Aging Administration
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National Foundation on the Arts and the Humanities
National Institute of Standards and Technology
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Army Department
Federal Energy Regulatory Commission
Presidential Documents
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Centers for Disease Control and Prevention
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Centers for Disease Control and Prevention
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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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Agricultural Marketing Service, USDA.
Final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim final rule reducing the production cap for the 2002 diversion program (RDP) for Natural (sun-dried) Seedless (NS) raisins from 2.75 to 2.0 tons per acre. The cap is specified under the Federal marketing order for California raisins (order). The order regulates the handling of raisins produced from grapes grown in California and is administered locally by the Raisin Administrative Committee (RAC). Under a RDP, producers receive certificates from the RAC for curtailing their production to reduce burdensome supplies. The certificates represent diverted tonnage. Producers sell the certificates to handlers who, in turn, redeem the certificates with the RAC for raisins from the prior year's reserve pool. The production cap limits the yield per acre that a producer can claim in a RDP. Reducing the cap for the 2002 RDP brings the figure in line with 2001 crop yields.
June 13, 2002.
Maureen T. Pello, Senior Marketing Specialist, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721;
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237;
This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
USDA is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule continues to reduce the production cap for the 2002 RDP for NS raisins from 2.75 to 2.0 tons per acre. The cap is specified in the order. Under a RDP, producers receive certificates from the RAC for curtailing their production to reduce burdensome supplies. The certificates represent diverted tonnage. Producers sell the certificates to handlers who, in turn, redeem the certificates with the RAC for raisins from the prior year's reserve pool. The production cap limits the yield per acre that a producer can claim in a RDP. Reducing the cap for the 2002 RDP brings the figure in line with 2001 crop yields. This action was recommended by the RAC at a meeting on November 13, 2001.
The order provides authority for volume regulation designed to promote orderly marketing conditions, stabilize prices and supplies, and improve producer returns. When volume regulation is in effect, a certain percentage of the California raisin crop may be sold by handlers to any market (free tonnage) while the remaining percentage must be held by handlers in a reserve pool (reserve) for the account of the RAC. Reserve raisins are disposed of through various programs authorized under the order. For example, reserve raisins may be sold by the RAC to handlers for free use or to replace part of the free tonnage they exported; carried over as a hedge against a short crop the following year; or may be disposed of in other outlets not competitive with those for free tonnage raisins, such as government purchase, distilleries, or animal feed. Net proceeds from sales of reserve raisins are ultimately distributed to producers.
The RDP is another program concerning reserve raisins authorized under the order and may be used as a means for controlling overproduction. Authority for the program is provided in § 989.56 of the order, and additional procedures are specified in § 989.156 of the order's administrative rules and regulations.
Pursuant to these sections, the RAC must meet by November 30 each crop year to review raisin data, including information on production, supplies, market demand, and inventories. If the RAC determines that the available supply of raisins, including those in the reserve pool, exceeds projected market
Section 989.56(a) of the order specifies a production cap of 2.75 tons per acre for any production unit of a producer approved for participation in a RDP. The RAC may recommend, subject to approval by USDA, reducing the 2.75 tons per acre production cap. The production cap limits the yield that a producer can claim. Producers who historically produce yields above the production cap can choose to produce a crop rather than participate in the diversion program. No producer is required to participate in a RDP.
Pursuant to § 989.156, producers who wish to participate in a program must submit an application to the RAC by December 20. Producers must specify, among other things, the raisin production and the acreage covered by the application. RAC staff verifies producers' production claims using handler acquisition reports and other available information. However, a producer could misrepresent production by claiming that some raisins produced on one ranch were produced on another, and use an inflated yield on the RDP application. Thus, the production cap limits the amount of raisins for which a producer participating in a RDP may be credited, and protects the program from overstated yields.
The RAC met on November 13, 2001, and recommended reducing the production cap from 2.75 to 2.0 tons per acre. With 2001 raisin-type variety grape production down by 31 percent, according to the California Agricultural Statistics Service, the RAC recommended reducing the production cap by about 30 percent to reflect 2001 crop yields. Paragraph (t) in § 989.156 of the order's rules and regulations was revised accordingly.
On November 28, 2001, the RAC met and reviewed data relating to the quantity of reserve raisins and anticipated market needs. With a 2001-02 NS crop estimated at 359,341 tons, and a computed trade demand (comparable to market needs) of 235,850 tons, the RAC projects a reserve pool of 123,491 tons of NS raisins. With such a large anticipated reserve, the RAC announced that 45,182 tons of NS raisins would be eligible for diversion under the 2002 RDP. The RAC increased this amount to 54,086 tons at a meeting on January 11, 2002. Of the 54,086 tons, 49,086 tons were made available to approved producers who submitted applications to the RAC by December 20, 2001, with producers who plan to remove vines receiving priority over those who plan to curtail (abort) production through spur pruning or other means. Section 989.156(d) requires the RAC to give priority to applicants who agree to remove vines. Another 5,000 tons will be made available to approved producers who submit applications to the RAC from December 21, 2001, through May 1, 2002, and plan to remove vines. Authority for this additional opportunity for vine removal is provided in § 989.156(s).
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less that $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.
This rule continues to revise § 989.156(t) of the order's rules and regulations regarding the RDP. Under a RDP, producers receive certificates from the RAC for curtailing their production to reduce burdensome supplies. The certificates represent diverted tonnage. Producers sell the certificates to handlers who, in turn, redeem the certificates with the RAC for raisins from the prior year's reserve pool. The order specifies a production cap limiting the yield per acre that a producer can claim in a RDP. This rule continues to reduce the cap from 2.75 to 2.0 tons per acre to accurately reflect 2001 crop yields. Authority for this action is provided in § 989.56(a) of the order.
Regarding the impact of this action on affected entities, producers who participate in the 2002 RDP will have the opportunity to earn some income for not harvesting a 2002-03 crop. Producers will sell the certificates to handlers next fall and be paid for the free tonnage applicable to the diversion certificate minus the harvest cost for the diverted tonnage. Applicable harvest costs for the 2002 RDP were established by the RAC at $340 per ton.
Reducing the production cap will have little impact on raisin handlers. Handlers will pay producers for the free tonnage applicable to the diversion certificate minus the $340 per ton harvest cost. Handlers will redeem the certificates for 2001-02 crop NS reserve raisins and pay the RAC the $340 per ton harvest cost plus payment for bins ($20 per ton) and for receiving, storing, fumigating, handling (currently totaling $46 per ton), and inspecting (currently $9.00 per ton) the tonnage represented on the certificate. Reducing the production cap will have little impact on handler payments for reserve raisins under the 2001 RDP.
Alternatives to the recommended action include leaving the production
There was some discussion at the RAC's meeting that the 2.0-ton per acre production cap was too low and would discriminate against producers with high yields. In recent years, cultural practices have evolved to where some producers' yield per acre is reportedly as high as 4 tons. However, as previously stated, the program is voluntary and producers whose vines can produce 4 tons per acre have the option to produce a raisin crop rather than apply for the RDP and be subject to the production cap.
This rule imposes no additional reporting or recordkeeping requirements on either small or large raisin handlers. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirement referred to in this rule (
Further, the RAC's meeting on November 13, 2001, the RAC's Administrative Issues Subcommittee meeting on that same day but prior to the RAC meeting where this action was deliberated, and the RAC's meeting on November 28, 2001, where a diversion program was announced, were all public meetings widely publicized throughout the raisin industry. All interested persons were invited to attend the meetings and participate in the industry's deliberations. An interim final rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the RAC and other available information, it is hereby found that finalizing this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements.
Federal Deposit Insurance Corporation (FDIC).
Final rule.
The Federal Deposit Insurance Corporation has adopted a final rule regarding the payment of post-insolvency interest in insured depository institution receiverships with surplus funds. The final rule establishes a single uniform interest rate, calculation method, and payment priority for post-insolvency interest. The final rule provides that where funds remain after the satisfaction of the principal amount of all creditor claims, post-insolvency interest will be paid in the order of priority set forth in section 11(d)(11)(A) of the Federal Deposit Insurance Act; paid at the coupon equivalent yield of the average discount rate set on the three-month Treasury bill at the last auction held by the United States Treasury Department during the preceding calendar quarter; adjusted each quarter after the receivership is established; and based on a simple interest method of calculation.
June 13, 2002.
Thomas Bolt, (202) 736-0168; or Rodney Ray, (202) 898-3556.
In December 2000, Congress granted the FDIC express rulemaking authority regarding the payment of post-insolvency interest in receiverships with surplus funds. The American Homeownership and Economic Opportunity Act of 2000 added new subparagraph (C) to section 11(d)(10) of the FDI Act, which reads as follows:
(C) RULEMAKING AUTHORITY OF CORPORATION. The Corporation may prescribe such rules, including definitions of terms, as it deems appropriate to establish a single uniform interest rate for or to make payment of post-insolvency interest to creditors holding proven claims against the receivership estates of insured Federal or State depository institutions following satisfaction by the receiver of the principal amount of all creditor claims.
By virtue of this rulemaking authority, the final rule regarding post-insolvency interest will preempt any inconsistent state law by providing a single uniform interest rate and priority of distribution for post-insolvency interest in receiverships established after the rule becomes effective.
On December 18, 2001 the FDIC caused to be published in the
The final rule is essentially identical to the proposed rule. The final rule provides that after the satisfaction of the principal amount of all creditor claims, post-insolvency interest will be paid in the order of priority set forth in section 11(d)(11)(A) of the Federal Deposit Insurance Act. This is consistent with how the principal amounts of creditor claims are paid and would be consistent with Congress's intent that deposit liabilities be preferred over other liabilities.
The final rule further provides for the post-insolvency interest rate for all FDIC-administered receiverships to be based on the coupon equivalent yield of the average discount rate set on the 3-month Treasury bill. The 3-month Treasury bill is widely recognized as a performance benchmark for cash investment management and its yield has historically tracked to some degree changes in the rate of inflation. The post-insolvency interest rate will be adjusted quarterly in order to mitigate interest-rate risk due to changes in economic conditions during the life of the receivership. Post-insolvency interest distributions will be calculated using a simple interest method, which should provide a reasonable amount of interest to compensate receivership creditors for the time value of money owed from the time the receivership is established until dividend payments are received.
The final rule contains a revision to paragraph (c)(3) of the proposed rule to clarify that post-insolvency interest will be calculated, not “distributed,” on proven claims from the date the receivership is established. Revised paragraph (c)(3) also provides that post-insolvency interest on a contingent claim will be calculated from the date that the claim becomes proven. A contingent claim is a claim that has not accrued as of the date of the appointment of the receiver, but is dependent on some future event. A contingent claim may become proven if the event triggering payment occurs in time for the claim to be paid by the receiver. In such case, post-insolvency interest will be calculated from the date the claim becomes proven, not from the date the receivership is established.
The proposed rule will not involve any collection of information under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Consequently, no information has been submitted to the Office of Management and Budget for review.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the FDIC has certified that the final rule will not have a significant economic impact on a substantial number of small entities. The final rule will only apply to FDIC-administered receiverships established after the effective date of the rule, and it does not impose new reporting, recordkeeping or other compliance requirements on receivership creditors. The final rule continues the FDIC's existing practice of making post-insolvency interest distributions to creditors holding proven claims in surplus receiverships prior to making distributions to equityholders, based on their equity interests, in a failed insured depository institution. In addition, the final rule will provide interested parties, including small entities, with greater certainty in future FDIC-administered receiverships by establishing a single uniform interest rate and method for making post-insolvency interest distributions. Accordingly, the Act's requirements relating to an initial regulatory flexibility analysis are not applicable.
The FDIC has determined that the proposed rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) provides generally for agencies to report rules to Congress for review. The reporting requirement is triggered when the FDIC issues a final rule as defined by the Administrative Procedure Act (APA) at 5 U.S.C. 551. Because the FDIC is issuing a final rule as defined by the APA, the FDIC will file the reports required by SBREFA. The Office of Management and Budget has determined that this final rule does not constitute a “major rule” as defined by SBREFA.
Banks, banking, Savings associations.
For the reasons set forth in the preamble, the FDIC Board of Directors amends 12 CFR part 360 as follows:
12 U.S.C. 1821(d)(1), 1821(d)(10)(C), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), Pub.L. 101-73, 103 Stat. 357.
(a)
(b)
(2)
(3)
(4)
(5)
(c)
(2) The receiver shall distribute post-insolvency interest at the post-insolvency interest rate prior to making any distribution to equityholders. Post-insolvency interest distributions shall be made in the order of priority set forth in section 11(d)(11)(A) of the Federal Deposit Insurance Act, 12 U.S.C. 1821(d)(11)(A).
(3) Post-insolvency interest distributions shall be made at such time as the receiver determines that such distributions are appropriate and only to the extent of funds available in the receivership estate. Post-insolvency interest shall be calculated on the outstanding balance of a proven claim, as reduced from time to time by any interim dividend distributions, from the date the receivership is established until the principal amount of a proven claim has been fully distributed but not thereafter. Post-insolvency interest shall be calculated on a contingent claim from the date such claim becomes proven.
(4) Post-insolvency interest shall be determined using a simple interest method of calculation.
Food and Drug Administration, HHS.
Final rule; stay.
The Food and Drug Administration (FDA) is staying the final rule on notification and recordkeeping requirements for persons exporting human drugs, animal drugs, biological products, devices, food, and cosmetics that may not be marketed or sold in the United States. This action is in response to four requests for a stay because certain parties would not be able to comply with the effective date of March 19, 2002.
Effective May 14, 2002; 21 CFR 1.101 is stayed until June 19, 2002.
Philip L. Chao, Office of Policy, Planning, and Legislation (HF-23), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-0587.
In the
The final rule was to become effective on March 19, 2002. On March 1, 2002, and later on March 8, 11, and 12, 2002, we received three petitions for stay of administrative action and one letter requesting that we stay the final rule's effective date by 6 months. In general, the petitions and letter stated that certain parties would be unable to comply by the original March 19, 2002, effective date and that some parties were confused as to the final rule's applicability to certain products.
On March 18, 2002, we notified the parties that the agency intended to grant the petitions and the letter's request, in part, by extending the final rule's effective date by 3 months, and that the agency would publish a document in the
To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(3)(A). Alternatively, the agency's implementation of this action without opportunity for public comment, effective immediately upon publication today in the
This action pertains solely to the requirements of the final rule. Affected industry members must continue to comply with the statutory requirements for exports under section 801(e) and 802 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 381 and 321).
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Alpharma, Inc. The ANADA provides for use of an injectable lincomycin solution for the treatment of infectious arthritis and mycoplasma pneumonia in swine.
This rule is effective May 14, 2002.
Lonnie W. Luther, Center for Veterinary Medicine (HFV-101), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-0209, e-mail:
Alpharma, Inc., One Executive Dr., P.O. Box 1399, Fort Lee, NJ 07024, filed ANADA 200-274 that provides for the use of Lincomycin (lincomycin HCl) Injectable 30% by intramuscular injection for the treatment of infectious arthritis and mycoplasma pneumonia in swine. Alpharma's Lincomycin Injectable 30%
In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
(a)
(b)
(1) No. 000009 for uses as in paragraph (e) of this section.
(2) No. 046573 for use as in paragraph (e)(2) of this section.
(e) * * *
(1) * * *
(i)
(iii)
(2) * * *
(i)
(iii)
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations relating to the qualification and treatment of electing small business trusts (ESBTs). The final regulations interpret the rules added to the Internal Revenue Code (Code) by section 1302 of the Small Business Job Protection Act of 1996, section 1601 of the Taxpayer Relief Act of 1997, and section 316 of the Community Renewal Tax Relief Act of 2000. In addition, the final regulations provide that an ESBT, or a trust described in section 401(a) of the Code or section 501(c)(3) of the Code and exempt from taxation under section 501(a) of the Code, is not treated as a deferral entity for purposes of § 1.444-2T. The final regulations affect S corporations and certain trusts that own S corporation stock.
Concerning the final regulations, Bradford Poston or James A. Quinn, (202) 622-3060; specifically concerning § 1.444-4, Michael F. Schmit, (202) 622-4960 (not toll-free numbers).
The collections of information in these final regulations have been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) and assigned control number 1545-1591.
The collections of information in these final regulations are in § 1.1361-1(j)(12), § 1.1361-1(m), and § 1.444-4(c). The information required by § 1.1361-1(j)(12) and § 1.1361-1(m) is needed to allow trusts to elect to be ESBTs and to allow for the conversion of a qualified subchapter S trust (QSST) to an ESBT and the conversion of an ESBT to a QSST. The likely respondents are trusts.
The information required by § 1.444-4(c) is needed to allow certain S corporations to reinstate their previous taxable year that was terminated under § 1.444-2T. The likely respondents are businesses and other for-profit institutions.
Comments on the collections of information should be sent to the Office of Management and Budget, Attn.: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503 with copies to the Internal Revenue Service, Attn.: IRS Reports Clearance Officer, W:CAR:MP:FP:S, Washington, DC 20224. Comments on the collection of information should be received by July 15, 2002. Comments are specifically requested concerning:
Whether the collections of information are necessary for the proper performance of the functions of the Internal Revenue Service, including
The accuracy of the estimated burden associated with the collections of information;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the collections of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs of operation, maintenance, and purchase of service to provide information.
The burden contained in § 1.444-4 is reflected in the burden of Form 8716.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
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.
On December 29, 2000, proposed regulations (REG-251701-96) were published in the
On December 29, 2000, proposed and temporary regulations were also published in the
A public hearing was held on the proposed and temporary regulations on April 25, 2001. Written comments were received on the proposed and temporary regulations. The proposed regulations, with certain changes in response to the comments, are adopted as final regulations, and the temporary regulations are removed.
For a trust to qualify as an electing small business trust (ESBT) and as a shareholder in a subchapter S corporation, only certain types of persons are permitted to be beneficiaries of the trust. Once a trust makes the ESBT election, each potential current beneficiary (PCB) of the trust is treated as a shareholder of the S corporation. Thus, the identity of the beneficiaries affects whether a trust can be an ESBT, while the identity and number of PCBs affect whether the corporation can be a S corporation. It is possible under certain circumstances for a person to be a PCB, as that term is defined in section 1361(e)(2) and the proposed regulations, without being a beneficiary, as that term is defined in the proposed regulations. For example, a person who may receive a distribution from an ESBT under a currently exercisable power of appointment is a PCB but is not treated as a beneficiary until the power is actually exercised.
Some commentators expressed concerns about the possible adverse effects of the definition of PCBs, especially in situations involving potential recipients of a currently exercisable power of appointment. Some commentators suggested that a person should have to meet the definition of a beneficiary before the person could be considered a PCB. Commentators also suggested that a person who may receive a distribution under a currently exercisable power of appointment should not be treated as a PCB until exercise of the power. Several commentators suggested that a temporary waiver or release of a broad power of appointment should be sufficient to limit the number of PCBs during a period of time.
The final regulations do not change the basic definition of PCBs. While there is no statutory definition of beneficiary in section 1361(e), there is a statutory definition of PCB. Under section 1361(e)(2), a PCB is, “with respect to any period, any person who at any time during such period is entitled to, or, at the discretion of any person, may receive, a distribution from the principal or income of the trust.” The IRS and the Treasury Department believe that it would be inconsistent with this statutory definition not to treat a person as a PCB until an actual distribution is made to that person pursuant to the exercise of a power of appointment. The final regulations provide that an attempt to temporarily waive, release, or limit a power of appointment would not be effective to limit the PCBs because of uncertainty as to the effectiveness of a temporary waiver, release, or limitation on the power of appointment under state law and the potential to manipulate a temporary waiver, release, or limitation on a power of appointment to avoid the S corporation shareholder limitation rules. However, a permanent release of a power of appointment that is effective under local law may reduce the number of PCBs of an ESBT.
Another commentator suggested that the separate share provisions of section 663(c) should apply so that beneficiaries or PCBs of the share holding the assets other than the S corporation stock would not be counted as beneficiaries or PCBs of the S portion. There is no authority to ignore beneficiaries and PCBs of a portion of a trust holding assets other than S corporation stock. The statutory definitions of an ESBT and of a PCB look to all the persons who are beneficiaries or PCBs of the trust, not just the S portion. In addition, the separate share provisions of section 663(c) are not applicable because they generally apply only for purposes of allocating distributable net income under sections 661 and 662.
Two commentators requested guidance on what period of time is considered in determining who are PCBs in light of the statutory definition. They suggested that
One commentator was concerned about the statement in the proposed regulations that if a person holds a general lifetime power of appointment, the corporation will exceed the 75-shareholder limit and thus the corporation's S election will terminate. The commentator pointed out that a beneficiary's power to withdraw assets from a trust is considered a general power of appointment but the beneficiary is the only one who can receive those assets. The final regulations clarify that the potential recipients of current distributions pursuant to an exercise of the power are considered, not whether the power is a general or special power of appointment.
The proposed regulations provide that a person with a future beneficial interest is not a beneficiary of an ESBT if that interest is so remote as to be negligible. This provision permitted trusts to qualify as ESBTs even though there was a remote possibility that all the named beneficiaries would die and the trust assets would escheat to the state, an impermissible beneficiary of an ESBT. The Community Renewal Tax Relief Act of 2000 eliminated this potential problem by changing the statutory definition of permissible beneficiaries to include an organization described in section 170(c)(1) that holds a contingent interest in the trust and is not a PCB. The final regulations, therefore, remove the provision regarding remote beneficiaries and the accompanying example.
Two commentators requested clarification on whether a trust is eligible to be an ESBT if it acquires property in a part-gift, part-sale transaction, such as a gift of encumbered property or a net gift, in which the donor transfers property to a trust provided the trust pays the resulting gift tax. Section 1361(e)(1)(A)(ii) provides that a trust is eligible to be an ESBT only if “no interest in the trust was acquired by purchase.” Section 1361(e)(1)(C) defines
Most commentators praised the position in the proposed regulations that a trust, all or a portion of which is treated as owned by an individual (deemed owner) under subpart E, part I, subchapter J, chapter 1 of the Code (grantor trust), may elect to be an ESBT. One commentator, however, suggested that grantor trusts should not be permitted to make ESBT elections. The final regulations continue to provide that a grantor trust may elect to be an ESBT.
The proposed regulations provide that if a grantor trust makes an ESBT election, the trust consists of a grantor portion, an S portion, and a non-S portion. The items of income, deduction, and credit attributable to the grantor portion are taxed to the deemed owner of that portion. The S portion is taxed under the special rules of section 641(c), while the non-S portion is subject to the normal trust taxation rules of subparts A through D of subchapter J.
Commentators made several suggestions regarding the taxation of a grantor trust that elects to be an ESBT. Some suggested that the taxation rules of section 641(c) should override the grantor trust rules of section 671, and thus all tax items attributable to the trust's shares in the S corporation should be taxed to the trust, not the deemed owner. Some suggested the grantor trust rules should not apply to any tax items of a trust that makes an ESBT election. According to these commentators, this approach would eliminate administrative complexity in determining what portion of the trust is treated as owned by the deemed owner. Others suggested that the trustee should be permitted to elect to have all items attributable to the S corporation taxed to the trust, not to the deemed owner. Others suggested that none of the S items should be taxed to the deemed owner but that ESBTs should be subject to additional reporting requirements to ensure the collection of the proper tax. Another suggested that the deemed owner should be taxed on the items from an ESBT only if the deemed owner is treated as owning the entire trust, not just a portion of the trust. Other commentators agreed with the taxation regime set forth in the proposed regulations.
The IRS and the Treasury Department believe that the qualification and taxation of ESBTs are two separate issues and that the proposed regulations take the correct position regarding the taxation of grantor trusts that make ESBT elections. Section 1361(e)(1) expands the permissible shareholders of an S corporation to include trusts that meet the definition of an ESBT. Grantor trusts are not excluded from the definition of an ESBT and, therefore, are permitted to make ESBT elections. Making an ESBT election, however, does not alter the long established treatment of tax items attributable to the portion of a trust treated as owned by the grantor or another. Section 671 requires that items of income, deduction, and credit attributable to the portion of the trust treated as owned by a grantor or another must be taken into account by that deemed owner. Only remaining items of the trust are subject to the provisions of subparts A through D of subchapter J. The special taxation rules for ESBTs are contained in subpart A and, therefore, only apply to any portion of the trust that is not treated as owned by the grantor or another under subpart E.
As pointed out by one of the commentators, the issue of determining what portion, if any, of a trust is treated as owned by the grantor or another has existed for years in a much broader context than in the application of the ESBT rules. The special taxation rules of section 641(c) would apply only to S items, while normal trust taxation rules clearly apply to non-S items. As a result, taxing all the S items to the trust would not eliminate the need to determine what portion of the trust is a grantor trust and the resulting administrative difficulties with respect to the non-S tax items of the trust.
Some commentators requested clarification of the effect of an ESBT election by a grantor trust. One commentator suggested that if a wholly-owned grantor trust makes an ESBT election, only the deemed owner should be treated as the shareholder of the S corporation. Another commentator made a similar suggestion where the grantor has retained the power to amend or revoke the trust or to make gifts from
The proposed regulations provide that if an otherwise allowable deduction of the S portion is attributable to a charitable contribution paid by the S corporation, the contribution will be deemed to be paid by the S portion pursuant to the terms of the trust's governing instrument and will be deductible if the other requirements of section 642(c)(1) are met. Several commentators requested clarification concerning the other requirements of section 642(c)(1), the application of the limitations under section 681, and the election to treat charitable payments made after the close of a taxable year as made during the taxable year. One commentator suggested that the S portion should be entitled to a deduction for its share of any charitable contribution made by the S corporation because it is a separately stated item under section 1366 that the S portion takes into account under section 641(c)(2)(C)(i).
Section 641(c)(2)(C) specifies the items of income, loss, deduction, or credit that the S portion is required to take into account in determining its tax. These items include items required to be taken into account under section 1366, that is, the trust's pro rata share of the S corporation's items passed through to it as a shareholder. Both section 641(c)(2)(C) and section 1366(a) reference items that must be taken into account but do not themselves provide the authority to include in income, deduct from income, or claim a credit with respect to those items. That authority comes from other Code sections. A charitable contribution made by an S corporation is required to be a separately stated item under section 1366 because whether the item is deductible depends on the identity of the shareholder and the provisions of the Code applicable to charitable contributions made by that type of shareholder. Thus, for an individual shareholder, the contribution is deductible only in accordance with the provisions of section 170, while for a trust or estate, the contribution is deductible only in accordance with the provisions of section 642(c).
The final regulations continue to provide that the S portion's share of a charitable contribution made by the S corporation is deductible only if it meets the requirements of section 642(c)(1). The final regulations clarify how those requirements apply to such a contribution. If a contribution is paid from the S corporation's gross income, the contribution will be deemed to be paid by the S portion pursuant to the terms of the trust's governing instrument. The limitations of section 681, regarding unrelated business income, apply to determine whether the contribution is deductible by the S portion. The final regulations also clarify that the charitable contribution is deductible by the S portion, if at all, only in the year that it is an item required to be taken into account by the trust under section 1366. The trustee may not make the election to treat a contribution made by the S corporation after the close of the taxable year as made during the taxable year. This election is available only for charitable payments actually made by the trust, not for the trust's share of contributions made by another entity.
One commentator suggested that if the trust contributes S corporation stock to a charitable organization, the S portion should be entitled to a charitable deduction with respect to the contribution. Deductions available to the S portion are limited by section 641(c)(2)(C) to S corporation items required to be taken into account under section 1366 and the S portion's share of state and local income taxes and administrative expenses. Charitable contributions by the trust are not items included in the list of items that may be taken into account by the S portion under section 641(c)(2)(C).
Therefore, the final regulations do not change the rule that no deduction is available to either the S portion or the non-S portion with respect to a contribution of S corporation stock to charity.
The proposed regulations provide that interest expense incurred by the trust to purchase S corporation stock is allocated to the S portion but is not an administrative expense. Therefore, the interest is not an allowable deduction of the S portion under section 641(c)(2)(C)(iii). Several commentators suggested that the interest should be deductible. Some thought the interest should be allocated to the non-S portion and deducted under the investment interest limitations of section 163(d). Others thought the interest should be allocated to the S portion but should be considered a deductible administrative expense. One commentator suggested that if the shareholders are required to buy the stock of a departing shareholder pursuant to the terms of a stock purchase agreement, any interest expense incurred as a result of financing the stock purchase with a loan should be deductible when paid by an ESBT. Another commentator suggested that if interest paid on a loan to acquire S corporation stock is not deductible, it should be added to the basis of the acquired stock.
Because the purchase of S corporation stock increases the S portion, rather than the non-S portion, of the trust, interest expenses incurred in the purchase should be allocated to the S portion. These interest expenses would be deductible by the S portion only if they are “administrative expenses” under section 641(c)(2)(C)(iii). The IRS and the Treasury Department believe that, for purposes of section 641(c)(2)(C)(iii), “administrative expenses” include the traditional expenses necessary for the management and preservation of trust assets, but do not include expenses incurred to acquire additional assets. The final regulations, therefore, continue to provide that, in all cases, interest incurred to purchase S corporation stock is a nondeductible expense allocable to the S portion. Because there is no authority to permit nondeductible interest expenses to increase the basis of assets, the final regulations do not adopt this suggestion.
Section 641(c)(4) and the proposed regulations provide that if a trust is no longer an ESBT, any loss carryover or excess deductions of the S portion that are referred to in section 642(h) are taken into account by the entire trust or by the beneficiaries if the entire trust terminates. One commentator suggested that any tax credit carryovers of the S portion should receive similar treatment. Section 641(c)(4) permits the entire trust to take into account only those items specified in section 642(h), which does not include tax credit carryovers. The S portion's tax credit carryovers and any other items not listed in section 642(h) are forfeited once the trust is no longer an ESBT, just as they are upon the termination of a trust or estate. The final regulations, therefore, do not adopt the commentator's suggestion.
One commentator suggested that the tax treatment of distributions to
The final regulations do not adopt the commentator's suggestion because section 641(c)(3) provides that section 641(c) does not affect the taxation of any distribution from the trust except for the exclusion of the S portion items from the distributable net income of the entire trust. Thus, the rules otherwise applicable to trust distributions apply to ESBTs.
The proposed regulations provide that the ESBT election is filed with the service center where the trust files its income tax returns. The election to be a qualified subchapter S trust (QSST) is filed with the service center where the S corporation files its income tax returns. The preamble to the proposed regulations requested comments on whether the rules for filing the QSST election should be changed so the election is filed with the service center where the trust files its returns. One commentator suggested there should be consistent filing locations for QSST elections, ESBT elections, and conversions from QSST to ESBT or ESBT to QSST. The commentator, therefore, suggested that all these documents be filed with the service center(s) where the trust and the S corporation file their returns.
The final regulations provide that the ESBT election and the election to convert from an ESBT to a QSST or from a QSST to an ESBT are all filed with the service center where the S corporation files its income tax returns. Thus, the rule in the final regulations will establish a consistent filing location for QSST and ESBT elections and conversions.
One commentator suggested that grantor trusts should be permitted to make protective ESBT elections in light of the uncertain status of some trusts that may be grantor trusts under section 674. The IRS and the Treasury Department continue to believe that a conditional ESBT election that only becomes effective in the event the trust is not a wholly-owned grantor trust should not be available. A conditional ESBT election should not be allowed because the ESBT election must have a fixed effective date. If, in the absence of a conditional ESBT election, the trust is an ineligible shareholder, relief under section 1362(f) may be available for an S corporation. In addition, a trust that qualifies as an ESBT may make an ESBT election notwithstanding that the trust is a wholly-owned grantor trust.
In several contexts, commentators requested some form of expedited relief if an S corporation's election is inadvertently ineffective or is inadvertently terminated. In all these situations, the S corporation may seek relief under section 1362(f). The facts and circumstances of a particular situation are considered in determining whether relief is available, and the procedures for obtaining this relief are well established.
A commentator suggested that a trust's conversion to an ESBT should result in a complete termination of the trust's interest in the S corporation for purposes of section 1377(a)(2) because the incidence of taxation with respect to S corporation items will change as a result of the ESBT election. The proposed regulations provide that the election would result in a termination only if, prior to the election, the trust was described in section 1361(c)(2)(A)(ii) or (iii). The commentator also recommended that the regulations address the conversion from an ESBT to another type of trust and the availability of an election under § 1.1368-1(g) to treat the S corporation's taxable year as two separate years in the case of a qualifying disposition.
The final regulations do not adopt the suggestion that all conversions of a trust to an ESBT should be treated as a complete termination of the trust's interest in the S corporation for purposes of section 1377(a)(2). The final regulations expand on the rule in the proposed regulations to cover all types of conversions. Under this rule, conversion of a trust to an ESBT or a QSST does not result in the prior trust terminating its entire interest in the S corporation, unless the prior trust was described in section 1361(c)(2)(A)(ii) or (iii). When a trust described in section 1361(c)(2)(A)(ii) or (iii) converts to an ESBT or a QSST, the shareholders of the S corporation under section 1361(c)(2)(B) change from the estate of the deemed owner or testator to the PCBs of the ESBT, or the current income beneficiary of the QSST. When a trust changes from a wholly-owned grantor trust or QSST to an ESBT or from an ESBT to a QSST, the individuals who are shareholders of the S corporation under section 1361(c)(2)(B) remain the same. The election to terminate the taxable year provided in section 1377(a)(2) applies to the termination of a
Accordingly, it is appropriate to treat the conversion of a trust described in section 1361(c)(2)(A)(ii) or (iii) to an ESBT or QSST as a termination of the prior trust's interest in the S corporation, but not to treat other conversions to an ESBT or QSST as terminations. The election under § 1.1368-1(g) is also not available because the conversion of the trust is not a qualifying disposition.
One commentator suggested that the final regulations permit an S corporation to retroactively reinstate a section 444 election that it had treated as terminated by operation of § 1.444-2T(a) (prior to the issuance of the temporary regulations) as a result of an ESBT or certain tax-exempt trusts becoming a shareholder of the corporation under the auspices of the 1996 Act. The commentator believes that failure to provide such relief would result in inequitable treatment of such S corporations because, under the rules of section 444, once their elections are terminated, they are precluded from again making a section 444 election.
The IRS and the Treasury Department believe that it is appropriate to allow S corporations under these circumstances to request that the IRS disregard the termination and permit the S corporation to continue to use the same fiscal year that it used previously under section 444. However, for reasons of administrative convenience, and in order to reduce the burden on taxpayers of having to file amended returns and make retroactive payments under section 7519, the prior termination will be disregarded only at the S corporation's request, and on a prospective basis.
The final regulations provide a procedure for such requests. To illustrate the procedure, assume that, prior to 1997, an S corporation had made a section 444 election to use a taxable year ending on September 30th.
Under the final regulations, the S corporation may request that the IRS disregard the prior termination by filing Form 8716, “Election to Have a Tax Year Other Than a Required Tax Year,” with the appropriate Service Center by October 15, 2002, and by designating on the form “CONTINUATION OF SECTION 444 ELECTION UNDER § 1.444-4.” The Form 8716 must indicate that under the S corporation's prior section 444 election, it used a taxable year ending September 30th. The request will be effective for the taxable year beginning January 1, 2002. No amended returns, no retroactive payments under section 7519, and no returns under § 1.7519-2T(a) for previous years in which the S corporation used its required year are required as a result of the request. Moreover, the S corporation need not make a required payment under section 7519 for its taxable year ending September 30, 2002; its first required payment for the taxable year beginning October 1, 2002, is due on May 15, 2003. The S corporation will be required to file a return under § 1.7519-2T for each taxable year beginning on or after January 1, 2002.
