishing by listed AFA catcher/processors at the beginning of the fishing year. The sideboard amounts for these species would then be specified as the incidental catch amounts harvested in other directed groundfish fisheries.
In some instances where catcher/processors have a history of harvesting a particular species as bycatch in the pollock fishery and have not traditionally retained that species, the retained catch formula for setting sideboard amounts would result in a sideboard amount for that species that likely would be far below its intrinsic bycatch rate in the BSAI pollock fishery. Squid and POP fall into this category. An expected consequence of basing sideboard amounts on retained catch rather than total catch is that actual harvests of some species as bycatch in the directed pollock fishery would exceed the published sideboard amount. As a result, NMFS proposes a management approach in the proposed rule that would allow for continued incidental catch of species under sideboard provisions that acknowledge historical bycatch needs, while ensuring that listed AFA catcher/processors would not participate in directed fisheries for other BSAI groundfish species at levels that would exceed their level of participation in such fisheries from 1995 through 1997. NMFS believes that this approach is consistent with the language and intent of the AFA.
This proposed rule would establish catcher vessel harvest limits for BSAI crab, BSAI and GOA groundfish, and the Alaska scallop fishery. These measure are required under subparagraph 211(c)(1)(A) of the AFA which states:
By not later than July 1, 1999, the North Pacific Council shall recommend for approval by the Secretary conservation and management measures to . . . prevent the catcher vessels eligible under subsections (a), (b), and (c) of section 208 from exceeding in the aggregate the traditional harvest levels of such vessels in other fisheries under the authority of the North Pacific Council as a result of fishery cooperatives in the directed pollock fishery.
The Council met this requirement by adopting a comprehensive suite of catcher vessel sideboard measures at its June 1999 meeting as part of Amendments 61/61/13/8.
Because the BSAI king and Tanner crab fisheries and the Alaska scallop
Under Amendments 61/61/13/8, the Council has recommended that NMFS limit participation in BSAI crab fisheries through crab sideboard endorsements on AFA catcher vessel permits. The Council has recommended that only AFA catcher vessels with a demonstrated history in a particular crab fishery may continue participating in that fishery. A catcher vessel that lacks the appropriate crab sideboard endorsements on its AFA permit would be prohibited from retaining BSAI king and Tanner crab even if that vessel was authorized to do so under an LLP for that crab fishery. These sideboard endorsements are described above in the discussion of AFA catcher vessel permits.
In addition to permit restrictions, the Council also recommended that the State implement AFA catcher vessel harvest limits for the Bristol Bay red king crab and Bairdi Tanner crab fisheries to keep the AFA vessels from harvesting more such crab than they had traditionally harvested. With respect to the Bristol Bay red king crab fishery, the Council recommended an AFA catcher vessel sideboard limit equal to the percentage of Bristol Bay red king crab harvested by AFA catcher vessels from 1991 through 1997, excluding 1994 and 1995 when the fishery was closed. For the Bairdi Tanner crab fishery, the Council recommended that AFA catcher vessels be excluded from the fishery until the Council's Bairdi rebuilding goal is reached, and then be limited to their historic catch percentage from 1995-1996. The Alaska Board of Fisheries has developed a management program to implement these restrictions which has been in effect since the 2000 Bristol Bay red king crab fishery.
For the BSAI and GOA groundfish fisheries, the Council recommended that AFA catcher vessel sideboards be established based on landed catch and be managed through directed fishing closures in the same manner as AFA catcher/processor sideboards. However, a significant difference between catcher/processor and catcher vessel groundfish sideboards is that the Council recommended that certain AFA catcher vessels be exempt from some BSAI and GOA groundfish sideboards while no exemptions were recommended for listed AFA catcher/processors. These sideboard exemptions were described previously under the section on AFA catcher vessel permits. This proposed rule contains the Council's recommended BSAI and GOA groundfish and PSC sideboards for AFA catcher vessels, which are summarized below.
Catcher vessel groundfish sideboards would be established for all BSAI groundfish species using a formula based on the retained catch of all non-exempt AFA catcher vessels of each sideboard species from 1995 through 1997 (1997 only for BSAI Pacific cod) divided by the available TAC for that species over the same period. AFA catcher vessel sideboards would apply to all non-exempt AFA catcher vessels regardless of sector and regardless of participation in a cooperative. The criteria for catcher vessel sideboard exemptions were outlined in the AFA catcher vessel permit section.
In addition, AFA catcher vessels with mothership endorsements would be exempt from Pacific cod sideboard closures after March 1 of each year. The March 1 exemption for AFA catcher vessels with mothership endorsements was recommended for several reasons. In most years, the BSAI Pacific cod fishery is largely concluded by March 1 and fishing is often less productive in terms of catch per unit effort after that date. Given that as few as two non-AFA catcher vessels have fished for BSAI Pacific cod in recent years, the Council believed that some additional vessels might be needed after this date to completely harvest the TAC so that processors are not faced with a slow trickle of Pacific cod deliveries that are uneconomical to process. The Council recommended that AFA catcher vessels with mothership endorsements be allowed to re-enter the BSAI Pacific cod fishery after March 1 because the mothership sector received a relatively smaller pollock quota under the AFA and mothership catcher vessels are more likely to be finished with their pollock operations by that date.
Catcher vessel PSC sideboards for BSAI groundfish fisheries would be managed in the same manner as catcher/processor PSC sideboards, however the sideboard amounts would be calculated differently. Because individual vessel PSC catch histories are not available for AFA catcher vessels, PSC sideboard amounts would be pro-rated based on percentage of groundfish catch in each BSAI groundfish fishery.
Catcher vessel sideboards for GOA groundfish fisheries would be established and managed in the same manner as the catcher vessel sideboards in the BSAI groundfish fisheries except that catcher vessels less than 125 ft (38.1 m) LOA whose annual BSAI pollock landings averaged less than 1700 mt from 1995 through 1997 (i.e., landed less than 5,100 mt of pollock over the 3-year period) and that made 40 or more GOA groundfish landings over the same period would be exempt from sideboard closures for GOA groundfish fisheries. The catch histories of the exempt vessels would not be counted towards the sideboard amounts for non-exempt vessels. As with the BSAI Pacific cod fishery, the Council noted that many AFA catcher vessels with relatively low catch histories in BSAI pollock have traditionally participated in GOA groundfish fisheries. Indeed, many of these vessels are based in Kodiak and other GOA ports and have historically concentrated their fishing effort in GOA fisheries. The Council believed that it would be inequitable to limit such vessels from participating in GOA fisheries when they have historically fished in the GOA and may have relatively low pollock catch histories in the BSAI during the AFA qualifying years due to their history of fishing primarily in the GOA.
The Council specifically limited both the BSAI Pacific cod and GOA groundfish sideboard exemptions to vessels with a significant history of participation in those fisheries and indicated that it believed such exemptions were consistent with the catcher vessel sideboard provisions at paragraph 211(c)(1) of the AFA, which require that:
By not later than July 1, 1999, the North Pacific Council shall recommend for
(A) prevent the catcher vessels eligible under subsections (a), (b), and (c) of section 208 from exceeding in the aggregate the traditional harvest levels of such vessels in other fisheries under the authority of the North Pacific Council as a result of fishery cooperatives in the directed pollock fishery . . . .
NMFS estimates that 12 catcher vessels would be exempt from BSAI Pacific cod sideboards in the BSAI and 12 catcher vessels would be exempt from groundfish sideboards in the GOA. The Council noted that because these exempt vessels traditionally have participated at high levels in the BSAI Pacific cod and GOA groundfish fisheries, such exemptions were not likely to cause the aggregate harvest levels of all AFA catcher vessels to exceed traditional levels in these fisheries. However, the Council noted that, even if fishing in the BSAI Pacific cod and GOA groundfish fisheries by exempt vessels does cause the aggregate harvest of all AFA catcher vessels to exceed historic levels in other groundfish fisheries, the exemptions are warranted and within the authority of the Council to recommend under paragraph 213(c)(1) of the AFA, which states:
The North Pacific Council may recommend and the Secretary may approve conservation and management measures in accordance with the Magnuson-Stevens Act
(1) that supersede the provisions of this title, except for sections 206 and 208, for conservation purposes or to mitigate adverse effects in fisheries or on owners of fewer than three vessels in the directed pollock fishery caused by this title or fishery cooperatives in the directed pollock fishery, provided such measures take into account all factors affecting the fisheries and are imposed fairly and equitably to the extent practicable among and within the sectors in the directed pollock fishery.
The Council believed that these two exemptions are warranted to mitigate adverse economic effects as described above on owners of fewer than three vessels in the directed pollock fishery given that the exempt vessels are primarily owned by independent fishermen who own fewer than three vessels in the directed pollock fishery.
Subparagraph 211(c)(2)(A) of the AFA establishes limits on crab processing by AFA inshore processors and AFA motherships that receive pollock harvested by a fishery cooperative:
Effective January 1, 2000, the owners of the motherships eligible under section 208(d) and the shoreside processors eligible under section 208(f) that receive pollock from the directed pollock fishery under a fishery cooperative are hereby prohibited from processing, in the aggregate for each calendar year, more than the percentage of the total catch of each species of crab in directed fisheries under the jurisdiction of the North Pacific Council than facilities operated by such owners processed of each such species in the aggregate, on average, in 1995, 1996, 1997. For the purposes of this subparagraph, the term “facilities” means any processing plant, catcher/ processor, mothership, floating processor, or any other operation that processes fish. Any entity in which 10 percent or more of the interest is owned or controlled by another individual or entity shall be considered to be the same entity as the other individual or entity for the purposes of this subparagraph.
These crab processing limits were implemented by NMFS in the emergency interim rule published January 28, 2000 (65 FR 4520, extended at 65 FR 39107). However, at its September 2000 meeting, the Council recommended that the basis years used to calculate crab processing sideboard amounts be revised by adding 1998 and giving it double-weight. Some crab fishermen and AFA processors expressed concern that too many non-AFA processors have left the crab fisheries since 1997 and that the 1995-1997 years do not accurately reflect the composition of the crab processing industry at the time of passage of the AFA. Some crab fishermen were concerned that AFA crab processing caps were restricting markets for crab fishermen and having a negative effect on exvessel prices. By adding 1998 and giving it double-weight relative to 1995-1997, the Council believed that the crab processing caps would more accurately reflect the status of the crab processing industry at the time of passage of the AFA and that such a change to supersede this provision of the AFA was warranted to mitigate adverse effects on markets for crab fishermen.
Each AFA inshore or mothership entity's crab processing cap percentage for each BSAI king or Tanner crab species would be listed on the AFA mothership or AFA inshore processor permit that contains a cooperative pollock processing endorsement.
Conversion of crab processing sideboard percentages to poundage caps. Prior to the start of each BSAI king or Tanner crab fishery, NMFS would convert each AFA inshore or mothership entity's crab processing sideboard percentage to a poundage cap by multiplying the crab processing sideboard percentage by the pre-season guideline harvest level established for that crab fishery by ADF&G. Each entity and the public would be notified of the crab processing poundage caps through notification in the Federal Register and/or through information bulletins published on the NMFS-Alaska Region world wide web home page (
Under Amendments 61/61/13/8, NMFS proposes new observer coverage requirements for AFA catcher/processors, AFA motherships, and AFA inshore processors. However, no changes to observer coverage requirements are proposed for AFA catcher vessels. These proposed new observer coverage requirements are described below.
Lead level 2 observer requirement. Under this proposed rule, at least one observer on board each AFA catcher/processor and AFA mothership would have to be a lead level 2 observer (formerly known as a lead CDQ observer) and would allow the second observer position to be filled by any NMFS certified observer. Observers are an increasingly important element of NMFS' monitoring program for AFA catcher/processor and AFA mothership sector pollock harvests. Prior to the AFA, NMFS monitored offshore pollock harvests using a blend of observer data and processor weekly production reports. However, under the AFA with its statutory requirement that AFA catcher/processors carry two observers at all times and weigh their catch using NMFS-approved scales, NMFS is now relying only on observers and scale weights to provide inseason harvest data for the AFA catcher/processor sector and is no longer using vessel production data for quota management purposes. In addition, NMFS relies on observers to monitor catcher/processor groundfish sideboards as well as catcher vessel sideboards for catcher vessels delivering to catcher/processors and AFA motherships. Given this increased reliance on observers and scales, NMFS believes that the lead level 2 observer requirement is necessary to ensure that at least one of the observers aboard each AFA catcher/processor and AFA mothership has prior experience sampling on a trawl catcher/processor or mothership, is trained and experienced in the use of on-board scales, and is available to monitor the use and calibration of such scales. In addition, NMFS believes that the requirement for at least one lead level 2 observer is necessary to ensure that the compliance monitoring role of the observers aboard AFA catcher/processors can be successfully accomplished.