The portion of the regulations involving the taxation of the grantor, S, and non-S portions of an ESBT was proposed to be applicable for taxable years of ESBTs that end on or after December 29, 2000, the date that the proposed regulations were published in the
The IRS and the Treasury Department believe that the applicable date for the rules concerning the taxation of an ESBT with a grantor portion is reasonable and appropriate. These rules do not discriminate against trusts with a particular situs because they apply to all trusts wherever situated. In the case of a grantor trust that made an ESBT election, the tax treatment of the grantor portion set forth in the proposed regulations may be different from the tax treatment that the trust and the grantor had thought was available. The proposed regulations, however, were published before the end of the 2000 taxable year and before income from that taxable year was required to be included on any person's income tax return. Thus, prior to the filing of income tax returns for 2000, it was known that the income from the grantor portion of the trust was to be taken into account by the deemed owner, not by the trust. In some situations, the trust, rather than the deemed owner, may have made estimated tax payments. Recognizing that the payment of estimated tax by the trust might subject the deemed owner to a penalty for underpayment of estimated taxes, the IRS and the Treasury Department provided relief by issuing Notice 2001-25 (2001-13 I.R.B. 941). That Notice provides procedures for a trust to elect to have its estimated tax payments credited to the account of the deemed owner and provides that, for purposes of calculating any underpayment of estimated tax, income attributable to the S corporation was to be taken into account on the last day of the deemed owner's 2000 taxable year.
Some commentators were concerned that existing ESBTs with currently exercisable, broad powers of appointments have resulted in S corporations exceeding the shareholder limit and have caused the termination of the S corporations' elections. The regulations regarding the definition of PCBs are applicable only for taxable years of ESBTs that begin on or after May 14, 2002. Therefore, persons who may receive a distribution from an ESBT pursuant to a currently exercisable power of appointment will not be considered PCBs of the ESBT until the first day of the ESBT's first taxable year that begins on or after May 14, 2002, and the S corporation's election will not terminate before that date. In addition, under section 1361(e)(2) if the trust disposes of all its stock in the S corporation within 60 days after that date, the persons, who would first meet the definition of PCBs on that date, will not be PCBs and the S corporation's status will not be affected.
One commentator was concerned by the applicability date of the regulations involving the deductibility of state and local income taxes and administrative expenses. Section 641(c)(2)(C)(iii) provides that the S portion may take into account its allocable share of state and local income taxes and administrative expenses, but only to the extent provided in the regulations. The commentator noted that before final regulations are issued there is no authority for an ESBT to deduct any of these items. Therefore, the commentator requested that trusts be allowed to rely on the regulatory provisions regarding these items for taxable years beginning after December 31, 1996. The effective date provisions have been modified based on this suggestion.
The final regulations clarify that the basis of S corporation stock in the S portion must be adjusted in accordance with section 1367 and the regulations thereunder. If the ESBT owns stock in more than one S corporation, the adjustments to the basis in the S corporation stock of each S corporation must be determined separately.
The following documents are superseded for taxable years of ESBTs beginning on and after May 14, 2002.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collections of information in the regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that (1) the estimated average burden per trust in complying with the collections of information in § 1.1361-1(m) is 1 hour, and (2) the requirement for S corporations to comply with § 1.444-4(c) will affect very few taxpayers and the associated burden is minimal. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C.
The principal authors of these regulations are Bradford Poston and James A. Quinn of the Office of Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
26 U.S.C. 7805. * * *
(a)
(b)
(c)
(i) In the case of a taxable year beginning after December 31, 1996, a trust that is treated as an electing small business trust became a shareholder of such S corporation; or
(ii) In the case of a taxable year beginning after December 31, 1997, a trust that is described in section 401(a) or 501(c)(3), and is exempt from taxation under section 501(a) became a shareholder of such S corporation.
(2)
(ii)
(3)
(ii)
(iii)
This section lists the major captions contained in § 1.641(c)-1.
(a) In general.
(b) Definitions.
(1) Grantor portion.
(2) S portion.
(3) Non-S portion.
(c) Taxation of grantor portion.
(d) Taxation of S portion.
(1) In general.
(2) Section 1366 amounts.
(3) Gains and losses on disposition of S stock.
(4) State and local income taxes and administrative expenses.
(e) Tax rates and exemption of S portion.
(1) Income tax rate.
(2) Alternative minimum tax exemption.
(f) Adjustments to basis of stock in the S portion under section 1367.
(g) Taxation of non-S portion.
(1) In general.
(2) Dividend income under section 1368(c)(2).
(3) Interest on installment obligations.
(4) Charitable deduction.
(h) Allocation of state and local income taxes and administration expenses.
(i) Treatment of distributions from the trust.
(j) Termination or revocation of ESBT election.
(k) Effective date.
(l) Examples.
(a)
(b)
(2)
(3)
(c)
(d)
(2)
(ii)
(iii)
(3)
(ii)
(iii)
(4)
(ii)
(e)
(2)
(f)
(g)
(2)
(3)
(4)
(h)
(i)
(j)
(k)
(l)
(ii) For 2000, Trust has the following items of income and deduction:
(iii) Trust's items of income and deduction are divided into a grantor portion, an S portion, and a non-S portion for purposes of determining the taxation of those items. Income is allocated to each portion as follows:
The total income of the S portion is $4,500, determined as follows:
The total income of the non-S portion is $900 determined as follows:
(iv) The administrative expenses and the state and local income taxes relate to all three portions and under state law would be allocated ratably to the $6,000 of trust income. Thus, these items would be allocated 10% (600/6000) to the grantor portion, 75% (4500/6000) to the S portion and 15% (900/6000) to the non-S portion.
(v)
(vi) The taxable income of the S portion is $4,005, determined as follows:
(vii) The taxable income of the non-S portion is $755, determined as follows:
Trust has a valid ESBT election in effect and owns stock in
Assume the same facts as in
(ii)
(iii)
(ii) For 2003, Trust has $5,000 of taxable income in the S portion. This income is taxed to Trust at the maximum rate provided in section 1(e). Trust also has $3,000 of distributable net income (DNI) in the non-S portion. The non-S portion of Trust receives a distribution deduction under section 661(a) of $3,000, which represents the amount distributed to Beneficiary during the year ($4,000), not to exceed the amount of DNI ($3,000). Beneficiary must include this amount in gross income under section 662(a). As a result, the non-S portion has no taxable income.
(j) * * *
(12) Converting a QSST to an ESBT.
(m) Electing small business trust (ESBT).
(1) Definition.
(2) ESBT election.
(3) Effect of ESBT election.
(4) Potential current beneficiaries.
(5) ESBT terminations.
(6) Revocation of ESBT election.
(7) Converting an ESBT to a QSST.
(8) Examples.
(9) Effective date.
1. Adding paragraphs (h)(1)(vi) and (h)(3)(i)(F).
2. Adding a sentence to the beginning of paragraph (h)(3)(ii) introductory text.
3. Adding paragraph (j)(12).
4. Adding a sentence to the end of paragraph (k)(2)(i).
5. Adding paragraph (m).
The additions read as follows:
(h) * * *
(1) * * *
(vi)
(3) * * *
(i) * * *
(F) If S corporation stock is held by an ESBT, each potential current beneficiary is treated as a shareholder. However, if for any period there is no potential current beneficiary of the ESBT, the ESBT is treated as the shareholder during such period. See paragraph (m)(4) of this section for the definition of potential current beneficiary.
(ii) * * *
(j) * * *
(12)
(i) The trust meets all of the requirements to be an ESBT under paragraph (m)(1) of this section except for the requirement under paragraph (m)(1)(iv)(A) of this section that the trust not have a QSST election in effect.
(ii) The trustee and the current income beneficiary of the trust sign the ESBT election. The ESBT election must be filed with the service center where the S corporation files its income tax return. This ESBT election must state at the top of the document “ATTENTION ENTITY CONTROL—CONVERSION OF A QSST TO AN ESBT PURSUANT TO SECTION 1.1361-1(j)” and include all information otherwise required for an ESBT election under paragraph (m)(2) of this section. A separate election must be made with respect to the stock of each S corporation held by the trust.
(iii) The trust has not converted from an ESBT to a QSST within the 36-month period preceding the effective date of the new ESBT election.
(iv) The date on which the ESBT election is to be effective cannot be more than 15 days and two months prior to the date on which the election is filed and cannot be more than 12 months after the date on which the election is filed. If an election specifies an effective date more than 15 days and two months prior to the date on which the election is filed, it will be effective on the day that is 15 days and two months prior to the date on which it is filed. If an election specifies an effective date more than 12 months after the date on which the election is filed, it will be effective on the day that is 12 months after the date it is filed.
(k) * * *
(2) * * *
(i) * * * Paragraphs (h)(1)(vi), (h)(3)(i)(F), (h)(3)(ii), and (j)(12) of this section are applicable for taxable years beginning on and after May 14, 2002.
(m)
(ii)
(B)
(C)
(D)
(iii)
(iv)
(A) Any qualified subchapter S trust (as defined in section 1361(d)(3)) if an election under section 1361(d)(2) applies with respect to any corporation the stock of which is held by the trust;
(B) Any trust exempt from tax or not subject to tax under subtitle A; or
(C) Any charitable remainder annuity trust or charitable remainder unitrust (as defined in section 664(d)).
(2)
(ii)
(A) The name, address, and taxpayer identification number of the trust, the potential current beneficiaries, and the S corporations in which the trust currently owns stock;
(B) An identification of the election as an ESBT election made under section 1361(e)(3);
(C) The first date on which the trust owned stock in each S corporation;
(D) The date on which the election is to become effective (not earlier than 15 days and two months before the date on which the election is filed); and
(E) Representations signed by the trustee stating that—
(
(
(iii)
(iv)
(v)
(3)
(ii)
(iii)
(iv)
(v)
(4)
(ii)
(iii)
(iv)
(B) If the distributee trust is not a trust described in section 1361(c)(2)(A), then the distributee trust is the potential current beneficiary of the ESBT and the corporation's S corporation election terminates.
(C) If the distributee trust is a trust described in section 1361(c)(2)(A), the persons who would be its potential current beneficiaries (as defined in paragraphs (m)(4)(i) and (ii) of this section) if the distributee trust were an ESBT are treated as the potential current beneficiaries of the ESBT. Notwithstanding the preceding sentence, however, if the distributee trust is a trust described in section 1361(c)(2)(A)(ii) or (iii), the estate described in section 1361(c)(2)(B) (ii) or (iii) is treated as the potential current beneficiary of the ESBT for the 2-year period during which such trust would be permitted as a shareholder.
(D) For the purposes of paragraph (m)(4)(iv)(C) of this section, a trust will be deemed to be described in section 1361(c)(2)(A) if such trust would qualify for a QSST election under section 1361(d) or an ESBT election under section 1361(e) if it owned S corporation stock.
(v)
(vi)
(B)
(vii)
(viii)
(5)
(ii)
(iii)
(6)
(7)
(i) The trust meets all of the requirements to be a QSST under section 1361(d).
(ii) The trustee and the current income beneficiary of the trust sign the QSST election. The QSST election must be filed with the service center where the S corporation files its income tax return. This QSST election must state at the top of the document “ATTENTION ENTITY CONTROL—CONVERSION OF AN ESBT TO A QSST PURSUANT TO SECTION 1.1361-1(m)” and include all information otherwise required for a QSST election under § 1.1361-1(j)(6). A separate QSST election must be made with respect to the stock of each S corporation held by the trust.
(iii) The trust has not converted from a QSST to an ESBT within the 36-month period preceding the effective date of the new QSST election.
(iv) The date on which the QSST election is to be effective cannot be more than 15 days and two months prior to the date on which the election is filed and cannot be more than 12 months after the date on which the election is filed. If an election specifies an effective date more than 15 days and two months prior to the date on which the election is filed, it will be effective on the day that is 15 days and two months prior to the date on which it is filed. If an election specifies an effective date more than 12 months after the date on which the election is filed, it will be effective on the day that is 12 months after the date it is filed.
(8)
(i)
(ii)
(iii)
(i)
(ii)
Subpart E trust.
(ii)
(iii)
Potential current beneficiaries and powers of appointment.
(9)
(b) * * *
(2) * * *
(iv)
1. Revising the section heading.
2. Adding a sentence to the end of paragraph (a).
The revision and addition read as follows:
(a) * * * Section 1.1362-6(b)(2)(iv) is applicable for taxable years beginning on and after May 14, 2002.
(a) * * *
(2) * * *
(iii) Shareholder trust conversions.
1. Adding paragraph (a)(2)(iii).
2. Adding
The additions read as follows:
(a) * * *
(2) * * *
(iii) Shareholder trust conversions. If, during the taxable year of an S corporation, a trust that is an eligible shareholder of the S corporation converts from a trust described in section 1361(c)(2)(A)(i), (ii), (iii), or (v) for the first part of the year to a trust described in a different subpart of section 1361(c)(2)(A)(i), (ii), or (v) for the remainder of the year, the trust's share of the S corporation items is allocated between the two types of trusts. The first day that a qualified subchapter S trust (QSST) or an electing small business trust (ESBT) is treated as an S corporation shareholder is the effective date of the QSST or ESBT election. Upon the conversion, the trust is not treated as terminating its entire interest in the S corporation for purposes of paragraph (b) of this section, unless the trust was a trust described in section 1361(c)(2)(A)(ii) or (iii) before the conversion.
(c) * * *
(ii) For purposes of computing the income allocable to the QSST and to the ESBT, Trust is treated as a QSST through June 30, 2004, and Trust is treated as an ESBT beginning July 1, 2004. Pursuant to section 1377(a)(1), the pro rata share of S corporation income allocated to the QSST is $49,727 ($100,000 x 182 days/366 days), and the pro rata share of S corporation income allocated to the ESBT is $50,273 ($100,000 x 184 days/366 days).
Section 1.1377-1 and 1.1377-2 apply to taxable years of an S corporation beginning after December 31, 1996, except that § 1.1377-1(a)(2)(iii), and (c)
26 U.S.C. 7805.
(b) * * *
Approved: May 3, 2002.
Department of the Treasury.
Final rule.
The Department of the Treasury is amending its regulations concerning the Freedom of Information Act (FOIA), and the Privacy Act, (Privacy Act), by revising regulations to specify new addresses for the Bureau of the Public Debt. We are also identifying a new official responsible for administrative appeals of initial determinations.
May 14, 2002.
Edward C. Gronseth, Deputy Chief Counsel, Office of the Chief Counsel, Bureau of the Public Debt, at (304) 480-8692,
The Bureau of the Public Debt has decided to move its FOIA and Privacy Act program responsibilities to Parkersburg, West Virginia. We are providing the proper addresses where the public may
Also, we have identified the new official responsible for reviewing FOIA administrative appeals of initial determinations to deny records and for making appellate decisions on initial determinations refusing amendment of records under the Privacy Act. The existing regulations name the “Commissioner of the Public Debt” as the reviewing official. We have determined that the reviewing official should be changed to the “Executive Director, Administrative Resource Center, Bureau of the Public Debt.”
These regulations are being published as a final rule because the amendment does not impose any requirements on any member of the public. This amendment is the most efficient means for us to implement internal requirements for complying with FOIA and the Privacy Act. Pursuant to the administrative procedure provisions in 5 U.S.C. 553, we find good cause that prior notice and other public procedure with respect to this rule are impracticable and unnecessary. We find good cause for making this rule effective on the date of publication in the
In accordance with Executive Order 12866, it has been determined that this final rule is not a “significant regulatory action” and, therefore, does not require a Regulatory Impact Analysis.
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Freedom of Information, Privacy.
5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C. 552a.
Appendix I-Bureau of the Public Debt
3.
4.
5.
2.* * *Requests for information and specific guidance on where to send requests for records may be mailed or delivered personally to: Privacy Act Request, Disclosure Officer, Administrative Resource Center, Bureau of the Public Debt, Department of the Treasury, 200 Third Street, Room 211, Parkersburg, WV 26101-5312.
5. Amend 31 CFR part 1, subpart C, APPENDIX I—BUREAU OF THE PUBLIC DEBT, paragraph 4 as follows:
a. Remove “Commissioner of the Public Debt” and add in its place “Executive Director, Administrative Resource Center, Bureau of the Public Debt;”
b. Remove “999 E Street NW., Room 503, Washington, DC 20239.” and add in its place “200 Third Street, Room G-15, Parkersburg, WV 26106-1328.”
6. Amend 31 CFR part 1, subpart C, APPENDIX I—BUREAU OF THE PUBLIC DEBT, paragraph 6, by removing “999 E Street NW., Room 503, Washington, DC 20239.” and adding in its place “200 Third Street, Room G-15, Parkersburg, WV 26106-1328.”
Office of the Comptroller of the Currency, Treasury.
Final rule; technical amendment.
In accordance with the requirements of the Privacy Act of 1974, as amended, the Office of the Comptroller of the Currency (OCC) and the Department of the Treasury (Department) issue a final rule to exempt five OCC systems of records from certain provisions of the Privacy Act. The OCC and the Department also issue a technical amendment made necessary by the renumbering and renaming of one revised system of records that previously had been exempted from certain provisions of the Privacy Act.
May 14, 2002.
Harold J. Hansen, Assistant Director, or Ellen S. Warwick, Special Counsel, Administrative & Internal Law Division, (202) 874-4460.
On October 26, 2001, the OCC, with the concurrence of the Department, published a notice of proposed rulemaking to exempt five systems of records from certain provisions of the Privacy Act of 1974, as amended (66 FR 54175-54178, October 26, 2001). This notice of proposed rulemaking was published in the same
The proposed rule requested that public comments be sent to the Office of the Comptroller of the Currency, Public Information Room, 250 E Street, SW., Washington, DC 20219, no later than November 26, 2001.
The OCC did not receive comments on the proposed rule. Accordingly, the OCC and the Department are hereby giving notice that the following systems of records are exempt from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2): (1) Treasury/Comptroller .120-Bank Fraud Information System; and (2) Treasury/Comptroller .510-Litigation Information System. The provisions of the Privacy Act from which exemption is claimed for these systems pursuant to 5 U.S.C. 552a(j)(2) are: 5 U.S.C. 552a(c)(3) and (4); 5 U.S.C. 552a(d)(1), (2), (3), and (4); 5 U.S.C. 552a(e)(1), (2), and (3); 5 U.S.C. 552a(e)(4)(G), (H), and (I); 5 U.S.C. 552a(f); and 5 U.S.C. 552a(g).
Additionally, the following systems of records are exempt from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2): (1) Treasury/Comptroller .100-Enforcement Action Report System; (2) Treasury/Comptroller .120-Bank Fraud Information System; (3) Treasury/Comptroller .220-Section 914 Tracking System; (4) Treasury/Comptroller .510-Litigation Information System; and (5) Treasury/Comptroller .600-Consumer Complaint Inquiry and Information System. The provisions of the Privacy Act from which exemption is claimed for these five systems pursuant to 5 U.S.C. 552a(k)(2) are: 5 U.S.C. 552a(c)(3); 5 U.S.C. 552a(d)(1), (2), (3), and (4); 5 U.S.C. 552a(e)(4)(G), (H), and (I); and 5 U.S.C. 552a(f).
Finally, a technical amendment to the Department's regulation is issued. This amendment relates to a former system of records,
This rule takes effect immediately upon publication in the
Accordingly, the OCC and the Department find good cause to conclude that delaying the effective date of this rule is unnecessary.
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the OCC and the Department certify that the rule will not have a significant economic impact on a substantial number of small entities and publish their certification and a short, explanatory statement in the
Pursuant to section 605(b) of the RFA, the OCC and the Department hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities. The final rule affects only internal agency administration and imposes no duties, obligations, or costs on entities of any size. Accordingly, a regulatory flexibility analysis is not needed.
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that the agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. The OCC and the Department have determined that this final rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, the OCC and the Department have not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered. As noted above, the final rule adds no new requirements.
The OCC and the Department have determined that this final rule is not a significant regulatory action under Executive Order 12866.
Privacy.
5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552 as amended. Subpart C also issued under 5 U.S.C. 552a.
(a) Paragraph (c)(1)(iii) is amended by removing “CC .013 Enforcement and Compliance Information System” from the table.
(b) Paragraph (c)(1)(iii) is amended by adding “CC .110 Reports of Suspicious Activities,” “CC .120 Bank Fraud Information System,” and “CC .510 Litigation Information System” to the table in numerical order.
(c) Paragraph (g)(1)(iii) is amended by removing “CC .013 Enforcement and Compliance Information System” from the table.
(d) Paragraph (g)(1)(iii) is amended by adding “CC .100 Enforcement Action Report System,” “CC .110 Reports of Suspicious Activities,” “CC .120 Bank Fraud Information System,” “CC .220 Section 914 Tracking System,” “CC .510 Litigation Information System,” and “CC .600 Consumer Complaint Inquiry
The additions to § 1.36 read as follows:
(c) * * *
(1) * * *
(iii) * * *
(g) * * *
(1) * * *
(iii) * * *
Department of Defense and Department of Veterans Affairs.
Final rule.
The law provides that rates of subsistence allowance and educational assistance payable under the Educational Assistance Test Program shall be adjusted annually by the Secretary of Defense based upon the average actual cost of attendance at public institutions of higher education in the twelve-month period since the rates were last adjusted. After consultation with the Department of Education, the Department of Defense has concluded that the rates for the 2001-02 academic year should be increased by 4.7% over the rates payable for the 2000-01 academic year. The regulations dealing with these rates are amended accordingly.
Effective Date: May 14, 2002.
William G. Susling, Jr., Assistant Director for Policy and Program Development, Education Service (225), Veterans Benefits Administration, 202-273-7187.
The law (10 U.S.C. 2145) provides that the Secretary of Defense shall adjust the amount of educational assistance which may be provided in any academic year under the Educational Assistance Test Program, and the amount of subsistence allowance authorized under that program. The adjustment is to be based upon the twelve-month increase in the average actual cost of attendance at public institutions of higher education. As required by law, the Department of Defense has consulted with the Department of Education. The Department of Defense has concluded that these costs increased by 4.7% in the 2000-01 academic year. Accordingly, this final rule changes 38 CFR 21.5820 and 21.5822 to reflect a 4.7% increase in the rates payable in the 2001-02 academic year, including changes in § 21.5820 to remove unnecessary provisions that were previously needed to compensate for rounding. Other nonsubstantive changes are made for the purpose of clarification.
Pursuant to 5 U.S.C. 553 there is good cause for finding that notice and public procedure are impractical, unnecessary, and contrary to the public interest and there is good cause for dispensing with a 30-day delay of the effective date. The rates of subsistence allowance and educational assistance payable under the Educational Assistance Test Program are determined based on a statutory formula and, in essence, the calculation of rates merely constitutes a non-discretionary ministerial act. The other changes made by this document are merely nonsubstantive changes for the purpose of clarification.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
The Secretary of Veterans Affairs and the Secretary of Defense hereby certify that these amended regulations will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C 601-612. This final rule directly affects only individuals. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.
There is no Catalog of Federal Domestic Assistance number for the program affected by the regulations.
Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Defense Department, Education, Employment, Grant programs-education, Grant programs-veterans, Health programs, Loan programs-education, Loan programs-veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.
10 U.S.C. ch. 107; 38 U.S.C. 501(a), 3695, 5101, 5113, 5303A; 42 U.S.C. 2000; sec. 901, Pub. L. 96-342, 94 Stat. 1111-1114, unless otherwise noted.
(b) * * *
(2) * * *
(ii) * * *
(C) Adding the two results.
(3) * * *
(ii) * * *
(C) Adding the two results; and
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Tehama County Air Pollution Control District (TCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern Oxides of Nitrogen (NO
This rule is effective on July 15, 2002, without further notice, unless EPA receives adverse comments by June 13, 2002. If we receive adverse comments, we will publish a timely withdrawal in the
Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
You can inspect copies of the submitted SIP revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted SIP revisions at the following locations:
Charnjit Bhullar, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 972-3960.
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On March 8, 2002, these rule submittals were found to meet the completeness criteria in 40 CFR part 51, Appendix V, which must be met before formal EPA review.
On September 19, 2000 (65 FR 56486), EPA finalized limited approval and limited disapproval of a previous version of these rules. TCAPCD adopted the revisions of these rules on January 29, 2002, and CARB submitted them to us on February 8, 2002. We are acting on the revised version of these rules.
Rule 4:31 establishes nitrogen oxide (NO
On September 19, 2000, the EPA published a limited approval and limited disapproval of a previous version of rules 4:31 and 4:37, because the rules improved the State Implementation Plan (SIP) overall but some rules provisions conflicted with section 110 and part D of the Clean Air Act. Those provisions included the following:
Rule 4:31 and 4:37 contained unapprovable Air Pollution Control Officer (APCO) discretion which allowed exemption of units from reasonably available control technology (RACT) due to lack of technical or economic feasibility.
Rule 4:31 contained unapprovable APCO discretion to demonstrate compliance with RACT.
The January 29, 2002 revision to rules 4:31 and 4:37 correct the above deficiencies. The TSDs have more information about these rules.
Generally, SIP rules must be enforceable (
Guidance and policy documents that we used to help evaluate the rules include the following:
1.
2.
3.
4.
5.
6.
7.
8.
We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSDs have more information on our evaluation.
None.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
On September 19, 2000, EPA also finalized a limited approval and limited disapproval of TCAPCD rule 4:34, Stationary piston Engines, for reasons similar to our action on rules 4:31 and 4:37. TCAPCD adopted revisions to rule 4:34 on January 29, 2002. Unfortunately, these revisions relaxed, rather than improved on the previous version of the rule. On March 27, 2002, the state withdrew revisions to TCAPCD rule 4:34. However, because Tehama is in attainment with the ozone NAAQS, sanctions under CAA section 179 and federal implementation plan (FIP) requirements do not apply. We are clarifying, therefore, that the version of rule 4:34 approved into the SIP on September 19, 2000 remains federally enforceable, and there are no sanction or FIP implications if this is not revised.
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of the rules and if that provision may be severed from the remainder of the ruled, EPA may adopt as final those provisions of the rules that are not the subject of an adverse comment.
NO
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that these rules will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
These rules also do not have tribal implications because they will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. These rules also are not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because they are not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. These rules do not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 2002. Filing a petition for reconsideration by the Administrator of these final rules do not affect the finality of these rules for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rules or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(295) New and amended regulations for the following APCD were submitted on February 8, 2002, by the Governor's designee.
(i) Incorporation by reference.
(A) Tehama County Air Pollution Control District.
(
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; seabird mitigation measures.
NMFS issues a final rule under the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (FMP) that requires owners and operators of all vessels registered for use under a Hawaii longline limited access permit and operating with longline gear north of 23° N. lat. to employ a line-setting machine with weighted branch lines or use basket-style longline gear, and to use thawed blue-dyed bait and strategic offal discards during setting and hauling of longlines. This final rule also requires that the owners and operators of these vessels follow certain seabird handling techniques and annually complete a protected species educational workshop conducted by NMFS. This final rule follows an emergency interim rule published on June 12, 2001, and is being implemented to permanently codify the terms and conditions contained in a biological opinion (BiOp) issued on November 28, 2000, by the U.S. Fish and Wildlife Service (USFWS) and intended to afford protection to the endangered short-tailed albatross. This final rule also implements management measures that were recommended by the Western Pacific Fishery Management Council (Council) and published in a proposed rule on July 5, 2000. These measures were designed to minimize interactions between seabirds and the Hawaii-based longline fishery.
This final rule is effective June 13, 2002, except for amendments to § § 660.35(b)(4)(i), 660.35(b)(6), and 660.35(b)(8), which require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). When OMB approval is received, the effective date will be announced in the
Copies of a final environmental impact statement for the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (FEIS) are available from Dr. Charles Karnella, Administrator, NMFS, Pacific Islands Area Office (PIAO), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814. Copies of an environmental assessment (EA), regulatory impact review and final regulatory flexibility analysis (FRFA) prepared for this action may be obtained from Ms. Kitty Simonds, Executive Director, Western Pacific Fishery Management Council, Suite 1400, 1164 Bishop Street, Honolulu, HI 96813. Send comments on the reporting burden estimate or any other aspect of the collection-of-information requirements in this rule to NMFS, PIAO and to OMB at the Office of Information and Regulatory Affairs, OMB, 725 17th St., NW, Washington, DC 20503 (Attn: NOAA Desk Officer).
Alvin Katekaru, PIAO, 808-973-2937.
As discussed in the proposed rule, published at 65 FR 41424, July 5, 2000, Hawaii-based pelagic longline vessels are known to interact in a sometimes fatal manner with black-footed (
Based on this assessment, the USFWS BiOp requires NMFS to implement several measures applicable to the owners and operators of vessels registered for use under Hawaii limited access longline permits (Hawaii-based vessels). When making deep sets north of 23° N. lat., these vessels must employ a line-setting machine with at least 45 grams of weight attached within 1 meter of each hook. In addition, all Hawaii-based vessels operating north of 23° N. lat. must use thawed blue-dyed bait and strategic offal discards to distract birds during the setting and hauling of longline gear. Regardless of the area fished, all Hawaii-based vessel operators must follow certain handling techniques to ensure that any short-tailed albatross brought onboard alive is handled and released in a manner that maximizes the probability of its long-term survival (dead short-tailed albatrosses are to be frozen and their carcasses submitted to NMFS upon return to port). Finally, the USFWS BiOp requires that Hawaii-based vessel operators annually complete a protected species educational workshop conducted by NMFS. Although shallow “swordfish-style” setting is currently prohibited by an emergency rule implemented to protect sea turtles (see below), the USFWS BiOp requires that vessel operators making shallow sets north of 23° N. lat. begin setting the longline at least 1 hour after local sunset and complete the setting process by local sunrise, using only the minimum vessel lights necessary. This requirement is not included in this final rule because the prohibition on “swordfish style” shallow set fishing is being undertaken under separate rulemaking to make this measure permanent in compliance with a March 29, 2001, biological opinion issued by NMFS regarding sea turtles. On October 18, 2001, the USFWS amended the USFWS BiOp to allow basket-style longline gear to be set without a line-setting machine or weighted branch lines as data show that this gear has a rapid sink rate that results in few, if any, seabird interactions.
The USFWS BiOp's terms and conditions were implemented by NMFS on June 12, 2001, through an emergency interim rule, which also included sea turtle mitigation measures (FR 66 31561). Public comments were solicited at that time; however, none were received. On December 10, 2001, NMFS extended that emergency interim rule
Under the Council's recommended seabird mitigation measures (as described in the July 5, 2000, proposed rule), both vessel owners and vessel operators would have been required to attend annually a protected species workshop conducted by NMFS. In addition, the proposed rule would have required that all seabirds (not just short-tailed albatrosses) be handled and released in a manner that maximizes the probability of their long-term survival. As these two components of the Council's recommendation are more conservative than those in the USFWS BiOp, this final rule combines the terms and conditions of the USFWS BiOp (as previously implemented by the June 12, 2001, emergency interim rule), with the Council's recommendation on seabird handling and workshop attendance requirements. Additional background information on this fishery's interactions with seabirds may be found in the preamble to the proposed rule and is not presented here.
Comments on the Council's proposed rule were received from seven individuals.
This final rule has been determined to be not significant for purposes of Executive Order 12866. On March 30, 2001, NMFS issued an FEIS that analyzes the environmental impacts of U.S. pelagic fisheries in the western Pacific region. That analysis includes the Hawaii-based pelagic longline fishery and was filed with the Environmental Protection Agency; a notice of availability was published on April 6, 2001 (66 FR 18243). In February 2002, the Council prepared an EA on the specific seabird mitigation measures in this rule. That analysis is available from the Council (see
Notwithstanding any other provisions of the law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
This final rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act. This requirement has been submitted to OMB for approval. Public reporting burden for this collection of information is
Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on the reporting burden estimate or any other aspect of the collection-of-information requirements in this final rule to NMFS and OMB (see
An FRFA that describes the impact this final rule is likely to have on small entities was prepared and is also available from the Council (see
The need for and objectives of this final rule are stated in the
All Hawaii-based longline vessels affected by this final rule are considered to be small entities under guidelines issued by the Small Business Administration because they are independently owned and operated, and have annual receipts not in excess of $3.5 million. Based on the information provided in the FRFA, this final rule will affect all 164 holders of Hawaii limited access longline permits. Most severely impacted will be the owners and operators of those vessels fishing north of 23° N. lat. During the time period which was the focus of the USFWS BiOp (1994-1998), an average of 96 vessels made at least one set north of 23° N. lat. each year. The distribution of these vessels by set type (deep versus shallow) is difficult to determine, as the majority made at least one set of each type. On average there were approximately 830 deep sets, and 4,100 shallow sets made annually north of 23° N. lat. between 1994 and 1998. The costs associated with this final rule can be categorized as direct (increased fixed or variable costs) or indirect (revenue changes). Because mitigation techniques vary by target, economic impacts follow this same pattern. Compared to the historic baseline (1994-1999, the period examined in the USFWS BiOp), the revenue impact to those vessels utilizing shallow sets north of 23° N. lat. (swordfish and mixed target vessels), is expected to be a gain of $335 per swordfish set (a 9 percent increase as compared to the 1998 fleet wide average of $3,724 per set) due to increased catch rates, but a loss of $598 per mixed target set (16 percent decrease) due to decreases in catch rates. The actual impact on these vessel owners and operators is uncertain, as the current emergency rule to protect sea turtles prohibits these vessels from utilizing shallow sets north of the equator. The anticipated revenue impact to vessels utilizing deep sets north of 23° N. lat. (vessels targeting tuna and the only fishery currently allowed in this area) is expected to be a gain of $432 per set (12 percent increase). Direct costs for these vessels include $2,700 annually for the amortized purchase price and maintenance of a line setting machine with weighted branch lines. In addition, this rule is anticipated to increase annual direct costs to operators of all vessels fishing north of 23° N. lat. by up to $500 for blue dye, and $400 for containers in which to store offal between sets. The actual net revenue increase/decrease in this fishery cannot be predicted, because of the added constraints to the fishery compared to the baseline period. The impacts of other aspects of this final rule (seabird handling procedures and annual attendance at a protected species workshop) have not been quantified but are expected to be minimal. Four alternatives to this final rule were considered and rejected. The first alternative would have required vessel operators to use at least two of six specified mitigation techniques (pick list) when fishing north of 25° N. lat. The second alternative would have also required the use of two techniques when fishing north of 25° N. lat., but would have left the decision of which two up to the Council. The third alternative would have prohibited longline fishing north of 23° N. lat. within the waters of the exclusive economic zone around Hawaii, while the fourth alternative was the no-action alternative. Based on the non-discretionary nature of the terms and conditions of the USFWS BiOp, these alternatives were all rejected on the basis that they do not meet the legal requirements of the Endangered Species Act. The amendment of the USFWS BiOp to allow the use of basket-style longline gear is intended to provide mitigation from the negative economic impacts of this final rule as one or more vessels that currently utilize this gear to make deep sets will not be required to refit their vessels to accommodate line shooters.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which the agency is required to prepare an FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides”. The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As a part of this rule making process, a small entity compliance guide (compliance guide) was prepared. Copies of this final rule and the compliance guide will be sent to all holders of Hawaii limited access longline permits. The compliance guide will be available at the following web site:
As previously discussed, on November 28, 2000, the USFWS completed a formal Endangered Species Act section 7 consultation on this fishery. This consultation was amended on October 18, 2001, to allow the use of basket-style gear as an alternative to a line-setting machine with weighted branch lines. The formal consultation concluded that this fishery is not likely to jeopardize the continued existence of the short-tailed albatross. This final rule implements the mandatory terms and conditions of the USFWS BiOp that resulted from that consultation.
Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, and Reporting and recordkeeping requirements.
1. The authority citation of part 660 continues to read as follows:
16 U.S.C. 1801
(z) Fail to use a line setting machine or line shooter, with weighted branch lines, to set the main longline when operating a vessel that is registered for use under a Hawaii longline limited access permit and equipped with monofilament main longline, when making deep sets north of 23° N. lat., in violation of § 660.35 (a)(1) and (a)(2).
(aa) Fail to employ basket-style longline gear such that the mainline is deployed slack when operating a vessel registered for use under a Hawaii longline limited access north of 23° N. lat., in violation of § 660.35 (a)(3).
(bb) Fail to maintain and use blue dye to prepare thawed bait when operating a vessel registered for use under a Hawaii longline limited access permit that is fishing north of 23° N. lat., in violation of § 660.35 (a)(4), (a)(5), and (a)(6).
(cc) Fail to retain, handle, and discharge fish, fish parts, and spent bait, strategically when operating a vessel registered for use under a Hawaii longline limited access permit that is fishing north of 23° N. lat., in violation of § 660.35 (a)(7) through (a)(9).
(dd) Fail to handle short-tailed albatrosses that are caught by pelagic longline gear in a manner that maximizes the probability of their long-term survival, in violation of § 660.35 (b).
(ee) Fail to handle seabirds other than short-tailed albatross that are caught by pelagic longline gear in a manner that maximizes the probability of their long-term survival, in violation of § 660.35 (c).
(ff) Own a longline vessel registered for use under a Hawaii longline limited access permit that is engaged in longline fishing for Pacific pelagic management unit species, without a valid protected species workshop certificate issued by NMFS or a legible copy thereof in violation of § 660.36 (a).
(gg) Fish for Pacific pelagic management unit species on a vessel registered for use under a Hawaii limited access longline permit without having onboard a valid protected species workshop certificate issued by NMFS or a legible copy thereof in violation of § 660.36 (d).
(hh) Fail to carry line clippers meeting the minimum design standards as specified in § 660.32(a)(1), and a dip net as required under § 660.32(a)(2), on board a vessel registered for use under a Hawaii longline limited access permit.
(ii) Fail to comply with the sea turtle handling, resuscitation, and release requirements specified in § 660.32(b) through (d), when operating a vessel registered for use under a Hawaii longline limited access permit.
4. Figure 3 to Part 660 is removed.
(a)
(1) Employ a line setting machine or line shooter to set the main longline when making deep sets using monofilament main longline;
(2) Attach a weight of at least 45 g to each branch line within 1 m of the hook when making deep sets using monofilament main longline;
(3) When using basket-style longline gear, ensure that the main longline is deployed slack to maximize its sink rate;
(4) Use completely thawed bait that has been dyed blue to an intensity level specified by a color quality control card issued by NMFS;
(5) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb size) containing blue dye on board the vessel;
(6) Discharge fish, fish parts (offal), or spent bait while setting or hauling longline gear, on the opposite side of the vessel from where the longline gear is being set or hauled;
(7) Retain sufficient quantities of fish, fish parts, or spent bait, between the setting of longline gear for the purpose of strategically discharging it in accordance with paragraph (a)(6) of this section;
(8) Remove all hooks from fish, fish parts, or spent bait prior to its discharge in accordance with paragraph (a)(6) of this section; and
(9) Remove the bill and liver of any swordfish that is caught, sever its head from the trunk and cut it in half vertically, and periodically discharge the butchered heads and livers in accordance with paragraph (a)(6) of this section.
(b)
(1) Stop the vessel to reduce the tension on the line and bring the bird on board the vessel using a dip net;
(2) Cover the bird with a towel to protect its feathers from oils or damage while being handled;
(3) Remove any entangled lines from the bird;
(4) Determine if the bird is alive or dead.
(i) If dead, freeze the bird immediately with an identification tag attached directly to the specimen listing the species, location and date of mortality, and band number if the bird has a leg band. Attach a duplicate identification tag to the bag or container holding the bird. Any leg bands present must remain on the bird. Contact NMFS, the Coast Guard, or the U.S. Fish and Wildlife Service at the numbers listed on the Short-tailed Albatross Handling Placard distributed at the NMFS protected species workshop, inform them that you have a dead short-tailed albatross on board, and submit the bird to NMFS within 72 hours following completion of the fishing trip.
(ii) If alive, handle the bird in accordance with paragraphs (b)(5) through (b)(10) of this section.
(5) Place the bird in a safe enclosed place;
(6) Immediately contact NMFS, the Coast Guard, or the U.S. Fish and
(7) Follow the veterinary guidance regarding the handling and release of the bird.
(8) Complete the short-tailed albatross recovery data form issued by NMFS.
(9) If the bird is externally hooked and no veterinary guidance is received within 24-48 hours, handle the bird in accordance with paragraphs (c)(4) and (c)(5) of this section, and release the bird only if it meets the following criteria:
(i) Able to hold its head erect and respond to noise and motion stimuli;
(ii) Able to breathe without noise;
(iii) Capable of flapping and retracting both wings to normal folded position on its back;
(iv) Able to stand on both feet with toes pointed forward; and
(v) Feathers are dry.
(10) If released under paragraph (a)(8) of this section or under the guidance of a veterinarian, all released birds must be placed on the sea surface.
(11) If the hook has been ingested or is inaccessible, keep the bird in a safe, enclosed place and submit it to NMFS immediately upon the vessel's return to port. Do not give the bird food or water.
(12) Complete the short-tailed albatross recovery data form issued by NMFS.
(c)
(1) Stop the vessel to reduce the tension on the line and bring the seabird on board the vessel using a dip net;
(2) Cover the seabird with a towel to protect its feathers from oils or damage while being handled;
(3) Remove any entangled lines from the seabird;
(4) Remove any external hooks by cutting the line as close as possible to the hook, pushing the hook barb out point first, cutting off the hook barb using bolt cutters, and then removing the hook shank;
(5) Cut the fishing line as close as possible to ingested or inaccessible hooks;
(6) Leave the bird in a safe enclosed space to recover until its feathers are dry; and
(7) After recovered, release seabirds by placing them on the sea surface.
(a) Each year both the owner and the operator of a vessel registered for use under a Hawaii longline limited access permit must attend and be certified for completion of a workshop conducted by NMFS on mitigation, handling, and release techniques for turtles and seabirds and other protected species.
(b) A protected species workshop certificate will be issued by NMFS annually to any person who has completed the workshop.
(c) An owner of a vessel registered for use under a Hawaii longline limited access permit must maintain and have on file a valid protected species workshop certificate issued by NMFS in order to maintain or renew their vessel registration.
(d) An operator of a vessel registered for use under a Hawaii longline limited access permit and engaged in longline fishing, must have on board the vessel a valid protected species workshop certificate issued by NMFS or a legible copy thereof.
Immigration and Naturalization Service, Department of Justice.
Proposed rule; reopening of comment period.
On April 3, 2002, at 67 FR 15753, the Immigration and Naturalization Service (Service) published a proposed rule in the
Written comments must be submitted on or before May 28, 2002.
Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2180A-01 on your correspondence. You may also submit comments to the Service electronically at
Georgia Mayers, Chief of Cash Management, Office of Finance, Immigration and Naturalization, 425 I Street, NW., Washington, DC 20536, 202-305-1200.
The April 3, 2002, proposed rule can be viewed on the Government Printing Office Web site at:
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Fairchild Dornier GmbH Model 728-100 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The airplane design will include an electronic flight control system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions, in part, contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Additional special conditions may also be defined.
Comments must be received on or before June 28, 2002.
Comments on this proposal may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM206, 1601 Lind Avenue SW., Renton, Washington 98055-4056; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked:
Tom Groves, FAA, International Branch, ANM-116, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (425) 227-1503; facsimile (425) 227-1149.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on
On May 5, 1998, Fairchild Dornier GmbH applied for a type certificate for their new Model 728-100 airplane. The Model 728-100 is a 70-85 passenger twin-engine regional jet with a maximum takeoff weight of 77,600 pounds.
Under the provisions of 14 CFR 21.17, Fairchild Dornier GmbH must show that the Model 728-100 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-96. Fairchild Dornier GmbH has also applied to extend the certification basis to include Amendments 25-97, 25-98, and 25-104.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the Model 728-100 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy pursuant to Section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).
As noted earlier, the Fairchild Dornier GmbH Model 728-100 airplane will include an electronic flight control system. The current airworthiness standards of part 25 do not contain adequate or appropriate standards for the protection of this equipment from the adverse effects of operations without normal electrical power. Accordingly, this system is considered to be a novel or unusual design feature. Since the loss of all electrical power may be catastrophic to the airplane, special conditions are proposed to retain the level of safety envisioned by § 25.1351(d).
The Fairchild Dornier GmbH Model 728-100 airplane will require a continuous source of electrical power for the electronic flight control system. Section 25.1351(d), “Operation without normal electrical power,” requires safe operation in visual flight rule (VFR) conditions for a period of not less than five minutes with inoperative normal power. This rule was structured around a traditional design utilizing mechanical connections between the flight control surfaces and the pilot controls. The Fairchild Dornier GmbH Model 728 will utilize an electronic flight control system. With an electronic flight control system, there is no mechanical linkage between the pilot controls and the flight control surfaces. Pilot control inputs are converted to electrical signals which are processed and then transmitted via wires to the control surface actuators. At the control surface actuators the electrical signals are converted to an actuator command, which moves the control surface. Uninterrupted electrical power is necessary to ensure the electronic flight control system function.
Service experience has shown that the loss of all electrical power generated by the airplane's engine generators or auxiliary power unit (APU) is not extremely improbable. Thus, it must be demonstrated that the airplane can continue safe flight and landing after total loss of the normal electrical power with only the use of its emergency electrical power systems. These emergency electrical power systems must be able to power loads that are essential for continued safe flight and landing. The emergency electrical power system must be designed to supply:
1. Electrical power required for immediate safety, without the need for crew action, following the loss of the normal engine generator electrical power system (which includes APU power).
2. Electrical power required for continued safe flight and landing.
3. Electrical power required to restart the engines.
For compliance purposes, a test of the loss of normal engine generator power must be conducted to demonstrate that when the failure condition occurs during night instrument meteorological conditions (IMC), at the most critical phase of the flight relative to the electrical power system design and distribution of equipment loads on the system, the following conditions are met:
1 Engine restart capability is provided.
2. Capability for continued operation in IMC is provided.
3. The airplane is demonstrated to be capable of continued safe flight and landing. The length of time must be computed based on the maximum diversion time capability for which the airplane is being certified. Consideration for speed reductions resulting from the associated failure must be made.
4. The availability of APU operation should not be considered in establishing emergency power system adequacy.
As discussed above, these special conditions are applicable to the Fairchild Dornier GmbH Model 728-100. Should Fairchild Dornier GmbH apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of section 21.101(a)(1). Fairchild Dornier has submitted applications for certification of both increased and reduced passenger capacity derivatives of the Model 728-100 airplane. These derivative models are designated the Model 928-100 airplane and the Model 528-100 airplane, respectively. As currently proposed, these derivative models share the same design feature of an electronic flight control system as the Model 728-100 airplane, and it is anticipated that they will be included in the applicability of these proposed special conditions.
This action affects only certain novel or unusual design features on Fairchild Dornier GmbH Model 728-100 airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the
Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA) is proposing to reclassify from class III to class II root-form endosseous dental implants intended to be surgically placed in the bone of the upper or lower arches to provide support for prosthetic devices, such as artificial teeth, in order to restore the patient's chewing function. FDA is also proposing to reclassify endosseous dental implant abutments, which are separate components that are attached to the implant and intended to aid in prosthetic rehabilitation from class III to class II. This reclassification is being proposed on the Secretary of Health and Human Services (the Secretary's) own initiative based on new information. The agency is taking this action under the Federal Food, Drug, and Cosmetic Act (the act), as amended by the Medical Device Amendments of 1976 (the 1976 amendments), the Safe Medical Devices Act of 1990 (the SMDA), and the Food and Drug Administration Modernization Act of 1997 (FDAMA). Elsewhere in this issue of the
Submit written or electronic comments by August 12, 2002. See section XIII of this document for the proposed effective date of a final rule based on this document.
Submit written comments to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to http://www.fda.gov/dockets/ecomments.
Angela E. Blackwell, Center for Devices and Radiological Health (HFZ-480), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-827-8879.
The act (21 U.S.C. 301
Under section 513 of the act, devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), generally referred to as preamendments devices, are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.
Devices that were not in commercial distribution prior to May 28, 1976, generally referred to as postamendments devices, are classified automatically by statute (section 513(f) of the act) into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval, unless and until: (1) The device is reclassified into class I or II; (2) FDA issues an order classifying the device into class I or II in accordance with new section 513(f)(2) of the act, as amended by FDAMA; or (3) FDA issues an order finding the device to be substantially equivalent, under section 513(i) of the act, to a predicate device that does not require premarket approval. The agency determines whether new devices are substantially equivalent to previously offered devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and 21 CFR part 807 of the regulations.
A preamendments device that has been classified into class III may be marketed, by means of premarket notification procedures, without submission of a premarket approval application (PMA) until FDA issues a final regulation under section 515(b) of the act (21 U.S.C. 360e(b)) requiring premarket approval.
Reclassification of classified preamendments devices is governed by section 513(e) of the act. This section provides that FDA may, by rulemaking, reclassify a device (in a proceeding that parallels the initial classification proceeding) based upon “new information.” The reclassification can be initiated by FDA or by the petition of an interested person. The term “new information,” as used in section 513(e) of the act, includes information developed as a result of a reevaluation of the data before the agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g.,
Reevaluation of the data previously before the agency is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of newly available regulatory authority (see
In the
In the
In the
On December 12, 1989, FDA received a petition from the Dental Implant Manufacturers of America (DIMA) requesting a change in the classification of the root-form (
Based on information provided by FDA for the October 24, 1991 meeting, the Panel did recommend that screw-type root-form endosseous dental implants be reclassified to class II. The Panel stated that special controls would not be adequate to control some of the risks for other types of endosseous dental implants and recommended that all nonscrew-types remain in class III. In the years following this recommendation, additional clinical data have been reviewed by FDA and the agency believes all root-form endosseous dental implants can be reclassified.
In accordance with section 513(e) of the act and 21 CFR 860.130(b)(2), based on new information with respect to the device, FDA, on its own initiative, is proposing to reclassify the root-form endosseous dental implant from class III to class II when intended to be surgically placed in the bone of the upper or lower arches to provide support for prosthetic devices, such as artificial teeth, in order to restore the patient's chewing function. FDA is further proposing to reclassify endosseous dental implant abutments from class III to class II. Endosseous dental implants, other than root-form, remain in class III and will require the filing of a PMA or PDP at a future date.
The Panel met again on November 4, 1997, with a continuation of the meeting on January 13, 1998. Based on new, publicly available information provided by FDA, the Panel recommended that all root-form endosseous dental implants and endosseous dental implant abutments be reclassified from class III to class II. The Panel believed that class II with special controls would provide reasonable assurance of safety and effectiveness.
An endosseous dental implant is a device made of titanium or titanium alloy and is uncoated, or coated with titanium or hydroxyapatite, intended to be surgically placed in the bone of the upper or lower jaw arches to provide support for prosthetic devices, such as artificial teeth, in order to restore the patient's chewing function. Endosseous dental implants are used to attach either removable or fixed prostheses (crowns, bridges, partial removable dentures, or complete removable dentures) and are inserted into either the maxillary or mandibular alveolar ridge.
Endosseous dental implants can be defined as a one-stage or two-stage implant system. These may be loaded after a period of healing or, in some patients for some indications, they may be loaded immediately. Endosseous dental implants can be further generically grouped into four geometrically distinct types: Basket, screw, solid cylinder, and hollow cylinder. These four groups are known as “root-form” implants. Several other geometrical types of implants have been marketed that do not fall within the description of one of these four types and those types are not root-form implants. FDA is proposing to change the classification of only the root-form types.
Endosseous dental implant abutments are premanufactured prosthetic components directly connected to the endosseous implant and are used as an aid for prosthetic rehabilitation.
Although the Secretary is proposing reclassification on his own initiative, the agency provided new information to the Panel and asked for its recommendation regarding the reclassification of the devices. In a public meeting on January 13, 1998, the Panel unanimously recommended that the root-form endosseous dental implant
The Panel also recommended that endosseous implant abutments be reclassified from class III to class II. They recommended a separate classification from the root-form endosseous implants because the abutments are not considered implants. The Panel believed that class II with a special control guidance document that references relevant voluntary consensus standards would provide reasonable assurance of the safety and effectiveness of the device.
When endosseous dental implants were classified into class III (52 FR 30082, August 12, 1987), the Panel and FDA identified several risks associated with endosseous dental implants for prosthetic attachment, including local soft tissue degeneration, hyperplasia, progressive bone resorption, exfoliation, local and systemic infection (including long term bacterial infection), damage to existing dentition, implant mobility, implant integrity, infectious endocarditis, paresthesia, perforation of the maxillary sinus, and perforation of the labial and lingual alveolar plates. Although the existence of the risks was well documented in numerous books and articles, the rate of occurrence was poorly documented.
Although abutment integrity was not discussed as a specific risk at the 1987 Panel meeting, FDA believes that this risk is a component of implant integrity and, therefore, we have included abutment integrity as a risk associated with endosseous dental implant abutments.
Since the classification of the device, additional data and information became available. Based on a review of the new data and information, the Panel, during an open public meeting on October 24, 1991, identified certain risks (parasthesia, perforation of the maxillary sinus, perforation of the labial and lingual alveolar plates, infectious endocarditis and implant integrity), which had only been addressed for screw type implants by clinical studies. Therefore, they believed that special controls would not adequately address these concerns for all implants. They recommended only the screw type be reclassified into class II (Ref. 1).
At the same meeting, the Panel concluded that the remaining risks of local soft tissue degeneration, hyperplasia, progressive bone resorption, exfoliation, local and systemic infection (including long-term bacterial infection), damage to existing dentition, and implant mobility had been addressed by clinical studies for all types of dental implants.
Although in 1991 the Panel stated that special controls could not adequately address the concern of implant integrity, they also stated that chemical and physical characterization and mechanical testing could partially control this risk with respect to fracture.
When the Panel considered new information, at the November 4, 1997, and January 13, 1998, meetings, they concluded that several published clinical and animal studies (Refs. 4, 5, 6, 7, 8, and 9) showed that the occurrence and incidence of the risks discussed at the 1991 Panel meeting are now well known and are found to be low for all root-form devices and dental implant abutment devices (Refs. 2 and 3).
On the basis of the new clinical studies and the Panel's two recommendations, FDA now believes that the root-form endosseous dental implants and endosseous dental implant abutments do not present a potential unreasonable risk to public health, and that special controls would provide reasonable assurance of the safety and effectiveness of the devices.
After considering the new information and the Panel's recommendations, FDA believes that general controls are not sufficient to provide reasonable assurance of the safety and effectiveness of the device. FDA believes that the endosseous dental implants and endosseous dental implant abutments should be reclassified into class II because special controls, in addition to general controls, would provide reasonable assurance of the safety and effectiveness of the devices, and there is now sufficient information to establish special controls to provide such assurance.
In addition to the potential risks to health of endosseous dental implants and endosseous dental implant abutments described in section V of this document, there is reasonable knowledge of the benefits of the device (Refs. 10 and 11). The devices provide increased chewing function and better appearance, resulting in an improved quality of patient life. Based on the available information, FDA believes the special control discussed in section VIII of this document is capable of providing reasonable assurance of the safety and effectiveness of the devices with regard to the identified risks to health of the device.
In addition to general controls, FDA believes that the guidance document entitled “Class II Special Controls Guidance Document: Root-form Endosseous Dental Implants and Abutments; Draft Guidance for Industry and FDA” is an adequate special control to address the potential risks to health described for the root-form endosseous dental implants and endosseous dental implant abutments.
The guidance document would indicate when clinical data are appropriate and what engineering testing is needed. It will reference voluntary consensus standards that are relevant for these devices. It also will provide device specific labeling guidance. FDA believes that adherence to the guidance document would control implant and abutment fracture by providing guidance and reference to methodologies for chemical and physical characterization and mechanical testing.
To receive a copy of “Class II Special Controls Guidance Document: Root-form Endosseous Dental Implants and Abutments; Draft Guidance for Industry and FDA” via fax machine, call CDRH Facts-on-Demand system at 800-899-0381, or 301-827-0111 from a touch-tone telephone. Press 1 to access the system. At the second voice prompt, press 2, and then enter the document number (1389) followed by the pound sign (
FDA believes the root-form endosseous dental implants and endosseous dental implant abutments should be classified into class II because special controls, in addition to general controls, provide reasonable assurance of the safety and effectiveness of the device, and there is sufficient information to establish special controls to provide such assurance.
The agency has determined under 21 CFR 25.34(b) that this proposed reclassification action is of a type that
FDA has examined the impacts of the proposed rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996 (Public Law 104-121)), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this proposed rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the proposed rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Reclassification of these devices from class III to class II will relieve all manufacturers of these devices of the cost of complying with premarket approval requirements in section 515 of the act. Because reclassification will reduce regulatory cost with respect to these devices, it will impose no significant economic impact on any small entities, and it may permit small potential competitors to enter the marketplace by lowering their costs. The agency therefore certifies that this reclassification action, as issued, if finalized, will not have a significant economic impact on a substantial number of small entities. In addition, this reclassification action will not impose costs of $100 million or more on either the private sector or State, local, and tribal governments in the aggregate, and therefore a summary statement or analysis under section 202(a) of the Unfunded Mandates Reform Act of 1995 is not required.
FDA tentatively concludes that this proposed rule contains no information that is subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995. The special controls do not require the respondent to submit additional information.
Interested persons may submit to the Dockets Management Branch (see
The following references have been placed on display in the Dockets Management Branch (see
1. Transcript of the Dental Products Panel Meeting, October 24, 1991.
2. Transcript of the Dental Products Panel Meeting, November 4, 1997.
3. Transcript of the Dental Products Panel Meeting, January 13, 1998.
4. Buser, D., et al., “Influence of Surface Characteristics on Bone Integration of Titanium Implants. A Histomorphometric Study in Miniature Pigs,”
5. Carr, A. B., et al., “Reverse Torque Failure of Screw-shaped Implants in Baboons: Baseline Data for Abutment Torque Application,”
6. Adell, R.,
7. O'Roark, W. L., “Research Report: Improving Implant Survival Rates by Using a New Method of at Risk Analysis,”
8. Buser, D.,
9. Block, M. S., J. N. Kent, “Cylindrical HA-coated Implants—8-year Observations,”
10. Proceedings of the 1996 World Workshop in Perisontics,
11. Misch, C. E.,
Medical devices.
1. The authority citation for 21 CFR part 872 continues to read as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(a)
(b)
(2) Class III for endosseous dental implants other than the root-form.
(c)
Coast Guard, DOT.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone outside Racine Harbor south of Reef Point Marina Racine, Wisconsin for the Racine Harbor Fest 2002 fireworks celebration. This action is necessary to ensure the safety of life and property in the immediate vicinity of the fireworks launch platform during this event. This action is intended to restrict vessel traffic south of Racine Harbor.
Comments and related material must reach the Coast Guard on or before May 24, 2002. The proposed rule would be effective from 9:20 p.m. on June 15, 2002 through 9:55 p.m. on June 16, 2002.
You may mail comments and related material to the Commanding Officer, U.S. Coast Guard Marine Safety Office Milwaukee, 2420 South Lincoln Memorial Drive, Milwaukee, Wisconsin 53207. Marine Safety Office Milwaukee maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Marine Safety Office Milwaukee between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.
LCDR Timothy Sickler, Chief of Port Operations, at (414) 747-7155.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD09-02-010], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Marine Safety Office Milwaukee at the address under
This proposed safety zone is necessary to safeguard the public from the hazards associated with storing, preparation and launching of the Harbor Fest fireworks display south of Racine Harbor, Racine, Wisconsin. Based on recent accidents that have occurred in other Captain of the Port Zones, and the explosive hazard associated with these events, the Captain of the Port has determined that fireworks launches in close proximity to watercraft pose a significant risk to safety and property.
The combination of large numbers of inexperienced recreational boaters, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling in to the water could easily result in serious injuries or fatalities.
Establishing safety zones by notice and comment rulemaking gives the public an opportunity to comment on the proposed zones and provides better notice than promulgating temporary final rules.
The Coast Guard is proposing a safety zone south of Racine Harbor, Racine, Wisconsin. The Coast Guard would notify the public of the safety zone, in advance, by way of Ninth Coast Guard District Local Notice to Mariners, marine information broadcasts, and for those who request it from Marine Safety Office Milwaukee, by facsimile (fax).
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This determination is based on the minimal time that vessels would be restricted from the zone.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of commercial vessels intending to transit, moor or anchor in a portion of the activated safety zone.
This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: this rule would be in effect for only fifty minutes on the day of the event. Vessel traffic could safely pass outside of the proposed safety zone during the event. Although the safety zone for the event would encompass the entire navigation channel, traffic would be allowed to pass through the safety zone with permission of the Captain of the Port Milwaukee, or his designated on scene Patrol Commander.
If you think your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Milwaukee (
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
We have analyzed this proposed rule under Executive Order 13132, Federalism, and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
We have considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.
We have analyzed this proposed 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.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; 49 CFR 1.46.
2. From 9:20 p.m. on June 15, 2002 through 9:55 p.m. on June 16, 2002 a new temporary § 165.T09-003 is added to read as follows:
(a)
(b)
(c)
(1) This safety zone is closed to all marine traffic, except as may be permitted by the Captain of the Port or his duly appointed representative.
(2) The “duly appointed representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Milwaukee, Wisconsin to act on his behalf. The representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.
(3) Vessel operators desiring to enter or operate within the Safety Zone shall contact the Captain of the Port or his representative to obtain permission to do so. Vessel operators given permission to enter or operate in the Safety Zone shall comply with all directions given to them by the Captain of the Port or his representative.
(4) The Captain of the Port may be contacted by telephone via the Command Duty Officer at (414) 747-7155 during working hours. Vessels assisting in the enforcement of the Safety Zone may be contacted on VHF-FM channels 16 or 21A. Vessel operators may determine the restrictions in effect for the safety zone by coming alongside a vessel patrolling the perimeter of the Safety Zone.
(5) Coast Guard Group Milwaukee will issue a Marine Safety Information Broadcast Notice to Mariners to notify the maritime community of the Safety Zone and restriction imposed.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Tehama County Air Pollution Control District (TCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern Oxides of Nitrogen (NO
Any comments on this proposal must arrive by June 13, 2002.
Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
You can inspect copies of the submitted SIP revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted SIP revisions at the following locations:
Charnjit Bhullar, Rulemaking Office (Air-4), U.S. Environmental Protection Agency, Region IX, (415) 972-3960.
This proposal addresses local rules, TCAPCD 4:31 and 4:37. In the Rules and Regulations section of this
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding for a petition to remove the Lost River sucker (
The finding announced in this document was made on May 10, 2002.
Data, information, written comments and materials, or questions concerning this petition and finding should be submitted to the Project Leader, Klamath Falls Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6610 Washburn Way, Klamath Falls, Oregon 97603. The petition finding, supporting data, and comments are available for public inspection, by appointment, during normal business hours at the above address.
Steve A. Lewis, at the above address, or telephone 541/885-8481.
Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
The petition to delist the Lost River sucker (
The petition requests the delisting of the Lost River sucker and shortnose sucker. The petition's supporting documentation consists of four pages and “Figures 2 & 3” from testimony by David A. Vogel before the U.S. House Committee on Resources (Vogel 2001), five bibliographic references, and eight footnotes. Three of the five bibliographic references are cited in the excerpted section of the testimony
The Lost River sucker and shortnose sucker are two fishes that naturally occur only in the Klamath Basin of southern Oregon and northern California. They are long-lived species, reaching ages of over 30 years. Both species reside primarily in lake habitats and spawn in tributary streams, or at springs within Upper Klamath Lake itself. Historically, the two species made large spawning migrations up the rivers of the Upper Klamath Basin. The two species were federally listed as endangered in 1988 (53 FR 27130). At the time of listing, recognized threats to the species included: (1) Drastically reduced adult populations and lack of significant recruitment; (2) over-harvesting by sport and commercial fishing; (3) potential competition with introduced exotic fishes; (4) lack of regulatory protection from Federal actions that might adversely affect or jeopardize the species; (5) hybridization with the other two sucker species native to the Klamath Basin; and (6) large summer die-offs caused by declines in water quality.
The petitioners assert, through reference to statements made in the testimony of David A. Vogel, that delisting of the Lost River and shortnose suckers should occur because: (1) The estimates of the sucker populations in the 1980s were in error and did not, in fact, demonstrate a precipitous decline (i.e., the populations were much larger than assumed), or (2) the estimates of the sucker populations in the 1980s were reasonably accurate, and the suckers have demonstrated an enormous boom in the period since listing and no longer exhibit “endangered” status.
In 2001, the Service conducted a status review of the Lost River and shortnose suckers. This 2001 status review drew from all information provided in published and unpublished reports on the biology, distribution, and status of the listed sucker species in the Klamath region and the ecosystem on which they depend. The 2001 status review included additional information and we also considered this information as we reviewed the petition.
With regard to Mr. Vogel's first and second statements, concerning sucker population estimates, the early population estimates were based on the available, though limited, sampling data and from creel surveys for the sport and subsistence fishery for suckers, which declined precipitously in the 1980s and caused the Oregon Department of Fish and Wildlife to terminate the fishery in 1987, just prior to the federal listing.
Comparisons between current estimates and those made during the fishery, prior to its termination in 1987, are not informative due to extreme differences in methodology. Population estimates made since listing, while numerically higher than earlier estimates, show no overall trend for increasing populations within the last decade.
The endangered status of the suckers is based on continuing threats to the populations. The 2001 status review identifies continuing threats to the two species which warrant maintaining their listing as endangered under the Endangered Species Act, including but not limited to habitat loss, degradation of water quality, periodic fish die-offs, and entrainment into water diversions.
We have reviewed the petition and its supporting documentation, as well as other available information, published and unpublished studies and reports, and agency files. On the basis of the best scientific and commercial information available, we find that no substantial information has been presented or found that would indicate that delisting of the Lost River sucker or shortnose sucker may be warranted.
When we find that there is not substantial information indicating that the petitioned action may be warranted, initiation of a status review is not required by the Act. However, we continually assess the status of species listed as threatened or endangered. To ensure that our information is complete, and based on the best available scientific and commercial data, we are soliciting information for both sucker species.
The primary author of this document is Stewart Reid, fishery biologist, Klamath Falls Fish and Wildlife Office, U.S. Fish and Wildlife Service (
The authority for this action is the Endangered Species Act of 1973 as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Availability (NOA); request for comments.
The North Pacific Fishery Management Council (Council) has submitted Amendment 60 to the Fishery Management Plan for Groundfish of the Gulf of Alaska Area (FMP). This amendment would prohibit the use of non-pelagic trawl gear in Cook Inlet.
Comments on Amendment 60 must be received by July 15, 2002.
Comments on the FMP amendment may be mailed to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel-Durall. Hand delivery or courier delivery of comments may be sent to the Federal Building, 709 West 9th St., Room 453, Juneau, AK, 99801. Copies of Amendment 60 to the FMP and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action by the Council and NMFS are available from NMFS at the above address, or by calling the Alaska Region, NMFS, at (907) 586-7228.
Glenn Merrill, (907) 586-7228,
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any FMP or FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, immediately publish a notification in the
Amendment 60 was adopted by the Council in September 2000. If approved by NMFS, this amendment would prohibit the use of non-pelagic trawl gear in Cook Inlet north of a line from Cape Douglas (58°51.10′ N. lat.) to Point Adam (59°15.27′ N. lat.). Amendment 60 is necessary to comply with the Magnuson-Stevens Act mandate that regional councils must take measures to reduce bycatch in the nation’s fisheries.
Public comments are being solicited on the amendment through the end of the comment period stated in this NOA. A proposed rule that would implement the amendment may be published in the
Forest Service, USDA.
Revised notice of intent to prepare an environmental impact statement.
The Forest Service will prepare an environmental impact statement on a proposal to authorize livestock grazing activities on the Sacramento Grazing Allotment. The project area encompasses over 111,000 acres of National Forest lands on the Sacramento Ranger District of the Lincoln National Forest. The Sacramento Grazing Allotment comprises approximately 25% of the ranger district.
The project has generated controversy on three main points; effects to threatened and endangered animal and plant species, concern for degraded riparian areas, and forage competition between wildlife and livestock.
The Notice of Intent to prepare an environmental impact statement was first published in the
Rick Newmon or Mark Cadwallader, Lincoln National Forest, Sacramento Ranger District, P.O. Box 288, Cloudcroft, New Mexico, 88317, (505) 682-2551.
16 U.S.C. 472, 551.
Forest Service, USDA.
Notice of meeting.
The New Mexico Collaborative Forest Restoration Program Technical Advisory Panel will meet in Albuquerque, New Mexico, June 24-28, 2002. The purpose of the meeting is to provide recommendations to the Regional Forester, USDA Forest Service Southwestern Region, on which forest restoration grant proposals submitted in response to the Collaborative Forest Restoration Program Request For Proposals best meet the objectives of the Community Forest Restoration Act (Title VI, Pub. L. No. 106-393). The 12 to 15 member panel shall be composed of a Natural Resources Official from the State of New Mexico, two representatives from federal land management agencies, at least one tribal or pueblo representative, at least two independent scientists with experience in forest ecosystem restoration, and equal representation from: conservation interests; local communities; and commodity interests.
The meeting will be held June 24-28, 2002, beginning at 10 am on Monday, June 24 and ending at approximately 4 pm on Friday, June 28.
The meeting will be held at the Wyndham Garden Hotel, 6000 Pan American Freeway NE, Albuquerque, NM 87109.
Walter Dunn, at (505) 842-3425, or Angela Sandoval, at (505) 842-3289, Cooperative and International Forestry Staff, USDA Forest Service, 333 Broadway SE, Albuquerque, NM 87102.
The meeting is open to the public. Items to be covered on the agenda include: (1) Review of the requirements of the Federal Advisory Committee Act; (2) review of the bylaws for the panel and the consensus process; (3) project proposal evaluations; and (4) public comment. Council discussion is limited to Panel members and Forest Service staff. Project proponents may provide calcification in response to questions from Panel members during Panel discussions. Issues may be brought to the attention of the panel by submitting written statements to Walter Dunn at the address stated above. Written statements may also be submitted to the panel staff before or after the meeting. Public input sessions will be provided during the meeting. Individuals who submit written statements to Walter Dunn or the panel staff may address the panel during those sessions.