In order to monitor and enforce the newly imposed harvest limitations for unrestricted AFA catcher/processors and AFA motherships, observers with more experience and training must be aboard. NMFS-certified lead level 2 observers have that experience and training. Level 2 observers receive special training in sampling for species composition in situations where bycatch may be limiting, in working with vessel personnel to resolve access to catch and other sampling problems, and in using flow scales for catch weight measurements. Monitoring by level 2 observers is essential for accurate catch accounting, given the fact that a fishery cooperative has been established and that the potential exists for fishing to be curtailed when either groundfish or prohibited species harvest limitations specified for unrestricted AFA catcher/processors have been reached.
Data quality needs for the AFA fishery take into account the vessel-specific nature of the fishery and the operational environment under which observers collect the data. This vessel-specific nature of the AFA has increased the responsibility of the observer to generate data of a quality equivalent to a “final post-debrief” level prior to the structured NMFS debriefing process. This raises the standard for experience and advanced training requirements. Since implementation of the AFA, the quality of data collected by observers at-sea has been assessed by the rigorous post-cruise debriefing process and has overall been found to meet expectations of high quality data at the point of collection.
The catcher/processors and motherships involved in this fishery provide the most straightforward sampling situations for observers in the groundfish fleet due to typically minimal bycatch, as well as excellent working conditions for the observer.
Consistency in observer requirements between the AFA program and the directed pollock fishery in the Multi-species Community Development Quota (MS CDQ) program is essential. The data quality needs for MS CDQ and AFA pollock catch accounting are virtually identical. Further, vessels often fish for MS CDQ and AFA-allocated pollock during the same fishing trip. Uniform observer requirements would simplify observer deployment logistics for such vessels. Therefore, NMFS is proposing to change the current observer requirements under the MS CDQ program for only those catcher/processors and motherships participating in directed fishing and/or processing of MS CDQ-allocated pollock to be consistent with the proposed AFA observer requirements for those vessel classes.
Requirements for unlisted AFA catcher/processors. Under this proposed rule, vessels receiving unlisted AFA catcher/processor permits under paragraph 208(e)(21) of the AFA would be required to meet the same observer coverage, scale, and sampling station requirements as for listed AFA catcher/processors during any fishing trip in which the vessel engages in directed fishing for BSAI pollock or receives deliveries of pollock from AFA catcher vessels engaged in directed fishing for BSAI pollock. This proposed requirement is necessary because NMFS must monitor the 0.5 percent pollock harvest limit on unlisted AFA catcher/processors and cannot adequately do so without scales and an observer on duty at all times. However, because the AFA catcher/processor sideboard limits in other groundfish fisheries do not apply to unlisted AFA catcher/processors, NMFS is not proposing to change the observer coverage requirements for unlisted AFA catcher/processors when such vessels are engaged in directed fishing for groundfish other than pollock. Unlisted AFA catcher/processors participating in non-pollock fisheries would simply be required to meet whatever observer coverage requirements are in place for the fishery in question.
AFA Inshore Processors. Under this proposed rule, an AFA inshore processor would be required to have a NMFS-certified observer for each consecutive 12-hour period in which the processor takes delivery of, or processes, groundfish harvested by a vessel engaged in directed fishing for BSAI pollock. An AFA inshore processor that takes delivery of or processes pollock during more than 12 consecutive hours in any calendar day would be required to have two NMFS-certified observers available during that calendar day. At least one observer assigned to work at each AFA inshore processor must be a level 2 observer during each calendar day that the processor receives or processes pollock harvested in the BSAI directed pollock fishery. Furthermore, under this proposed rule, observers working at AFA inshore processors may not be assigned to cover more than one processing plant during a calendar day.
NMFS is proposing these new observer coverage requirements for AFA inshore processors so that NMFS can adequately monitor cooperative pollock allocations at each AFA inshore processor. Prior to the AFA, the inshore pollock fishery was managed in the aggregate across the entire sector with NMFS issuing a single closure for the entire inshore sector upon the attainment of a seasonal allocation of pollock TAC. Under the inshore cooperative system set out in this proposed rule, each inshore processor and its affiliated cooperative would be operating on its own proprietary pollock allocation. Because NMFS would no longer manage the inshore sector in the aggregate, increased monitoring is required at each individual processor to ensure that cooperative allocations are not exceeded.
Catcher vessels fishing for pollock may deliver an unsorted codend directly to a mothership or inshore processor, in which case sorting or weighing the catch prior to delivery is not possible. Alternatively, they may bring the codend onto the deck and put the catch into tanks for delivery to a mothership or inshore processor. Depending on the size of the trawl alley, sorting and discarding prohibited species at sea also may not be possible. For these reasons, complete at-sea sorting and weighing of catch is rarely possible. Because of these constraints, much of the data concerning catch weight and composition is gathered when the catch is delivered to a mothership or inshore processor. Thus, NMFS does not believe it is necessary for AFA catcher vessels to provide the same level of observer coverage or equipment that is required for AFA processors.
For this reason, NMFS does not propose any changes to existing observer coverage levels for AFA catcher vessels. Under the management program set out in this proposed rule, the primary location for pollock and sideboard catch accounting is at the processor and NMFS is increasing monitoring at all AFA processors to accommodate these increased monitoring needs. AFA catcher vessels would continue to be required to meet the observer coverage requirements for catcher vessels set out at 50 CFR 679.50(c).
The AFA authorizes eligible vessels and processors to form cooperatives in all sectors of the BSAI pollock fishery. Inshore cooperatives that meet the criteria set out in this proposed rule would be eligible to receive an inshore cooperative fishing permit authorizing the member vessels in the cooperative to harvest a specific allocation of the BSAI pollock TAC. The members of the cooperative may decide among themselves how to share the allocation made to that cooperative. While not an individual fishing quota (IFQ) program per se, the inshore cooperative quota program established by the AFA does share many characteristics with traditional IFQ programs in terms of how the program would operate. In effect, fishery cooperatives are privately operated IFQ programs under which the cooperative, rather than NMFS, makes individual allocations to member vessels. Fishing patterns and behaviors under the inshore cooperative program are expected to be similar to those that would be seen under a traditional IFQ program and the management demands are much the same. Just as with IFQ programs, individual cooperative members and the cooperative as a whole
To manage the AFA pollock fishery properly, NMFS must have data that will provide reliable independent estimates of the total catch by species and area for each cooperative. Because pollock cooperatives are operating under their own individual quotas, they have a vested interest in ensuring that catch data do not overestimate the pollock harvest by that cooperative. Based on experience gained under the CDQ program, NMFS anticipates that observer or NMFS estimates of catch will be routinely questioned by industry. Under a system of fishery cooperatives, a processor stands to benefit directly if catch is underweighed because that processor is operating under an individual allocation. For this reason, NMFS is proposing a catch-weighing system for AFA pollock that is more rigorous than that required in open access groundfish fisheries.
In the draft EIS prepared for Amendments 61/61/13/8, NMFS identified two primary objectives for monitoring catch in the AFA fisheries. First, NMFS must be able to ensure that the total weight, species composition, and catch location for each delivery are reported accurately. An acceptable catch-monitoring system based on this objective must allow for independent verification of catch weight, species composition and haul location data; ensure that all catch is weighed accurately; and provide a record of the weight of each delivery that may be audited by NMFS. Second, the quality and level of catch monitoring should be functionally equivalent between sectors. This objective recognizes that a catch-monitoring approach that is appropriate for one sector of the industry may not be appropriate for all sectors while, at the same time, acknowledging that the overall quality of catch data should be equivalent, and no sector should be given a competitive advantage because of differences in catch monitoring standards. Based on these objectives, NMFS has developed the following catch monitoring regulations for each sector.
Subparagraph 211(b)(6)(B) of the AFA requires that all listed AFA catcher/processors “weigh [their] catch on a scale onboard approved by the National Marine Fisheries Service while harvesting groundfish in fisheries under the authority of the North Pacific Council.” To implement this requirement of the AFA, NMFS proposes to extend the existing catch weighing and observer sampling station requirements for catcher/processors participating in the CDQ fisheries, found at 50 CFR 679.28, to AFA catcher/processors. These catch-weighing requirements include the following:
1. Scales must meet the performance and technical requirements specified in appendix A to 50 CFR 679. At this time, Marel hf and Skanvaegt International A/S produce scales that have been approved by NMFS for weighing total catch. Marel hf, Skanvaegt International A/S and Pols hf manufacture scales that have been approved for use in observer sampling stations.
2. Each scale must be inspected and approved annually by a NMFS-approved scale inspector.
3. Each observer sampling station scale must be accurate within 0.5 percent when its use is required.
4. The observer sampling station scale must be accompanied by accurate test weights sufficient to test the scale at 10, 25 and 50 kg.
5. Each scale used to weigh total catch must be tested daily by weighing at least 400 kg of fish or test material on the total catch weighing scale and then weighing it again on an approved observer-sampling station scale.
6. When tested, the total catch weighing scale and the observer sampling station scale must agree within 3 percent.
Observer sampling stations provide a location where observers can work safely and effectively. On June 4, 1998, NMFS published a final rule that established requirements for observer sampling stations and required their use on specified vessels participating in CDQ fisheries (63 FR 30381). Further information on, and the rationale for, observer sampling stations may be found in that rule. Observer sampling stations must meet specifications for size and location and be equipped with an observer sampling station scale, a table, adequate lighting and running water. Each observer sampling station must be inspected and approved by NMFS annually.
AFA listed catcher/processors would be required to comply with the regulations for additional observer coverage, scales, observer sampling stations, and an approved vessel monitoring system (VMS) when participating in any groundfish fishery off Alaska. Unless other regulations require them to do so, unlisted AFA catcher/processors would only be required to comply with these regulations when engaged in directed fishing for BSAI pollock or when processing pollock harvested in the BSAI directed pollock fishery. Because unlisted AFA catcher/processors are not bound by sideboard limits when participating in other groundfish fisheries, NMFS does not believe that imposing this more rigorous catch-weighing and monitoring regime on such vessels is necessary when they are not fishing for pollock. Such unlisted AFA catcher/processors would continue to be bound by all catch-weighing and monitoring requirements that are in effect for any non-pollock fishery in which they participate.
The AFA does not require that motherships weigh all catch or provide additional observer coverage. However, because motherships receive and process groundfish in a manner similar to catcher/processors, NMFS proposes that similar regulations be implemented for AFA motherships. Requirements for catch weighing, observer sampling stations and observer coverage would be identical to those described above for AFA listed catcher/processors and would apply at all times that the AFA mothership is receiving or processing groundfish harvested in the BSAI or GOA.
This proposed rule would establish a new catch monitoring system for inshore processors. The catch management goals established by NMFS for the AFA pollock fishery are the same for the inshore and offshore sectors. However, NMFS does not believe that the regulations developed for catcher/processors and motherships are appropriate for inshore processors for two reasons. First, inshore processors vary more in size, facilities and layout than do catcher/processors or motherships. Second, the State is responsible for approving scales used for trade by inshore processors and has developed an effective program for their inspection and approval.
Catch monitoring and control plans. The catch weighing and monitoring
1. All catch delivered to the plant must be sorted and weighed by species. The CMCP must detail the amount and location of space for sorting catch, the number of staff devoted to catch sorting and the maximum rate that catch will flow through the sorting area.
2. Each processor must designate an “observation area.” The observation area is the location designated in the CMCP where an individual may monitor the flow of fish during a delivery. From the observation area, an individual must be able to monitor the entire flow of fish and ensure that no removals of catch have occurred between the delivery point and a location where all sorting has taken place and each species has been weighed.
3. Each processor must designate a “delivery point.” The delivery point is the first location where fish removed from a delivering catcher vessel can be sorted or diverted to more than one location. The delivery point would most likely be the location where the pump first discharges the catch. If catch is removed from a vessel by brailing, this would most likely be the bin or belt where the brailer discharges the catch.
4. The observation area must be located near the observer work station.
5. The observer workstation must be located where the observer has access to unsorted catch.
6. An observer work station, for the exclusive use of the observer, must provide: a platform scale of at least 50 kg capacity; an indoor working area of at least 4.5 square meters, a table, and a secure and lockable cabinet.
7. Designation of a plant liaison, who would be responsible for orienting new observers to the plant, ensuring that the CMCP is implemented, and assisting in the resolution of observer concerns.
The plant would be inspected by NMFS to ensure that the plant layout conforms to the elements of the plan. A CMCP that meets all of the performance standards would be approved by NMFS for 1 year, unless during the year changes are made in plant operations or layout that do not conform to the CMCP. After 1 year, NMFS would review the CMCP with plant management to ensure that the CMCP has been implemented and that the performance standards continue to be met.
A single individual cannot effectively monitor the flow of fish from the delivery point to where they have been completely sorted and weighed at any of the existing AFA inshore processors. Therefore, none of the current AFA inshore processors would meet the proposed performance standards without modifying the layout of the plant or developing alternative methods of monitoring catch flow. As a consequence, the process of developing the CMCP may be fairly complex. NMFS anticipates that plant management would wish to work closely with NMFS staff before making any modifications to the plant layout or purchasing equipment. NMFS staff would review draft CMCPs and would pre-inspect inshore processors as requested by plant management.
Scale requirements for AFA inshore processors. Catch weighing for catcher/processors and motherships is based on the use of scales approved by NMFS. Because NMFS and the State use different standards when approving scales, most NMFS-approved scales are not legal for trade in Alaska and most State-approved scales do not meet NMFS criteria for inseason testing and auditing. NMFS believes that the State should be the primary authority responsible for approving and testing scales in shoreplants and that weighing all catch on scales approved by NMFS is unnecessary. Inshore processors are required, under State regulations, to weigh all catch that is being bought or sold on State-approved scales. These scales must be inspected annually by inspectors authorized by the Division of Measurement Standards and Commercial Vehicle Enforcement.
However, State regulations do not provide for inseason testing of scales nor do they require that scales produce a printed record of each delivery. NMFS believes that these are essential features of an acceptable catch weighing system. Therefore, in cooperation with the State, NMFS has developed a catch-weighing system that implements these additional features within the existing framework of State scale inspection and approval. The development of this system involved consultation with the Alaska State Division of Measurement Standards in acknowledgment of the State's role to ensure that scales used for trade in the State are accurate. Personnel from the Alaska Division of Measurement Standards are responsible for inspecting and approving those scales. Scales that are not used in a trade related transaction, or scales that are used outside of State waters are generally not required to be inspected and approved.
This proposed rule would implement two sets of catch weighing requirements. The first, is that catcher/processors and motherships would be required to weigh all catch on scales approved by NMFS. These vessels weigh their catch outside of State waters and the approval and inspection of those scales does not in any way interfere with existing State programs.
The second set of conditions would require AFA inshore processors to weigh all of their catch on scales approved by the State and that those scales meet additional requirements for printouts and inseason testing. In order to prevent duplicative regulations or involve itself in an existing State function, NMFS worked closely with the Alaska Division of Measurement Standards to develop these requirements. NMFS staff met with the Director of the Division and his staff twice during 2000 to discuss these requirements, and draft versions of the proposed regulations were provided to Division personnel for review and comment. In October 2000, the Administrator, Alaska Region, sent a letter to the Director of the Division of Measurement Standards expressing his acknowledgment and appreciation for the work that the State had put into assisting NMFS in developing the catch weighing regulations.
Thus, this propose rule reflects cooperative State and Federal development of catch weighing requirements for AFA inshore processors and includes the following provisions:
1. Each scale used to weigh catch and its intended use would have to be identified by serial number in the CMCP. Each scale would have to be inspected and approved by the State annually.
2. As part of the CMCP, each plant would submit a scale testing plan that gives the procedure the plant would use to test each scale identified in the CMCP. The testing plan would list: the test weights and equipment required to test the scale; where the test weights and equipment are stored; and, the plant personnel responsible for testing the scale. Test amounts for various scale types are shown in Table 1.
3. Test weights would have to be certified at least biannually by a metrology laboratory approved by the National Institute of Standards and Technology.
4. Authorized officers or NMFS-authorized personnel could request that any scale be tested in accordance with
5. Each scale would have to be accurate within the limits specified in Table 2 (maximum permissible errors and test weight amounts) when tested by the plant staff.
6. Each scale used to weigh catch would have to be equipped with a printer, and a printout or printouts showing the total weight of each delivery would have to be generated after each delivery had been weighed. The printouts would have to be retained by the plant and made available to NMFS-authorized personnel including observers.
Under the proposed rule, all AFA catcher/processors and AFA catcher vessels would be required to deploy an operating NMFS-approved VMS transmitter at all times that the vessel is fishing for groundfish in the BSAI or GOA. In a final rule published October 17, 2000 (65 FR 61264), NMFS established VMS requirements for trawl vessels engaged in directed fishing for Atka mackerel. These requirements would be extended to AFA catcher/processors and AFA catcher vessels. An AFA catcher/processor or AFA catcher vessel would be required to carry and use a NMFS-approved VMS transmitter whenever fishing for groundfish off Alaska. These transmitters automatically determine the vessel's location several times per hour using Global Positioning System (GPS) satellites and send the position information to NMFS via a mobile communication service provider. The VMS transmitters are designed to be tamper-resistant and automatic. The vessel owner should be unaware of exactly when the unit is transmitting and would be unable to alter the signal or the time of transmission.
NMFS believes that a VMS system is an essential component of a monitoring program for the AFA pollock fishery. A VMS system would allow NMFS to verify catch locations inside and outside of the Steller Sea Lion Conservation Area (SCA). Under the proposed rule, each sector and cooperative would be limited in the amount of BSAI pollock that can be taken inside the SCA during
In the proposed rule to require VMS in the Atka mackerel fishery (65 FR 36810) NMFS established criteria for the approval of VMS components. At this time, only one transmitter, the ArgoNet Mar GE, and its associated communications service provider, North American Collection and Location by Satellite, Inc. (NACLS), have been approved by NMFS. A vessel owner wishing to purchase this system may contact the provider or NMFS for additional information (see
The MAR GE transmitter and NACLS communications service provider have also been approved for use in the Atlantic Highly Migratory Species Fisheries. Additional details concerning these VMS components may be found in the NMFS notice of approval of these VMS components published in the Federal Register on September 9, 1999 (64 FR 48988).
The proposed rule would establish a definition for “AFA entity” that would be used to determine compliance with the 17.5 percent pollock excessive harvesting share limit and the 30 percent pollock excessive processing limit, and would be used for establishing crab processing sideboard limits. An “AFA entity” would be defined as a group of affiliated individuals, corporations, or other business concerns that harvest or process pollock in the BSAI directed pollock fishery.
The concept of “affiliation” is central to the definition of “AFA entity.” Simply stated, “affiliation” means a relationship between two or more individuals, corporations, or other business concerns in which one concern directly or indirectly owns a 10 percent or greater interest in the other, exerts 10 percent or greater control over the other, or has the power to exert 10 percent or greater control over the other; or a third individual, corporation, or other business concern directly or indirectly owns a 10 percent or greater interest in both, exerts 10 percent or greater control over both, or has the power to exert 10 percent or greater control over both. Ownership and control are two overlapping concepts that may arise through a wide variety of relationships between two or more individuals, corporations, or other concerns. The following forms of affiliation are included in the proposed rule.
Amendment 61 to the FMP for groundfish of the GOA also would extend the expiration date for inshore/offshore allocations of GOA pollock and Pacific cod until December 31, 2004. The Council elected to extend the GOA inshore/offshore expiration date so that BSAI inshore/offshore allocations under the AFA and GOA inshore/offshore allocations would expire on the same date and could be reevaluated at the same time. Extensive background information on GOA inshore/offshore allocations is contained in the EA/RIR/FRFA prepared for Amendment 51/51, the most recent inshore/offshore amendments for the BSAI and GOA. Both EA/RIR/FRFA documents are available from the Council (see
Removed Definitions. The definitions for “Inshore component in the BSAI” and “Offshore component in the BSAI” would be removed because the previous inshore/offshore regime for pollock in the BSAI has been superseded by the AFA.
At this time, NMFS has not determined that the FMP amendments that this rule would implement are consistent with the national standards of the Magnuson-Stevens Act, the AFA, and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.
The Council prepared an initial regulatory flexibility analysis (IRFA) that describes the impact this proposed rule, if adopted, would have on small entities. A copy of this analysis is available from the Council (see
The IRFA contains a description of and an estimate of the number of small entities to which the proposed rule would apply. The IRFA concluded that none of the catcher/processors, motherships and inshore processors affected by this proposed rule are small entities. All of the inshore and mothership processors participating in the BSAI pollock fishery are subsidiaries or close affiliates of corporations with more than 500 employees worldwide, and exceed the criterion for small entities. In addition, all 21 AFA catcher/processors have estimated annual gross revenues in excess of the $3 million small entity criterion for fish harvesting operations. Therefore, none of the catcher/processors, motherships, or inshore processors in the BSAI pollock fishery appear to meet the RFA criteria for small entities.
With respect to the catcher vessel fleet, NMFS expects that approximately 120 catcher boats will be eligible to harvest BSAI pollock under this rule (7 in the offshore delivery sector, 92 in the inshore sector, 7 in the mothership sector, and 14 which are eligible in both the inshore and mothership sectors). Ownership information presented in the IRFA indicates that, of the 92 catcher boats that operated exclusively or partly in the inshore sector, the available ownership data identify 26 vessels owned, in whole or in part, by inshore processors. These 26 vessels may be considered to be affiliated with their respective inshore processor owners and cannot be considered small entities because none of the inshore processors in the BSAI pollock fishery, themselves, are small entities for RFA purposes. An additional 5 catcher boats have been identified as closely affiliated with an inshore floating processor. These 5 catcher boats, taken together with their affiliated processor, exceed the $3 million criterion for fish harvesting operations and are, therefore, not believed to be small entities.
Furthermore, an additional 20 catcher boats have ownership affiliations with other catcher boats or catcher processors. The gross annual receipts of each of these groups of affiliated catcher boats is believed to exceed the $3 million criterion for small entities, when all their fisheries earnings are taken as a whole. The remaining 40 catcher boats operating exclusively or partly in the inshore sector are believed to be small entities.
Twenty-eight catcher boats operated in the offshore sector exclusively (e.g., delivering to catcher/processors and motherships), while 22 operated in both inshore and offshore sectors for a total of 50 offshore catcher boats. Of the combined offshore catcher boat sector, 13 have ownership affiliations with large inshore or offshore processors and, therefore, do not meet the $3 million criterion for small entities. An additional 13 catcher boats have ownership affiliations with other vessels or operations that, taken together with their affiliated entities, are believed to exceed the $3 million gross receipts criterion for small entities. The remaining 24 catcher boats operating exclusively or partly in the offshore sector are believed to qualify as “small entities” (and are among the same 120 total vessels described earlier).
The IRFA further concluded that the formation of inshore fishery cooperatives among predetermined groups of catcher vessels and a corresponding inshore processor will create distinct sets of entities, large and small, and their potential for inter-related economic effects resulting from such affiliation. In the context of an RFA analysis, a fish harvesting concern is a small entity if it has annual receipts not in excess of $3 million or it is not dominant in its field (defined in 13 CFR part 121, Standard Industrial Code categorizations). An independent catcher vessel operating in the “open access” or non-cooperative directed pollock fishery would typically meet that criteria. However, under SBA regulations for determining entity size, businesses that are affiliated with each other through joint-venture or cooperative arrangements are not considered “independent” and the affiliated businesses must be taken as a whole when determining entity size. In the case of AFA inshore cooperatives, the $3 million criterion will be exceeded for every inshore cooperative meaning that once independent catcher vessels join a cooperative, they can no longer be considered a small business concern for RFA purposes.