National Institute of Standards and Technology, Department of Commerce.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that there will be a meeting of the Board of Overseers of the Malcolm Baldrige National Quality Award on June 6, 2002. The
The meeting will convene June 6, 2002 at 8:30 a.m. and adjourn at 3 p.m. on June 6, 2002.
The meeting will be held at the National Institute of Standards and Technology, Administration Building Tenth Floor Conference Room, Gaithersburg, Maryland 20899. Please note admittance instructions under
Dr. Harry Hertz, Director, National Quality Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number (301) 975-2361.
National Institute of Standards and Technology, Department of Commerce.
Notice of closed meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the Judges Panel of the Malcolm Baldrige National Quality Award will meet Wednesday, June 5, 2002. The Judges Panel is composed of nine members prominent in the field of quality management and appointed by the Secretary of Commerce. The purpose of this meeting is to Review the 2002 Baldrige Award Cycle; Discussion of Senior Examiner Training for Site Visits and Final Judging Interaction; Judges' Survey of Applicants; and Judging Process Improvement. The applications under review contain trade secrets and proprietary commercial information submitted to the Government in confidence.
The meeting will convene June 5, 2002 at 11 a.m. and adjourn at 4:30 p.m. on June 5, 2002. The entire meeting will be closed.
The meeting will be held at the National Institute of Standards and Technology, Building 222, Red Training Room, Gaithersburg, Maryland 20899.
Dr. Harry Hertz, Director, National Quality Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number (301) 975-2361.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on February 11, 2002, that the meeting of the Judges Panel will be closed pursuant to section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. app. 2, as amended by section 5(c) of the Government in the Sunshine Act, Public Law 94-409. The meeting, which involves examination of Award applicant data from U.S. companies and a discussion of this data as compared to the Award criteria in order to recommend Award recipients, may be closed to the public in accordance with Section 552b(c)(4) of Title 5, United States Code, because the meetings are likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential.
National Institute of Standards and Technology, Department of Commerce.
Notice of partially closed meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the Visiting Committee on Advanced Technology, National Institute of Standards and Technology (NIST), will meet Tuesday, June 4, 2002, from 8:25 a.m. to 5:15 p.m. and Wednesday, June 5, 2002, from 8:15 a.m. to Noon. The Visiting Committee on Advanced Technology is composed of twelve members appointed by the Director of NIST; who are eminent in such fields as business, research, new product development, engineering, labor, education, management consulting, environment, and international relations. The purpose of this meeting is to review and make recommendations regarding general policy for the Institute, its organization, its budget, framework of applicable national policies as set forth by the President and the Congress. The agenda will include a NIST Update, an Update on Safety, NIST 2010 Developments, Report from a Strategic Focus Group, Selection Process for Strategic Focus Areas and Presentation on Proposed NIST Budget Metrics. Discussions scheduled to begin at 4:15 p.m. and to end at 5:15 p.m. on June 4, 2002, and to begin at 8:15 a.m. and to end at Noon on June 5, 2002, on staffing of management positions at NIST, the NIST budget, including funding levels of the Advanced Technology Program and the Manufacturing Extension Partnership Program, and feedback sessions will be closed. All visitors to the National Institute of Standards and Technology site will have to pre-register to be admitted. Please submit your name, time of arrival, e-mail address and phone number to Carolyn Stull no later than Thursday, May 30, 2002, and she will provide you with instructions for admittance. Ms. Stull's e-mail address is
The meeting will convene June 4, 2002 at 8:25 a.m. and will adjourn at Noon on June 5, 2002.
The meeting will be held in the Employees Lounge, Administration
Carolyn J. Stull, Visiting Committee on Advanced Technology, National Institute of Standards and Technology, Gaithersburg, Maryland 20899-1004, telephone number (301) 975-5607.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on January 16, 2002, that portions of the meeting of the Visiting Committee on Advanced Technology which involve discussion of proposed funding levels of the Advanced Technology Program and the Manufacturing Extension Partnership Program may be closed in accordance with 5 U.S.C. 552b(c)(9)(B), because those portions of the meetings will divulge matters the premature disclosure of which would be likely to significantly frustrate implementation of proposed agency actions; and that portions of meetings which involve discussion of the staffing issues of management and other positions at NIST may be closed in accordance with 5 U.S.C. 552b(c)(6), because divulging information discussed in those portions of the meetings is likely to reveal information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.
National Marine Fisheries Service (NMFS), National
Notice of solicitation for applications.
NMFS (hereinafter “we” or “us”) issues this document to describe how to apply for funding under the Saltonstall-Kennedy (S-K) Grant Program and how we will determine whether to fund a proposal.
Under the S-K Program, we provide financial assistance for research and development projects that address various aspects of U.S. fisheries (commercial or recreational), including, but not limited to, harvesting, processing, marketing, and associated infrastructures.
We must receive your application by the close of business July 15, 2002 in one of the offices listed in section
You can get an application package from, and send your completed application(s) to, the NMFS Regional Administrator located at any of the offices listed in section I.H. of this document. You may also get the application package from the S-K Home Page (
Alicia L. Jarboe, S-K Program Manager, (301) 713-2358.
We are soliciting applications for Federal assistance under the Saltonstall-Kennedy Act (S-K Act), as amended (15 U.S.C. 713c-3). This document describes how you can apply for funding under the S-K Grant Program, and how we will determine which applications we will fund. We will set aside $5 million of the expected $10.3 million available to fund projects under a new priority under section II.A., Atlantic Salmon Aquaculture Development Considering the Endangered Species Status of Atlantic Salmon. We will use the remaining estimated $5.3 million to fund the other priorities under sections II.B.-F.
The S-K Act established a fund (known as the S-K fund) that the Secretary of Commerce uses to provide grants or cooperative agreements for fisheries research and development projects addressed to any aspect of U.S. fisheries, including, but not limited to, harvesting, processing, marketing, and associated infrastructures. U.S. fisheries include any fishery, commercial or recreational, that is, or may be, engaged in by citizens or nationals of the United States, or citizens of the Northern Mariana Islands (NMI), the Republic of the Marshall Islands, Republic of Palau, and the Federated States of Micronesia.
The objectives of the S-K Grant Program, and, therefore, the funding priorities, have changed since the program began in 1980. The program has evolved as fishery management laws and policies, and research needs, have evolved in response to changing circumstances.
The original focus of the program was to develop underutilized fisheries within the U.S. Exclusive Economic Zone (EEZ, i.e., 3-200 miles (5.6-370.4 kilometers) off the coast). This focus was driven in part by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-Stevens Act, originally passed in 1976, directed us to give the domestic fishing industry priority access to the fishery resources in the EEZ. In 1980, the American Fisheries Promotion Act (AFPA) amended the S-K Act to stimulate commercial and recreational fishing efforts in underutilized fisheries. The competitive S-K Program initiated as a result of the AFPA included fisheries development and marketing as funding priorities.
In the following years, the efforts to Americanize the fisheries were successful to the point that most nontraditional species were fully developed and some traditional fisheries became overfished. Therefore, we changed the emphasis of the S-K Program to address conservation and management issues and aquaculture.
In 1996, the Sustainable Fisheries Act (SFA) (Pub. L. 104-297), was enacted. The SFA amended the Magnuson-Stevens Act and supported further adjustment to the S-K Program to address the current condition of fisheries.
The Magnuson-Stevens Act, as amended by the SFA, requires us to undertake efforts to prevent overfishing, rebuild overfished fisheries, insure conservation, protect essential fish habitat (EFH), and realize the full potential of U.S. fishery resources. It further requires that we take into account the importance of fishery resources to fishing communities; provide for the sustained participation of such communities; and, to the extent possible, minimize the adverse economic impacts of conservation and management measures on such communities. The Magnuson-Stevens Act defines a “fishing community” as “a community which is substantially dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs, and includes fishing vessel
The NOAA Strategic Plan, updated in 1998, has also shaped the S-K Program. The Strategic Plan has three goals under its Environmental Stewardship Mission: Build Sustainable Fisheries (BSF), Recover Protected Species, and Sustain Healthy Coasts. The fisheries research and development mission of the S-K Program directly relates to the BSF goal. There are three BSF objectives in the Strategic Plan:
1. Eliminate and prevent overfishing and excess harvesting capacity.
2. Attain economic sustainability in fishing communities.
3. Develop environmentally and economically sound marine aquaculture.
For the FY 2002 S-K Grant Program announced in this document, we have attempted to address the most important needs of fishing communities in terms of the preceding BSF objectives. This goal is reflected in the funding priorities listed in section II of this document. Successful applications will be those aimed at helping fishing communities to resolve issues that affect their ability to fish; make full use of currently managed species or explore the potential for development of new sustainable managed fisheries; develop environmentally sound aquaculture; and address the socioeconomic impacts of overfishing and excess harvesting capacity.
The S-K Program is open to applicants from a variety of sectors, including industry, academia, and state and local governments. We encourage applications that involve collaboration between industry and the other sectors listed.
We have made several changes in this document from the last S-K Grant Program solicitation notice published on March 7, 2001 (66 FR 13701). Therefore, we encourage you to read the entire document before preparing your application.
The scope of the program for FY 2002 is not limited to species under Federal jurisdiction (whether under Fishery Management Plans (FMPs) or not), but includes state managed fisheries as well.
We have added a new priority under section II.A., Atlantic Salmon Aquaculture Development Considering the Endangered Species Status of Atlantic Salmon. Maine's Atlantic salmon aquaculture industry is the top producer of cultured salmon in the United States and provides 2,500 jobs, generates $140 million in personal income, and serves as an increasingly important source of food protein to U.S. consumers.
Atlantic salmon in the eight Maine rivers were listed as endangered under the Endangered Species Act (ESA) (16 U.S.C. 1531-1544) in November 2000. Interbreeding with and competition from escaped farm-raised salmon from Maine's aquaculture industry may threaten the wild salmon population in the Gulf of Maine. The continuation of the Atlantic salmon aquaculture industry depends on eliminating the threats the industry poses to the endangered wild Atlantic salmon.
We will use $5 million of the expected $10.3 million available to fund only projects under this priority. The remaining $5.3 million will be allocated, in no predetermined amounts, among the other priority areas, including the additional priorities mentioned below.
Another new priority is Fishing Capacity Reduction under the Magnuson Stevens Act Sections 312(b)-(e). This replaces the priority Planning for Fishing Community Transition in our FY 2001 program.
We have also added a priority entitled, Fisheries Socioeconomics.
The Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements published in the
We expect to have approximately $10.3 million available for grant awards for Fiscal Year (FY) 2002, which began on October 1, 2001. However, we cannot guarantee that sufficient funds will be available to make awards for all proposals deserving of funding.In order to be funded under the S-K Grant Program, applications must propose activities that: address one of the funding priorities listed in section II of this document; are expected to produce a direct benefit (e.g., tool, information, service, or technology) to the fishing community (as defined in section I.A. of this document); and can be accomplished within 18 months. Acceptable research and development activities include applied research, demonstration projects, pilot or field testing, or business plan development. However, we will not fund projects that primarily involve infrastructure construction, port and harbor development, or start-up or operational costs for private business ventures. Furthermore, if your proposed project primarily involves data collection, we will only consider it if it is directed to a specific problem or need and has a fixed duration. We will not consider data collection programs of a continuing nature.
You are eligible to apply for a grant or a cooperative agreement under the S-K Grant Program if:
1. You are a citizen or national of the United States;
2. You are a citizen of the NMI, being an individual who qualifies as such under section 8 of the Schedule on Transitional Matters attached to the constitution of the NMI;
3. You are a citizen of the Republic of the Marshall Islands, Republic of Palau, or the Federated States of Micronesia; or
4. You represent an entity that is a corporation, partnership, association, or other non-Federal entity, non-profit or otherwise (including Indian tribes), if such entity is a citizen of the United States or NMI, within the meaning of section 2 of the Shipping Act, 1916, as amended (46 U.S.C. app. 802).
We support cultural and gender diversity in our programs and encourage women and minority individuals and groups to submit applications. Furthermore, we recognize the interest of the Secretaries of Commerce and Interior in defining appropriate fisheries policies and programs that meet the needs of the U.S. insular areas, so we also encourage applications from individuals, government entities, and businesses in U.S. insular areas.
We are strongly committed to broadening the participation of Minority Serving Institutions (MSIs), which include Historically Black Colleges and Universities, Hispanic Serving Institutions, and Tribal Colleges and Universities, in all of our programs, including S-K. Therefore, we encourage all applicants to include meaningful participation of MSIs.
We encourage applications from members of the fishing community, and applications that involve fishing community cooperation and participation. We will consider the extent of fishing community involvement when evaluating the potential benefit of funding a proposal.
You are not eligible to submit an application under this program if you are an employee of any Federal agency, a Fishery Management Council (Council), or an employee of a Council.
Our employees (whether full-time, part-time, or intermittent) are not allowed to help you prepare your application, except that S-K Program staff may provide you with information on program goals, funding priorities, application procedures, and completion of application forms. Since this is a competitive program, NMFS and NOAA employees will not help with conceptualizing, developing, or structuring proposals, or write letters of support for a proposal.
We will award grants or cooperative agreements for a maximum period of 18 months. We award cooperative agreements in those situations where we anticipate having substantial involvement in the project. “Substantial involvement” means we will share responsibility for management, control, direction, or performance of the project with you, the recipient of the award.
We do not fund multi-year projects under the S-K Program. If we select your application for funding and you wish to continue work on the project beyond the funding period, you must submit another proposal to the competitive process for consideration, and you will not receive preferential treatment.
Even though we are publishing this announcement, we are not required to award any specific grant or cooperative agreement, nor are we required to obligate any part or the entire amount of funds available.
We are requiring cost sharing in order to leverage the limited funds available for this program and to encourage partnerships among government, industry, and academia to address the needs of fishing communities. You must provide a minimum cost share of 10 percent of total (Federal and non-Federal combined) project costs, but your cost share must not exceed 50 percent of total costs.
You may find this formula useful:
1. Total Project Cost (Federal and non-Federal cost share combined) x .9 = Maximum Federal Share.
2. Total Cost - Federal share = Applicant Share.
For example, if the proposed total budget for your project is $100,000, the maximum Federal funding you can apply for is $90,000 ($100,000 x .9). Your cost share in this case would be $10,000 ($100,000 - $90,000).
For a total project cost of $100,000, you must contribute at least $10,000, but no more than $50,000 (10-50 percent of total project cost). Accordingly, the Federal share you apply for would range from $50,000 to $90,000. If your application does not comply with these cost share requirements, we will return it to you and will not consider it for funding.
The funds you provide as cost sharing may include funds from private sources or from state or local governments, or the value of in-kind contributions. You may not use Federal funds to meet the cost sharing requirement except as provided by Federal statute. In-kind contributions are non-cash contributions provided to you by non-Federal third parties. In-kind contributions may include, but are not limited to, personal services volunteered to perform tasks in the project, and permission to use, at no cost, real or personal property owned by others.
We will determine the appropriateness of all cost sharing proposals, including the valuation of in-kind contributions, on the basis of guidance provided in 15 CFR parts 14 and 24. In general, the value of in-kind services or property you use to fulfill your cost share will be the fair market value of the services or property. Thus, the value is equivalent to the cost for you to obtain such services or property if they had not been donated. You must document the in-kind services or property you will use to fulfill your cost share.
If we decide to fund your application, we will require you to account for the total amount of cost share included in the award document. (See 66 FR 49918, October 1, 2001, for additional information on cost sharing).
The S-K Grant Program is listed in the CFDA under 11.427, Fisheries Development and Utilization Research and Development Grants and Cooperative Agreements Program.
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930; (978) 281-9267.
Southeast Region, NMFS, 9721 Executive Center Drive, North,
St. Petersburg, FL 33702-2432, (727) 570-5324.
Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, (562) 980-4033.
Pacific Islands Area Office, NMFS, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814-4700, (808) 973-2937.
Northwest Region, NMFS, 7600 Sand Point Way, N.E., BIN C15700, Building 1, Seattle, WA 98115, (206) 526-6115.
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802 or
Federal Building, 709 West 9th Street, 4th Floor, Juneau, AK 99801-1668, (907) 586-7224.
This solicitation and the application package are available on the NMFS S-K Home Page at: www.nmfs.noaa.gov/sfweb/skhome.html.
A copy of the Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements (66 FR 49917) is also available on the S-K Home Page.
The CFDA is available at: www:cfda.gov/.
The 1998 updated Executive Summary of the NOAA Strategic Plan is available at: www.strategic.noaa.gov/ and the Magnuson-Stevens Act is available at: www.nmfs.noaa.gov/sfa/magact/.
A list of institutions considered to be MSIs is available at: www.ed.gov/offices/OCR/minorityinst.html.
The Buyback Framework regulations pertaining to Priority B (50 CFR 600.1000
Federal Business Opportunities (replacement for the Commerce Business Daily) is available at:
Your proposal must address one of the six priorities listed here.
If we do not receive proposals that adequately respond to the priorities listed, we may use S-K funds to carry out a national program of research and development addressed to aspects of U.S. fisheries pursuant to section 713c-3(d) of the S-K Act, as amended.
The priorities are not listed in any particular order and each is of equal importance, although the funds are partitioned between priority A and the remaining priorities. We will set aside $5 million to fund projects under Priority A. The remaining estimated $5.3 million may be used to fund projects under Priorities B through F. There is no similar predetermined allocation for portions of the $5.3 million among Priorities B through F.
If we do not receive sufficient fundable applications to use the entire $5 million reserved for Priority A, we will carry the remainder over to address the Atlantic salmon aquaculture priority in our FY 2003 competition.
Promote the continued development of the Atlantic salmon aquaculture industry, by minimizing the potential for negative impacts on wild Atlantic salmon, which is listed as endangered under the ESA. Acceptable activities include the development and testing of:
More secure cages to reduce farmed fish escapement;
Brood stock strains that grow more quickly, better resist disease, or pose less genetic threat to North Atlantic wild salmon stocks;
Improved marks or tags to trace potential escapes of farmed fish;
Vaccines or other methods to prevent the spread of disease between farmed fish and wild fish; and
Improved methods to monitor sea cage integrity and farmed fish disease.
Note, if your application addresses Priority A you should submit it to the NMFS Northeast Region, regardless of your location (see I.H., Application Addresses).
Promote the reduction of excess harvesting capacity in appropriate fisheries by analyses and evaluations that prepare the proponents of buybacks financed by NMFS loans under Title XI of the Merchant Marine Act to consider, plan for, organize, justify, support, and effect financed buybacks. (See 50 CFR part 600.1000,
1. Analyzing cost/benefit to determine a fishery's potential for financed buyback, including:
a. Establishing the type of financed buyback (i.e., permit only or permit and vessel buyback) that reduces the maximum capacity at the least cost in the least amount of time;
b. Knowledgeably estimating various capacity ranges in a fishery that could be bought back at various cost ranges;
c. Evaluating harvesters' pre-buyback cost-income, how various buyback capacity/cost ranges could change post-buyback cost-income, the prospective ability of post-buyback harvesters to pay the estimated fees to service the buyback loan, and the benefits to them of doing so; and
d. Assuming the fishery's FMP already prohibits new entrants to the fishery, establishing the scope and possible content of appropriate FMP amendments that might first be required to effectively and permanently resolve latent capacity in that fishery prior to buyback, and to prevent post-buyback vessel upgrading or other circumstances from replacing the capacity that a buyback removes.
2. Evaluating detailed means and methods for industry buyback proponents in the fishery to efficiently and effectively:
a. Survey potential referendum voters (each permit holder in the buyback fishery) to establish the prospective degree of interest in, and support for, a financed buyback in that fishery, and
b. Prepare a successful financed buyback application and
business plan (see 50 CFR 600.1003).
In addition to the above, responsible proponents of financed buybacks in individual fisheries may also submit proposals to prepare actual financed buyback applications and business plans for that fishery.
Note, depending on the type of activity you propose, you may be required to obtain approval under the Paperwork Reduction Act (PRA) for surveys, etc., related to this priority. You should consider this when preparing your application and estimated time lines.
Reduce or eliminate adverse interactions between fishing operations and nontargeted, protected, or prohibited species, including the inadvertent take, capture, or destruction of such species. These include juvenile or sublegal-sized fish and shellfish, females of certain crabs, fish listed under the ESA, marine turtles, seabirds, or marine mammals.
Improve the survivability of fish discarded or intentionally released and of protected species released in fishing operations.
Reduce or eliminate impacts of fishing activity on EFH that adversely affect the sustainability of the fishery.
Reduce or eliminate factors such as diseases, human health hazards, and quality problems that limit the utilization of fish and their products in the United States and abroad.
Increase public knowledge of the safe handling and use of fish and their products.
Develop usable products from economic discards (defined in the Magnuson-Stevens Act as “fish which are the target of a fishery, but which are not retained because they are of an undesirable size, sex, or quality, or for other economic reasons”), underutilized species, and byproducts of processing.
Facilitate industry cooperation and outreach to promote and enhance marketability of regional U.S. fishery products.
Collect data on population dynamics, life histories, etc., of fish not currently under Federal FMPs, for the Councils to determine the feasibility of a new federally managed fishery that could provide additional fishing opportunity.
Advance the implementation of marine aquaculture by addressing technical aspects such as systems engineering, environmental compatibility, and culture technology.
Reduce or eliminate legal and social barriers to aquaculture development, e.g., legal constraints, use conflicts, exclusionary mapping, and appropriate institutional roles.
Address environmental issues for marine aquaculture, e.g., measure and reduce water quality and benthic community impacts; evaluate and reduce negative interactions between aquaculture and wild stocks, protected resources, and EFH; develop best management practices with scientific analysis and assessment of risk. Note, proposals pertaining to Atlantic salmon aquaculture should be submitted under Priority A.
Develop effective enhancement strategies for marine and anadromous species to help in the recovery of wild stocks.
Improve the understanding of the socioeconomic aspects of fisheries to increase the knowledge base for making decisions that affect commercial, recreational, and subsistence fishing. Examples could include, but are not limited to, ethnographic baseline data on specific fishing communities; cost-income data; analyses of the socioeconomic impacts of specific management measures in certain fisheries; analyses of factors influencing demand for recreational fishing trips by anglers; and, market analyses to determine factors that influence demand and supply of specific seafood products, including imports.
Such initiatives must be discrete projects that can be carried out within an 18-month maximum project period. Studies must not duplicate or overlap any other ongoing socioeconomic data collection and analyses programs. We encourage projects that are industry-
Note, depending on the type of activity you propose, you may be required to obtain approval under the PRA for surveys, etc., related to this priority. You should consider this when preparing your application and estimated time lines.
You must follow the instructions in this document in order to apply for a grant or cooperative agreement under the S-K Program. Your application must be complete and must follow the format described here. Your application should not be bound in any manner and must be printed on one side only. You must submit one signed original and nine signed copies of your application.
You must use Office of Management and Budget (OMB) Standard Form 424 and 424B (4-92) as the cover sheet for each project. (In order to complete item 16 of Standard Form 424, see section V.A.3. of this document.)
You must complete NOAA Form 88-204 (10-01), Project Summary, for each project. You must list on the Project Summary form the specific priority to which the application responds (see section II. of this document).
You must submit a budget for each project, using NOAA Form 88-205 (10-01), Project Budget and associated instructions. You must provide detailed cost estimates showing total project costs. Indicate the breakdown of costs between Federal and non-Federal shares, divided into cash and in-kind contributions. To support the budget, describe briefly the basis for estimating the value of the cost sharing derived from in-kind contributions. Specify estimates of the direct costs in the categories listed on the Project Budget form.
You may also include in the budget an amount for indirect costs if you have an established indirect cost rate with the Federal government. For this solicitation, the total dollar amount of the indirect costs you propose in your application must not exceed the indirect cost rate negotiated and approved by a cognizant Federal agency prior to the proposed effective date of the award, or 100 percent of the total proposed direct costs dollar amount in the application, whichever is less.
Furthermore, the Federal share of the indirect costs you propose must not exceed 25 percent of the total proposed direct costs. If your application requests more than 25 percent of the total costs as Federal funds to cover indirect costs, the application will be returned to you and will not be considered for funding.
If you have an approved indirect cost rate above 25 percent of the total proposed direct cost, you may use the amount above the 25-percent level up to the 100-percent level as part of the non-Federal share. You must include a copy of the current, approved, negotiated indirect cost agreement with the Federal government with your application. (See 66 FR 49919, October 1, 2001, for further information on indirect costs.)
We will not consider fees or profits as allowable costs in your application.
The total costs of a project consist of all allowable costs you incur, including the value of in-kind contributions, in accomplishing project objectives during the life of the project. A project begins on the effective date of an award agreement between you and an authorized representative of the U.S. Government and ends on the date specified in the award. Accordingly, we cannot reimburse you for time that you expend or costs that you incur in developing a project or preparing the application, or in any discussions or negotiations you may have with us prior to the award. We will not accept such expenditures as part of your cost share.
You must provide a narrative description of your project that may be up to 15 pages long. The narrative should demonstrate your knowledge of the need for the project, and show how your proposal builds upon any past and current work in the subject area, as well as relevant work in related fields. You should not assume that we already know the relative merits of the project you describe. You must describe your project as follows:
1. Project goals and objectives. Identify the specific priority listed in section II to which the proposed project responds. Identify the problem/opportunity you intend to address and describe its significance to the fishing community. State what you expect the project to accomplish.
If you are applying to continue a project we previously funded under the S-K Program, describe in detail your progress to date and explain why you need additional funding. We will consider this information in evaluating your current application.
2. Project impacts. Describe the anticipated impacts of the project on the fishing community in terms of reduced bycatch, increased product yield, or other measurable benefits. Describe how you will make the results of the project available to the public.
3. Evaluation of project. Specify the criteria and procedures that you will use to evaluate the relative success or failure of a project in achieving its objectives.
4. Need for government financial assistance. Explain why you need government financial assistance for the proposed work. List all other sources of funding you have or are seeking for the project.
5. Federal, state, and local government activities and permits. List any existing Federal, state, or local government programs or activities that this project would affect, including activities requiring: certification under state Coastal Zone Management Plans; section 404 or section 10 permits issued by the Corps of Engineers; experimental fishing or other permits under FMPs; environmental impact statements to meet the requirements of the National Environmental Policy Act; scientific permits under the ESA and/or the Marine Mammal Protection Act; or Magnuson-Stevens Act EFH consultation if the project may adversely affect areas identified as EFH. Describe the relationship between the project and these FMPs or activities, and list names and addresses of persons providing this information. You can get information on these activities from the NMFS Regions (see Section I.H., Application Addresses). If we select your project for funding, you are responsible for complying with all applicable requirements.
6. Project statement of work. The statement of work is an action plan of activities you will conduct during the period of the project. You must prepare a detailed narrative, fully describing the work you will perform to achieve the project goals and objectives. The narrative should respond to the following questions:
(a) What is the project design? What specific work, activities, procedures, statistical design, or analytical methods will you undertake?
(b) Who will be responsible for carrying out the various activities? (Highlight work that will be subcontracted and provisions for competitive subcontracting.)
(c) What are the major products and how will project results be disseminated? Describe products of the project, such as a manual, video, technique, or piece of equipment. Indicate how project results will be disseminated to potential users.
(d) What are the project milestones? List milestones, describing the specific
This information is critical for us to conduct a thorough review of your application, so we encourage you to provide sufficient detail.
7. Participation by persons or groups other than the applicant. Describe how government and non-government entities, particularly members of fishing communities, will participate in the project, and the nature of their participation. We will consider the degree of participation by members of the fishing community in determining which applications to fund.
8. Project management. Describe how the project will be organized and managed. Identify the principal investigator and other participants in the project. If you do not identify the principal investigator, we will return your application without further consideration. Include copies of any agreements between you and the participants describing the specific tasks to be performed. Provide a statement no more than two pages long of the qualifications and experience (e.g., resume or curriculum vitae) of the principal investigator(s) and any consultants and/or subcontractors, and indicate their level of involvement in the project. If any portion of the project will be conducted through consultants and/or subcontracts, you must follow procurement guidance in 15 CFR part 24, “Grants and Cooperative Agreements to State and Local Governments,” and 15 CFR part 14, “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, Other Non-Profit, and Commercial Organizations.” If you select a consultant and/or a subcontractor prior to submitting an application, indicate the process that you used for selection.
You should include any relevant documents and additional information (i.e., maps, background documents) that will help us to understand the project and the problem/opportunity you seek to address.
When we receive applications at any of the NMFS Regional Offices, we will first screen them to ensure that they were received by the deadline date (see DATES); include OMB form 424 signed and dated by an authorized representative (see section III. A. of this document); were submitted by an eligible applicant (see section I.D. of this document); provide for at least a 10-percent cost share but not more than 50 percent (see section I.F. of this document); involve an eligible activity (see section I.C. of this document); address one of the funding priorities for species under Federal or State jurisdiction (see section II.A.-F. of this document); include a budget and a statement of work including milestones (see sections III.C. and III.D.6 of this document); and identify the principal investigator (see section III D.8. of this document). Note, if we find, at any point in the process, that your application does not fully conform to these requirements and the deadline for submission has passed, we will return it to you without further consideration.
We do not have to screen applications before the submission deadline, nor do we have to give you an opportunity to correct
any deficiencies that cause your application to be rejected.
After the initial screening, we will solicit individual evaluations of each project application from three or more appropriate private and public sector experts to determine the technical merit. No consensus recommendations will be made. Reviewers will be required to certify that they do not have a conflict of interest concerning the application(s) they are reviewing. They will assign scores ranging from a minimum of 60 (poor) to a maximum of 100 (excellent) to applications based on the following criteria, with weights shown in parentheses:
a. Soundness of project design/conceptual approach. Applications will be evaluated on the conceptual approach; the likelihood of project results in the time frame specified in the application; whether there is sufficient information to evaluate the project technically; and, if so, the strengths and/or weaknesses of the technical design relative to securing productive results. (50 percent)
b. Project management and experience and qualifications of personnel. The organization and management of the project will be evaluated. The project's principal investigator and other personnel, including consultants and contractors participating in the project, will be evaluated in terms of relevant experience and qualifications. Applications that include consultants and contractors will be reviewed to determine if your involvement, as the primary applicant, is necessary to the conduct of the project and the accomplishment of its objectives. (25 percent)
c. Project evaluation. The methods you propose to monitor and evaluate the success or failure of the project in terms of meeting its original objectives will be examined for potential effectiveness. (10 percent)
d. Project costs. The justification and allocation of the budget in terms of the work to be performed will be evaluated. Unreasonably high or low project costs will be taken into account. (15 percent)
Following the technical review, we will determine the weighted score for each individual review and average the individual technical review scores to determine the final technical score for each application. Then, we will rank applications in descending order by their final technical scores and determine a “cutoff” score that is based on the amount of funds available for grants. We will eliminate from further consideration those applications that scored below the cutoff.
For those applications at or above the cutoff technical evaluation score, we will solicit individual comments and evaluations from a panel or panels of three or more representatives selected by the Assistant Administrator for Fisheries (AA), NOAA. Regardless of the total number of panels convened, we will convene a separate panel for projects addressing Priority A dealing with Atlantic salmon aquaculture. Panel members will be chosen from the fishing industry, state government, non-government organizations, and others, as appropriate. We will provide panelists with a summary of the technical evaluations, and, for applications to continue a previously funded project, information on progress on the funded work to date.
Each panelist will evaluate the applications in terms of the significance of the problem or opportunity being addressed, the degree to which the project involves collaboration with fishing community members and other appropriate collaborators, proposed means to disseminate project results, and the merits of funding each project. Each panelist will provide a rating from 0-4 (poor to excellent) for each project, and provide comments if they wish. Panelists will not reach consensus on recommendations or scores. Panel members will be required to certify that
Following the Constituent Panel meeting, we will average the individual ratings for each project. We will then develop a ranking of projects based on the individual ranks within each of the priority areas. Final rankings will consider projects addressing Priority A separately from projects addressing priorities B through F.
After projects have been evaluated and ranked, we will use this information, along with input from the NMFS Regional Administrators (RAs) and Office Directors (ODs), to develop recommendations for project funding. RAs/ODs will prepare a written justification for any recommendations for funding that fall outside the ranking order, or for any cost adjustments.
The AA will review the funding recommendations and comments of the RAs/ODs and determine the projects to be funded. The AA will make two sets of final funding decisions: one for proposals addressing priority A and a second set for those addressing Priorities B through F. In making the final selections, the AA may consider costs, geographical distribution, and duplication with other federally funded projects. Awards are not necessarily made to the highest ranked applications.
We will notify you in writing whether your application is selected or not. Furthermore, if your application is not selected, we will return it to you. Successful applications will be incorporated into the award document.
The exact amount of funds, the scope of work, and terms and conditions of a successful award will be determined in preaward negotiations between you and NOAA/NMFS representatives. The funding instrument (grant or cooperative agreement) will be determined by NOAA Grants. You should not initiate your project in expectation of Federal funding until you receive a grant award document signed by an authorized NOAA official.
The Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements published in the
In addition, you must:
1. Meet all application requirements and provide all information necessary for the evaluation of the proposal(s), including one signed original and nine signed copies of the application.
2. Be available to respond to questions during the review and evaluation of the proposal(s).
3. Complete Item 16 on Standard Form 424 (4-92) regarding clearance by the State Point Of Contact (SPOC) established as a result of Executive Order 12372. You can get the list of SPOCs from any of the NMFS offices listed in this document or from the S-K Home Page (see section I.I. of this document). It is also included in the CFDA. You must contact the SPOC, if your state has one, to see if applications to the S-K Program are subject to review. If SPOC clearance is required, you are responsible for getting that clearance in time to submit your application to the S-K Program by the deadline (
4. Complete Standard Form 424B (4-92), “Assurances--Non-construction Programs.”
If you are awarded a grant or cooperative agreement for a project, you must:
1. Manage the day-to-day operations of the project, be responsible for the performance of all activities for which funds are granted, and be responsible for the satisfaction of all administrative and managerial conditions imposed by the award.
2. Keep records sufficient to document any costs incurred under the award, and submit financial status reports (SF 269) to NOAA's Grants Management Division in accordance with the award conditions.
3. Submit semiannual project status reports on the use of funds and progress of the project to us within 30 days after the end of each 6-month period. You will submit these reports to the individual identified as the NMFS Program Officer in the funding agreement.
4. Submit a final report within 90 days after completion of each project to the NMFS Program Officer. The final report must describe the project and include an evaluation of the work you performed and the results and benefits in sufficient detail to enable us to assess the success of the completed project.
We are committed to using available technology to achieve the timely and wide distribution of final reports to those who would benefit from this information. Therefore, you are required to submit final reports in electronic format, in accordance with the award terms and conditions, for publication on the S-K Home Page. You may charge the costs associated with preparing and transmitting your final reports in electronic format to the grant award. We will consider requests for exemption from the electronic submission requirement on a case-by-case basis.
We will provide you with OMB-approved formats for the semiannual and final reports.
5. In addition to the final report in section V.B.4. of this document, we request that you submit any publications printed with grant funds (such as manuals, surveys, etc.) to the NMFS Program Officer for dissemination to the public. Submit either three hard copies or an electronic version of any such publications.
We reserve the right to conduct a post-closeout evaluation of project results in terms of demonstrated benefit to fishing communities, as indicated by awareness of the work conducted, state of knowledge advanced, adoption of techniques or methods developed, implementation of plans prepared, etc. Evaluation may be conducted by appropriate individuals within or outside NOAA. If this process requires any additional information from you, we will first obtain the proper clearances under the PRA.