Despite the fact that catcher vessels will lose their small entity size status upon entry into cooperatives, the IRFA nonetheless examined the economic consequences of cooperative formation on independent catcher vessels. Approximately 43 small entities, including 40 independent catcher vessels delivering to inshore processors and three neighboring communities, would be expected to be directly
At its June 2000 meeting in Portland, OR, the Council considered and postponed action on a proposal from independent fishermen, known as the “Dooley-Hall” proposal, that would have allowed catcher vessel owners to switch cooperatives from year-to-year without needing to spend a year in the open access fishery to qualify for the new cooperative. Independent fishermen made this proposal to reduce negative economic impacts of this action on their sector of small entities. The IRFA concluded that the economic implications of the Dooley-Hall alternative on independent catcher vessels would be positive. It would also allow them to both retain the exclusive harvesting privilege associated with their cooperative's collective pollock allocation as well as provide for their ability to accept the highest exvessel price for such pollock landings as offered by an eligible inshore processor.
The IRFA concluded that potentially significant economic and institutional efficiencies could be further achieved if inshore catcher vessel operators were allowed to establish cooperatives comprised of memberships which they choose themselves. This is in contrast to the proposed inshore AFA cooperative structure requiring cooperative membership strictly as a function of historical landings to a given processor. Establishment of more efficient long-term cooperative relationships would exist among members if they are based on commonly shared objectives as well as on economic efficiencies of scale created by business affiliation decisions. The IRFA concluded that sales to a specific processor is a less than optimal index of commonality in operational objectives among a sub-set of inshore catcher vessels. The long-term viability of cooperatives has traditionally proven most successful when they are naturally organized among members who share commitment and loyalty based on their inherent commonalities such as business focus, institutional structure, operational philosophy, geographic relationship, or cultural orientation. The IRFA concluded that such factors should be given due consideration when managers seek to foster the development of inshore pollock fishery cooperatives that will realize long-term benefits to both the fishery participants specifically, and to the Nation in general.
The proposed AFA cooperative structure does not allow a catcher vessel to change its cooperative affiliation from year to year while maintaining cooperative membership. To change cooperative membership (and exvessel buyer affiliation), the catcher vessel must fish in the open-access fishery for 1 year. For this open-access year, the AFA does not allow the vessel to retain its harvest privilege of pollock “quota share”. It must compete for its share of pollock in the race-for-fish scenario of the open-access fishery. Should the vessel owner choose to join an AFA cooperative the following year and sell to the cooperative's designated inshore processor, the harvest privilege for the catcher vessel would be reauthorized. This open-access transition year requirement creates economic and resource inefficiencies associated with the catcher vessel's harvest allocation amount. This same amount of pollock would probably be harvested over a shorter time period in the open-access fishery than if harvested under a cooperative arrangement. As a result, open-access pollock harvests would generally yield lower recovery rates and create conditions for less than optimal market prices due to the surge in supply. Furthermore, per unit operating costs would likely be higher for the open-access operation than what could be expected under a more flexible inshore cooperative structure. The transition year constraint imposed by the AFA on inshore catcher vessel owners who seek to shift their vessel's membership between AFA cooperatives, will create the potential for more, rather than less, inefficiency in the inshore component of the BSAI directed pollock fishery.
To further explore the effects of inshore cooperatives on independent catcher vessels, the Council supplemented the IRFA by contracting with experts in the fields of economics and industrial organization from the University of Washington to prepare a supplemental analysis. This supplemental analysis examined the economic and policy issues associated with the formation of catcher vessel cooperatives and included analysis of three alternatives to the proposed structure for inshore cooperatives and is incorporated into the EIS/RIR/IRFA as an appendix.
The supplemental analysis concluded that an independent catcher vessel is likely to be worse off if inshore cooperatives form and the vessel chooses to remain independent. Under the most plausible scenario, per-vessel share of the remaining TAC allocated on open-access or non-cooperative fishing would be much lower than in the absence of cooperatives. Catcher vessels with large cooperative catch histories would be most likely to join cooperatives in order to preserve this catch history while vessels with little or no catch history during the qualifying years would have less incentive to join cooperatives. Therefore, if inshore cooperatives form, the vessels choosing not to join cooperatives will likely be faced with increased competition for a smaller portion of the TAC.
The supplemental analysis also noted that the presence of processor-owned vessels in a cooperative could have a negative effect on independent vessels if processors are able to exert undue influence over the cooperative by virtue of their ownership of member vessels. Therefore, the analysis concluded that independent catcher vessels likely will be adversely affected by the AFA's provisions for cooperatives. However, the supplemental analysis also noted that, to the extent that the cooperatives are implemented, the race for fish will abate. The resulting rationalization will increase both the total rents in the fishery and the effective amount of capacity in harvesting and processing.
The IRFA (and supplemental analysis) considered three alternatives that would mitigate adverse effects of this rule to small entities. The analysis concluded that under the Dooley-Hall proposal cited previously, independent catcher vessels would be better off, and processors worse off than under the AFA provisions in this proposed rule.
Finally, the IRFA examined the impacts of catcher vessel sideboard measures on small entities, and examined the effects of this proposed rule on small vessels excluded from the pollock fishery under the AFA. With respect to the effects of catcher vessel sideboards on AFA catcher vessels, the IRFA examined a range of alternatives that would mitigate adverse effects on small entities, especially small catcher vessels that may have little pollock catch history in the BSAI and would therefore receive little benefit under the AFA. The Council recommended, and this rule contains, an exemption from BSAI Pacific cod and GOA groundfish sideboards for catcher vessels that have less than 1700 mt average annual pollock harvests in the BSAI from 1995-1997. The intent of this alternative is to eliminate the impact of sideboards on AFA catcher vessels that have not traditionally focused the bulk of their effort in BSAI pollock, and that are more dependent on GOA groundfish fisheries.
This proposed rule contains collection of information requirements subject to the Paperwork Reduction Act (PRA) which have been approved by OMB under control numbers 0648-0393, 0648-0401, and 0648-0425.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person will be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.
The estimated response times shown include the time to review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information. The estimated time for the operator to complete the AFA catcher vessel permit application is 2 hours; the estimated time for an operator of an AFA mothership or manager of an inshore processor to complete the AFA mothership and inshore processor permit application is 2 hours; the estimated time for a cooperative representative to complete the AFA inshore cooperative permit application is 2 hours; the estimated time for an operator to complete the AFA permit application for a replacement vessel is 30 minutes; the estimated time for a manager to complete the shoreside processor electronic logbook is 30 minutes; the estimated time for a manager to electronically submit the shoreside processor electronic logbook report is 5 minutes; the estimated time for an operator to complete the at-sea scale inspection request is 2 minutes; the estimated time for an operator to retain the at-sea scale inspection request is 1 minute; the estimated time for an operator to complete the at-sea scale test report is 45 minutes; the estimated time for an operator to print the record of haul weight is 5 minutes; the estimated time for an operator to retain a scale audit trail print-out is 3 minutes; the estimated time for an operator to complete the observer sampling station inspection request is 2 minutes; the estimated time for an operator of a mothership or catcher/processor to electronically submit the weekly production report is 5 minutes; the estimated time for a cooperative representative to complete a catcher vessel cooperative pollock catch report is 5 minutes; the estimated time for a cooperative representative to submit a copy of the cooperative contract is 5 minutes; the estimated time for a cooperative representative to complete a annual written report from each AFA cooperative is 8 hours.
Public comment is sought regarding whether this proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information has 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 of information, including the use of automated collection techniques or other forms of information technology.
Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to NMFS and to OIRA, OMB (see
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Alaska, Fisheries, Recordkeeping and reporting requirements.
1. The authority citation for 50 CFR part 679 is revised to read as follows:
16 U.S.C. 773
(k)
(1)
(i)
(ii)
(2)
(3)
(i) Controls 10 percent or more of the voting stock of another corporation or business concern;
(ii) Has the authority to direct the business of the entity which owns the fishing vessel or processor. The authority to “direct the business of the entity” does not include the right to simply participate in the direction of the business activities of an entity which owns a fishing vessel or processor;
(iii) Has the authority in the ordinary course of business to limit the actions of or to replace the chief executive officer, a majority of the board of directors, any general partner or any person serving in a management capacity of an entity that holds 10 percent or greater interest in a fishing vessel or processor. Standard rights of minority shareholders to restrict the actions of the entity are not included in this definition of control provided they are unrelated to day-to-day business activities. These rights include provisions to require the consent of the minority shareholder to sell all or substantially all the assets, to enter into a different business, to contract with the major investors or their affiliates or to guarantee the obligations of majority investors or their affiliates;
(iv) Has the authority to direct the transfer, operation or manning of a fishing vessel or processor. The authority to “direct the transfer, operation, or manning” of a vessel or processor does not include the right to simply participate in such activities;
(v) Has the authority to control the management of or to be a controlling factor in the entity that holds 10 percent or greater interest in a fishing vessel or processor;
(vi) Absorbs all the costs and normal business risks associated with ownership and operation of a fishing vessel or processor;
(vii) Has the responsibility to procure insurance on the fishing vessel or processor, or assumes any liability in excess of insurance coverage;
(viii) Has the authority to control a fishery cooperative through 10 percent or greater ownership or control over a majority of the voting members of the cooperative, has the authority to appoint, remove, or limit the actions of or replace the chief executive officer of the cooperative, or has the authority to appoint, remove, or limit the actions of a majority of the board of directors of the cooperative. In such instance, all members of the cooperative are considered affiliates of the individual, corporation, or other business concern that exerts 10 percent or greater control over the cooperative;
(ix) Has the ability through any other means whatsoever to control the entity that holds 10 percent or greater interest in a fishing vessel or processor.
(4) With respect to the harvest of groundfish by AFA catcher/processors
(k) * * *
(9)
(l)
(ii)
(iii)
(iv)
(A) The original AFA permit to be amended, and
(B) A completed AFA permit application signed by the new vessel or processor owner.
(v)
(2)
AMERICAN DYNASTY (USCG documentation number 951307);
KATIE ANN (USCG documentation number 518441);
AMERICAN TRIUMPH (USCG documentation number 646737);
NORTHERN EAGLE (USCG documentation number 506694);
NORTHERN HAWK (USCG documentation number 643771);
NORTHERN JAEGER (USCG documentation number 521069);
OCEAN ROVER (USCG documentation number 552100);
ALASKA OCEAN (USCG documentation number 637856);
ENDURANCE (USCG documentation number 592206);
AMERICAN ENTERPRISE (USCG documentation number 594803);
ISLAND ENTERPRISE (USCG documentation number 610290);
KODIAK ENTERPRISE (USCG documentation number 579450);
SEATTLE ENTERPRISE (USCG documentation number 904767);
US ENTERPRISE (USCG documentation number 921112);
ARCTIC STORM (USCG documentation number 903511);
ARCTIC FJORD (USCG documentation number 940866);
NORTHERN GLACIER (USCG documentation number 663457);
PACIFIC GLACIER (USCG documentation number 933627);
HIGHLAND LIGHT (USCG documentation number 577044);
STARBOUND (USCG documentation number 944658).
(ii)
(iii)
(A)
(B)
(
(C)
(3)
(i)
(
AMERICAN CHALLENGER (USCG documentation number 633219);
FORUM STAR (USCG documentation number 925863);
MUIR MILACH (USCG documentation number 611524);
NEAHKAHNIE (USCG documentation number 599534);
OCEAN HARVESTER (USCG documentation number 549892);
SEA STORM (USCG documentation number 628959);
TRACY ANNE (USCG documentation number 904859); or
(
(B)
(
ALEUTIAN CHALLENGER (USCG documentation number 603820);
ALYESKA (USCG documentation number 560237);
AMBER DAWN (USCG documentation number 529425);
AMERICAN BEAUTY (USCG documentation number 613847);
CALIFORNIA HORIZON (USCG documentation number 590758);
MAR-GUN (USCG documentation number 525608);
MARGARET LYN (USCG documentation number 615563);
MARK I (USCG documentation number 509552);
MISTY DAWN (USCG documentation number 926647);
NORDIC FURY (USCG documentation number 542651);
OCEAN LEADER (USCG documentation number 561518);
OCEANIC (USCG documentation number 602279);
PACIFIC ALLIANCE (USCG documentation number 612084);
PACIFIC CHALLENGER (USCG documentation number 518937);
PACIFIC FURY (USCG documentation number 561934);
PAPADO II (USCG documentation number 536161);
TRAVELER (USCG documentation number 929356);
VESTERAALEN (USCG documentation number 611642);
WESTERN DAWN (USCG documentation number 524423);
LISA MARIE (USCG documentation number 1038717); or
(
(C)
(
(
(
(
(
(
(
(ii)
(A)
(B)
(
(C)
(D)
(
(
(
(
(
(
(
(
(E)
(
(
(F)
(4) AFA mothership permits. NMFS will issue to an owner of a mothership an AFA mothership permit if the mothership is one of the following (as listed in paragraphs 208(d)(1) through (3) of the AFA):
EXCELLENCE (USCG documentation number 967502);
GOLDEN ALASKA (USCG documentation number 651041); and
OCEAN PHOENIX (USCG documentation number 296779).
(i)
(ii)
(A)
(B)
(C)
(
(D)
(E)
(F) Certification of notary and applicant. Owner signature(s), date of signature, printed name(s), and the notary stamp, signature, and date commission expires of a notary public.
(5)
(i)
(B)
(ii)
(iii)
(A)
(B)
(iv) Application for permit. A completed application for an AFA inshore processor permit must contain:
(A)
(B)
(C)
(D)
(
(E)
(F)
(G)
(v)
(A)
(B)
(
(
(
(
(
(6)
(ii)
(A)
(B)
(C)
(
(
(
(D)
(
(
(
(
(
(E)
(F)
(G)
(iii)
(iv)
(v)
(7)
(A) Such loss was caused by an act of God, an act of war, a collision, an act or omission of a party other than the owner or agent of the vessel, or any other event not caused by the willful misconduct of the owner or agent;
(B) The replacement vessel was built in the United States and, if ever rebuilt, rebuilt in the United States;
(C) The USCG certificate of documentation with fishery endorsement for the replacement vessel is issued within 36 months of the end of the last year in which the eligible vessel harvested or processed pollock in the directed pollock fishery;
(D) If the eligible vessel is greater than 165 ft (50.3 meters (m)) in registered length, or more than 750 gross registered tons, or has engines capable of producing more than 3,000 shaft horsepower, the replacement vessel is of the same or lesser registered length, gross registered tons, and shaft horsepower;
(E) If the eligible vessel is less than 165 ft (50.3 m) in registered length, fewer than 750 gross registered tons, and has engines incapable of producing more than 3,000 shaft horsepower, the replacement vessel is less than each of such thresholds and does not exceed by more than 10 percent the registered length, gross registered tons, or shaft horsepower of the eligible vessel; and
(F) If the replacement vessel is already an AFA catcher vessel, the inshore cooperative catch history of both vessels may be merged in the replacement vessel for the purpose of determining inshore cooperative allocations except that a catcher vessel with an endorsement to deliver pollock to AFA catcher/processors may not be simultaneously endorsed to deliver pollock to AFA motherships or AFA inshore processors.
(G)
(ii)
(A) Identification of lost AFA eligible vessel.
(
(
(
(
(B) Identification of replacement vessel.
(
(
(
(
(C) Certification of applicant and notary. Signature(s) and printed name(s)
(8)
(ii)
(iii)
(iv)
(v)
(k)
(1)
(ii)
(iii)
(iv)
(v)
(vi)
(B)
(vii)
(B)
(viii)
(2)
(ii)
(iii)
(iv)
(3)
(ii)
(iii)
(iv)
(A)
(B)
(v)
(vi)
(4)
(ii)
(iii) Groundfish sideboard closures. Use an AFA catcher vessel to engage in directed fishing for a groundfish species or species group in the BSAI or GOA after the Regional Administrator has issued an AFA catcher vessel sideboard directed fishing closure for that groundfish species or species group under § 679.20(d)(1)(iv), § 679.21(d)(8) or § 679.21(e)(3)(iv), if the vessel's AFA permit does not contain a sideboard exemption for that groundfish species or species group.
(iv)
(5)
(ii)
(6)
(7)
(8)
(a) * * *
(5) * * *
(i)
(
(
(
(
(
(
(
(
(
(
(
(
(ii)
(6)
(ii)
(b)
(c) * * *
(4)
(ii)
(d) * * *
(1) * * *
(iv)
(B) In establishing a directed fishing allowance under paragraph (d)(1)(iv)(A) of this section, the Regional Administrator will consider the amount of the sideboard limit established for a group of AFA vessels under § 679.64 that will be taken as incidental catch by those vessels in directed fishing for other species.
(C) If the Regional Administrator determines that a sideboard amount is insufficient to support a directed fishery for that species then the Regional Administrator may set the sideboard directed fishing allowance at zero for that species or species group.
(d) * * *
(8)
(e) * * *
(3) * * *
(v)
(c)
(1)
(2) Visibility. The owner and manager of the processor must ensure that the scale and scale display are visible simultaneously to the observer. Observers, NMFS personnel, or an authorized officer must be allowed to observe the weighing of fish on the scale and be allowed to read the scale display at all times.
(3)
(ii) A scale identified in a CMCP (see paragraph g of this section) must produce a printed record for each delivery, or portion of a delivery, weighed on that scale. If approved by NMFS as part of the CMCP, scales not designed for automatic bulk weighing may be exempted from part or all of the printed record requirements. The printed record must include:
(A) The processor name;
(B) The weight of each load in the weighing cycle;
(C) The total weight of fish in each delivery, or portion of the delivery that was weighed on that scale;
(D) The total cumulative weight of all fish or other material weighed on the scale since the last annual inspection;
(E) The date and time the information is printed;
(F) The name and ADF&G number of the vessel making the delivery. This information may be written on the scale printout in pen by the scale operator at the time of delivery.
(4)
(i)
(ii) How much weight is required to do an inseason scale test? Scales must be tested with the amount and type of weight specified below.
(iii)
(iv)
(v)
(A) Have a capacity of no less than 50 kg;
(B) Have a division size of no less than 5 g;
(C) Indicate weight in kilograms and decimal subdivisions; and
(D) Be accurate within plus or minus 0.5 percent when tested at 10 kg, 25 kg and 50 kg by NMFS staff or a NMFS-certified observer.
(g)
(1)
(2)
(3)
(i) Name and signature of the person submitting the application and the date of the application;
(ii) Address, telephone number, fax number, and email address (if available) of the person submitting the application;
(iii) A proposed CMCP detailing how the processor will meet each of the performance standards in paragraph (g)(6) of this section.
(4)
(5)
(i) Name and signature of the person submitting the addendum;
(ii) Address, telephone number, fax number and email address (if available) of the person submitting the addendum;
(iii) A complete description of the proposed CMCP change.
(6)
(ii)
(iii)
(A) Describes the procedure the plant will use to test the scale;
(B) Lists the test weights and equipment required to test the scale;
(C) Lists where the test weights and equipment will be stored;
(D) Lists the plant personnel responsible for conducting the scale testing.
(iv)
(v)
(vi)
(A)
(B)
(vii)
(A)
(B)
(C)
(D)
(E)
(viii)
(ix)
(A) Orienting new observers to the plant;
(B) Assisting in the resolution of observer concerns;
(C) Informing NMFS if changes must be made to the CMCP.
(x)
(A) The delivery point;
(B) The observation area;
(C) The observer work station;
(D) The location of each scale used to weigh catch;
(E) Each location where catch is sorted.
(a)
(2)
(c) * * *
(3) * * *
(vi)
(c) * * *
(4) * * *
(i)
(B)
(5)
(B)
(ii)
(d) * * *
(5)
(ii)
(iii)
Regulations under this subpart were developed by the National Marine Fisheries Service and the North Pacific Fishery Management Council to implement the American Fisheries Act (AFA) [Div. C, Title II, Subtitle II, Pub. L. No. 105-277, 112 Stat. 2681 (1998)]. Additional regulations in this part that implement specific provisions of the AFA are set out at § 679.2 Definitions, 679.4 Permits, 679.5 Recordkeeping and reporting, 679.7 Prohibitions, 679.20 General limitations, 679.21 Prohibited species bycatch management, 679.28 Equipment and operational requirements for Catch Weight Measurement, 679.31 CDQ reserves, and 679.50 Groundfish observer program. Regulations developed by the Department of Transportation to implement provisions of the AFA are found at 50 CFR part 356.
(a)
(b)
(1)
(2)
(c)
(d)
(e)
(f)
(g)
(1) List of parties to the contract,
(2) List of all vessels and processors that will harvest and process pollock harvested under the cooperative,
(3) Specify the amount or percentage of pollock allocated to each party to the contract, and
(4) Specify a designated representative and agent for service of process.
(5) Include a contract clause under which the parties to the contract agree to make payments to the State of Alaska for any pollock harvested in the directed pollock fishery which is not landed in the State of Alaska, in amounts which would otherwise accrue had the pollock been landed in the State of Alaska subject to any landing taxes established under Alaska law. Failure to include such a contract clause or for such amounts to be paid will result in a revocation of the authority to form fishery cooperatives under section 1 of the Act of June 25, 1934 (15 U.S.C. 521
(h)
(1) The aggregate individual vessel sideboard limits issued to all member vessels in a cooperative must not exceed
(2) In the case of two or more cooperatives that have entered into an inter-cooperative agreement, the aggregate individual vessel sideboard limits issued to all member vessels subject to the inter-cooperative agreement must not exceed the aggregate contributions of each member vessel towards the overall groundfish sideboard amount as calculated by NMFS under § 679.64(b) and as announced by the Regional Administrator.
(i)
(j)
(k)
(1) The cooperative's allocated catch of pollock and sideboard species, and any sub-allocations of pollock and sideboard species made by the cooperative to individual vessels on a vessel-by-vessel basis;
(2) The cooperative's actual retained and discarded catch of pollock, sideboard species, and PSC on an area-by-area and vessel-by-vessel basis;
(3) A description of the method used by the cooperative to monitor fisheries in which cooperative vessels participated; and
(4) A description of any actions taken by the cooperative in response to any vessels that exceed their allowed catch and bycatch in pollock and all sideboard fisheries.
(l)
(a)
(b)
(1)
(2)
(3)
(4)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(2)
(b)
(c)
(2) The plant manager or plant liaison must notify the observer of the offloading schedule for each delivery of BSAI pollock by an AFA catcher vessel at least 1 hour prior to offloading. An observer must monitor each delivery of BSAI pollock from an AFA catcher vessel and be on site the entire time the delivery is being weighed or sorted.
(a)
(1)
(ii)
(2)
(ii) If the amount of Pacific ocean perch calculated under paragraph (a)(1)(ii)(A) of this section is determined by the Regional Administrator to be insufficient to meet bycatch needs of AFA catcher/processors in other directed fisheries for groundfish, the Regional Administrator will prohibit directed fishing for Aleutian Islands Pacific ocean perch by AFA catcher processors and establish the sideboard amount equal to the amount of Aleutian Islands Pacific ocean perch caught by AFA catcher processors incidental to directed fishing for other groundfish species.
(3)
(i) Bering Sea subarea and Eastern Aleutian Islands, zero;
(ii) Central Aleutian Islands, 11.5 percent of the annual TAC specified for Atka mackerel; and
(iii) Western Aleutian Islands, 20 percent of the annual TAC specified for Atka mackerel.
(4)
(ii)If the amount of a species calculated under paragraph (a)(1)(iv) of this section is determined by the Regional Administrator to be insufficient to meet bycatch needs for AFA catcher/processors in other directed fisheries for groundfish, the Regional Administrator will prohibit directed fishing for that species by AFA catcher processors and establish the sideboard amount equal to the amount of that species caught by AFA catcher processors incidental to directed fishing for other groundfish species.
(5)
(6)
(b)
(1)
(2)
(B) AFA catcher vessels with mothership endorsements are exempt from BSAI Pacific cod catcher vessel sideboard directed fishing closures after March 1 of each fishing year.
(ii)
(3)
(i)
(ii)
(iii)
(4)
(5)
(a)
(b)
(c)
(d)
(e)
(f)
Environmental Protection Agency (EPA).
Direct final rule; amendments.