Prior notice and an opportunity for public comments are not required by the Administrative Procedure Act (5 U.S.C. 553(a)(2))or any other law for this notice concerning grants, benefits, and contracts.
Furthermore, because a notice is not a regulation, a regulatory flexibility analysis is not required by the Regulatory Flexibility Act or any other law, and none has been prepared.
This action has been determined to be not significant for purposes of Executive Order 12866.
Applications under this program are subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.”
This document contains collection-of-information requirements subject to the PRA. The use of Standard Forms 424, 424B, and SF-LLL (Disclosure of Lobbying Activities) have been approved by the Office of Management and Budget (OMB) under the respective control numbers 0348-0043, 0348-0040, and 0348-0046. NOAA-specific requirements have been approved under OMB control number 0648-0135. These requirements and their estimated response times are 1 hour for a project summary, 1 hour for a budget form, 2.5 hours for a semiannual report, and 13 hours for a final report. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this collection of information, including suggestions for reducing this burden, to Alicia Jarboe, F/SF2, Room 13112, 1315 East West Highway, Silver Spring, MD 20910-3282.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.
A solicitation for applications can also be obtained through “FedBizOpps.”
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Annual meeting of Regional Fishery Management Council and NMFS representatives.
Representatives of the eight Regional Fishery Management Councils will meet with representatives of NMFS in Sitka, AK.
The meetings will be held on Tuesday, May 28, 2002 through Friday, May 31, 2002.
The meetings will be held at the Harrigan Centennial Hall, 330 Harbor Drive, Sitka, AK.
Gail Bendixen, NPFMC, Phone: 907-271-2809.
On Tuesday, May 28, Council representatives and NMFS representatives will meet separately to prepare for the joint meetings Wednesday and Thursday, May 29-30. Council representatives will meet again on Friday morning, May 31, to finalize any recommendations resulting from the joint meetings.
The tentative agenda includes the following subjects for discussion:
1. Reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act and other legislative initiatives.
2. Procedure and schedules for approval of Council statements of operating policies and procedures.
3. Discussion of Marine Protected Area initiative.
4. The ability of NMFS to meet mission requirements.
5. Discussion of education and public outreach campaign.
6. International trade negotiations, capacity reduction assessments, and general litigation influences.
7. Reports:
(a) NMFS reports on cooperative research funds and electronic logbook program.
(b) U.S. Coast Guard report on fisheries enforcement and rescue activities.
(c) Update on the 2002 annual Status of Stocks report to Congress and discussion of process and format for future reports.
(d) Status of the Coral Reef Task Force and funding issues.
(e) Status report on electronic rulemaking initiative.
(f) Status report on Essential Fish Habitat lawsuit and development of environmental impact statements.
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 action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council’s intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at 907-271-2809 at least 7 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) Coastal Pelagic Species Management Team (CPSMT) will hold a work session, which is open to the public.
The CPSMT will meet Wednesday, May 29, 2002, from 8 a.m. until business for the day is completed.
The work session will be held in the large conference room (D-203) at NMFS Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, La Jolla, CA 92037; (858) 546-7000.
Dan Waldeck, Pacific Fishery Management Council; (503) 326-6352.
The primary purpose of the work session is to review the current Pacific mackerel stock assessment and develop harvest guideline and seasonal structure recommendations for the 2002-2003 fishery. The 2002 CPS stock assessment and fishery evaluation (SAFE) document might also be discussed.
Although nonemergency issues not contained in the CPSMT meeting agenda may come before the CPSMT for discussion, those issues may not be the subject of formal CPSMT action during this meeting. CPSMT 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 CPSMT'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 Sanctuaries Program (NMSP), Office of Ocean and Coastal Resources Management (OCRM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of Area to be Temporarily Avoided.
NOAA requests that users of the Florida Keys National Marine Sanctuary (FKNMS) avoid, from May 15, 2002 through June 28, 2002, an area of approximately 0.58 acres marked by construction buoys in the vicinity of 25°0.67′ N, 80°22.37′ W, which is at “Molasses Reef,” and is located 6 nautical miles (11.1 km) off the southeastern portion of Key Largo, Florida. During this time, NOAA and authorized contractors will be conducting physical restoration activities of a coral reef where the M/V Wellwood grounded in August 1984. The public is requested to avoid the area during this period due to the presence of heavy construction materials and equipment (
The public is requested to avoid the area from May 15, 2002 through June 28, 2002. If less or more time is needed, NOAA will so inform the public. Public notice of this request also will be provided through local news media, a Notice to Mariners, and posting of placards or bulletin boards in public areas in Key Largo.
Harriet Sopher, Program Manager, Resource Protection Team, National Marine Sanctuaries Program, National Oceanic and Atmospheric Administration, 1305 East West Highway, SSMC4, 11th Floor, Silver Spring, Maryland, 20910. Telephone number: 301-713-3125, ext. 109.
On August 4, 1984, the M/V Wellwood, a 122-meter Cypriot-registered freighter, ran aground on the upper forereef of Molasses Reef within the FKNMS. The grounding site is a bank reef located 6 nautical miles (11.1 km) off the southeast portion of Key Largo, Florida (entered at approximately 25°0.67′ N, 80°22.37′ W). The impact of the grounding and the shifting of the vessel created large scars on the Molasses Reef forereef. Significant injuries were inflicted to the coral reef colonies, substrate, and other resident marine organisms such as sponges and sea fans. The unconsolidated coral rubble and ship debris have been removed. Storm events, including Hurricane Georges in the autumn of 1998, have caused additional damage to the grounding site.
Section 312 of the National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1443) authorizes NOAA to pursue claims for response costs and damages when sanctuary resources are destroyed, lost or injured. Funds recovered under section 312 are used to restore, replace or acquire equivalent sanctuary resources. As part of the restoration process at the site of the M/V Wellwood grounding, NOAA and its authorized contractor will be placing reef modules and tremie concrete to rebuild the physical structure of the damaged coral reef. This activity will occur from April 15, 2002 through June 28, 2002.
Because divers, moorings, heavy construction materials and equipment (
The intent is to provide an area for the conduct of these important restoration activities; protect the life and property of construction crews and Sanctuary users while heavy construction materials and equipment (
During the spring of 2002, one-on-one contact was made with local dive operators, a public meeting was held to explain the restoration project and make the public aware of the area it would be requested to temporarily avoid. Additionally, NOAA issued press releases to the local newspapers and radio stations which have covered the restoration planning process and which have provided notice of NOAA's request for the public to avoid the restoration area.
The area which the public is requested to avoid is located approximately 6 nautical miles offshore the southeast portion of Key Largo, Florida (centered near 25°0.67′ N, 80°22.37′ W). The total area is approximately 0.58 acres. The boundary of this area will be marked by construction buoys.
The area is bounded by the following coordinates:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Dr. Frank A. Chapman, Department of Fisheries and Aquatic Sciences, University of Florida, University of Florida, 7922 N.W. 71 St., Gainesville, Florida 32653, has been issued a permit to take Shortnose Sturgeon (
The permit and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)713-0376.
Lillian Becker, (301)713-2289).
On September 17, 2001, notice was published in the
The Holder was issued a four year permit [#1351] to identify the physical, chemical, and biological parameters necessary for optimal survival and growth of shortnose sturgeon. The research activities proposed in this investigation address the goals and objectives of the shortnose sturgeon recovery plan.
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Consumer Product Safety Commission.
Notice of first prehearing conference.
This notice announces a prehearing conference to be held in the matter of Daisy Manufacturing Company, Inc. on June 7, 2002 at 10 a.m.
The prehearing conference will be in hearing room 420 of the East-West Towers Building, 4330 East-West Highway, Bethesda, Maryland 20814.
Todd A. Stevenson, Secretary, U.S. Consumer Product Safety Commission, Washington, DC; telephone (301) 504-0800; telefax (301) 504-0127.
This public notice is issued pursuant to 16 CFR 1025.21(b) of the U.S. Consumer Product Safety Commission's Rules of Practice for Adjudicative Proceedings to inform the public that a prehearing conference will be held in administrative proceeding under section 15 of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2064 and section 15 of the Federal Hazardous Substances Act (“FHSA”), 15 U.S.C. 1274, captioned CPSC Docket No. 02-2, In the Matter of DAISY MANUFACTURING COMPANY, Inc. doing business as Daisy Outdoor Products. The Presiding Officer in the proceeding is United States Administrative Law Judge William B. Moran. The Presiding Officer has determined that, for good and sufficient cause, the time period for holding the first prehearing conference had to be extended to the date announced above, which date is beyond the fifty (50) day period referenced in 16 CFR 1025.21(a).
The public is referred to the Code of Regulations citation listed above for identification of the issues to be raised at the conference and is advised that the date, time and place of the hearing also will be established at the conference.
Substantively, the issues being litigated in this proceeding are described by the Presiding Officer to include: Whether certain identified models of the Daisy Powerline Airgun, designed to shoot BBs or pellets, contain defects which create a substantial product hazard defect in that, allegedly, BBs can become lodged within a “virtual magazine,” or fail to feet into the firing chamber, with the consequences that one may fire or shake the gun without receiving any visual or audible indication that is still loaded. Consequently, the complaint asserts that these alleged problems can lead consumers to erroneously believe that the gun is empty and that such phenomena means that the gun is “defective” within the meaning of section 15 of the CPSA, 15 U.S.C. 2064 and section 15 of the FHSA, 15 U.S.C. 1274. The Complaint further alleges that the gun's design, by making it difficult to determine when looking into the loading port whether a BB is present, constitutes a “defect” under the CPSA and the FHSA and presents a “substantial product hazard,” creating a substantial risk of injury to consumers, within the meaning of section 15(a)(2), of the CPSA, 15 U.S.C. 2064(a)(12), and presents a substantial risk of injury of children under section 15(c)(1) and (c)(2) of the FHSA, 15 U.S.C. 1274(c)(1) and (c)(2). The public should be mindful that these are allegations only and the CPSC bears the burden of proof in establishing any violations. Should these allegations be proven, Complaint Counsel for the Office of Compliance of the U.S. Consumer Product Safety Commission seeks a finding that these products present a substantial product hazard and present a substantial risk of injury to children and that public notification of such hazard and risk of injury be made pursuant to section 15(c) of the CPSA and that other appropriate relief be directed, as set forth in the Complaint.
For a recorded message containing the latest agenda information, call (301) 504-0709.
The Board of Directors of the Corporation for National and Community Service gives notice of the following meeting:
Tuesday, May 21, 2002, 9:30 a.m.-12:30 p.m.
John F. Kennedy School of Government, 79 John F. Kennedy Street (Harvard Square), Cambridge, MA 02183.
Open.
Anyone who needs an interpreter or other accommodation should notify the Corporation's contact person.
Ms. Michele Tennery, Senior Associate, Corporation for National and Community Service, 8th Floor, Room 8513, 1201 New York Avenue NW., Washington, DC 20525. Phone (202) 606-5000 ext. 125. Fax (202) 565-2784 TDD: (202) 565-2799. E-mail:
Department of Education.
Notice of Proposed Information Collection Requests.
The Acting Leader, Regulatory Information Management, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by May 7, 2002. A regular clearance process is also beginning. Interested persons are invited to submit comments on or before July 15, 2002.
Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer: Department of Education, Office of Management and Budget; 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget (OMB) may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Acting Leader, Information Management Group, Office of the Chief Information Officer, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. ED invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on respondents, including through the use of information technology.
Responses: 900.
Burden Hours: 12,000.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at her internet address
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before June 13, 2002.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at (202) 708-5359 or via her Internet address
Office of Fossil Energy, DOE.
Notice of application.
ENMAX Energy Marketing Inc. (ENMAX) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before May 29, 2002.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Import/Export (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW, Washington, DC 20585-0350 (FAX 202-287-5736).
Steven Mintz (Program Office) 202-586-9506 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On April 19, 2002, the Office of Fossil Energy (FE) of the Department of Energy (DOE) received an application from ENMAX to transmit electric energy from the United States to Canada. ENMAX is an Alberta corporation having its principal place of business at Calgary, Alberta, Canada. ENMAX is a power marketer and is a wholly-owned subsidiary of ENMAX Energy Corporation, which in turn is a wholly-owned subsidiary of ENMAX Corporation. ENMAX currently participates in the wholesale trading of energy within Canada. ENMAX does not own or control any electric power generation or transmission facilities and does not have a franchised service area. Further, ENMAX requests that consideration of the application be expedited so that it may participate in the Alberta market that has recently experienced some supply uncertainty and price volatility.
ENMAX proposes to arrange for the delivery of electric energy to Canada over the existing international transmission facilities owned by Basin Electric Power Cooperative, Bonneville Power Administration, Citizen Utilities, Eastern Maine Electric Cooperative, International Transmission Company, Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power Inc., Minnkota Power Cooperative, New York Power Authority, Niagara Mohawk Power Corporation, Northern States Power, and Vermont Electric Transmission Company. The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by ENMAX, as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
ENMAX has requested expedited processing of its application so that electric power exports requested herein may help mitigate some supply uncertainties and price volatilities occurring in the Alberta market. Accordingly, DOE has set a 15-day comment period for this proceeding.
Comments on the ENMAX application to export electric energy to Canada should be clearly marked with Docket EA-264. Additional copies are to be filed directly with Darin L. Lowther, Manager, Regulatory Affairs, ENMAX Energy Marketing Inc., 2808 Spiller Road, SE., Calgary, Alberta, Canada, T2G 4H3, AND Jerry L. Pfeffer, Energy Industry Advisor, Skadden, Arps, Slate, Meagher & Flom, LLP, 1440 New York Avenue, NW., Washington, DC 20005-2111.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy Home Page at
Office of Fossil Energy, DOE.
Notice of application.
Ontario Energy Trading International Corp. (Ontario Energy) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before May 29, 2002.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Import/Export (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW, Washington, DC 20585-0350 (FAX 202-287-5736).
Xavier Puslowski (Program Office) 202-586-4708 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On April 26, 2002, the Office of Fossil Energy (FE) of the Department of Energy (DOE) received an application from Ontario Energy to transmit electric energy from the United States to Canada. Ontario Energy is a Delaware corporation having its principal place of business at Toronto, Ontario, Canada. Ontario Energy is in the business of marketing electricity in the United States and Canada and periodically exports electricity to which it has title into Canada for sales to Canadian utilities, power marketers and end-use customers. Ontario Energy has no franchised service territory in the United States.
Ontario Energy is an indirect, wholly-owned subsidiary of Ontario Power Generation Inc., (OPG) a Canadian corporation headquartered in Toronto,
Ontario Energy proposes to arrange for the delivery of electric energy to Canada over the existing international transmission facilities owned by Basin Electric Power Cooperative, Bonneville Power Administration, Citizen Utilities, Eastern Maine Electric Cooperative, International Transmission Company, Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power Inc., Minnkota Power Cooperative, New York Power Authority, Niagara Mohawk Power Corporation, Northern States Power, and Vermont Electric Transmission Company. The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by Engage America, as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
The applicant anticipates that the electric power market in the Province of Ontario will be opened to competition on May 1, 2002. Ontario Energy has requested expedited processing of its application so that it may participate in this competitive market during the summer peak period. Accordingly, DOE has set a 15-day comment period for this proceeding.
Comments on the Ontario Energy application to export electric energy to Canada should be clearly marked with Docket EA-265. Additional copies are to be filed directly with Joel Singer, Vice President, Regulatory Affairs, Ontario Power Generation Inc., 700 University Avenue, Toronto, Ontario M5G 1X6 Canada AND Jerry Pfeiffer, Energy Industries Advisor, Victor A. Contract, Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, N.W., Washington, DC 20005-2111.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy Home Page at
Take notice that the above-referenced pipelines made filings in compliance with Docket No. RM96-1-019, Order No. 587-N.
Any person desiring to become a party in a proceeding must file a separate motion to intervene or protest in each docket.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that on May 1, 2002, Cinergy Services, Inc. (Cinergy) on behalf of the Cincinnati Gas and Electric Company tendered for filing a Wholesale Market-Based Service Agreement under its Wholesale Market-Based Power Sales Standard Tariff, No.
Cinergy and EnergyUSA-TPC Corp. are requesting an effective date of May 1, 2002.
Any person desiring to intervene or to protest this filing should file 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). 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. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on April 19, 2002, Florida Gas Transmission Company (FGT) tendered for filing additional documentation and support for the proposed fuel retention percentages as directed by Commission letter order issued March 28, 2002, (March 28 Order) in this proceeding. By filing this response, FGT is not agreeing that its lost and unaccounted-for gas percentages, or the variations in these percentages from period to period, are in any way abnormal or unreasonable, as suggested by the wording in the March 28 Order. FGT is filing concurrently herewith a Request for Clarification and/or Rehearing of the Commission's March 28 Order on this point.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's rules and regulations. As directed in the March 28, 2002 order, all such protests must be filed on or before May 19, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on May 3, 2002, Gulf South Pipeline Company, LP (Gulf South) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheet, to become effective May 1, 2002.
Gulf South filed the above referenced tariff sheet to comply with the Commission Order issued April 23, 2002.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on May 3, 2002 Northern Natural Gas Company (Northern) tendered for filing to become part of Northern's FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheets proposed to be effective on May 4, 2002:
Northern states that the above sheets are being filed to implement a specific negotiated rate transaction with Dynegy Marketing and Trade in accordance with the Commission's Policy Statement on Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines and to delete terminated transactions.
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make
Take notice that Northern Natural Gas Company (Northern) on May 1, 2002 tendered for filing to become part of Northern's FERC Gas Tariff, Fifth Revised Volume No. 1 the following tariff sheets to be effective June 1, 2002:
The revised tariff sheets are being filed in accordance with Section 53 of Northern's Tariff. This filing establishes the fuel and unaccounted for percentages to be in effect June 1, 2002, based on actual data for the 12 month period ended March 31, 2002.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that on May 1, 2002, Rainy River Energy Corporation-Taconite Harbor (RR-TH) tendered for filing with the Federal Energy Regulatory Commission (Commission), FERC Service Agreement No. 1 under RR-TH rate Schedule No. 1 between Rainy River Energy Corporation and RR-TH.
Any person desiring to intervene or to protest this filing should file 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). 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. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on April 29, 2002, Reliant Energy Gas Transmission Company (REGT) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, tariff sheets to comply with the policy directives of the Commission's March 29, 2002 “Order on Order No. 637 Settlement.” The March 29 Order resolved REGT's Order No. 637 proceeding, Docket No. RP00-482-000, and two related proceedings, Docket Nos. RP01-12-000 and RP01-317-000.
REGT states that the purpose of this filing is to comply with the Commission's March 29 2002 Order in Docket Nos. RP00-482-000, RP01-12-000 and RP01-317-000.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's rules and regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on May 3, 2002, Sabine Pipe Line LLC (Sabine) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheets with an effective date of June 3, 2002:
Sabine states that the tariff sheets are being filed to comply with the Commission's April 3, 2002 order (April 3 Order) on Sabine's compliance with Order No. 637 in Docket Nos. RP00-483-000 and RP00-603-000. The tariff sheets incorporate all of the pro forma provisions approved by the April 3 Order and proposed changes to certain provisions as directed by the April 3 Order. Tariff sheets containing proposed changes are marked with an asterisk.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that on April 26, 2002, Transcontinental Gas Pipeline Corporation (Transco) tendered for filing additional documentation and support for the proposed fuel retention percentages as directed by Commission letter order issued March 27, 2002, in this proceeding.
Transco states that copies of the filing are being served to all parties in the referenced proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before May 15, 2002. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on April 29, 2002 Central Illinois Light Company (CILCO), 300 Liberty Street, Peoria, IL 61602, and its subsidiary, Central Illinois Generation, Inc. (CIGI), 17751 North CILCO Road, Canton, IL 61520, filed with the Federal Energy Regulatory Commission (Commission) an application pursuant to Section 203 of the Federal Power Act for authorization to transfer jurisdictional assets. In connection with CILCO's transfer to CIGI of the Edwards, Duck Creek, and Sterling generation facilities with a net generating capacity of 1,136 MW, CILCO will transfer jurisdictional transmission assets associated with the generation facilities. This disposition will be accomplished by a contribution of assets. In addition, CIGI requests waiver of the Commission's Standards of Conduct and OASIS requirements in Order Nos. 888 and 889.
Take notice that on April 30, 2002, Western Area Power Administration, Pacific Gas and Electric Company and Trans-Elect, Inc. (Project Participants) tendered for filing with the Federal Energy Regulatory Commission (Commission), pursuant to Section 205 of the Federal Power Act and Section
Take notice that on April 29, 2002, Kansas Gas and Electric Company submitted an amendment to its original application in this proceeding, pursuant to section 204 of the Federal Power Act. The amendment modifies the application by replacing Exhibits C, D, and E containing financial information as of, or for the period ended, December 31, 2001.
Take notice that on April 29, 2002, Kansas Gas and Electric Company submitted an amendment to its original application in this proceeding, pursuant to section 204 of the Federal Power Act. The amendment modifies the application by replacing Exhibits C, D, and E containing financial information as of, or for the period ended, December 31, 2001.
Take notice that on April 29, 2002, Western Resources, Inc. submitted an amendment to its original application in this proceeding, pursuant to section 204 of the Federal Power Act. The amendment modifies the application by replacing Exhibits C, D, and E containing financial information as of, or for the period ended, December 31, 2001.
E. Any person desiring to intervene or to protest this filing should file 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). 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. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on May 1, 2002, Virginia Electric and Power Company (Dominion Virginia Power) and Dominion Energy Marketing, Inc. (Dominion Marketing), (collectively, the Applicants) submitted a joint application under Section 203 of Federal Power Act to request authorization and approval for Dominion Virginia Power to transfer by assignment to Dominion Marketing obligation and rights in a Power Sales Agreement with United Illuminating Company (United Illuminating). The Applicants request approval of the assignment within 60 days from the date of this filing.
The Applicants state that copies of this joint application have been served upon United Illuminating and the state regulatory commissions of Connecticut and Virginia.
Take notice that on April 30, 2002, Southern Company Services, Inc., acting on behalf of Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, and Southern Power Company (collectively referred to as the Southern Operating Companies), submitted an updated generation dominance analysis in connection with the Southern Operating Companies' market-based rate authority.
Take notice that on April 30, 2002, Arizona Public Service Company (APS) tendered for filing with the Federal Energy Regulatory Commission (Commission), an informational report on the first quarter for 2002 refund payments to eligible wholesale customers under the Company's Fuel Adjustment Clause.
Take notice that on April 30, 2002, ISO New England Inc. filed its Index of Customers for the first quarter of 2002 for its Tariff for Transmission Dispatch and Power Administration Services in compliance with Order No. 614.
Take notice that on May 1, 2002, the New York Independent System Operator, Inc. (NYISO) filed revisions to its Market Administration and Control Area Services Tariff in order to change the collateral requirement applicable bids of non-physical (
The NYISO has served a copy of this filing upon parties on the official service lists maintained by the Commission for the above-captioned dockets.
Take notice that on May 1, 2002, Rainy River Energy Corporation-Taconite Harbor (RR-TH) tendered for filing with the Federal Energy Regulatory Commission (Commission), FERC Service Agreement No. 1 under RR-TH rate Schedule No. 1 between Rainy River Energy Corporation and RR-TH.
Take notice that on April 30, 2002, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) and the Midwest ISO Transmission Owners jointly submitted for filing a substitute page of the Midwest ISO Agreement regarding the implementation of the revenue distribution for revenues from the Regional Through and Out Rate (RTOR) surcharge (RTOR Adder) to Michigan Electric Transmission Company, LLC once it becomes a transmission owner in the Midwest ISO. The substitute page states the percentages for revenue distribution without rounding to the next full percentage point.
The Midwest ISO seeks waiver of the Commission's regulations, 18 CFR 385.2010 (2001), with respect to service on all parties on the official service list in this proceeding. The Midwest ISO has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region. In addition, the filing has been electronically posted on the Midwest ISO's website at www.midwestiso.org under the heading “Filings to FERC” for other interested parties in this matter. The Midwest ISO will provide hard copies to any interested parties upon request.
Take notice that on May 1, 2002, Pacific Gas and Electric Company (PG&E) tendered for filing an amendment to its proposed changes in rates for Sacramento Municipal Utility District (SMUD), to be effective July 1, 2001, developed using a rate adjustment mechanism previously agreed by PG&E and SMUD for First Revised PG&E Rate Schedule FERC Nos. 88, 91, and 136.
Copies of this filing have been served upon SMUD, the California Independent System Operator Corporation, and the California Public Utilities Commission.
Take notice that on May 1, 2002, Cleco Power LLC amended the Interconnection and Operating Agreement between Cleco Power LLC, Cleco Midstream Resources LLC, and Columbian Chemicals Company related to a new cogeneration facility to be constructed at Columbian's plant site in St. Mary Parish, Louisiana that was filed on April 25, 2002. The Amendment provides a substitute Appendix C to replace an incorrectly formatted one-line diagram included in the original filing.
Take notice that on April 30, 2002, Tampa Electric Company (Tampa Electric) tendered for filing revised rate schedule sheets containing updated caps on energy charges for emergency assistance service under its interchange service contract with Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Savannah Electric and Power Company, as represented by agent Southern Company Services, Inc. (collectively, Southern Companies).
Tampa Electric requests that the revised rate schedule sheets be made effective on May 1, 2002, and therefore requests waiver of the Commission's notice requirement.
Tampa Electric states that a copy of the filing has been served upon Southern Companies and the Florida Public Service Commission.
Take notice that on April 30, 2002, Tampa Electric Company (Tampa Electric) tendered for filing revised rate schedule sheets containing updated transmission service rates under its agreements to provide qualifying facility transmission service for Cargill Fertilizer, Inc. (Cargill) and Auburndale Power Partners, Limited Partnership (Auburndale).
Tampa Electric proposes that the revised sheets containing the updated transmission service rates be made effective on May 1, 2002, and therefore requests waiver of the Commission's notice requirement.
Copies of the filing have been served on Cargill, Auburndale, and the Florida Public Service Commission.
Take notice that American Transmission Systems, Inc. (ATSI) on April 30, 2002 tendered for filing four related Interconnection Agreements between it and various NRG generating companies. The agreements govern the interconnection to the ATSI transmission system of four generating plants that are to be sold to the NRG companies following approval of the Commission. The proposed effective date of the agreements is to coincide with the closing date of the facility sale. Copies of the filing were served upon the NRG companies who are parties to the agreements.
Take notice that on April 30,2002, Southern California Edison Company (SCE) tendered for filing a Letter Agreement between SCE and Cabazon Wind Partners, LLC (Cabazon).
The Letter Agreement specifies the terms and conditions under which SCE will begin engineering, design, and procurement of materials and equipment for a new 450-foot 115 kV line tap from the existing Garnet-Banning-Maraschino-Windpark 115 kV line to Cabazon's generating facility and a mini remote terminal unit in the facility. Also, SCE will prepare specifications and provide engineering and construction review for a new substation.
Copies of this filing were served upon the Public Utilities Commission of the State of California and Cabazon.
Take notice that on April 30, 2002 Exelon Generation Company, LLC, tendered for filing a transaction agreement under its market-based rate wholesale power sales tariff under which it will make sales of energy and capacity to Aquila Merchant Services.
Take notice that on April 30, 2002, Tampa Electric Company (Tampa Electric) tendered for filing revised rate schedule sheets containing updated rates for emergency interchange service and scheduled/short-term firm interchange service under its interchange contracts with each of 17 other utilities.
Tampa Electric requests that the revised rate schedule sheets containing the updated rates for interchange service be made effective on May 1, 2002, and therefore requests waiver of the Commission's notice requirement.
Tampa Electric states that a copy of the filing has been served upon each of the parties to the affected interchange contracts with Tampa Electric, as well as the Florida and Georgia Public Service Commissions.
Take notice that on April 30, 2002, Rochester Gas and Electric Corporation (RG&E) tendered for filing with the Federal Energy Regulatory Commission (Commission), a Notice of Cancellation of FERC Rate Schedule No. 13 pursuant to Section 35.15 of the Commission's Rules, 18 CFR 35.15.
RG&E requests an effective date of July 1, 2002.
RG&E served copies of the filing on New York State Electric & Gas Corporation and the New York State Public Service Commission.
Take notice that on April 30, 2002, NRG Northern Ohio Generating LLC (NRG Northern Ohio) filed with the Federal Energy Regulatory Commission (Commission) pursuant to 18 CFR 35.13 an unexecuted Transition Power Purchase Agreement with FirstEnergy Solutions Corp., as Service Agreement No. 1 to NRG Northern Ohio's FERC Electric Tariff, Original Volume No. 1.
Take notice that on April 30, 2002, MidAmerican Energy Company (MidAmerican) tendered for filing with the Federal Energy Regulatory Commission (Commission), the Capacity and Energy Confirmation Agreement (Agreement) between MidAmerican and Alliant Energy Corporate Services as agent for Wisconsin Power and Light Company, IES Utilities, and Interstate Power Company (collectively, Alliant). MidAmerican filed the Agreement as Service Agreement No. 5 under MidAmerican's FERC Electric Tariff original Volume No. 5.
MidAmerican requests an effective date of March 1, 2002.
Take notice that on April 30, 2002, MidAmerican Energy Company (MidAmerican) tendered for filing with the Federal Energy Regulatory Commission (Commission), a Master Power Purchase and Sale Agreement (Agreement) between MidAmerican and Aquila Energy Marketing Corporation. MidAmerican filed the Agreement as Service Agreement No. 51 under MidAmerican's FERC Electric Tariff original Volume No. 5.
MidAmerican requests an effective date of November 1, 2001.
Take notice that on April 30, 2002, New York State Electric & Gas Corporation (NYSEG) tendered for filing with the Federal Energy Regulatory Commission (Commission), pursuant to Section 35.15 of the Commission's Rules, 18 CFR 35.15, a Notice of Cancellation of FERC Rate Schedule No. 54.
NYSEG requests that the filing be made effective July 1, 2002.
NYSEG served copies of the filing on Rochester Gas & Electric Corporation, the customer previously receiving service under FERC Electric Rate Schedule No. 54, and the New York State Public Service Commission.
Take notice that on May 1, 2002, American Electric Power Service Corporation (AEPSC) tendered for filing with the Federal Energy Regulatory Commission (Commission), Firm and Non-Firm Point-to-Point Transmission (PTP) Service Agreements for RWE Trading Americas Inc., Select Energy, Inc. and UBS AG, London Branch, and a revised Network Integration Service Agreement for American Municipal Power—Ohio, Inc. These agreements are pursuant to the AEP Companies' Open Access Transmission Service Tariff that has been designated as the Operating Companies of the American Electric Power System FERC Electric Tariff Second Revised Volume No. 6.
AEPSC requests that the Service Agreements be made effective on April 1, 2002.
A copy has been served upon the Parties and the state utility regulatory commissions of Arkansas, Indiana, Kentucky, Louisiana, Michigan, Ohio, Oklahoma, Tennessee, Texas, Virginia and West Virginia.
Take notice that on April 30, 2002, Deseret Generation & Transmission Co-operative, Inc. (Deseret) submitted for filing corrections to two service agreements under its FERC Electric Tariff, Original Volume No. 3. A copy of this filing has been served on the buyer under each service agreement and counsel to the WSPP.
Take notice that on May 1, 2002, San Diego Gas & Electric (SDG&E) tendered for filing its limited section 205 Application for Approval of Increase to its Supplemental Surcharge Transmission Rate. Through this filing, SDG&E seeks to recover costs related to certain additional energy infrastructure security and reliability measures being implemented by SDG&E. SDG&E states in its application that it is adopting these security and reliability measures in response to recent terrorist activities and threats experienced by our country, and that its activities are consistent with the Commission's Statement of Policy on September 14, 2001, in docket PL01-6-000.
SDG&E requests an effective date of July 1, 2002 for its proposed increase to the Supplemental Surcharge Rate. The Supplemental Surcharge Rate was established by the Commission in docket ER01-3074-000 to enable SDG&E to recover the cost of certain transmission upgrades that provided increased reliability to the grid and relieved existing constraints on SDG&E's transmission system. SDG&E's current proposed increase to this rate will be passed on to California Independent System Operator (ISO) high voltage service and other Participating Transmission Owners based upon the Transmission Access Charges as described in Amendment 27 and 34 of the ISO Tariff. That is, on July
Copies of this filing were served upon the Public Utilities Commission of the State of California, the California Independent System Operator, and other interested parties.
Take notice that on May 1, 2002, Central Illinois Generation, Inc. (CIGI), 17751 North CILCO Road, Canton, IL 61520, tendered for filing a proposed Market Rate Power Sales and Resale Transmission Tariff. CIGI files this tariff so that it may engage in the sale at wholesale of electric energy at market-based rates. CIGI also tendered for filing a Power Supply Agreement and an Interconnection Agreement with Central Illinois Light Company.
Take notice that on May 1, 2002, Dearborn Industrial Generation, LLC (DIG) tendered for filing, pursuant to Rule 205, 18 CFR 385.205, petition for an order accepting a revised tariff sheet under its FERC Electric Tariff Original Volume No. 2 to be effective at the earliest possible time, but no later than July 1, 2002.
DIG intends to make sales of ancillary services at market-based rates, in addition to engaging in electric power and energy purchases and sales at market-based rates, which were authorized by FERC on February 27, 2001.
Take notice that on May 1, 2002, Carolina Power & Light Company (CP&L) tendered for filing an executed Service Agreement between CP&L and the following eligible buyer, PG&E Energy Trading-Power, L.P. 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.
CP&L requests an effective date of April 10, 2002 for this Service Agreement. Copies of the filing were served upon the North Carolina Utilities Commission and the South Carolina Public Service Commission.
Take notice that on May 1, 2002, Cinergy Services, Inc. (Cinergy) tendered for filing a Notice of Name Change from Minnesota Power to Split Rock Energy LLC. Cinergy respectfully requests waiver of notice to permit the Notice of Name Change to be made effective as of the date of the Notice of Name Change.
A copy of the filing was served upon Split Rock Energy LLC.
Take notice that on May 1, 2002 Florida Power & Light Company (FPL) tendered for filing proposed service agreements with NRG Power Marketing Inc., for Firm transmission service and Non-firm transmission service under FPL's Open Access Transmission Tariff.
FPL requests that the proposed service agreements become effective on May 1, 2002.
FPL states that this filing is in accordance with Section 35 of the Commission's regulations.
Take notice that on May 1, 2002, Ameren Services Company (Ameren Services) tendered for filing an unexecuted Network Operating Agreement and an unexecuted Service Agreement for Network Integration Transmission Service between Ameren Services and EnerStar Power Corporation d/b/a Edgar Electric Cooperative Association (EnerStar). Ameren Services asserts that the purpose of the Agreements is to permit Ameren Services to provide transmission service to EnerStar pursuant to Ameren's Open Access Tariff.
Take notice that on May 1, 2002, UNITIL Power Corp. tendered for filing pursuant to Schedule II Section H of Supplement No. 1 to Rate Schedule FERC Number 1, the UNITIL System Agreement, the following material:
1. Statement of all sales and billing transactions for the period January 1, 2001 through December 31, 2001 along with the actual costs incurred by UNITIL Power Corp. by FERC account.
2. UNITIL Power Corp. rates billed from January 1, 2001 to December 31, 2001 and supporting rate development.
Take notice that on May 1, 2002, Cabazon Wind Partners, LLC (Cabazon) applied to the Commission for acceptance of Cabazon's Electric Tariff FERC No. 1; the granting of certain blanket approvals, including the authority to sell electric energy and capacity at market-based rates; and the waiver of certain Commission regulations. Cabazon also submitted a long-term power purchase agreement between Cabazon and the California Department of Water Resources for acceptance as a service agreement under the market-based rate tariff.
Take notice that on May 1, 2002, Rainy River Energy Corporation—Taconite Harbor (RRTH) tendered for filing a notice of cancellation of its FERC Electric Rate Schedule No. 1 under which it is authorized to transact at market-based rates. The rate schedule is being cancelled because RRTH is being merged into its ultimate parent, Minnesota Power, at which time RRTH's corporate existence will cease. RRTH requests that its notice of cancellation be accepted effective on or about May 1, 2002.
Take notice that on May 1, 2002, ISO New England Inc. submitted as a Section 205 filing in the above docket revisions to Market Rule 11, with a requested effective date of three days following a Commission order accepting the proposed revisions.
On May 1, 2002, NRG Energy Center Dover LLC (NRG Dover) filed with the Federal Energy Regulatory Commission an Electricity Tolling Agreement dated June 1, 2001 with NRG Power Marketing, Inc., as Service Agreement No. 1 to NRG Dover's FERC Electric Tariff, Original Volume No. 1.
Take notice that Avista Corporation (Avista) on May 1, 2002, tendered for filing with the Federal Energy Regulatory Commission pursuant to 18 CFR 35.13 a Second Revised Service Agreement No. 45, which is an Agreement for Firm and Non-Firm Point-to-Point Transmission Service Under Avista Corporation's Open Access Transmission Tariff—FERC Electric Tariff Volume No. 8 between Avista and Avista Energy, Inc. (Service Agreement).
The revisions to the Second Revised Service Agreement No. 45 herein consist of one change to Attachment A to the Service Agreement—the Agreement for Firm Point-to-Point Service between Plummer Forest Products, Inc. (Plummer) and Avista. The sole change is found in the first sentence of Section 3.2 and consists of extending the termination date from April 30, 2002 to termination upon sixty days advance written notice by either party.
Avista respectfully requests that the Commission accept the Second Revised Service Agreement No. 45 for filing and grant all waivers necessary to allow the Second Revised Service Agreement No. 45 to become effective May 1, 2002. Plummer is the sole customer affected by this Service Agreement and the waiver, if granted, will not affect any other rate or charge to any other customer.
Copies of the filing were served upon Avista Energy, Inc. and Plummer Forest Products, Inc., the parties to the Service Agreement.
On May 1, 2002, NEO California Power LLC (NEO California) filed with the Federal Energy Regulatory Commission an Electricity Tolling Agreement dated June 1, 2001 with NRG Power Marketing, Inc., as Service Agreement No. 1 to NEO California's FERC Electric Tariff, Original Volume No. 1.
Take notice that PacifiCorp on May 1, 2002, tendered for filing in accordance with 18 CFR 35 of the Commission's Rules and Regulations, a Notice of Filing, and Mutual Netting/Settlement Agreements with Pinnacle West Capital Corporation and PPL EnergyPlus LLC.
Copies of this filing were supplied to the Washington Utilities and Transportation Commission and the Public Utility Commission of Oregon.
Take notice that on May 1, 2002, New England Power Pool (NEPOOL) tendered for filing with the Federal Energy Regulatory Commission (Commission), pursuant to section 203 of the Federal Power Act requesting acceptance of Amendment No. 3 to the Interim Independent System Operator Agreement (ISO Agreement) dated as of July 1, 1997 between ISO New England Inc. (ISO) and the NEPOOL Participants. The Amendment extends the term of the ISO Agreement by nine months, to March 31, 2003, with a further nine-month extension if the specific conditions identified in the ISO Agreement, as modified by the Amendment, are satisfied.
NEPOOL has requested that the Commission issue an order approving the Amendment on or before June 30, 2002.
The NEPOOL Participants Committee states that copies of these materials were sent to the New England state governors and regulatory commissions and the Participants in the New England Power Pool.
Take notice that on May 1, 2002, Ameren Energy, Inc. (Ameren Energy), on behalf of Union Electric Company d/b/a AmerenUE and Ameren Energy Generating Company (collectively, the Ameren Parties), pursuant to section 205 of the Federal Power Act, 16 U.S.C. 824d, and the market rate authority granted to the Ameren Parties, submitted for filing umbrella power sales service agreements under the Ameren Parties' market rate authorizations entered into with El Paso Merchant Energy, L.P. Ameren Energy seeks Commission acceptance of there service agreements effective April 15, 2002.
Copies of this filing were served on the public utilities commissions of Illinois and Missouri and the counterparty.
E. Any person desiring to intervene or to protest this filing should file 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). 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. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Environmental Protection Agency (EPA).
Notice of information availability and request for comments.
Notice of availability is hereby given for a 45-day public comment period on two draft data standards: Draft Data Standard for Reporting Water Quality Results for Chemical and Microbiological Analytes and Draft Data Standard for Exchange of Tribal Identifier Information. These draft standards each consist of a list of data elements, definitions for these elements, notes,and explanatory preamble language. The draft standards were developed by the partnership efforts of States, Tribes, and U.S. Environmental Protection Agency participating in the Environmental Data Standards Council (EDSC). The EDSC convened Action Teams consisting of representatives from EPA, States and Tribes to develop these core sets of data
Comments must be submitted on or before June 28, 2002.
The record for these standards has been established under docket number W-02-02, and includes supporting documentation as well as printed, paper versions of electronic comments. The record is available for inspection from 9 to 4 p.m., Monday through Friday, excluding legal holidays at the Water Docket, EB 57, USEPA Headquarters, 401 M St SW., Washington, DC 20460. For access to docket materials, please call (202) 260-3027 to schedule an appointment.
Please send an original and 3 copies of your comments and enclosures (including references) to the W-02-02. Comment Clerk, Water Docket (MC4101), USEPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Comments must be received or post-marked by midnight June 28, 2002. Hand deliveries should be delivered to: EPA's Water Docket at 401 M. St., SW., Room EB57, Washington, DC 20460.
Commenters who want EPA to acknowledge receipt of their comments should enclose a self-addressed, stamped envelope. No facsimiles (faxes) will be accepted. Comments may also be submitted electronically to
Linda Spencer, Office of Environmental Information, Office of Information Collection, MC-2822T, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington DC 20460; Telephone (202) 566-1651.
Data sharing has become an increasingly important aspect of sound environmental management. States, Tribes, and EPA together face the critical challenge of sharing information among themselves and with their respective stakeholders and public. Fundamental to the seamless exchange of data are data standards. Data standards help improve the ability of partners (internal and external) to exchange data efficiently and accurately, and also assist secondary users of data to understand, interpret, and use data appropriately. Recognition of the need for EPA, States and Tribes to develop and agree upon data standards for environmental information sharing has lead to the creation of the EDSC. Data standards are documented agreements on formats and definitions of data elements. Standards are developed only when there is an environmental management business reason.
The EDSC's mission is to promote the efficient sharing of environmental information between EPA, States, Tribes, and other parties through the development of data standards. The EDSC identified reporting water quality results of chemical and microbiological analytes and exchange of tribal identifiers information as information areas for which having standards will create value to all interested parties. An Action Team deliberation process bringing together State, EPA, and Tribal parties began in August 2001 for the Draft Data Standard for Reporting Water Quality Results for Chemical and Microbiological Analytes and June 2000 for the Draft Data Standard for Exchange of Tribal Identifiers Information. Both draft standards were delivered to the EDSC for consideration in March 2002 and approved for initiation of this 45-day public comment period.
After the comment period announced in this Notice, the EDSC and its Action Teams will review comments received and make appropriate modifications. The EDSC will then consider approval of these data standards as appropriate. EDSC approval does not bind an individual agency to using a standard. It will be up to the individual or programs to determine if, when, and how it might use a standard developed under the auspices of the EDSC. It will be the intent of EPA to adopt and implement the consistent use of EDSC-approved standards in its information systems and programs.
The EDSC is proposing to adopt the core set of data elements prepared by the National Water Quality Monitoring Council and adopted in May 2001 by the Advisory Committee on Water Information (ACWI), a Federal advisory committee to the Cooperative Water Program of the Department of Interior's U.S. Geological Survey. The data elements were adopted to facilitate the sharing of chemical and microbiological water quality data and promote efficiency in the monitoring of water resource quality programs. Water quality monitoring is an increasingly important element of water quality management activities. It provides information for an accurate understanding of the conditions of waters and the trends in observed water quality. Water quality must be understood in order that valid and effective restoration and protection programs can be designed for water bodies that vary significantly in their vulnerability and pollution stress. Because of the cost of its collection, water quality data must be viewed as a resource worthy of careful management both to preserve it for future analyses by the agency that collects it and to share it among local, State, and Federal agencies; and the private sector involved in resource management activities.
The Advisory Committee on Water Information's “core set” of data elements were intended to allow sharing and interpretation of sample test results among future secondary data users, regardless of data source, database management system, or the data's original intended use. The list ACWI adopted was not intended to suggest that additional data elements would not need to be retained in a data originator's database, or in other databases where it might be considered essential to the use of these data. The proposed standard is intended to adapt the ACWI data elements and serve as the initial basis for data exchange with EPA's Storage and Retrieval database (STORET) and, with approval of the EDSC, EPA has
Both the EDSC and the ACWI are considering elements to record data of higher levels of biological and habitat data. This data reflects a growing appreciation that water quality in streams, lakes, and estuaries can be described by the life they support. When the list of data elements is complete, the EDSC intends to consider adding these elements to the groups subject to today's notice.
The proposed data standards emphasize metadata that describe common terminology and definitions for documenting key water quality data measurements from water quality monitoring. The EDSC believes that by adopting this core set of data elements, agencies collecting water quality data will be spared the task of creating their own systems for organizing metadata and associated metadata element definitions. When implemented, a standard set of data elements will enable data users to reconcile diverse metadata systems as they draw on multiple data sets to carry out their studies or analyses. The EDSC believes that the use of standard data elements holds the prospect of reducing costly duplicate monitoring efforts. These data elements are proposed as guidelines to define a measure of good practice within the water quality monitoring community. They will encourage greater data consistency, allow the quality of data to be determined by future users, and simplify the process for entering these metadata elements. It is not required that all the proposed data elements be used. Metadata selected must fit the data they describe. Ground water sampling data, for instance, is described by several metadata elements that are unrelated to surface water sampling data. Therefore, the EDSC is not requiring inclusion of all proposed elements in order for data to be entered in a federally maintained database. The EDSC's advocacy of these data elements is not intended to discourage the use of existing water quality data solely because it does not meet these guidelines.
The core set of data elements for reporting water quality results of chemical and microbiological analytes addresses wells, surface water stations, and precipitation measurements. This list is intended to standardize the preservation of data and to facilitate its sharing by standardizing definitions and by defining the list of data, metadata and their descriptive definitions. A data element is the name of a set of information with the same attribute. A data element may be a data field in a database such as a laboratory name, analyte, or the latitude of the sampling station. Examples of metadata elements include such things as sampling/laboratory procedures and quality controls.
The list of data elements is not specific to any particular database, but is intended to be used voluntarily by agencies, organizations and individuals to guide their reporting, storage, and sharing of water quality data. This list is intended primarily to guide the collection of ambient water quality data, but many of the allowable sample location and sample type descriptions are versatile enough to be useful in collecting these data in other settings.
The list of data and metadata elements is divided into categories that describe who collected and analyzed the sample, what was analyzed, why the sample was undertaken, when the sample was collected and analyzed, where the sampling occurred, and how the analysis was done. The list is intended to describe the breadth of information needed to ensure the continuing utility of the information both within an organization and between organizations as information is stored and shared, but without being an exhaustive list of every possible data element that could or should be reported. The EDSC has included the core set of data elements on the essential data needed across programs, recognizing that if more extensive data from a particular monitoring program were collected, it could be made available as well.
The EDSC chartered the Tribal Identifier Action Team to identify and define the major areas of tribal identification information and to develop a data standard that could be used for the exchange of tribal identification data among environmental agencies and other entities. The purpose of the standard is to provide a common vocabulary or lexicon and to encourage tribal entity identification uniformity across information systems, so that information about functionally similar activities and/or instruments can be shared. The Standard is an adoption of The Bureau of Indian Affairs criteria for tribal entity identification (federally recognized tribes). The “Draft Data Standard for Exchange of Tribal Identifier Information” is not intended to constrain what information an agency chooses to collect, nor does it constitute a reporting requirement. The Standard defines a uniform way to organize and exchange key information if agencies choose to exchange that information.
The “Draft Data Standard for Exchange of Tribal Identifier Information” consists of two data elements—tribal names and tribal codes. Permissible values for tribal names are based on federally recognized tribes from the Bureau of Indian Affairs (BIA) “Long Names List”. Permissible values for tribal codes are based on those used in BIA's Trust Asset and Accounting Management System (TAAMS), which are used to represent tribal names. Efforts to identify a single authoritative source for state recognized tribes were unsuccessful, and investigations regarding such tribes found that the recognition criteria that states use vary significantly. Therefore the Tribal Action Group chose not to include state recognized tribes as part of this standard at this time.
EDSC standards will be periodically reviewed and revised as recommended by the EDSC or the stewards of the respective data standards: (1) ACWI for the Draft Data Standard for Reporting Water Quality Results for Chemical and Microbiological Analytes and (2) BIA for Draft Data Standard for Exchange of Tribal Identifier Information. The most current standards will be posted at
These draft standards have received significant input through the representatives from EPA program, States, and Tribal organizations serving on the development Action Teams. In addition, the preliminary versions of the draft standards have been reviewed by State and EPA programs managers during the first quarter of 2002. EDSC members have also reviewed and recommended these draft standards for this public comment process.
Federal Communications Commission.
Notice.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the next meeting of the WRC-03 Advisory Committee will be held on June 4, 2002, at the Federal Communications Commission. The purpose of the meeting is to continue preparations for the 2003 World Radiocommunication Conference. The Advisory Committee will consider any preliminary views and/or proposals introduced by the Advisory Committee's Informal Working Groups.
June 4, 2002; 2 pm-4 pm.
Federal Communications Commission, 445 12th Street, SW., Room TW-C305, Washington, DC 20554.
Alexander Roytblat, FCC International Bureau, Strategic Analysis and Negotiations Division, at (202) 418-7501.
The Federal Communications Commission (FCC) established the WRC-03 Advisory Committee to provide advice, technical support and recommendations relating to the preparation of United States proposals and positions for the 2003 World Radiocommunication Conference (WRC-03). In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, this notice advises interested persons of the ninth meeting of the WRC-03 Advisory Committee. The WRC-03 Advisory Committee has an open membership. All interested parties are invited to participate in the Advisory Committee and to attend its meetings. The proposed agenda for the ninth meeting is as follows:
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Kentucky, (FEMA-1407-DR), dated April 4, 2002, and related determinations.
May 6, 2002.
Madge Dale, Readiness, Response and Recovery and Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
The notice of a major disaster declaration for the Commonwealth of Kentucky is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of April 4, 2002:
Estill and Wolfe Counties for Public Assistance.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Maryland (FEMA-1409-DR), dated May 1, 2002, and related determinations.
May 1, 2002.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that, in a letter dated May 1, 2002, 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 State of Maryland, resulting from a tornado on April 28, 2002, 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 (Stafford Act). I, therefore, declare that such a major disaster exists in the State of Maryland.
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 Individual Assistance in the designated areas. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for the Individual and Family Grant program will be limited to 75 percent of the total eligible costs. If Public Assistance and Hazard Mitigation are later requested and warranted, Federal funds provided under these programs will also 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.
The time period prescribed for the implementation of section 310(a),
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 Thomas P. Davies 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 State of Maryland to have been affected adversely by this declared major disaster:
Calvert, Charles, and Dorchester Counties for Individual Assistance.
Federal Emergency Management Agency (FEMA).
Notice.
This notice amends the notice of a major disaster declaration for the State of Maryland, (FEMA-1409-DR), dated May 1, 2002, and related determinations.
May 6, 2002.
Madge Dale, Readiness, Response and Recovery and Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
The notice of a major disaster declaration for the State of Maryland is hereby amended to include Public Assistance and Hazard Mitigation in the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of May 1, 2002:
Calvert, Charles, and Dorchester Counties for Public Assistance (already designated for Individual Assistance).
All counties in the State of Maryland are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Michigan (FEMA-1413-DR), dated May 6, 2002, and related determinations.
May 6, 2002.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that, in a letter dated May 6, 2002, 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 (Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Michigan, resulting from flooding on April 15, 2002, 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 (Stafford Act). I, therefore, declare that such a major disaster exists in the State of Michigan.
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 State, 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 and 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 James Roche 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 State of Michigan to have been affected adversely by this declared major disaster:
Baraga, Gogebic, Houghton, Marquette, and Ontonagon for Public Assistance.
All counties within the State of Missouri are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Missouri (FEMA-1412-DR), dated May 6, 2002, and related determinations.
May 6, 2002.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that, in a letter dated May 6, 2002, 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 (Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Missouri, resulting from severe storms and tornadoes on April 24-28, 2002, 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 (Stafford Act). I, therefore, declare that such a major disaster exists in the State of Missouri.
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 State, 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 and 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 Carlos Mitchell 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 State of Missouri to have been affected adversely by this declared major disaster:
Bollinger, Butler, Carter, Howell, and Madison Counties for Public Assistance.
All counties within the State of Missouri are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the Commonwealth of Virginia (FEMA-1411-DR), on May 5, 2002, and related determinations.
May 5, 2002.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that, in a letter dated May 6, 2002, documenting the President's May 5, 2002, declaration of a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act), follows:
I have determined that the damage in certain areas of the Commonwealth of Virginia, resulting from severe storms, tornadoes, and flooding on April 28, 2002 and continuing through May 3, 2002, 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 (Stafford Act). I, therefore, declare that such a major disaster exists in the Commonwealth of Virginia.
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 Individual Assistance in the designated areas and Hazard Mitigation throughout the State, 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 Hazard Mitigation and the Individual and Family Grant program will be limited to 75 percent of the total eligible costs. If Public Assistance is later requested and warranted, Federal funds provided under that program will also 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.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
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 Louis H. Botta 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 Virginia to have been affected adversely by this declared major disaster:
Buchanan and Tazewell Counties for Individual Assistance.
All counties within the Commonwealth of Virginia are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency (FEMA).
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of West Virginia (FEMA-1410-DR), on May 5, 2002, and related determinations.
May 5, 2002.
Madge Dale, Readiness, Response and Recovery Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705 or
Notice is hereby given that, in a letter dated May 6, 2002, documenting the President's May 5, 2002, declaration of a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act), follows:
I have determined that the damage in certain areas of the State of West Virginia, resulting from severe storms, flooding, and landslides on May 2, 2002, 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 (Stafford Act). I, therefore, declare that such a major disaster exists in the State of West Virginia.
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 Individual Assistance in the designated areas and Hazard Mitigation throughout the State, 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 Hazard Mitigation and the Individual and Family Grant program will be limited to 75 percent of the total eligible costs. If Public Assistance is later requested and warranted, Federal funds provided under that program will also 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.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
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 Hernandez 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 State of West Virginia to have been affected adversely by this declared major disaster:
McDowell, Mercer, Mingo and Wyoming Counties for Individual Assistance.
All counties within the State of West Virginia are eligible to apply for assistance under the Hazard Mitigation Grant Program.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than May 29, 2002.
Board of Governors of the Federal Reserve System, May 9, 2002.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 7, 2002.
Board of Governors of the Federal Reserve System, May 8, 2002.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 29, 2002.
Board of Governors of the Federal Reserve System, May 9, 2002.
Board of Governors of the Federal Reserve System.
11 a.m., Monday, May 20, 2002.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, NW, Washington, DC 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
2. Any items carried forward from a previously announced meeting.
Michelle A. Smith, Assistant to the Board; 202-452-2955.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at
1. Call to Order.
2. Approval of the Minutes of the 2001 Annual Meeting.
3. Election of Foundation President.
4. New Business.
Adjournment.
Administration on Aging, HHS.
Announcement of availability of funds and request for applications.
The Administration on Aging announces that under this program announcement for National Legal Assistance and Elder Rights Projects it will hold a competition for grant awards for three (3) to five (5) projects. The federal share of project costs is expected to range from $150,000 to $250,000 per year for a project period of up to three years.
Grantees are required to provide a 25% non-federal match.
The deadline date for the submission of applications is June 28, 2002.
Application kits are available by writing to the U.S. Department of Health and Human Services, Administration on Aging, Office for Community-Based Services, 330 Independence Ave., SW., Washington, DC 20201, by calling 202/619-2575, or online at
Administration on Aging, HHS.
Announcement of availability of funds and request for applications.
The Administration on Aging announces that under the Statewide Legal Hotlines Program it will hold a competition to fund grant awards for seven to eight (7-8) projects at a federal share of approximately $100,000 to $175,000 per year for a project period of up to three (3) years.
Grantees are required to provide a 25% non-federal match.
The deadline date for the submission of applications is August 5, 2002.
Application kits are available by writing to the U.S. Department of Health and Human Services, Administration on Aging, Office of Consumer Choice and Protection, 330 Independence Ave., SW., Washington, DC 20201, by calling 202/619-1058 or online at:
Applications must be mailed or hand-delivered to the Office of Grants Management at the same address. Instructions for electronic mailing of grant applications are available at
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (the PRA).
Submit written comments on the collection of information by June 13, 2002.
Submit written comments on the collection of information to Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW., rm. 10235, Washington, DC 20503, Attention: Stuart Shapiro, Desk Officer for FDA.
Denver Presley, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1472.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance:
The Animal Medicinal Drug Use Clarification Act of 1994 (AMDUCA), (Public Law 103-396), amended the Federal Food, Drug, and Cosmetic Act to permit licensed veterinarians to prescribe extralabel use in animals of approved human and animal drugs. Regulations implementing provisions of AMDUCA are codified under part 530 (21 CFR part 530). A new provision under these regulations in § 530.22(b), permits FDA to establish a safe level for extralabel use in animals of an approved human or animal drug when the agency determines there is reasonable probability that this use may present a risk to the public health. The extralabel use in animals of an approved human or animal drug that results in residues exceeding a safe level is considered an unsafe use of a drug. In conjunction with the establishment of a safe level, the new provision permits FDA to request development of an acceptable residue detection method for an analysis of residues above any safe level established under part 530. The sponsor may be willing to provide the methodology in some cases, while in others, FDA, the sponsor and perhaps a third party, (e.g., a State agency or a professional association), may negotiate a cooperative arrangement to develop the methodology. If no acceptable analytical method is developed, the agency would be permitted to prohibit extralabel use of the drug.
In the
The respondents may be sponsors of new animal drug(s), State or Federal
The Center for Veterinary Medicine (CVM) has not found circumstances to require the establishment of a safe level and subsequent development of an analytical methodology. However, CVM believes there will be instances when an analytical methodology will be required.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing its determination that IFEX (ifosfamide for injection), 1 gram (g) and 3 g, was not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for ifosfamide.
Mitchell Weitzman, Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-5670.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA sponsors must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. Sponsors of ANDAs do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products with Therapeutic Equivalence Evaluations,” which is generally known as the “Orange Book.” Under FDA's regulations, drugs are withdrawn from the list if the agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162).
Under § 314.161(a)(1) (21 CFR 314.161(a)(1)), the agency must determine whether a listed drug was withdrawn from sale for reasons of safety or effectiveness before an ANDA that refers to that listed drug may be approved. FDA may not approve an ANDA that does not refer to a listed drug.
IFEX is the subject of NDA 19-763, held by Bristol-Myers Squibb Co. (BMS). FDA approved NDA 19-763 on December 30, 1988. Used in combination with other approved antineoplastic agents, IFEX is indicated for third line chemotherapy of germ cell testicular cancer. In the IFEX clinical studies, it was observed that urotoxic side effects, especially hemorrhagic cystitis, were frequently associated with the administration of IFEX. The approved labeling for IFEX stated that IFEX “should ordinarily be used in combination with a prophylactic agent for hemorrhagic cystitis, such as mesna.” FDA separately approved BMS's NDA for MESNEX (mesna) Injection on December 30, 1988. BMS never marketed IFEX alone; instead, it elected to market IFEX exclusively in a combination package with MESNEX.
IFEX as a single agent is currently listed in the “Discontinued Drug Product List” section of the Orange Book. IFEX is also listed as part of a copackaged kit with MESNEX in the Orange Book's prescription drug product list. The relocation of IFEX as a single agent to the “Discontinued Drug Product List” coincided with a labeling modification on October 10, 1992, to reflect changes in storage conditions for IFEX and an approval of copackaging with MESNEX.
On January 31, 2001, Tom Stothoff submitted a citizen petition (Docket No. 01P-0061/CP1) to FDA under 21 CFR 10.30, requesting that the agency determine whether IFEX (as a single agent) was withdrawn from sale for reasons of safety or effectiveness. The petitioner seeks this determination in preparation for filing an ANDA for Ifosfamide for Injection, U.S.P.
On March 9, 2001, BMS filed a comment to the citizen petition requesting that FDA find that IFEX has not been withdrawn from sale and is not separately marketed by BMS for reasons of safety or effectiveness. With respect to safety and effectiveness, BMS argued that regardless of whether IFEX was withdrawn, FDA should deny the petitioner permission to file an ANDA for ifosfamide as a single agent because, as stated in the label, ifosfamide can only be administered safely in conjunction with a uroprotective agent such as mesna. BMS cited both the medical literature and the potential for urotoxic reactions if ifosfamide is used alone in support of this claim.
BMS contends that it has never withdrawn or ceased to market IFEX because it has marketed IFEX in a combination package with MESNEX since the time of their approval. However, IFEX was approved under its own NDA as a single agent. In previous instances (see, e.g., 61 FR 25497, May 21, 1996) (addressing a relisting request for glyburide tablets), FDA has concluded that never marketing an approved product is equivalent to withdrawing the drug from sale.
The agency has determined that IFEX as a single agent has not been withdrawn for reasons of safety or effectiveness. FDA agrees with BMS that ifosfamide should be used with a uroprotective agent like mesna. However, that does not preclude the safe use of ifosfamide as a single agent with MESNEX or a generic version of mesna. FDA approved two ANDAs for mesna in April 2001. The FDA has no requirement that coadministered products must also be copackaged. There are many drugs whose labeling identifies them for use in combination with other drugs with which they are not copackaged, including Taxol and Taxotere. Neither the petitioner nor BMS identified any data suggesting that marketing IFEX alone would compromise patients' safety. Moreover, the relevant literature and adverse event reports do not bear out BMS's claim that marketing IFEX as a single agent would be unsafe. In the absence of data suggesting a safety risk, and because IFEX was approved as a single agent, we conclude that FDA may approve ANDAs referencing IFEX alone.
After considering the citizen petition and the comments thereon and reviewing its records, FDA determines that, for the reasons outlined previously in this document, IFEX as a single agent was not withdrawn for reasons of safety or effectiveness. Accordingly, the agency will continue to list IFEX in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to IFEX, 1-g and 3-g vials, may be approved by the agency.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the draft guidance entitled “Class II Special Controls Guidance Document: Root-form Endosseous Dental Implants and Abutments; Draft Guidance for Industry and FDA.” This draft guidance document was developed as a special control guidance to support the reclassification of the root-form endosseous dental implant device from class III to class II and the reclassification of the endosseous dental implant abutment device from class III to class II. Elsewhere in this issue of the
Submit written or electronic comments on the draft guidance by August 12, 2002.
Submit written requests for single copies on a 3.5” diskette of the draft guidance document entitled “Class II Special Controls Guidance Document: Root-form Endosseous Dental Implants and Abutments; Draft Guidance for Industry and FDA” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health, Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send two self-addressed adhesive labels to assist that office in processing your request, or fax your request to 301-443-8818. Submit written comments on the draft guidance to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Angela E. Blackwell, Center for Devices and Radiological Health (HFZ-480), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-443-8879.
This draft guidance document describes a means by which the root-form endosseous dental implant device and the endosseous dental implant abutment device may comply with the requirement of special controls for class II devices. A root-form endosseous dental implant device is intended to be surgically placed in the bone of the upper or lower arches to provide support for prosthetic devices, such as artificial teeth, in order to restore the patient's chewing function. An endosseous dental implant abutment device is a separate component that is attached to the implant and is intended to aid in prosthetic rehabilitation.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the agency's current thinking on root-form endosseous dental implant and endosseous dental implant abutment devices. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
In order to receive the draft guidance entitled “Class II Special Controls Guidance Document: Root-form Endosseous Dental Implants and Abutments; Draft Guidance for Industry and FDA” via your fax machine, call the CDRH Facts-On-Demand system at 800-899-0381 or 301-827-0111 from a touch-tone telephone. Press 1 to enter the system. At the second voice prompt press 1 to order a document. Enter the document number (1389) followed by the pound sign (#). Follow the remaining voice prompts to complete your request.
Persons interested in obtaining a copy of the draft guidance may also do so using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes the civil money penalty guidance documents package, device safety alerts,
Interested persons may submit to the Dockets Management Branch (
Under the provisions of section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Cancer Institute (NCI), the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request to review and approve the information collection listed below. This proposed information collection was previously published in the
There are no Capital Costs, Operating Costs and/or Maintenance Costs to report.
Written comments and/or suggestions from the public and affected agencies should address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to responded, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Regulatory Affairs, New Executive Office Building, Room 10235, Washington, DC 20503, Attention: Desk
Comments regarding this information collection are best assured of having their full effect if received within 30 days of the date of this publication.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Augustine Band of Cahuilla Mission Indians Liquor Control Ordinance. The Ordinance regulates the control, possession and sale of liquor on the Augustine Band of Cahuilla Mission Indians trust lands, to be in conformity with the laws of the State of California, where applicable and necessary. Although the Ordinance was adopted on April 18, 2001, it does not become effective until published in the
This Ordinance is effective on May 14, 2002.
Kaye Armstrong, Office of Tribal Services, 1849 C Street, NW, MS 4631-MIB, Washington, DC 20240-4001; telephone (202) 208-4400.
Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior shall certify and publish in the
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.
I certify that by Resolution No. 01.03-A, the Augustine Band of Cahuilla Mission Indians Liquor Control Ordinance was duly adopted by the Augustine Band of Cahuilla Mission Indians Tribal Council, governing body of the Augustine Indian Reservation, on April 18, 2001.
The Augustine Band of Cahuilla Mission Indians Liquor Control Ordinance, Resolution No. 01.03-A, reads as follows:
As used in this title, the following words shall have the following meanings unless the context clearly requires otherwise.
(a) Publish and enforce rules and regulations adopted by the Tribal Council governing the sale, manufacture, and distribution of alcoholic beverages in public places on the Augustine Indian Reservation;
(b) Employ managers, accountants, security personnel, inspectors, and such other persons as shall be reasonably necessary to allow the Tribal Council to perform its functions. Such employees shall be tribal employees;
(c) Issue licenses permitting the sale, manufacture and/or distribution of liquor in public places on the Augustine Indian Reservation;
(d) Hold hearings on violations of this Title or for the issuance or revocation of licenses hereunder;
(e) Bring suit in the appropriate court to enforce this Title as necessary;
(f) Determine and seek damages for violation of this Title;
(g) Make such reports as may be required by the Tribal Council;
(h) Collect sales taxes and fees levied or set by the Tribal Council on liquor sales and the issuance of liquor licenses, and keep accurate records, books and accounts; and
(i) Exercise such other powers as may be delegated from time to time by the Tribal Council.
(a) Accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer, or distributor or from any licensee;
(b) Waive the sovereign immunity of the Augustine Band of Cahuilla Mission Indians from suit without a majority vote of the Tribal Council.
(1) Driver's license of any state or identification card issued by any State Department of Motor Vehicles;
(2) United States Active Duty Military;
(3) Passport; and
(4) Gaming license or work permit issued by the Tribal Council, if said license or permit contains the bearer's correct age, signature and photograph.
(a) First, for the payment of all necessary personnel, administrative costs, and legal fees incurred in the enforcement of this Title; and
(b) Second, the remainder shall be turned over to the General Fund of the Augustine Band and expended by the Tribal Council for governmental services and programs on the Augustine Indian Reservation.
This Ordinance may only be amended by a majority vote of members of the Tribal Council of the Augustine Band attending a duly-noticed meeting at which a quorum is present.
This Title was passed and amended at duly held and convened meetings of the Tribal Council on March 13, 2001 and April 18, 2001, as attested to and certified by MaryAnn Martin, Chairperson of the Tribal Council of the Augustine Band.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Santa Rosa Rancheria Liquor Control Ordinance. The Ordinance regulates the control, possession, and sale of liquor on the Santa Rosa Rancheria trust lands, to be in conformity with the laws of the State of California, where applicable and necessary. Although the Ordinance was adopted on July 13, 2001, it does not become effective until published in the
This Ordinance is effective on May 14, 2002.
Kaye Armstrong, Office of Tribal Services, 1849 C Street, NW, MS 4631-MIB, Washington, DC 20240-4001; telephone (202) 208-4400.
Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.
I certify that by Resolution 2001-32, the Santa Rosa Rancheria Liquor Control Ordinance was duly adopted by the Santa Rosa Tribal Council on July 13, 2001.
The Santa Rosa Rancheria Liquor Control Ordinance, Resolution No. 2001-32, reads as follows:
As used in this Ordinance, the following words shall have the following meanings, unless the context clearly requires otherwise.
That substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, which is commonly produced by the fermentation, or distillation of grain, starch, molasses or sugar, or other substances including dilutions and mixtures of this substance.
(a) Publish and enforce such rules and regulations governing the purchase, sale, consumption and distribution of alcoholic beverages in public places on the Santa Rosa Rancheria as the Tribal Council deems necessary.
(b) Employ managers, accountants, security personnel, inspectors and such other persons as shall be reasonably necessary to allow the Tribal Council to exercise its authority as set forth in this Ordinance.
(c) Issues licenses permitting the sale and/or distribution of liquor on the Santa Rosa Rancheria.
(d) Hold hearings on violations of this Ordinance or for the issuance or revocation of licenses hereunder;
(e) Bring suit in the appropriate court to enforce this Ordinance as necessary;
(f) Determine and seek damages for violation of this Ordinance;
(g) Publish notices and make such reports to the General Council as may be appropriate;
(h) Collect sales taxes and fees levied or set by the Tribal Council on liquor sales and the issuance of liquor licenses, and to keep accurate records, books and accounts;
(i) Take or facilitate all action necessary to follow or implement applicable provisions of State law as required;
(j) Cooperate with appropriate State of California authorities for purposes of prosecution of any violation of any criminal law of the State of California; and
(k) Exercise such other powers as may be delegated from time to time by the General Council.
(a) Accept any gratuity, compensation or other thing of value from any liquor wholesaler, retailer or distributor, or from any licensee; or
(b) Waive the immunity of the Tribe from suit except by express resolution of the Tribal Council, such waiver being subject to the following limitations: The waiver must be transaction specific, limited as to duration and beneficiary, include a provision that limits recourse only to specified assets or revenues of the Tribe or a Tribal entity, and specifies the process and venue for dispute resolution, including applicable law.