The EPA is taking direct final action to amend the national emission standards for hazardous air pollutants (NESHAP) for phosphoric acid manufacturing plants and the NESHAP for phosphate fertilizers production plants which were promulgated on June 10, 1999 under authority of section 112 of the Clean Air Act (CAA). The NESHAP apply to owners and operators of phosphoric acid and phosphate fertilizers production facilities that are major sources of hazardous air pollutants (HAP). The EPA is amending specific provisions in the NESHAP to resolve issues and questions raised after promulgation of the final rules. The amendments do not significantly change EPA's original projections for the environmental benefits, compliance costs, and burden on industry, and do not affect the number of affected facilities.
The direct final rule will be effective on February 15, 2002 without further notice, unless significant adverse comments are received by January 16, 2002.
If significant material adverse comments are received by January 16, 2002, this direct final rule will be withdrawn and the comments addressed in a subsequent final rule based on the proposed rule. If no significant material adverse comments are received, no further action will be taken on the proposal and this direct final rule will become effective on February 15, 2002.
Ms. Tanya Medley, Minerals and Inorganic Chemicals Group, Emission Standards Division (MC-C504-05), U.S. EPA, Research Triangle Park, North Carolina 27709, telephone number (919) 541-5422, facsimile number (919) 541-5600, electronic mail (e-mail) address: medley.tanya@epa.gov.
If we receive any significant adverse comments, we will publish a timely withdrawal in the
The docket is an organized and complete file of all the information considered by EPA in the development of this direct final rulemaking. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated rules and their preambles, the contents of the docket will serve as the record in the case of judicial review. The docket number for this rulemaking is A-94-02.
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria of the rules. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Under section 307(b)(1) of the CAA, judicial review of this direct final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by February 15, 2002. Under section 307(d)(7)(B) of the CAA, only an objection to a rule or procedure raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by this direct
The information presented in this preamble is organized as follows:
The EPA, under 40 CFR part 63, subparts AA and BB, promulgated NESHAP for Phosphoric Acid Manufacturing Plants and Phosphate Fertilizers Production Plants. The NESHAP established standards to control HAP emissions from facilities producing phosphoric acid and phosphate fertilizers. The standards were promulgated on June 10, 1999 (64 FR 31358).
On August 4, 1999, The Fertilizer Institute filed for judicial review of the NESHAP, as provided for in CAA section 307(b), with respect to certain provisions regarding emissions standards for phosphate rock calciners, monitoring requirements in general, and applicability of the general provisions.
The EPA is amending 40 CFR part 63, subpart AA, to correct errors, to revise the emissions limit for phosphate rock calciners, to clarify certain monitoring requirements, and to clarify applicability of certain parts of the general provisions.
The EPA promulgated standards for phosphate rock calciners based on performance of the floor technology which was identical wet scrubbing technology installed on six identical calciners at one facility, plus data from a calciner with wet scrubbers at a second facility. The promulgated standard under 40 CFR 63.602 for existing calciners of 0.1380 grams per dry standard cubic meter (g/dscm)(0.060 grains per dry standard cubic foot (gr/dscf)) was based on emissions data for the floor technology which was available to EPA at that time. Subsequent to the petition, additional emissions and operating data from compliance tests of those same scrubbers over a 7-year period were submitted to EPA. The data covered a range that exceeded the promulgated standards. Therefore, upon review of the operating and emission data from the same scrubbers upon which the promulgated standards were based, the EPA is changing the emission standard under 40 CFR 63.602 for existing calciners to 0.1810 g/dscm (0.080 gr/dscf).
The standards for new phosphate rock dryers in 40 CFR 63.603(c) are being revised to correct an error in the units of the standards. The promulgated rule included units of kilogram/metric ton per megagram of phosphate rock feed. The standards are being corrected to units of kilogram/megagram of phosphate rock feed.
The promulgated monitoring requirements under 40 CFR 63.605 require the owner or operator of each new or existing phosphate rock dryer or phosphate rock calciner to install a system to permanently record the mass flow of feed material to the process. Due to process variations and available measurement techniques, it is easier to accurately measure the rock dryer and calciner outputs than to measure the input. Therefore, the EPA is revising 40 CFR 63.605 to specify that the phosphate rock dryer and phosphate rock calciner output rates be monitored and recorded. That change does not affect the stringency of the standards for those sources. Since the standards for rock dryers under 40 CFR 63.602 and 63.603 are in the format of kilogram/megagram or metric ton (pounds/ton) of rock feed, the owner/operator of the source will either need to measure the feed rate and production rate during compliance tests, or measure the product rate and the moisture contents of the feed and output product to then calculate the feed rate and show compliance.
The EPA is amending 40 CFR part 63, subparts AA and BB, for applicability, monitoring requirements, and applicability of the general provisions.
The applicability criteria in 40 CFR 63.600 and 63.620 are being clarified to state that excursions from applicable emissions limits and operating parameter ranges during periods of startup, shutdown or malfunction are not violations of the standards, provided the source is operated in accordance with the Startup, Shutdown, and Malfunction Plan submitted pursuant to 40 CFR 63.6(e)(3) and complies with the duty pursuant to 40 CFR 63.6(e)(i) to operate in a manner consistent with good air pollution control practices for minimizing emissions.
The monitoring requirements in 40 CFR 63.605(d) and 63.625(f) are being clarified to specifically identify the averaging period as a daily average. The monitoring requirements in 40 CFR 63.605(d) and 63.625(f) are being clarified to allow a source to retain a previously established parameter range if the last compliance test shows compliance with the emissions limits and the operating parameters fall within the established range.
The monitoring requirements in 40 CFR 63.605(d) and 63.625(f) are being changed to correct an error. Those sections as promulgated require compliance with new operating parameter ranges the day after a new compliance emissions test. That cannot be done as test samples need to be analyzed, and any new parameter ranges need to be established. Therefore, those
The applicability of the general provisions requirements in 40 CFR 63.608 and 63.628 both refer to an appendix A in each rule. Both appendices list 40 CFR part 63, subpart A citations to § 63.6(e)(1) and (2), (e)(3), and (f) in the first column of each table and show a comment column with comments regarding additional requirements. The comments portion for the citations was erroneously included in the promulgated rules and are deleted under this action.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and, therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that the amendments do not constitute a “significant regulatory action” because they do not meet any of the above criteria. Consequently, this action was not submitted to OMB for review under Executive Order 12866.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless EPA consults with State and local officials early in the process of developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and EPA's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, the EPA must include a certification from the EPA's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.
The rule amendments 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. The rule amendments would not impose directly enforceable requirements on States, nor would they preempt them from adopting their own more stringent programs to control emissions. Thus, the requirements of section 6 of the Executive Order do not apply to these rule amendments.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
The rule amendments do not have tribal implications. They will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. No tribal governments are known to own or operate phosphoric acid manufacturing facilities or phosphate fertilizers production facilities. Thus, Executive Order 13175 does not apply to the rule amendments.
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. These rule amendments are not subject to Executive Order 13045 because they are based on technology performance, not health or safety risks. Furthermore, the rule amendments have been determined
The direct final rule amendments are not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because they are not significant regulatory actions under Executive Order 12866.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed, under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Because today's amendments do not add new requirements or costs, the EPA has determined that the rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Thus, the amendments are not subject to the requirements of sections 202 and 205 of the UMRA. In addition, the EPA has determined that the rule amendments contain no regulatory requirements that might significantly or uniquely affect small governments because they contain no regulatory requirements that apply to such governments or impose obligations upon them. Therefore, today's rule amendments are not subject to the requirements of section 203 of the UMRA.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this direct final rule on small entities, the EPA found that 2 of the 21 firms that potentially could be subject to the standards are small firms. Of the two, data indicate that one is an area source which would not be covered by the standards. The second source could be major and subject to the requirements of the standards. Information available to EPA shows, however, that the second source is able to achieve the control levels associated with the promulgated rules using existing equipment. The second source would not be significantly impacted by this proposed action because it clarifies and makes corrections to the promulgated rules but imposes no additional regulatory requirements.
Because today's rule amendments impose no additional regulatory requirements on owners or operators of phosphoric acid manufacturing plants or phosphate fertilizers production plants, the EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities.
The OMB has approved the information collection requirements contained in the phosphoric acid manufacturing and phosphate fertilizers production NESHAP under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The amendments contained in this direct final rule will have no net impact on the information collection burden estimates made previously. Consequently, the ICR has not been revised.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law 104-113 (March 7, 1996), directs all Federal agencies to use voluntary consensus standards instead of government-unique standards in their regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when EPA does not use available and applicable voluntary consensus standards.
This action does not involve the use of any new technical standards. Accordingly, the NTTAA requirement to use applicable voluntary consensus standards does not apply to this direct final rule.
The Congressional Review Act, 5 U.S.C. 801,
Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(a) Except as provided in paragraphs (c), (d), and (e) of this section, the requirements of this subpart apply to the owner or operator of each phosphoric acid manufacturing plant.
(e) The emission limitations and operating parameter requirements of this subpart do not apply during periods of startup, shutdown, or malfunction, as those terms are defined in § 63.2, provided that the source is operated in accordance with § 63.6(e)(1)(i) and the Startup, Shutdown, and Malfunction Plan submitted pursuant to § 63.6(e)(3).
(d)
4. Section 63.603 is amended by revising paragraph (c) to read as follows:
(c)
a. Redesignating paragraph (a) as paragraph (a)(1) and revising newly designated paragraph (a)(1);
b. Adding new paragraph (a)(2);
c. Revising paragraph (b)(2); and
d. Revising paragraphs(d)(1) and (2).
The revisions and additions read as follows:
(a)(1) Each owner or operator of a new or existing wet-process phosphoric acid process line or superphosphoric acid process line subject to the provisions of this subpart shall install, calibrate, maintain, and operate a monitoring system which can be used to determine and permanently record the mass flow of phosphorus-bearing feed material to the process. The monitoring system shall have an accuracy of ±5 percent over its operating range.
(2) Each owner or operator of a new or existing phosphate rock dryer or phosphate rock calciner subject to the provisions of this subpart shall install, calibrate, maintain, and operate a monitoring system which can be used to determine and permanently record either the mass flow of phosphorus-bearing feed material to the dryer or calciner, or the mass flow of product from the dryer or calciner. The monitoring system shall have an accuracy of ±5 percent over its operating range. Since the emissions limits under §§ 63.602(c) and 63.603(c) for the phosphate rock dryer are in the format of kilogram/megagram (lb/ton) of phosphate rock feed, during performance testing required in § 63.606, the owner or operator that chooses to operate a monitoring system to determine and permanently record the mass flow of product from the dryer must either simultaneously monitor the dryer feed rate and dryer output rate, or monitor the dryer output rate and the dryer input and output moisture contents and calculate the corresponding dryer input rate.
(b)(1) * * *
(2) Each owner or operator of a new or existing phosphate rock calciner or phosphate rock dryer subject to the provisions of this subpart shall maintain a daily record of the following:
(i) For owners and operators that monitor the mass flow of phosphorus-bearing feed material to the dryer or calciner, a daily record of phosphate rock feed by determining the total mass rate in metric ton/hour of phosphorus-bearing feed using a monitoring system for measuring mass flowrate which meets the requirements of paragraph (a)(2) of this section.
(ii) For owners and operators that monitor the mass flow of product from the dryer or calciner, a daily record of product by determining the total mass rate in metric ton/hour of product using a monitoring system for measuring mass flowrate which meets the requirements of paragraph (a)(2) of this section.