(1) Drivers license of any state or identification card issued by any state Department of Motor Vehicles;
(2) United States Uniformed Services identification documents;
(3) Passport; or
(4) Gaming license or work permit issued by the Tribal Gaming Commission, if said license or permit contains the bearer's correct age, signature and photograph.
(a) First, for the payment of all necessary personnel, administrative costs, and legal fees incurred in the enforcement of this Ordinance; and
(b) Second, the remainder shall be turned over to the General Fund of the Tribe and expended by the Tribal Council for governmental services and programs on tribal lands.
This Ordinance may be amended only pursuant to a duly enacted Resolution of the Tribal Council, with certification by the Secretary of the Interior and publication in the
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Ysleta del Sur Pueblo of the Tigua Tribe Liquor Ordinance. The Ordinance regulates the control, possession, and sale of liquor on the Ysleta del Sur Pueblo trust lands, to be conformity with the laws of the State of Texas, where applicable and necessary. Although the Ordinance was adopted on March 19, 2002, it does not become effective until published in the
This Ordinance is effective on May 14, 2002.
Kaye Armstrong, Office of Tribal Services, 1849 C Street, NW., MS 4631-MIB, Washington, DC 20240-4001; telephone (202) 208-4400.
Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1.
I certify that by Resolution No. TC-33-02, the Ysleta de Sur Pueblo of the Tigua Tribe Liquor Ordinance No. 004-02, was duly adopted by the Ysleta del Sur Pueblo Tribal Council on March 19, 2002.
The Ysleta del Sur Pueblo of the Tigua Tribe Liquor Ordinace No. 004-02 reads as follows:
Pursuant to the authority vested in the Tribal Council as the duly constituted traditional governing body of the Ysleta del Sur Pueblo, a federally recognized Indian tribe exercising all inherent governmental powers, fiscal authority and tribal sovereignty as recognized in the Ysleta del Sur Pueblo Restoration Act (Public Law 100-89 as codified in 25 U.S.C. 1300g) and its lawful authority to provide for health, safety, morals, welfare, tribal economic development and self-sufficiency of the Ysleta del Sur Pueblo, the Tribal Council hereby enacts this Ordinance for the purpose of regulating the sale of alcoholic beverages. Therefore, be it resolved and ordained by the Tribal Council of the Ysleta del Sur Pueblo:
That the following Article entitled Sale of Alcoholic Beverages, which by reference, is incorporated herein as if set forth at length, is hereby adopted as Article 64 of the Tigua Tribe's Code of Laws.
Bureau of Land Management, Interior and Forest Service, Agriculture.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) requests the Office of Management and Budget (OMB) to extend an existing approval to collect information from entities who conduct geophysical operations on public lands.
You must submit your comments to BLM at he address below on or before July 15, 2002. BLM will not necessarily consider any comments received after the above date.
You may mail comments to: Bureau of Land Management, (WO-
You may send comments via Internet to:
You may deliver comments to the Bureau of Land Management, Administrative Record, Room 401, 1620 L Street, NW., Washington, DC.
Comments will be available for public review at the L Street address during regular business hours (7:45 a.m. to 4:15 p.m.) Monday through Friday.
You may contact Barbara Gamble, Fluid Minerals Group, at (202) 452-0338 (Commercial or FTS). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) on 1-800-877-8330, 24 hours a day, seven days a week, to contact Ms. Gamble.
5 CFR 1320.12(a), requires that we provide a 60-day notice in the
(a) Whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
(b) The accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
(c) Ways to enhance the quality, utility, and clarity of the information collected; and
(d) Ways to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Mineral Leasing Act of 1920 (MLA) (30 U.S.C. 181
43 CFR Group, 3150 establishes procedures for BLM to issue authorizations to conduct oil and gas geophysical exploration operations on public lands. 36 CFR part 228 subpart E, and 36 CFR part 251 subpart A and subpart B establish procedures for the FS to authorize geophysical operations on FS lands.
The BLM and FS need the information requested on the Notice of Intent to process applications for geophysical exploration operations on public lands and to manage environmental compliance requirements in accordance with the laws, regulations, and land use plans. The BLM and FS use the information to determine if operators will conduct geophysical operations in a manner consistent with the regulations, local land use plans, and stipulations. The BLM and FS need the information requested on the Notice of Completion to determine whether rehabilitation of the lands is satisfactory or whether additional rehabilitation is necessary. You may submit the forms in person or by mail. We need the company name, address, and telephone number to identify the person/entity conducting operations. BLM will assign a Case File Number to track each specific operation. We require the legal land description to determine the location of the involved public lands. Additional information that we request includes the type and size of the proposed activity, location of the proposed operation, equipment you plan to use, operating procedures, and timing of the operation.
Applicants must submit these forms to allow BLM and FS to determine who is conducting geophysical operations on public lands. An interagency BLM/FS team revised the respective forms to streamline and improve the process for both the Federal Government and its customers. Combining the BLM and FS individual forms into a single BLM/FS form will ensure consistent management of the geophysical operations on public lands and will better serve the public.
Based on past and recent experience administering onshore oil and gas geophysical exploration operations, BLM estimates the public reporting burden for completing the Notice of Intent is one hour, and for completing the Notice of Completion is 20 minutes. The information we require is clearly outlined on the forms and in the terms and conditions. The information is already maintained by the respondents for their own record keeping purposes and they will need only to transfer or attach it to the forms. BLM estimates that it receives approximately 600 Notices of Intent and 600 Notices of Completion annually, with a total annual burden of 800 hours. Respondents vary from small businesses to major corporations.
The FS estimates the reporting burden is approximately one hour to complete a Notice of Intent which includes the time to gather the information on the project and complete the form. The FS estimates that it receives approximately 25 Notices of Intent and 25 Notices of Completion annually, with a total annual burden of 31 hours. Respondents include individual lessees, small and large companies, and independent exploration operators. After combining the annual burden of the BLM and FS, the total estimated annual burden is 831 hours.
Any member of the public may request and obtain, without charge, a copy of the BLM Form 3110-4/FS Form 2800-16 or BLM Form 3110-5/FS Form 2800-16a by contacting the person identified under
BLM will summarize all responses to this notice and include them in the request for OMB approval. All
Bureau of Land Management (BLM), Northern Field Office, Interior.
Notice of the meeting location and time for the National Petroleum Reserve—Alaska Research and Monitoring Advisory Team.
The National Petroleum Reserve—Alaska Research and Monitoring Advisory Team (NPR-A RMT) will meet May 29, 2002, from 9 a.m. to 4 p.m. to discuss research and monitoring needs in the NPR-A and to recommend priority projects for funding by BLM. The meeting, which is open to the public, will be held at the BLM Northern Field Office, located at 1150 University Avenue in Fairbanks, Alaska. Public comments will be taken from 1 p.m. to 1:30 p.m.
Inquiries or comments should be sent to Public Affairs, BLM Northern Field Office, 1150 University Avenue, Fairbanks, AK 99709-3844.
Herb Brownell, (907) 474-2333 or 1-800-437-7021, x2333, or e-mail
The RMT's members represent BLM, the Minerals Management Service, U.S. Department of Energy, U.S. Fish and Wildlife Service, U.S. Geological Survey—Biological Resources Division, the North Slope Borough, the oil and gas industry, environmental/resource conservation organizations, natural resource managers and academics, and the public at large. The RMT advises BLM in assessing the effectiveness and appropriateness of mitigative stipulations established in the 1998 Record of Decision for the Northeast NPR-A Integrated Activity Plan/Environmental Impact Statement. More generally, the RMT assesses NPR-A research and monitoring needs, develops and recommends research priorities, and works toward applying improved technology and operating practices to oil exploration and possible development in NPR-A.
The RMT meets in accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972.
Bureau of Land Management, Interior.
Notice of intent.
Notice is hereby given that the Bureau of Land Management (BLM) is proposing to amend the West HiLine Resource Management Plan. The BLM proposes exchanging 2.04 acres of Federal surface estate in Chouteau County for private land within the Crow Indian Reservation in Big Horn and Yellowstone Counties as a part of Phase 4a of the Crow Boundary Settlement Act Land Exchange. The Federal land is legally described as:
Disposal of the Federal land described above was not analyzed in the West HiLine Resource Management Plan (RMP) and associated Environmental Impact Statement. Disposal of the Federal land requires: (1) That the specific tracts be identified in the land use plan together with the criteria to be met for exchange ,and (2) a discussion of how the exchange criteria have been satisfied. The discussion of how these requirements are being met will be part of the Environmental Assessment prepared to analyze the effects of disposal, as well as the plan amendment itself.
Comments and recommendations on this notice to amend the West HiLine RMP should be received on or before June 13, 2002.
Comments should be sent to David L. Mari, Field Manager, Lewistown Field Office, P.O. Box 1160, Lewistown, Montana 59457-1160.
Loretta Park, Realty Specialist, 406/538-1910.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) proposes to withdraw approximately 521.83 acres of public land from surface entry and mining, and 208.03 acres of Federal reserved mineral interests underlying private surface estate from mining to protect important scenic, open space, and recreational resource values of the Beck Lake area in Park County. This notice closes the land for up to 2 years from surface entry and mining. The land will remain open to mineral leasing.
Comments and requests for a public meeting must be received by August 12, 2002.
Comments and requests should be sent to the BLM Wyoming State Director, P.O. Box 1828, Cheyenne, Wyoming 82003-1828.
Mike Blymyer, BLM Cody Field Office Manager, 1002 Blackburn, P.O. Box 518, Cody, Wyoming 82414, 307-578-5900, or Janet Booth, BLM Wyoming State Office, 307-775-6124.
On August 27, 2001, a petition/application was approved allowing the BLM to file an application to withdraw the following described public land and Federal reserved mineral interests from settlement, sale, location, or entry under the general land laws, including the mining laws, except for disposal under the Recreation and Public Purposes Act of 1926, as amended, subject to valid existing rights:
The area described contains approximately 521.83 acres of public surface and Federal minerals in Park County.
The area described contains approximately 208.03 acres of Federal reserved minerals underlying private surface in Park County.
The purpose of the proposed withdrawal is to protect important scenic, open space, and recreational resource values pending further study and development of appropriate, and possibly longer-term, actions.
For a period of 90 days from the date of publication of this notice, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal may present their views in writing to the undersigned officer of the BLM.
Notice is hereby given that an opportunity for a public meeting is afforded in connection with the proposed withdrawal. All interested persons who desire a public meeting for the purpose of being heard on the proposed withdrawal must submit a written request to the BLM Wyoming State Director within 90 days from the date of publication of this notice. Upon determination by the authorized officer that a public meeting will be held, a notice of time and place will be published in the
The application will be processed in accordance with the regulations set forth in 43 CFR 2300.
For a period of 2 years from the date of publication of this notice in the
Minerals Management Service (MMS), Interior.
Notice of meeting.
The OCS Policy Committee of the Minerals Management Advisory Board will meet at the Days Hotel and Conference Center in Herndon, Virginia.
Tuesday, May 21, 2002, from 8:30 a.m. to 5 p.m. and Wednesday, May 22, 2002, from 8:30 a.m. to 5 p.m.
The Days Hotel and Conference Center, 2200 Centreville Road, Herndon, Virginia 20170, telephone (703) 471-6700.
Ms. Jeryne Bryant at Minerals Management Service, 381 Elden Street, Mail Stop 4001, Herndon, Virginia 20170-4187. She can be reached by telephone at (703) 787-1211 or by electronic mail at
The OCS Policy Committee represents the collective viewpoint of coastal states, environmental interests, industry and other parties involved with the OCS Program. It provides policy advice to the Secretary of the Interior through the Director of MMS on all aspects of leasing, exploration, development, and protection of OCS resources.
The agenda for May 21st will cover the following principal subjects:
The meeting is open to the public. Approximately 100 visitors can be accommodated on a first-come-first-served basis.
Upon request, interested parties may make oral or written presentations to the OCS Policy Committee. Such requests should be made no later than May 13, 2002, to Jeryne Bryant. Requests to make oral statements should be accompanied by a summary of the statement to be made. Please see
Minutes of the OCS Policy Committee meeting will be available for public inspection and copying at MMS in Herndon.
Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C. Appendix 1, and the Office of Management and Budget's Circular No. A-63, Revised.
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before April 13, 2002. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register, National Park Service, 1849 C St. NW., NC400, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 800 N. Capitol St. NW., Suite 400, Washington DC 20002; or by fax, 202-343-1836. Written or faxed comments should be submitted by May 29, 2002.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 11, 2002, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of EMC Corporation of Hopkinton, Massachusetts. Letters supplementing the complaint were filed on April 12 and 15, and May 6, 2002. The complaint as supplemented alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain data storage systems and components thereof by reason of infringement of claims 1-4 and 6-17 of U.S. Letters Patent 5,742,792, claims 1-4 and 9-13 of U.S. Letters Patent 5,544,347, claims 1, 2, 8, 9, 15, 21, and 22 of U.S. Letters Patent 6,092,066, claims 1-10 of U.S. Letters Patent 6,101,497, claims 5-8 of U.S. Letters Patent 6,108,748, and claims 1-4, 9, 11-13, 15, 17, 19, 21-23, 26, 28-30, 33-36, 42-44, 51-53, 60, 61, 65, 68, 69, 73, 76, 77, and 81 of U.S. Letters Patent 5,909,692. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent exclusion order and a permanent cease and desist order.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Karin J. Norton, Esq., or Thomas S. Fusco, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone 202-205-2606 and 202-205-2571, respectively.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation, of certain data storage systems or components thereof by reason of infringement of claim 1-4, 6-16, or 17 of U.S. Letters Patent 5,742,792, claim 1-4, 9-12, or 13 of U.S. Letters Patent 5,544,347, claim 1, 2, 8, 9, 15, 21, or 22 of U.S. Letters Patent 6,092,066, claim 1-9 or 10 of U.S. Letters Patent 6,101,497, claim 5, 6, 7, or 8 of U.S. Letters Patent 6,108,748, and claim 1-4, 9, 11-13, 15, 17, 19, 21-23, 26, 28-30, 33-36, 42-44, 51-53, 60, 61, 65, 68, 69, 73, 76, 77, or 81 of U.S. Letters Patent 5,909,692, and whether an industry in the United States exists as required by subsection (a)(2) of section 337.
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—EMC Corporation, 171 South Street, Hopkinton, MA 01748-9103.
(b) The respondents are the following companies alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
Hitachi, Ltd., 6, Kanda-Surugadai 4-chome, Chiyoda-ku, Tokyo, 101-8010, Japan; Hitachi Data Systems Corporation, 750 Central Expressway, Santa Clara, CA 95050-2627.
(c) Karin J. Norton, Esq., and Thomas S. Fusco, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436, who shall be the Commission investigative attorneys, party to this investigation; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's rules of practice and procedure, 19 CFR 210.13. Pursuant to 19 CFR §§ 201.16(d) and 210.13(a), such responses will be considered by the Commission if received no later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and to authorize the administrative law judge and the Commission, without further
By order of the Commission.
30-day notice of information collection under review: new collection; Tribal Resources Grant Program Hiring Progress Report.
The Department of Justice (DOJ), Office of Community Oriented Policing Services (COPS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until June 13, 2002. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202)-395-7285.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information; including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
30-day notice of information collection under review: new collection; Tribal Hiring Renewal Grant Program Application.
The Department of Justice (DOJ), Office of Community Oriented Policing Services (COPS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until June 13, 2002. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
30-day notice of information collection under review: Reinstatement, with change, of a previously approved collection for which approval has expired; Universal Hiring Program (UHP) and COPS in Schools (CIS) Grant Applications.
The Department of Justice (DOJ), Office of Community Oriented Policing Services (COPS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until June 13, 2002. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
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Justice Management Division.
Notice of availability of draft guidelines.
The Department of Justice, in accordance with Section 515 of the Treasury and General Government Appropriations Act for FY 2001 (Pub. L. 106-554) and the Office of Management and Budget Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies published in the
Comments on the draft guidance should be received by June 10, 2002.
Mr. Eric Nelson, (202) 307-1825.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation contact Marlene Howze at (202) 693-4158 or e-mail
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for BLS, Office of Management and Budget, Room 10235, Washington, DC 20503 (202) 395-7316, within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility, and clarity of the information to be collected; and minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment and Training Administration (ETA) is soliciting comments concerning the proposed extension of the TPS program. Note that the name of this program was changed from Revenue Quality Control to the Tax Performance System (TPS). A copy of the proposed information collection request can be obtained by contacting the employee listed below in the contact section of this notice.
Written comments must be submitted to the office listed in the address below on or before July 15, 2002.
Rett Hensley, Office of Workforce Security, Employment and Training Administration, Department of Labor, Room S 4522, 200 Constitution Ave., NW., Washington, DC 20210; 202 693-3203 (this is not a toll-free number).
Since 1987, all states except the Virgin Islands have been required by regulation at 20 CFR part 602 to operate a program to assess their UI tax and benefit programs. TPS developed new measures for tax performance to replace those previously gathered under the Quality Appraisal (QA) system. TPS is designed to assess the major internal UI tax functions by utilizing several methodologies: Computed Measures which are indicators of timeliness and completeness based on data automatically generated via the existing ETA 581 (Office of Management and Budget (OMB) approval number 1205-0178, expiring 8/2002) automated report; and Program Reviews which assess accuracy through a two-fold examination: (a) “Systems Reviews” examine tax systems for the existence of internal controls; (b) small samples of those systems' transactions are then examined to verify the effectiveness of controls.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This is a request for OMB approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)) for continuing an existing collection of information previously approved and assigned OMB Control No. 1205-0332.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the extension of the information collection request; they will also become a matter of public record.
10 a.m., Thursday, May 16, 2002.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Open.
1. Requests from four (4) Federal Credit Unions to Convert to Community Charters.
2.
3.
Becky Baker, Secretary of the Board, telephone: 703-518-6304.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), as amended, notice is hereby given that a meeting of the
This meeting is for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of May 2, 2002, these sessions will be closed to the public pursuant to subsection (c)(4), (6) and (9)(B) of section 552b of Title 5, United States Code.
Further information with reference to this meeting can be obtained from Ms. Kathy Plowitz-Worden, Panel Coordinator, National Endowment for the Arts, Washington, DC 20506, or call 202/682-5691.
The National Endowment for the Arts utilizes advice and recommendations of advisory committees in carrying out many of its functions and activities.
The Federal Advisory Committee Act, as amended (Public Law 92-463), governs the formation, use, conduct, management, and accessibility to the public of committees formed to advise and assist the Federal Government. Section 10 of the act specifies that department and agency heads shall make adequate provisions for participation by the public in the activities of advisory committees, except to the extent a determination is made in writing by the department or agency head that a portion of an advisory committee meeting may be closed to the public in accordance with subsection (c) of section 552b of title 5, United States Code.
It is the policy of the National Endowment for the Arts to make the fullest possible disclosure of records to the public, limited only by obligations of confidentiality and administrative necessity. Consistent with this policy, meetings of the following Endowment advisory committees will be open to the public except for portions dealing with the review, discussion, evaluation, and/or ranking of grant applications: Combined Arts, Fellowships, Leadership Initiatives, Partnership, Special Projects, and the Federal Advisory Committee on International Exhibitions.
The portions of the meetings involving the review, discussion, evaluation and ranking of grant applications may be closed to the public for the following reasons:
Information and data are furnished to the Endowment by grant applicants with the expectation that such information will be treated on a confidential basis and not necessarily disclosed to the public until such time as a final funding decision has been rendered. This information may include such matters as details relating to the type of design or work to be performed, adequacy of the applicant's facilities, competence of the applicant's staff, proposed budget, personal biographical data, and other material which would not otherwise be disclosed. If the process were not to continue on a confidential basis, grant applicants would not supply sufficiently detailed information so essential for complete and effective review of their proposals.
Further, public discussion of the merits of proposals not recommended for funding could subject unsuccessful grant applicants to negative speculation about the quality of the applicants' work. Additionally, premature public disclosure might adversely influence or prejudice the decisions of other funding sources in connection with their review of similar proposals.
Endowment consultant-experts are chosen from among persons recognized for their expertise in the arts. These experts review and evaluate applications for financial assistance submitted to the Endowment by their peers and colleagues in the respective cultural fields. As a result, public participation in panel meetings involving application review, during which negative criticisms of an applicant's work are expressed, undoubtedly would affect a consultant-expert's willingness to express his or her full and frank opinion regarding the merits of the proposed project or activity. Accordingly, the Endowment's capacity effectively to carry out its statutory mandate and maintain the highest possible standards of quality with respect to funding recommendations would be seriously impaired by its inability to conduct the application review process in a confidential atmosphere conducive to the candid and honest exchange of ideas. Thus, such public participation would be likely to significantly frustrate the implementation of proposed agency actions, i.e., proposed funding decisions.
Consequently, in the interest of meeting our obligations of confidentiality in reference to matters submitted as part of grant applications, and in order to encourage and ensure, for the benefit of the Government's review and evaluation process, candid and uninhibited expression of views concerning the merits of grant applications and contract proposals:
It is hereby determined in accordance with the provisions of section 10(d) of the Act that the disclosure of information regarding the review, discussion, and evaluation of grant applications and contract proposals, as outlined herein is likely to disclose:
(1) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(2) Information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and
(3) Information the premature disclosure of which would be likely to significantly frustrate implementation of proposed agency action.
Therefore, in light of the above, I have determined that the above referenced meetings or portions thereof, devoted to review, discussion, evaluation, and/or ranking of grant applications, and contract proposals may be closed to the public in accordance with subsection (c)(4)(6), and 9(B) of section 552b of title 5, United States Code.
The staff of each committee shall prepare a summary of any meeting or portion not open to the public within three (3) business days following the conclusion of the meeting of the National Council on the Arts considering applications recommended by such committees. The summaries shall be consistent with the considerations that justified the closing of the meetings.
All other portions of the meetings of these advisory committees shall be open to the public unless the Chairperson of the National Endowment for the Arts or a designee determines otherwise in accordance with section 10(d) of the Act.
The Panel Coordinator shall be responsible for publication in the
(1) Name of the committee and its purposes:
(2) Date and time of the meeting, and, if the meeting is open to the public, its location and agenda; and
(3) A statement that the meeting is open to the public, or, if the meeting or any portion thereof is not to be open to the public, a statement to that effect.
The Panel Coordinator is designated as the person from whom rosters of lists of committee members may be obtained and from whom minutes of open meetings or open portions thereof may be requested.
Any interested person may attend meetings of advisory committees that are open to the public.
Members of the public attending a meeting will be permitted to participate in the committee's discussion at the discretion of the chairperson of the committee, if the chairperson is a full-time Federal employee; if the chairperson is not a full-time Federal employee then public participation will be permitted at the chairperson's discretion with the approval of the full-time Federal employee in attendance at the meeting in compliance with the order.
Section 6(f) of the National Foundation on the Arts and the Humanities Act of 1965, as amended (20 U.S.C. 951
The Federal Advisory Committee Act (FACA), as amended (Pubic Law 92-463) governs the formation, use, conduct, management, and accessibility to the public of committees formed to advise the Federal Government. Section 10 of that Act directs meetings of advisory committees to be open to the public, except where the head of the agency to which the advisory committee reports determines in writing that a portion of a meeting may be closed to the public consistent with subsection(c) of section 552b of Title 5, United States Code (the Government in the Sunshine Act.)
It is the policy of the National Endowment for the Arts that meetings of the National Council on the Arts be conducted in open session, including those parts during which applications are reviewed. However, in recognition that the Endowment receives as part of some grant applications non-public proprietary or financial information, I have determined to reserve the right to close limited portions of Council application reviews at which such protected information is specifically discussed. The purpose of closure is to protect the confidentiality of protected information. Closure for this purpose is authorized by subsection (c)(4) of section 552b of Title 5 United States code.
Additionally, at one of its meetings, the Council will consider prospective nominees for the National Medal of Arts award in order to advise the President of the United States in his final selection of National Medal of Arts recipients. During this session information of a personal nature may be discussed. Disclosure of this information about individuals who are unaware that they are under consideration for the award would constitute a clearly unwarranted invasion of personal privacy. Moreover, the premature disclosure of this information would significantly frustrate the nomination and selection of National Medal of Arts recipients.
Therefore, in light of the above, I have determined that the above referenced portion of the July 2002 Council meeting, devoted to consideration of prospective nominees for the National Medal of Arts award, may be closed to the public. Closure for these purposes is authorized by subsections (c)(6) and (9)(B) of section 552b of Title 5, United States Code. A record shall be maintained of any closed portion of the Council meeting. Further, in accordance with the FACA, a notice of any intent to close any portion of the Council meeting will be published in the
The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of an amendment to Facility Operating License No. DPR-40, issued to Omaha Public Power District (OPPD/the licensee), for operation of the Fort Calhoun Station, Unit 1 (FCS) located in Washington County, Nebraska.
The proposed amendment will revise the maximum allowable value of the reactor protective system (RPS) variable high power trip (VHPT) setpoint from 107.0% to 109.0%. Specifically, Technical Specification (TS) Table 1-1, “RPS Limiting Safety System Settings,” in the Trip Setpoints column for Trip Number 1 [High Power Level (A) 4-Pump Operation] will be revised from 107.0% to 109.0%. In addition, TS Section 1.3(1), “Basis,” describing the high power trip initiation, will be revised from 107.0% to 109.0%.
On March 27, 2002, OPPD requested an amendment to change the high power trip setpoint. OPPD informed the NRC that the revised setpoint for the high power trip needed to be approved prior to exceeding 95% rated power to avoid a potential plant trip due to a hot leg flow streaming anomaly. OPPD requested that the amendment be approved by May 31, 2002, to provide them sufficient time to implement the change. FCS began its Spring refueling outage on May 3, 2002. The outage is scheduled to be completed and power operation is scheduled to resume on May 31, 2002. FCS is currently scheduled to exceed 95% power on June 5, 2002. On May 2, 2002, OPPD was notified by the NRC that the NRC had missed the deadline for publication of the no significant hazards consideration notice in the April 30, 2002,
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:
The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The change does not result in a high power trip setpoint that will cause the analysis value of 112.0% to be exceeded. There is no change in the analysis value of 112.0% for the high power trip setpoint used in the evaluation of the transients and accidents. All of the evaluated transients and accidents currently show acceptable results and will not be affected by this change. Changing the high power trip setpoint will not affect the probability of an accident, since that circuit is not a transient or accident initiator. The change to the setpoint will not change the failure possibilities for this circuit. The effect of the proposed change is the reduction in the probability of an undesired safety system challenge initiated by an erroneous high power trip during a flow streaming event.
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 RPS high power trip setpoint does not provide the possibility of the creation of a new or different type of accident. Changing the setpoint does not change the method of operation of the high power trip circuit or its expected response once the setpoint is reached. The trip will occur within previously analyzed limits.
The proposed change does not involve a significant reduction in a margin of safety.
The proposed setpoint change does not constitute a significant reduction in the margin of safety due to the fact that the transient and accident analyses contained in the Updated Safety Analysis Report have been evaluated using an analysis trip setpoint of 112.0% with the event initiated from the appropriate power level and have been shown to produce acceptable results.
The acceptance criteria used in the analysis have been developed for the purpose of use in design basis accident analyses such that meeting these limits demonstrates adequate protection of public health and safety. An acceptable margin of safety is inherent in these licensing limits. Therefore, the proposed changes do not involve a reduction in a 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 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 expiration of the 14-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 14-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 June 13, 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, and available 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 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
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 James R. Curtiss, Esq., Winston & Strawn, 1400 L Street, NW., Washington, DC 20005-3502, 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 March 27, 2002, as supplemented by letter dated May 9, 2002, which is available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC web site
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of May 13, 20, 27, June 3, 10, 17, 2002.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address
There are no meetings scheduled for the Week of May 20, 2002.
This meeting will be webcast live at the Web address
There are no meetings scheduled for the Week of June 10, 2002.
There are no meetings scheduled for the Week of June 17, 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.
By a vote of 5-0 on May 6 and 7, the Commission
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 to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Pursuant to Public Law 97-415, the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. Public Law 97-415 revised section 189 of the Atomic Energy Act of 1954, as amended (the Act), to require the Commission to publish notice of any amendments issued, or proposed to be issued, under a new provision of section 189 of the Act. This provision grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from April 19, 2002 through May 2, 2002. The last biweekly notice was published on April 30, 2002 (67 FR 21283).
The Commission has made a proposed determination that the following amendment requests involve 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. The basis for this proposed determination for each amendment request is shown below.
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 before action is taken. 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
By June 13, 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 NRC's PDR, 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,
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
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: Rulemaking and Adjudications Staff, or may be delivered to the Commission's PDR, 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 attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of 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 which is available for public inspection at the Commission's PDR, 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,
The NRC staff issued a notice of opportunity for comment in the
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed
The extended time allowed to perform a missed surveillance does not result in a significant reduction in the margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO [Limiting Condition for Operation] is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on the margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the rare occurrence of inoperable equipment, and the rare occurrence of a missed surveillance, a missed surveillance on inoperable equipment would be very unlikely. This must be balanced against the real risk of manipulating the plant equipment or condition to perform the missed surveillance. In addition, parallel trains and alternate equipment are typically available to perform the safety function of the equipment not tested. Thus, there is confidence that the equipment can perform its assumed safety function.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendments request involves no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The extended time allowed to perform a missed surveillance does not result in a significant reduction in the margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO [Limiting Condition for Operation] is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on the margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the rare occurrence of inoperable equipment, and the rare occurrence of a missed surveillance, a missed surveillance on inoperable equipment would be very unlikely. This must be balanced against the real risk of manipulating the plant equipment or condition to perform the missed surveillance. In addition, parallel trains and alternate equipment are typically available to perform the safety function of the equipment not tested. Thus, there is confidence that the equipment can perform its assumed safety function.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendments request involves no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The extended time allowed to perform a missed surveillance does not result in a significant reduction in the margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO [Limiting Condition for Operation] is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on the margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the rare occurrence of inoperable equipment, and the rare occurrence of a missed surveillance, a missed surveillance on inoperable equipment would be very unlikely. This must be balanced against the real risk of manipulating the plant equipment or condition to perform the missed surveillance. In addition, parallel trains and alternate equipment are typically available to perform the safety function of the equipment not tested. Thus, there is confidence that the equipment can perform its assumed safety function.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff proposes to determine that the amendments request involves no significant hazards consideration.
1. Operation of the facility in accordance with the proposed amendment would not involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated.
The Gas Turbine Generators only provide a Licensing Basis Event mitigating function. There is no previously evaluated accident or event that is initiated by the Gas Turbine Generators or the associated fuel storage system. The ability of the Gas Turbine Generators to provide power, as a backup to the Emergency Diesel Generators, is not affected by the location of the description of their licensing basis.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Operation of the facility in accordance with the proposed amendment would not create the possibility of a new or different kind of accident from any accident previously evaluated.
There is no physical change to the plant. The currently existing gas turbine generators and associated fuel oil storage facilities will still be used. The only change is to relocate the limiting conditions for operations, surveillance requirements and associated bases from the Technical Specifications to other licensee controlled documents.
Therefore, the proposed change does not create a new accident initiator or precursor, or create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Operation of the facility in accordance with the proposed amendment would not involve a significant reduction in [a] margin of safety.
The deletion of the limiting conditions for operation and surveillance requirements for the gas turbine generators from the Technical Specifications does not alter the method of operation, the design requirements or the current licensing basis that the gas turbine generators be able to power all the loads required by 10 CFR Part 50, Appendix R to place the plant into a safe shutdown condition following a fire and maintain safe shutdown for three days. It also does not remove the licensing basis requirement of 10 CFR Part 50, Section 50.63, that the unit must have the capacity to withstand and recover from a station blackout. The current licensing
Therefore, operation of the facility in accordance with the proposed amendment would not involve a significant reduction in [a] 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 U.S. Nuclear Regulatory Commission (NRC) staff issued a notice of opportunity for comment in the
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The extended time allowed to perform a missed surveillance does not result in a significant reduction in [a] margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on [a] margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the rare occurrence of inoperable equipment, and the rare occurrence of a missed surveillance, a missed surveillance on inoperable equipment would be very unlikely. This must be balanced against the real risk of manipulating the plant equipment or condition to perform the missed surveillance. In addition, parallel trains and alternate equipment are typically available to perform the safety function of the equipment not tested. Thus, there is confidence that the equipment can perform its assumed safety function.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
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.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes revise TS 3.8.4, “DC Sources—Operating,” TS 3.8.5, “DC Sources—Shutdown,” TS 3.8.6, “Battery Cell Parameters,” and TS 3.8.8, “Inverters—Shutdown.”
TS 3.8.4, TS 3.8.5, and TS 3.8.6 have been revised to 1) add new Required Actions and extend the Completion Time for an inoperable battery charger, 2) provide alternate battery charger testing criteria for TS 3.8.4 and TS 3.8.5, 3) relocate to a licensee-controlled program a number of Surveillance Requirements (SRs) in TS 3.8.4 that perform preventive maintenance on the safety-related batteries, 4) relocate TS Table 3.8.6-1, “Battery Cell Parameters Requirements,” to a licensee-controlled program, 5) add to TS 3.8.6 specific Required Actions associated with out-of-limits conditions for battery cell float voltage, float current, electrolyte level, and electrolyte temperature, and 6) add a new administrative TS program for the maintenance and monitoring of station batteries based on the recommendations of Institute of Electrical and Electronics Engineers (IEEE) Standard 450-1995, “IEEE Recommended Practice for Maintenance, Testing, and Replacement of Vented Lead-Acid Batteries for Stationary Applications.” In addition, TS 3.8.5 and TS 3.8.8 have been revised to require only one DC electrical power subsystem and two inverters, respectively, during shutdown conditions.
The DC Sources, Battery Cell Parameters, and Inverters are not initiators of any accident sequence analyzed in the Byron/Braidwood Stations' Updated Final Safety Analysis Report (UFSAR). As such, the proposed changes do not involve a significant increase in the probability of an accident previously evaluated.
The initial conditions of Design Basis Accident (DBA) and transient analyses in the Byron/Braidwood Stations' UFSAR assume Engineered Safety Feature (ESF) systems are operable. The AC and DC electrical power distribution systems are designed to provide sufficient capacity, capability, redundancy, and reliability to ensure the availability of necessary power to ESF systems so that the fuel, Reactor Coolant System, and containment design limits are not exceeded. The operability of the AC and DC electrical power distribution systems in accordance with the proposed TS is consistent with the initial assumptions of the accident analyses and is based upon meeting the design basis of the plant. Therefore, the proposed changes do not involve a significant increase in the consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not involve any physical alteration of the units. No new equipment is being introduced, and installed equipment is not being operated in a new or different manner. There are no setpoints at which protective or mitigative actions are initiated that are affected by the proposed changes. The operability of the AC and DC electrical power distribution systems in accordance with the proposed TS is consistent with the initial assumptions of the accident analyses and is based upon meeting the design basis of the plant. These proposed changes will not alter the manner in which equipment operation is initiated, nor will the function demands on credited equipment be changed. No alteration in the procedures, which ensure the unit remains within analyzed limits, is proposed, and no change is being made to procedures relied upon to respond to an off-normal event. As such, no new failure modes are being introduced. The proposed changes do not alter assumptions made in the safety analyses.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed changes will not adversely affect operation of plant equipment. These changes will not result in a change to the setpoints at which protective actions are initiated. Sufficient DC capacity to support operation of mitigation equipment is ensured. The changes associated with the new administrative TS program will ensure that the station batteries are maintained in a highly reliable manner. The equipment fed by the AC and DC electrical power distribution systems will continue to provide adequate power to safety-related loads in accordance with analyses assumptions.