(d) * * *
(1) The allowable range for the daily averages of the pressure drop across each scrubber and of the flow rate of the scrubbing liquid to each scrubber in the process scrubbing system is ±20 percent of the baseline average value determined as a requirement of § 63.606(c)(4), (d)(4), or (e)(2). The Administrator retains the right to reduce the ±20 percent adjustment to the baseline average values of operating ranges in those instances where performance test results indicate that a source's level of emissions is near the value of an applicable emissions standard, but, in no instance shall the adjustment be reduced to less than ±10 percent. The owner or operator must notify the Administrator of the baseline average value and must notify the Administrator each time that the baseline value is changed as a result of the most recent performance test. When a source using the methodology of this paragraph is retested, the owner or operator shall determine whether new allowable ranges of baseline average values will be based upon the new performance test or (if the new performance test results are within the previously established range) whether there will be no change in the operating parameters derived from previous tests. When a source using the methodology of this paragraph is retested and the performance test results are submitted to the Administrator pursuant to §§ 63.607(c)(1), 63.7(g)(1), and/or 63.10(d)(2), the owner or operator will indicate whether the operating range will be based on the new performance test or the previously established range. If the Administrator has not denied approval of the new operating ranges within 30 days of submission of the
(2) The owner or operator of any new or existing affected source shall establish, and provide to the Administrator for approval, allowable ranges for the daily averages of the pressure drop across and of the flow rate of the scrubbing liquid to each scrubber in the process scrubbing system for the purpose of assuring compliance with this subpart. Allowable ranges may be based upon baseline average values recorded during previous performance tests using the test methods required in § 63.606(c)(4), (d)(4), or (e)(2). As an alternative, the owner or operator can establish the allowable ranges using the results of performance tests conducted specifically for the purposes of this paragraph using the test methods required in this subpart and established in the manner required in § 63.606(c)(4), (d)(4), or (e)(2). The source shall certify that the control devices and processes have not been modified subsequent to the testing upon which the data used to establish the allowable ranges were obtained. The allowable ranges developed pursuant to the provisions of this paragraph must be submitted to the Administrator for approval. The owner or operator must request and obtain approval of the Administrator for changes to the allowable ranges. When a source using the methodology of this paragraph is retested, the owner or operator shall determine new allowable ranges of baseline average values unless the retest indicates no change in the operating parameters outside the previously established ranges. If the Administrator has not denied approval of the new operating ranges within 30 days of submission of the performance test results, the new ranges shall be deemed approved and the new baseline value shall then be effective on the 31st day following submission.
(a) Except as provided in paragraphs (c), (d), and (e) of this section, the requirements of this subpart apply to the owner or operator of each phosphate fertilizers production plant.
(e) The emission limitations and operating parameter requirements of this subpart do not apply during periods of startup, shutdown, or malfunction, as those terms are defined in § 63.2, provided that the source is operated in accordance with § 63.6(e)(1)(i) and the Startup, Shutdown, and Malfunction Plan submitted pursuant to § 63.6(e)(3).
(f) * * *
(1) The allowable range for the daily averages of the pressure drop across each scrubber and of the flow rate of the scrubbing liquid to each scrubber in the process scrubbing system is ±20 percent of the baseline average value determined as a requirement of § 63.626(c)(4) or (d)(4). The Administrator retains the right to reduce the ±20 percent adjustment to the baseline average values of operating ranges in those instances where performance test results indicate that a source's level of emissions is near the value of an applicable emissions standard, but in no instance shall the adjustment be reduced to less than ±10 percent. The owner or operator must notify the Administrator of the baseline average value and must notify the Administrator each time that the baseline value is changed as a result of the most recent performance test. When a source using the methodology of this paragraph is retested, the owner or operator shall determine whether new allowable ranges of baseline average values will be based upon the new performance test or (if the new performance test results are within the previously established range) whether there will be no change in the operating parameters derived from previous tests. When a source using the methodology of this paragraph is retested and the performance test results are submitted to the Administrator pursuant to §§ 63.627(c)(1), 63.7(g)(1), and/or 63.10(d)(2), the owner or operator will indicate whether the operating range will be based on the new performance test or the previously established range. If the Administrator has not denied approval of the new operating ranges within 30 days of submission of the performance test results, the new ranges shall be deemed approved and the new baseline value shall then be effective on the 31st day following submission.
(2) The owner or operator of any new or existing affected source shall establish, and provide to the Administrator for approval, allowable ranges for the daily averages of the pressure drop across and of the flow rate of the scrubbing liquid to each scrubber in the process scrubbing system for the purpose of assuring compliance with this subpart. Allowable ranges may be based upon baseline average values recorded during previous performance tests using the test methods required in § 63.626(c)(4) or (d)(4). As an alternative, the owner or operator can establish the allowable ranges using the results of performance tests conducted specifically for the purposes of this paragraph using the test methods required in this subpart and established in the manner required in § 63.626(c)(4) or (d)(4). The source shall certify that the control devices and processes have not been modified subsequent to the testing upon which the data used to
Environmental Protection Agency (EPA).
Proposed rule; amendments.
The EPA is proposing to amend the national emission standards for hazardous air pollutants (NESHAP) for phosphoric acid manufacturing plants and the NESHAP for phosphate fertilizers production plants which were promulgated on June 10, 1999 under authority of section 112 of the Clean Air Act (CAA). This action proposes to amend specific provisions in the NESHAP to resolve issues and questions raised after promulgation of the NESHAP. The proposed amendments would revise the emissions limit for phosphate rock calciners and clarify several provisions regarding parameter monitoring and the applicability of the general provisions.
In the Rules and Regulations section of this
If we receive no adverse comments, we will take no further action on this proposed rule. If we receive adverse comments, we will publish a timely withdrawal of the direct final rule in the
Ms. Tanya Medley, Minerals and Inorganic Chemicals Group, Emission Standards Division (MC-C504-05), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5422, facsimile number (919) 541-5600, electronic mail (e-mail) address: medley.tanya@epa.gov.
A direct final rule identical to this proposal is published in the Rules and Regulations section of this
The regulatory text for this proposal is identical to that for the direct final rule published in the Rules and Regulations section of this
Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: OAQPS Document Control Officer, MC-C404-02, Attn: Ms. Tanya Medley, U.S. EPA, Research Triangle Park, NC 27709. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by EPA, the information may be made available to the public without further notice to the commenter.
Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Tanya Medley, U.S. EPA, MC-C504-05, Research Triangle Park, NC 27709, telephone (919) 541-5422, at least 2 days in advance of the public hearing. Persons interested in attending the public hearing must also call Ms. Tanya Medley to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed amendments.
The docket is an organized and complete file of all the information considered by the EPA in the development of this rulemaking. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated rules and their preambles, the contents of the docket will serve as the record in the case of judicial review. (See section
The regulated category and entities affected by this action include:
This table is not intended to be exhaustive, but rather provides a guide for readers likely to be interested in the revisions to the rule affected by this action. To determine whether your facility, is regulated by this action, you should examine the applicability criteria of the rules. If you have questions regarding the applicability of these proposed amendments to a particular entity, consult the person listed in the preceding
For a complete discussion of all of the administrative requirements applicable to this action, see the direct final rule in the Rules and Regulations section of this
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on small entities, the EPA found that 2 of the 21 firms that potentially could be subject to the standards are small firms. Of the two, data indicate that one is an area source which would not be covered by the standards. The second source could be major and subject to the requirements of the standards. Information available to EPA shows, however, that the second source is able to achieve the control levels associated with the promulgated rules using existing equipment. The second source would not be significantly impacted by this proposed action because it clarifies and makes corrections to the promulgated rules but imposes no additional regulatory requirements.
Because the proposed rule amendments impose no additional regulatory requirements on owners or operators of phosphoric acid manufacturing plants or phosphate fertilizers production plants, I certify that this action will not have a significant economic impact on a substantial number of small entities.
For information regarding other administrative requirements for this action, please see the direct final rule action that is located in the Rules and Regulations section of this
Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
A Letter of Intent is
The estimated amount of funds available for new awards is based on the Administration's request for this program for FY 2002. The actual level of funding, if any, depends on final congressional action. However, we are inviting applications to allow enough time to complete the grant process if Congress appropriates funds for this program.
The Department is not bound by any estimates in this notice.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the research narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12-point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to the title page form, the one-page abstract, the budget summary form and narrative budget justification, the curriculum vitae, literature cited, or the assurances and certifications.
Our reviewers will not read any pages of your application that—
• Exceed the page limit if you apply these standards; or
• Exceed the equivalent of the page limit if you apply other standards.
We have found that reviewers are able to conduct the highest quality review when applications are concise and easy to read, with pages consecutively numbered.
Strong applications for Preschool Curriculum Evaluation Research (PCER) grants clearly address each of the applicable selection criteria. They make a well-reasoned and compelling case for the national significance of the problems or issues that will be the subject of the proposed research, and present a research design that is complete, clearly delineated, and incorporates sound research methods. In addition, the personnel descriptions included in strong applications make it apparent that the project director, principal investigator, and other key personnel possess training and experience commensurate with their duties.
The meeting site is accessible to individuals with disabilities. If you will need an auxiliary aid or service to participate in the meeting (e.g., interpreting service, assistive listening device, or materials in an alternate format), notify the contact person listed under
Research has long established the importance of early experiences in supporting successful child development. More recently, the focus has turned to the role of early child-care and preschool experiences in supporting cognitive development and other skills that are essential for successful transition into school. Policy makers have begun to respond to the mounting evidence of the importance of early experience with calls to provide better quality preschool programs. For example, The National Research Council's 2000 report, Eager to Learn, concluded that: “Many children,
The evidence that would allow informed choices of classroom curricula for early childhood programs is weak. When rigorous preschool program evaluations exist, they are for programs designed and delivered decades ago. Most currently available curricula have no link to those historical programs, and those that do have changed in content and method of delivery as they have evolved over the years. While the results from historical evaluations of preschool curricula and current research on the learning and development of young children provide some insights into general features of successful preschool programs, they give little guidance for selecting from among the ever-expanding list of available preschool curricula. For example, the State of Georgia, which has a universal pre-K program, allows providers to choose among seven different nationally available curricula. There is little evidence that would allow providers to make an informed choice among these curricula. New York, another state providing universal pre-K, does not provide a list of approved curricula. Instead it requires that approved providers deliver a curriculum that conforms to general guidelines such as meeting “the social, cognitive, linguistic, emotional, cultural and physical needs of all eligible children.” However, there is little evidence for choosing among curriculum options based on such guidelines. The Preschool Curriculum Evaluation Research (PCER) grants are intended to address the lack of rigorous, systematic evaluation of preschool curricula that are currently in use for children in the pre-K years.
PCER is intended to build on recent initiatives aimed at evaluating the preschool experiences of children. In 1997, Head Start undertook The Family and Child Experiences Survey (FACES), a large-scale national study of Head Start programs. FACES is a national longitudinal study of the cognitive, social, emotional, and physical development of children; the characteristics, well-being, and accomplishments of their families; the observed characteristics of their classrooms; and the characteristics, needs, and opinions of their teachers and other program staff. In addition, the Early Childhood Longitudinal Survey-Kindergarten (ECLS-K) and the Early Childhood Longitudinal Survey-Birth Cohort (ECLS-B), both ongoing projects of the National Center for Education Statistics within OERI, offer additional insight into how to measure family, school, and individual variables using a set of measures that overlap substantially with the FACES measures. The FACES measures will form the core set of indicators used in PCER funded projects.
The outcomes of greatest interest to PCER are those skills that are most highly predictive of academic success in the early years of elementary school and that are most amenable to influence by factors within the realm of classroom curricula and practice. These outcomes include language development, pre-reading and pre-math abilities, cognition, general knowledge, and social competence.
The curricula of primary interest to PCER are those with sufficient standardized training procedures and published curriculum materials to support implementation of the curriculum by entities other than and at a distance from the curriculum developers. In addition, the curricula of interest to PCER are those that focus on the child outcomes described above, and those with instructional approaches that find support in the scientific literature on learning and instruction. These will be existing curricula that are already in use in a number of sites. PCER is not intended to support the development of new curricula; that will be the focus of other programs of research to be sponsored by the Interagency Task Force.
Grantees will coordinate with a national evaluation contractor (to be funded separately by OERI) to ensure that evaluations carried out in different locations follow consistent protocols and use a core set of comparable measures. The national contractor will be responsible for collecting pre- and post-intervention data and kindergarten and first grade follow-up data on children and classrooms, and for analysis and reporting of these data across program sites. This type of centralized data coordination mechanism has been found to be important in maximizing the systematic collection of cross-site knowledge obtained from multiple research projects. The cross-site data will be returned to applicants in a timely manner to serve as a basis for local analyses (as part of any complementary research), as well as eventually made available in public use datasets. Additional local measures and data analysis of implementation and outcomes may be carried out by the applicants as part of complementary research projects (described subsequently) using program funds. This arrangement allows applicants to consider more intensive data collection approaches to augment the available core measures. Cooperative agreement budgets should include costs of data collection for local measures, assuming a common core of data to be provided by the external data collection center without cost to the grantee.
The core set of evaluation data collected by the national contractor will utilize FACES instruments to measure both classroom and family characteristics and practices, and child outcomes. Children, parents and preschool staff participate in data collection. In addition, the preschool classrooms are assessed by outside observers. The FACES instruments cover a range of areas. The primary focus is on child outcomes, including cognitive outcomes assessed using standard instruments such as the Woodcock-Johnson Letter Word Identification, and socio-emotional outcomes such as social skills ratings completed by the teacher. For purposes of calculating participant burden, the current FACES child direct assessment is completed in approximately 30 minutes per child. For a full listing of the measures used in the 1997-2000 FACES study, please see
Applicants must consider methods for assessing the characteristics of the preschool program(s), including those programs that serve as controls. Such methods could examine such factors as allocation of time during the preschool day, nature of interactions between children and teacher, and fidelity of the curriculum implementation.
Applicants may also propose complementary research studies to further our knowledge of the mechanisms by which curricula support children's learning, including the
The complementary research studies are intended to supplement, complement and enrich the core evaluation. Investigators will have an opportunity to explore mediating events or the theoretical pathways that explain the results that are obtained in the evaluation. In addition, complementary research provides an opportunity to identify outcomes that, because of data constraints, are not explored in the core evaluation or are specific to an individual site. It also expands the possibilities for multiple measures of the same construct, and for the development of new measures.
Two areas of complementary research are of particular interest:
(1) Studies that address how individual or background differences in children interact with the curriculum to influence developmental outcomes. Such studies would address the question, for which children under which conditions is the curriculum most successful?
(2) Studies that compare different versions of the curriculum or different approaches to implementation in order to identify key features of the curriculum and approaches that might improve effectiveness and ease of implementation. Such studies would address the question, under what circumstances does the curriculum achieve the greatest impact?
Specific complementary research questions might include:
Individual differences: How are age, gender, language, disability, and other key child characteristics, as well as cultural issues, addressed? How do family characteristics interact with the child's preschool experience to influence school readiness? To what populations are evaluation results likely to be generalizable? For which children is the curriculum most effective/least effective and why?
Grantees will be required to propose a research and evaluation work plan that will be negotiated between the applicant and OERI and updated on a yearly basis. The work plan proposed by the applicant will include details of how the evaluation will be implemented,
PCER projects will be funded for up to a four-year period. Evaluation designs should include both short term and long term outcomes. Initial results are expected at the end of the first year of curriculum implementation. Long term outcomes should include follow-up into kindergarten and first grade. Applicants should plan for an implementation in pre-K classrooms in year 1, follow-up into kindergarten in year 2, follow-up into first grade in year 3, and completion of data analysis and reports in year four. Complementary research designs could involve continued pre-K implementations and ongoing research in the pre-K setting for some or all years of the grant, while children in the first cohort are being followed up into first grade.
In the event that a PCER project does not generate meaningful differences between intervention and control classrooms in terms of children's outcomes at the end of year 1, and when this lack of effect appears to be attributable to unforeseen and remediable problems in implementation, grantees will be given a second year of funding to repeat a pre-K implementation of their selected curriculum. When curriculum effects on children's outcomes are not obtained at the end of the pre-K year, and this lack of effect appears to be a valid indicator of program ineffectiveness, grantees will be encouraged to implement and evaluate curricula that have proven effective as deployed by other grantees.
OERI will use a cooperative agreement mechanism that allows substantial Federal involvement in the activities undertaken with Federal financial support. Details of the responsibilities, relationships and governance of the cooperative agreement will be elaborated in the terms and conditions of the award. The specific responsibilities of the Federal staff and project staff will be identified and agreed upon prior to the award of each cooperative agreement.
This competition focuses on projects designed to meet the following absolute priority. Under 34 CFR 75.105(c)(3) we consider only applications that meet this priority.
The preschool curriculum evaluation research grants are designed to determine through a randomized clinical trial whether one or more curricula produce educationally meaningful effects on children's outcomes. Each grantee must implement one or more identified pre-K curricula, including attention to fidelity of the curriculum implementation; and coordinate with a national contractor the assessment of children and classrooms in the fall and spring of the pre-K year, and in the spring of the kindergarten and first grade year.
Specifically, successful applicants must:
(1) Obtain agreement of a sufficient number of preschool sites to participate in the study;
(2) Obtain agreement of the cooperating sites to random assignment of children or classrooms to the
(3) Obtain informed consent of parents of children participating in the study, and all teachers and other administrators from whom data will be collected;
(4) Provide all necessary materials and professional development to teachers and staff to implement the curriculum to be evaluated in the intervention classrooms;
(5) Make all on-site arrangements necessary for the national contractor to conduct assessments of participating children and classrooms;
(6) Obtain parent and teacher interview data; and
(7) Provide an on-site coordinator to manage all aspects of data collection, curriculum implementation, and interaction with the national contractor.
Complementary research projects may be embedded within the evaluation design or include additional data collection activities. However, activities related to the complementary research must not compromise the core evaluation responsibilities and are not required in order to receive funding.
Applicants who are research organizations are free to involve curriculum developers or distributors in the project as they think best, from having the curriculum developers as full partners in their proposals to utilizing off-the-shelf curriculum materials without involvement of the developer or publisher. Involvement of the curriculum developer or distributor must not jeopardize the objectivity of the evaluation and must not involve a level of professional training or support for the curriculum that rises above that available to ordinary adopters of the curriculum. Applicants who are not research organizations will need to obtain the services of at least one consultant who is an established researcher and who has committed enough time to the project to assure the integrity of the local evaluation and to participate in all required meetings. Applicants who are commercial curriculum developers should indicate in the budget summary the value of any nonfederal resources that will be devoted to the research project, such as their curriculum products.
Applicants must employ random assignment in the evaluation design. Preschool program(s) that are to be the sites for curriculum implementation must agree to cooperate fully with the random assignment as a condition for the applicant to receive an award under this announcement. In order to facilitate random assignment, applicants are encouraged to consider the use of incentives for schools and families. These may include: Compensation for additional preschool staff time required to cooperate with the research effort; funding for a new classroom; provision of additional resources to enable a program to conduct new activities; securing vehicles for transportation; stipends to families, etc.
In proposing a curriculum for evaluation and in the evaluation design, applicants should consider the following questions:
(1) What scientific research supports the use of this particular curriculum to improve school readiness or other identified outcomes?
(2) What levels of staff qualifications are required?
(3) What training and materials are needed?
(4) What are the costs of the curriculum in terms of materials and professional training and support?
(5) How is classroom or program practice to be affected?
(6) How will fidelity of the curriculum be maintained over the program year?
(7) What are possible program staff or family barriers to acceptance?
Applicants need to pay special attention to the nature of the curriculum or approach that will be used in control classrooms. Successful applicants for this initial round of PCER awards are not expected to compare different well-articulated well-implemented preschool curricula, though such applications are not discouraged. Rather, we expect the typical applicant to propose to implement a well articulated, well-implemented curriculum in preschools in which the prevailing approach is a home grown, garden variety, unlabeled preschool experience that is short on specific instructional goals and that lacks a detailed curriculum. That existing practice would continue in the classrooms randomized into the control condition. Applicants who propose a control condition in which the curriculum is one that might well be proposed as the intervention condition by another applicant should provide a convincing rationale for their intervention being likely to improve children's outcomes compared with the known effects of the curriculum used in the control condition. In this regard and for all the projects, the ethics of random assignment require a reasonable assumption that children in the intervention classrooms will experience neutral to positive outcomes compared with children in the control classrooms, rather than negative outcomes.
Because children who are most unprepared for entry into school are found disproportionately among low-income households, and because variations in the quality of preschool programs appear to have their greatest effects among such children, applicants must either focus on preschools that serve children from low-income backgrounds or assure that such children are present in significant numbers within the preschool classrooms that are sampled.
Applicants will follow children who participate in studies of PCER curricula that generate educationally meaningful effects at the end of the pre-K year into kindergarten and first grade. Assessment of children at follow-up in both the intervention and control conditions will be the responsibility of the national contractor. However, all arrangements to allow such assessments to occur, including obtaining parent permission and negotiating access to children for testing in their schools, will be the responsibility of the successful applicant. Applicants must address how they will provide access to children for follow-up testing.
Applicants must be able to guarantee access to a minimum of 10 classrooms with a total of 150 children. Children included must be in the age range such that they would be eligible for entrance into public kindergarten in the following year. In addition, the evaluation design must include attention to the following:
(1) Description of the control condition and the intervention condition(s).
(2) Explanation of procedures for random assignment and discussion of procedures for tracking fidelity to the assignment and potential sources of contamination.
(3) Logic of sampling so as to capture, to the degree possible, diversity in the preschool population studied. Core variables to consider for capturing diversity include: race, ethnicity/language status; household income; parental education.
(4) Discussion of possible variations in the structure of the participating preschool program(s) (part-day or full day, public or private, profit or non-profit, etc.) and how these variations will be taken into consideration in the evaluation design.
Applicants must provide a letter of cooperation from participating preschool programs for the purposes of conducting the research, with the responsibilities of the preschool program clearly indicated and accepted in the letter of cooperation. The applicant must be willing to work with the national evaluation contractor for the collection of cross-site data, in
Under the Administrative Procedure Act (5 U.S.C. 553) the Department generally offers interested parties the opportunity to comment on proposed regulations. However, in order to make timely grant awards in FY 2002, the Secretary has decided to issue this application notice without first publishing a proposed priority for public comment. These regulations will apply to the FY 2002 grant competition only. The Secretary takes this action under section 437(d)(1) of the General Education Provisions Act.
OERI is conducting its first grant competition under the national research institutes authority for the purpose of funding projects that will implement rigorous evaluations of classroom curricula currently in use for the pre-K years (20 U.S.C. 6031). This new program of research is intended to address the critical question of which curricula produce or contribute to educationally meaningful outcomes for children of this age. As noted earlier, the evidence that would allow informed choices of classroom curricula for early childhood programs is weak or non-existent. Thus, for the first time, OERI is soliciting applications that will address the lack of rigorous, systematic study and evaluation of existing curricula.
In a separate
Heidi Schweingruber, U.S. Department of Education, 555 New Jersey Avenue, room 602-O, Washington, DC 20208-5501. Telephone: (202) 219-2040 or via Internet:
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 Heidi Schweingruber. However, the Department is not able to reproduce in an alternative format the standard forms included in the application package.
In FY 2002, the U.S. Department of Education is continuing to expand its pilot project of electronic submission of applications to include additional formula grant programs and additional discretionary grant competitions. The Preschool Curriculum Evaluation Research Grant Program (CFDA 84.305J) is one of the programs included in the pilot project. If you are an applicant under the PCER program, you may submit your application to us in either electronic or paper format.
The pilot project involves the use of the Electronic Grant Application System (e-APPLICATION, formerly e-GAPS) portion of the Grant Administration and Payment System (GAPS). We request your participation in this pilot project. We shall continue to evaluate its success and solicit suggestions for improvement.
If you participate in this e-APPLICATION pilot, please note the following:
• Your participation is voluntary.
• You will not receive any additional point value or penalty because you submit a grant application in electronic or paper format.
• You can submit all documents electronically, including the Application for Federal Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Within three working days of submitting your electronic application, fax a signed copy of the Application for Federal Assistance (ED 424) to the Application Control Center after following these steps:
1. Print ED 424 from the e-APPLICATION system.
2. Make sure that the institution's Authorizing Representative signs this form.
3. Before faxing this form, submit your electronic application via the e-APPLICATION system. You will receive an automatic acknowledgement, which will include a PR/Award number (an identifying number unique to your application).
4. Place the PR/Award number in the upper right hand corner of ED 424.
5. Fax ED 424 to the Application Control Center at (202) 260-1349.
We may request that you give us original signatures on all other forms at a later date.
You may access the electronic grant application for the PCER Program at:
Due to software upgrades, it is anticipated that the e-Application software will be unavailable for several days in mid-January. The tentative dates for this system down time are January 11-21, 2002. Please check this site for future updates on system availability.
We have included additional information about the e-APPLICATION pilot project (see Parity Guidelines between Paper and Electronic Applications) in the application package.
You may 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. 6031.