Therefore, the proposed changes do not involve a significant reduction in a 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 requested amendments involve no significant hazards consideration.
1. Will operation of the facility in accordance with this proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes will allow plant operation to continue if the temperature of the NHS exceeds the TS limit of 90 °F provided that: (1) The water temperature, averaged over the previous 24 hour period, is at or below 90 °F, and (2) the NHS temperature is less than or equal to 92 °F. This increase in NHS temperature will not affect the normal operation of the plant to the extent that it would make any accident more likely to occur. In addition, there exists adequate margin in the safety systems and safety-related heat exchangers to assure the design safety functions are met at the higher temperature.
The proposed administrative change to remove an expired, temporary license amendment removes information which is no longer valid.
Thus, the proposed changes will have no adverse effect on plant operation, or the availability or operation of any accident mitigation equipment. The plant response to the design-basis accidents will not change. In addition, the proposed changes can not cause an accident. Therefore, there will be no increase in the probability or consequences of an accident previously evaluated.
2. Will operation of the facility in accordance with this proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes will allow plant operation to continue if the temperature of the NHS exceeds the TS
3. Will operation of the facility in accordance with this proposed change involve a significant reduction in a margin of safety?
The proposed changes will allow plant operation to continue if the temperature of the NHS exceeds the TS limit of 90 °F provided that: (1) The water temperature, averaged over the previous 24-hour period, is at or below 90 °F, and (2) the NHS temperature is less than or equal to 92 °F. The licensee performed an evaluation of the safety systems to ensure their safety functions can be met with a NHS water temperature of 92 °F. The higher NHS temperature represents a slight reduction in the margins of safety in terms of these systems' abilities to remove accident heat loads. As part of its evaluation, however, the licensee verified that these safety systems will still be able to perform their design-basis functions.
The proposed administrative change to remove an expired, temporary license amendment removes information which is no longer valid.
The proposed changes will have no adverse effect on plant operation or equipment important to safety. The plant response to the design-basis accidents will not change and the accident mitigation equipment will continue to function as assumed in the design-basis accident analysis. Therefore, there will be no significant reduction in a margin of safety.
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.
Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The probability of an evaluated accident is derived from the probabilities of the individual precursors to that accident. The consequences of an evaluated accident are determined by the operability of plant systems designed to mitigate those consequences. Limits have been established consistent with NRC approved methods to ensure that fuel performance during normal, transient, and accident conditions is acceptable. The proposed change conservatively establishes the safety limit for the minimum critical power ratio (SLMCPR) for Quad Cities Nuclear Power Station (QCNPS), Unit 1 such that the fuel is protected during normal operation and during any plant transients or anticipated operational occurrences.
Changing the SLMCPR does not increase the probability of an evaluated accident. The change does not require any physical plant modifications, physically affect any plant components, or entail changes in plant operation. Therefore, no individual precursors of an accident are affected.
The proposed change revised the SLMCPR to protect the fuel during normal operation as well as during any transients or anticipated operational occurrences. Operational limits will be established based on the proposed SLMCPR to ensure that the SLMCPR is not violated during all modes of operation. This will ensure that the fuel design safety criteria (i.e., that at least 99.9 percent of the fuel rods do not experience transition boiling during normal operation and anticipated operational occurrences) is met. Since the operability of plant systems designed to mitigate any consequences of accidents has not changed, the consequences of an accident previously evaluated are not expected to increase.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Creation of the possibility of a new or different kind of accident would require the creation of one or more new precursors of that accident. New accident precursors may be created by modifications of the plant configuration, including changes in allowable modes of operation. The proposed change does not involve any modifications of the plant configuration or allowable modes of operation. The proposed change to the SLMCPR assures that safety criteria are maintained for QCNPS, Unit 1.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
Does the proposed change involve a significant reduction in a margin of safety?
The value of the proposed SLMCPR provides a margin of safety by ensuring that no more than 0.1 percent of the rods are expected to be in boiling transition if the MCPR limit is not violated. The proposed change will ensure the appropriate level of fuel protection. Additionally, operational limits will be established based on the proposed SLMCPR to ensure that the SLMCPR is not violated during all modes of operation. This will ensure that the fuel design safety criteria (i.e., that at least 99.9 percent of the fuel rods do not experience transition boiling during normal operation as well as anticipated operational occurrences) are met.
Therefore, the proposed 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 requested amendments involve no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The extended time allowed to perform a missed surveillance does not result in a significant reduction in the margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO [Limiting Condition for Operation] is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on the margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the rare occurrence of inoperable equipment, and the rare occurrence of a missed surveillance, a missed surveillance on inoperable equipment would be very unlikely. This must be balanced against the real risk of manipulating the plant equipment or condition to perform the missed surveillance. In addition, parallel trains and alternate equipment are typically available to perform the safety function of the equipment not tested. Thus, there is confidence that the equipment can perform its assumed safety function.
Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Probability of Occurrence of an Accident Previously Evaluated—
The proposed change to extend the ILRT interval from 10 to 15 years does not affect any accident initiators or precursors. The containment liner function is purely mitigative. There is no design basis accident that is initiated by a failure of the containment leakage mitigation function. The extension of the ILRT will not create any adverse interactions with other systems that could result in initiation of a design basis accident. Therefore, the probability of occurrence of an accident previously evaluated is not significantly increased.
Consequences of an Accident Previously Evaluated—
The potential consequences of the proposed change have been quantified by analyzing the changes in risk that would result from extending the ILRT interval from 10 to 15 years. The increase in risk in terms of person rem per year within 50 miles resulting from design basis accidents was estimated to be of a magnitude that NUREG-1493 indicates is imperceptible. I&M has also analyzed the increase in risk in terms of the frequency of large early releases from accidents. The increase in the large early release frequency resulting from the proposed extension was determined to be within the guidelines published in Regulatory Guide 1.174. Additionally, the proposed change maintains defense in depth by preserving a reasonable balance among prevention of core damage, prevention of containment failure, and consequence mitigation. I&M has determined that the increase in conditional containment failure probability from reducing the ILRT frequency from 1 test per 10 years to 1 test per 15 years would be small. Continued containment integrity is also assured by the history of successful ILRTs, and the established
In summary, the probability of occurrence and the consequences of an accident previously evaluated are not significantly increased.
The proposed change to extend the ILRT interval from 10 to 15 years does not create any new or different accident initiators or precursors. The length of the ILRT interval does not affect the manner in which any accident begins. The proposed change does not create any new failure modes for the containment and does not affect the interaction between the containment and any other system. Thus, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
The risk-based margins of safety associated with the containment ILRT are those associated with the estimated person-rem per year, the large early release frequency, and the conditional containment failure probability. I&M has quantified the potential effect of the proposed change on these parameters and determined that the effect is not significant. The non-risk-based margins of safety associated with the containment ILRT are those involved with its structural integrity and leak tightness. The proposed change to extend the ILRT interval from 10 to 15 years does not adversely affect either of these attributes. The proposed change only affects the frequency at which these attributes are verified. Therefore, the proposed changes do not involve a significant reduction in 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 requests involve no significant hazards consideration.
1. The proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed changes to TS Index, TS 3/4.9.13, TS Figure 3.9-1, and TS Figure 3.9-2 do not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, and configuration of the facility. In addition, the proposed changes do not affect the manner in which the plant responds in normal operation, transient, or accident conditions. The changes reflect the design capability of the BORAL® storage racks to safely store spent fuel.
The proposed changes do not affect the source term, containment isolation or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated in the Seabrook Station Updated Final Safety Analysis Report (UFSAR). Furthermore, the proposed changes do not increase the types and amounts of radioactive effluent that may be released offsite, nor significantly increase individual or cumulative occupational/public radiation exposures. Therefore, the proposed changes do not involve a significant increase in the probability or consequence of an accident previously evaluated.
2. The proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
The proposed changes to TS Index, TS 3/4.9.13, TS Figure 3.9-1, and TS Figure 3.9-2 do not change the operation or the design basis of any plant system or component during normal or accident conditions. The proposed changes do not include any physical changes to the plant. In addition, the proposed changes do not change the function or operation of plant equipment or introduce any new failure mechanisms. The plant equipment will continue to respond per the design and analyses and there will not be a malfunction of a new or different type introduced by the proposed changes. The proposed changes do not modify the facility nor do they affect the plant's response to normal, transient, or accident conditions. The changes do not introduce a new mode of plant operation. The changes reflect the design capability of the BORAL® storage racks to safely store spent fuel. The plant's design and design basis are not revised and the current safety analyses remains in effect. Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed changes do not involve a significant reduction in the margin of safety.
The proposed changes to TS Index, TS 3/4.9.13, TS Figure 3.9-1, and TS Figure 3.9-2 do not adversely affect the safety margins established through Limiting Conditions for Operation, Limiting Safety System Settings, and Safety Limits as specified in the Technical Specifications nor is the plant design revised by the proposed changes. The safety margins established through Limiting Conditions for Operation, Limiting Safety System Settings, and Safety Limits as specified in the Technical Specifications are not revised nor is the plant design or its method of operation revised by the proposed changes. The changes reflect the design capability of the BORAL® storage racks to safely store spent fuel. Administrative control measures (e.g., procedures) will continue to be in place to ensure the safe placement of fuel assemblies within the spent fuel pool so as to remain less than or equal to 0.95 K
Based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed amendment will not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed TS changes do not introduce new equipment or new equipment operating modes, nor do the proposed changes alter existing system relationships. Providing additional time to correct a situation in which suppression pool water level may be outside the established limits, deleting an unnecessary TS regarding suppression pool water level instrumentation, adding a time limit in which to restore oxygen concentration in the containment to within limits, and clarifying specific use and actions for Primary Containment Isolation Valves, are not initiators of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment referenced in the proposed changes is still required to be operable and capable of performing its accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected.
Therefore, the proposed amendment will not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed amendment will not create the possibility of a new or different kind of accident from any accident previously analyzed.
The proposed changes do not involve physical alterations of the plant, no new or different type of equipment will be installed. Nor, are there significant changes in the methods governing normal plant operation. Providing additional time to correct a situation in which suppression pool water level may be outside the established limits, deleting an unnecessary TS regarding suppression pool water level instrumentation, restructuring the TS to provide clear Action Statements where needed; adding a time limit in which to restore oxygen concentration in the containment to within limits; and clarifying specific use and actions for Primary Containment Isolation Valves will not lead to an accident beyond those previously evaluated.
Therefore, the proposed amendment will not create the possibility of a new or different kind of accident from any accident previously analyzed.
3. The proposed amendment will not involve a significant reduction in the margin of safety.
Providing additional time to correct a situation in which suppression pool water level may be outside the established limits, deleting an unnecessary TS regarding suppression pool water level instrumentation, restructuring the TS to provide clear Action Statements where needed; adding a time limit in which to restore oxygen concentration in the containment to within limits; and clarifying specific use and actions for Primary Containment Isolation Valves does not result in a significant reduction in the margin of safety. Allowing up to 2 hours to restore level, is acceptable because the suppression pool water level does not change rapidly during normal operation, and during operations that do create changes to the suppression pool water level, the level of the pool is closely monitored. The changes that provide specific LCO action statements for allowed time to place the reactor in a condition in which the LCO is no longer applicable are acceptable based on industry practices and engineering judgements. Adding an additional LCO which places a specified time limit on oxygen concentration greater than or equal to 4% by volume is acceptable because it provides a TS requirement which limits additional oxygen in the containment. Providing a revision to the LCO for inoperable primary containment isolation valves is acceptable because it clarifies what is specifically required for this method of isolation, and changing the interval at which deactivated and isolated valves must be recorded from daily to monthly is acceptable because the devices are operated under administrative controls and the probability of their misalignment is low. Relocating TS requirements is acceptable because it places the requirement for limiting the use of the purge and vent valves in a more appropriate TS and rewording the LCO is acceptable because it provides clarification for use of the purge and vent valves.
Therefore, these proposed changes will 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.
1. Operation of the Point Beach Nuclear Plant in accordance with the proposed amendments does not result in a significant increase in the probability or consequences of any accident previously evaluated.
The SW System is primarily a support system for systems required to be operable for accident mitigation. Failures within the SW System are not an initiating condition for any analyzed accident.
The SW System removes the required heat from the containment fan coolers and residual heat removal heat exchangers ensuring containment pressure and temperature profiles following an accident are as evaluated in the [Final Safety Analysis Report] FSAR. This in turn ensures that environmental qualification of equipment inside containment is maintained and thus function as required post-accident. Single Unit operation with five operable SW pumps will continue to be capable of supplying the required cooling water flow to systems required for accident mitigation.
Therefore, the consequences of an accident previously evaluated will not be significantly increased as a result of the proposed change.
2. Operation of the Point Beach Nuclear Plant in accordance with the proposed amendments does not result in a new or different kind of accident from any accident previously evaluated.
The possibility for a new or different type of accident from any accident previously evaluated is not created as a result of this amendment. The evaluation of the effects of the proposed changes indicate that the SW System will be able to perform all of its design basis functions within the design limits of the system. These changes do not introduce any new or different normal
Equipment important to safety will continue to operate as designed. The changes do not result in any event previously deemed incredible being made credible. The changes do not result in more adverse conditions or result in any increase in the challenges to safety systems. Therefore, operation of the Point Beach Nuclear Plant in accordance with the proposed amendment will not create the possibility of a new or different type of accident from any accident previously evaluated.
3. Operation of the Point Beach Nuclear Plant in accordance with the proposed amendments does not result in a significant reduction in a margin of safety.
The SW System functions to mitigate the effects of accidents. There are no new or significant changes to the initial conditions contributing to accident severity or consequences. The proposed amendment will not otherwise affect the plant protective boundaries, will not cause a release of fission products to the public, nor will it degrade the performance of any other SSCs [structure, system and components] important to safety. Therefore, reducing the required number of operable SW pumps from six to five with one Unit in Mode 5 or 6, or defueled, while maintaining the capability of required flow to required equipment, will not result in 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.
1. The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The change does not result in a high power trip setpoint that will cause the analysis value of 112.0% to be exceeded. There is no change in the analysis value of 112.0% for the high power trip setpoint used in the evaluation of the transients and accidents. All of the evaluated transients and accidents currently show acceptable results and will not be affected by this change. Changing the high power trip setpoint will not affect the probability of an accident, since that circuit is not a transient or accident initiator. The change to the setpoint will not change the failure possibilities for this circuit. The effect of the proposed change is the reduction in the probability of an undesired safety system challenge initiated by an erroneous high power trip during a flow streaming event.
2. 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 RPS [reactor power system] high power trip setpoint does not provide the possibility of the creation of a new or different type of accident. Changing the setpoint does not change the method of operation of the high power trip circuit or its expected response once the setpoint is reached. The trip will occur within previously analyzed limits.
3. The proposed change does not involve a significant reduction in a margin of safety.
The proposed setpoint change does not constitute a significant reduction in the margin of safety due to the fact that the transient and accident analyses contained in the Updated Safety Analysis Report have been evaluated using an analysis trip setpoint of 112.0% with the event initiated from the appropriate power level and have been shown to produce acceptable results.
The acceptance criteria used in the analysis have been developed for the purpose of use in design basis accident analyses such that meeting these limits demonstrates adequate protection of public health and safety. An acceptable margin of safety is inherent in these licensing limits. Therefore, the proposed changes do not involve a reduction in a 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.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment to revise the technical specifications to extend the use of the pressure-temperature (P-T) limits does not affect the operation or configuration of any plant equipment. Thus, no new accident initiators are created by this change. The proposed change extends the use of the P-T limits for an additional cycle. The P-T limits are based on the projected reactor vessel neutron fluence at 32 effective full power years (EFPY) of operation. At the end of cycle 10, Hope Creek Generating Station (HCGS) was at approximately 12.2 EFPY of operation (38.1% of the 32 EFPY). At the end of cycle 12 there will remain sufficient margin to ensure that the current 32 EFPY fluence projections will not be exceeded. This ensures that the basis for proposed applicability of the current P-T limits is conservative for use until the end of cycle 12 ensuring that the reactor vessel integrity is protected under all operating conditions. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment revises the technical specifications to extend the use of the pressure-temperature (P-T) limits. It does not change the design function or operation of any systems, structures, or components. Plant operation will not be affected by the proposed amendments and no new failure mechanisms, malfunctions or accident initiators will be created. The current P-T limits will remain valid and conservative during the proposed extension period. The proposed change, therefore, does 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 proposed change extends the use of the current P-T limits for an additional cycle of operation. The P-T limits are based on the projected reactor vessel neutron fluence at 32 EFPY of operation. At the end of cycle 10 in April 2000, HCGS was at approximately 12.2 EFPY of operation (38.1% of the 32 EFPY). At the end of cycle 12, HCGS will have obtained less than 50% of the 32 EFPY operating time which provides significant margin to ensure that the current 32 EFPY fluence projection will not be exceeded. The current margin of safety for plant operations is established by the P-T curves analyzed at 32 EFPY. Because the proposed change will not exceed this fluence, the current margin of safety is maintained. The proposed change, therefore, does not involve a significant reduction in a margin of safety.
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.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change is administrative in nature and does not involve the modification of any plant equipment or affect basic plant operation. Conductivity, chloride, and pH limits are not assumed to be an initiator of any analyzed event, nor are these limits assumed in the mitigation of consequences of accidents.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not involve the modification of any plant equipment and does not change the method by which any safety-related system performs its function. The current safety analysis assumptions are not altered as a result of this change.
Therefore, the proposed changes do 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 proposed change represents the relocation of current TS requirements to the UFSAR based on regulatory guidance and previously approved changes for other stations. The proposed change is administrative in nature, does not negate any existing requirement, and does not adversely affect existing plant safety margins or the reliability of the equipment assumed to operate in the safety analysis. Margins of safety are unaffected by requirements that are retained but relocated from the TS to the UFSAR.
Therefore, the proposed change does not involve a significant reduction in a 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.
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change extends the Completion Time for one or more Feedwater Isolation Valves (FIVs) inoperable from 4 hours to 72 hours. Extending the Completion Time is not an accident initiator and thus does not change the probability that an accident will occur. However, it could potentially affect the consequences of an accident if an accident occurred during the extended unavailability of the inoperable FIV. The increase in time that the FIV is unavailable is small and the probability of an event occurring during this time period, which would require isolation of the Main Feedwater flow paths, is low. Moreover, the redundancy provided by the Feedwater Control Valves, which have [the] same actuation signals and closure time requirements as the FIVs, provides adequate assurance that automatic feedwater isolation will occur if called upon.
The deletion of the footnote, which is no longer applicable, is an administrative change and does not affect the probability or consequences of an accident previously evaluated.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
Closure of the FIVs is required to mitigate the consequences of a Main Steam Line Break and Main Feedwater Line Break accidents. The proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
The deletion of the footnote, which is no longer applicable, is an administrative change and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Do the proposed changes involve a significant reduction in a margin of safety?
The proposed changes do not change any Technical Specification Limit or accident analysis assumption. Therefore they do not involve a reduction in a 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
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed TS change is an administrative change to clarify the current requirements for licensed operator qualifications and licensed operator training program. These changes conform to the current requirements of 10 CFR [Part] 55. The TS requirements for all other unit staff qualifications remain unchanged.
Although licensed operator qualifications and training may have an indirect impact on accidents previously evaluated, the NRC [Nuclear Regulatory Commission] considered this impact during the rulemaking process, and by promulgation of the revised 10 CFR [Part] 55 rule, concluded that this impact remains acceptable as long as the licensed operator training program is certified to be accredited and is based on a systems approach to training. TXU Energy's [TXU Generation Company LP] licensed operator training program is accredited by INPO [Institute of Nuclear Power Operations] and is based on a systematic approach to training.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed TS change is an administrative change to clarify the current requirements for licensed operator qualifications and [the] licensed operator training program, and to conform to the revised 10 CFR [Part] 55. The TS requirements for all other unit staff qualifications remain unchanged.
As noted above, although licensed operator qualifications and training may have an indirect impact on the possibility of a new or different kind of accident from any accident previously evaluated, the NRC considered this impact during the rulemaking process, and by promulgation of the revised rule, concluded that this impact remains acceptable as long as the licensed operator training program is certified to be accredited and based on a systems approach to training. As previously noted, TXU Energy's licensed operator training program is accredited by INPO and is based on a systems approach to training.
Additionally, the proposed TS change does not affect plant design, hardware, system operation, or procedures. Therefore, the proposed change does 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 proposed TS change is an administrative change to clarify the current requirements applicable to licensed operator qualifications and licensed operator training program. This change is consistent with the requirements of 10 CFR [Part] 55. The TS qualification requirements for all other unit staff remain unchanged.
Licensed operator qualifications and training can have an indirect impact on a margin of safety. However, the NRC considered this impact during the rulemaking process, and by promulgation of the revised 10 CFR [Part] 55, determined that this impact remains acceptable when licensees maintain a licensed operator training program that is accredited and based on a systems approach to training. As noted previously, TXU Energy's licensed operator training program is accredited by INPO and is based on a systems approach to training.
The NRC has concluded, as stated in NUREG-1262, “Answers to Questions at Public Meetings Regarding Implementation of Title 10, Code of Federal Regulations, Part 55 on Operators' Licenses,” that the standards and guidelines applied by INPO in their training accreditation program are equivalent to those put forth or endorsed by the NRC. As a result, maintaining an INPO-accredited, systems approach-based licensed operator training program is equivalent to maintaining [an] NRC-approved licensed operator training program which conform[s] with applicable NRC Regulatory Guides or NRC-endorsed industry standards. The margin of safety is maintained by virtue of maintaining an INPO-accredited licensed operator training program.
In addition, the NRC has recently published NRC Regulatory Issue Summary 2001-01, “Eligibility of Operator License Applicants,” dated January 18, 2001, “* * * to familiarize addressees with the NRC's current guidelines for the qualification and training of reactor operator (RO) and senior operator (SO) license applicants.” This document again acknowledges that the INPO National Academy for Nuclear Training (NANT) guidelines for education and experience, outline acceptable methods for implementing the NRC's regulations in this area.
Therefore, the proposed changes do not involve a significant reduction in a 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.
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
Administrative changes to the Technical Specifications that do not affect the accident analyses cannot change the probability of an accident previously evaluated, nor will it increase radiological consequences predicted by the analyses of record. Controlling the use of fuel assemblies within limitations previously approved by the NRC [U.S. Nuclear Regulatory Commission] constrains fuel performance to within limits bounded by
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
Use of ZIRLO
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Do the proposed changes involve a significant reduction in a margin of safety?
The proposed change does not alter the manner in which Safety Limits, Limiting Safety System Setpoints, or Limiting Conditions for Operation are determined. This proposed change to TSs 4.2 and 5.6.5 is bounded by existing limits on reactor operation. It leaves current limitations for use of fuel assemblies in place, conforms to plant design bases, is consistent with the safety analyses as accepted in the topical report, and limits actual plant operation within analyzed and NRC approved boundaries.
Therefore, the proposed change does not involve a reduction in a 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.
1. The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change would remove the restriction that requires all steam generator tubes repaired with Electrosleeves to be removed from service at the end of two operating cycles following installation of the first Electrosleeve. This would allow all steam generator tubes repaired with Electrosleeves to remain in service. Reference 2 [licensee's letter dated October 27, 1998] concluded that there was no significant increase in the probability or consequences of an accident previously evaluated when using the Electrosleeve repair method. The two operating cycle restriction was invoked because the NRC staff concluded that the UT [ultrasonic] methods used to perform NDE [nondestructive examination] for inservice inspections of the Electrosleeved tubes could not reliably depth size stress corrosion cracks to ensure that structural limits are maintained.
Revision 4 to topical report BAW-10219P [nonproprietary version is attached to the application] has addressed the concerns that resulted in the restriction of two operating cycles and consequently, the probability of an accident previously evaluated is not significantly increased. As a result, the consequences of any accident previously evaluated are not affected.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing plant operation. Reference 2 concluded that the use of the Electrosleeve repair method did not create the possibility of a new or different kind of accident from any accident previously evaluated when using this method to repair steam generator tubes. This proposed change removes the two operating cycle limit for the Electrosleeved tubes based on the evaluations and justifications of the NDE techniques used to perform inservice examinations of the Electrosleeved steam generator tubes provided in Revision 4 of the topical report.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. The proposed change does not involve a significant reduction in a margin of safety.
The proposed change does not affect the acceptance criteria for an analyzed event. The margin of safety presently provided by the structural integrity of the steam generator tubes remains unchanged. Reference 2 concluded that the use of the Electrosleeve repair method did not involve a significant reduction in a margin of safety when using this method to repair steam generator tubes. The proposed change removes the two operating cycle limit based on the evaluations and justifications presented in Revision 4 of the topical report.
Therefore, the proposed change does not involve a reduction in a margin of safety.
The reference to “Reference 2” in the criteria above is a reference to the licensee's letter dated October 27, 1998, and the no significant hazards consideration (NHSC) in that letter, which was published in the
The NRC staff published an earlier Notice of Consideration for the application dated February 15, 2001, in the
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.
1. The proposed changes will not involve a significant increase in the probability or consequences of an accident previously evaluated.
The revised definition of “Operable” redefines the AC power source requirements to allow either normal or emergency power available for equipment requiring AC power to be considered operable and provides conforming changes to specific supported system Technical Specifications. None of the proposed changes affects any parameters or conditions that could contribute to the initiation of any accident. The proposed change does not affect the ability of the AC power sources to perform their required safety functions nor does the proposed change affect the ability of the systems requiring AC power to perform their respective safety functions. As a result, the ability of these systems to mitigate accident consequences is unchanged. As such, these changes do not impact initiators of analyzed events, nor the analyzed mitigation of design basis accident or transient events.
More stringent requirements for the inoperable AC power source action provisions that ensure availability of all TS required systems, subsystems, trains, components, and devices and the purely administrative changes do not affect the initiation of any event, nor do they negatively impact the mitigation of any event.
The elimination of some explicit requirements to verify the operability of remaining equipment (i.e., to verify which TS action is required to be entered and taken) does not affect the initiation of any event, nor does it negatively impact the mitigation of any event.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed changes will not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes do not involve any physical modification to the plant, change in Technical Specification setpoints, change in plant design basis, or a change in the manner in which the plant is operated. No new or different type of equipment will be installed. No safety-related equipment or safety functions are altered as a result of these changes. In addition, there are no changes in methods governing normal plant operation. No new accident modes are created since plant operation is unchanged. None of the proposed changes affects any parameters or conditions that could contribute to the initiation of any accident. The changes do not introduce any new accident or malfunction mechanism that could create a new or different kind of accident, thus, no new failure mode is created. Therefore, the proposed changes will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed changes will not involve a significant reduction in a margin of safety.
The manner in which plant systems relied upon in the safety analyses to provide plant protection is not changed. Plant safety margins continue to be maintained through the limitations established in the Technical Specifications Limiting Conditions for Operation and Actions. These changes do not impact plant equipment design or operation, and there are no changes being made to safety limits or safety system settings that would adversely affect the ability of the plant to respond as assumed in the accident analyses as a result of the proposed changes. Since the changes have no effect on any safety analysis assumptions or initial conditions, the margins of safety in the safety analyses are maintained.
In addition, administrative changes that do not change technical requirements or meaning, and the imposition of more stringent requirements to ensure operability, have no negative impact on margins of safety.
Therefore, this change does not involve a significant reduction in a margin of safety.
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.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The scram and Group 1 isolation functions of the MSLRMs do not serve as initiators for any of the accidents evaluated in the Updated Final Safety Analysis Report (UFSAR). The MSLRM scram function is not credited in the UFSAR, and the Group 1 isolation trip function of the MSLRMs was only assumed in one design-basis event which was the control rod drop accident. Because these functions are not initiators of accidents, their removal does not increase the probability of occurrence of previously evaluated accidents.
There is no accident analysis that relies on the high radiation scram of the reactor protection system and its removal has no impact on the consequences of accidents previously evaluated. The results of the control rod drop accident analysis remain within approved guidelines.
Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Create the possibility for a new or different kind of accident from any previously evaluated.
The proposed changes to the plant involve limited changes to protective circuitry, but do not involve any plant hardware changes that could introduce any new failure modes. The changes will not affect non-MSLRM scram and isolation functions. In addition, the MSLRMs will remain active for other trip/isolation functions, and these monitors will still alarm in the control room to alert operators to off-normal conditions. The reconstituted design-basis control rod drop accident analysis does not rely upon the trip functions that are being eliminated.
Therefore, the removal of the Group 1 isolation valve closure and scram functions of the MSLRMs does not create the possibility of a new or different kind of accident than those previously evaluated.
3. Involve a significant reduction in a margin of safety.
The proposed change involves the elimination of the scram and Group I isolation signal from the MSLRMs. Operation under the proposed change will not change any plant operation parameters, nor any protective system setpoints other than removal of these functions. The effects of the control rod drop accident without the MSLRM scram and isolation signal results in doses which remain well within 10 CFR Part 100, “Reactor Site Criteria,” limits. The proposed changes will reduce the chances of unnecessary plant trips occurring as a result of an inadvertent MSLRM scram or Group I isolation.
Therefore, this change does not involve a significant reduction in the margin of safety.
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.
1. The probability of occurrence or the consequences of an accident previously evaluated is not significantly increased. The Advanced Mark-BW fuel is very similar in design to the Westinghouse fuel that is being replaced in the core. The reload core designs for North Anna cycle will meet all applicable design criteria. [VEPCO] will use the NRC-approved standard reload design models and methods to demonstrate that all applicable design criteria and all pertinent licensing basis criteria will be met. Evaluations will be performed as part of the cycle specific reload safety analysis to confirm that the existing safety analyses remain applicable for operation of the Framatome Advanced Mark-BW fuel.
Operation of the Advanced Mark-BW fuel will not result in a measurable impact on normal operating plant releases, and will not increase the predicted radiological consequences of accidents postulated in the UFSAR [Updated Final Safety Analysis Report]. Therefore, neither the probability of occurrence nor the consequences of any accident previously evaluated is significantly increased.
2. The possibility for a new or different type of accident from any accident previously evaluated is not created. The Framatome Advanced Mark-BW fuel is very similar in design (both mechanical and composition of materials) to the resident Westinghouse fuel. The North Anna core in which the fuel operates will be designed to meet all applicable design criteria and ensure that all pertinent licensing basis criteria are met. Demonstrated adherence to these standards and criteria precludes new challenges to components and systems that could introduce a new type of accident. North Anna safety analyses have demonstrated in Section 6.0 of [the March 28, 2002 submittal] that the use of Advanced Mark-BW fuel is acceptable. All design and performance criteria will continue to be met and no new single failure mechanisms will be created. The use of the Advanced Mark-BW fuel does not involve any alteration to plant equipment or procedures which would introduce any new or unique operational modes or accident precursors. Therefore, the possibility for a new or different kind of accident from any accident previously evaluated is not created.
3. The margin of safety is not significantly reduced. The operation of Advanced Mark-BW fuel does not change the performance requirements on any system or component such that any design criteria will be exceeded. The normal limits on core operation defined in the North Anna Technical Specifications will remain applicable for the use of Advanced Mark-BW fuel. The reload core designs for the cycles in which the Advanced Mark-BW fuel will operate will specifically evaluate any pertinent differences between the Advanced Mark-BW fuel product and the current Westinghouse fuel product, including both the mechanical design differences and the past irradiation history. The use of Advanced Mark-BW fuel will be specifically evaluated during the reload design process using [VEPCO's] reload design models and methods approved by the NRC. North Anna safety analyses have demonstrated in Section 6.0 of [the March 28, 2002 submittal] that the use of Advanced Mark-BW fuel is acceptable. Therefore, the margin of safety as defined in the Bases to the North Anna Units 1 and 2 Technical Specifications is not significantly reduced.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendments request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items 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. 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,
No significant hazards consideration comments received: No.
emented within 30 days from the date of issuance.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 22, 2002.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 23, 2002.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 22, 2002.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
Public comments requested as to proposed no significant hazards consideration: Yes (67 FR 16767 dated April 8, 2002). The notice provided an opportunity to submit comments on the Commission's proposed no significant hazards consideration determination. No comments have been received. The notice also provided for an opportunity to request a hearing by May 8, 2002, but indicated that if the Commission makes a final no significant hazards consideration determination any such hearing would take place after issuance of the amendment. The Commission's related evaluation of the amendment, finding of exigent circumstances, consultation with the State of Washington and final determination of no significant hazards consideration are contained in a Safety Evaluation dated April 25, 2002.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 19, 2002.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 19, 2002.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment, finding of emergency circumstances, state consultation, and final NSHC determination are contained in a safety evaluation dated April 26, 2002.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 29, 2002.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
Date of application for amendments: September 19, 2001, as supplemented by letter dated March 11, 2002.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 11, 2002.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated April 22, 2002.
No significant hazards consideration comments received: No.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 30, 2002.
No significant hazards consideration comments received: No.
For the Nuclear Regulatory Commission.
On July 16, 2001, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is proposing to amend the Amex
The Exchange represents that it has also augmented its management reporting system to alert senior Exchange management to any developing trends emerging from the listing qualifications process, with respect to outstanding listing applications, recently approved companies, and companies failing to meet or in jeopardy of failing to meet the continued listing standards. The management review will also encompass the continued status of companies approved pursuant to the proposed alternative standards as compared to those approved pursuant to the regular standards.
With regard to its initial listing standards, the Exchange is proposing the following:
(1) Replace all references to listing “guidelines” with references to listing “standards.”
(2) Revise and clarify the authority of Listing Qualifications Department management to approve a company for initial listing, to provide that it may approve a company under the following circumstances:
• The company satisfies new “Initial Listing Standard 1” (existing “Regular Listing Guidelines”).
• The company satisfies new “Initial Listing Standard 2” (existing “Alternate Listing Guidelines”).
• The company satisfies new “Initial Listing Standard 3” (new “Market Capitalization” standard).
(3) Adopt new quantitative alternative minimum listing standards limiting the authority of Amex Committee on Securities (“Committee”) panels with respect to the review of initial listings determinations, such that a Committee panel would be able to approve a company that did not satisfy one of the regular initial listing standards only if
The Exchange is proposing to adopt revised procedures that would impose definitive time limits with respect to how long a company that has fallen below the continued listing standards can remain listed pending corrective action. Under the new procedures, a company that falls out of compliance with the continued listing standards will be given an opportunity to submit a business plan to the Listing Qualifications Department detailing the action it proposes to take to bring it into compliance with continued listing standards within 18 months. If the Listing Qualification Department management determines that the company has made a reasonable demonstration of an ability to regain compliance within 18 months, the plan will be accepted. The company would be able to continue its listing for up to 18 months if it issues a press release indicating that it is not in compliance with the continued listing standard and that it has been granted an 18-month extension.
The Listing Qualifications Department will closely monitor the company's compliance with the plan during the 18-month plan period, and the company will be subject to delisting if it does not show progress consistent with its business plan, if further deterioration occurs, or based on public interest concerns. If, prior to the end of the 18-month plan period, the company is able to demonstrate compliance with the continued listing standards (or that it is able to qualify under an original listing standard) for a period of two consecutive quarters, the Exchange will deem the 18-month plan period over. At the conclusion of the 18-month plan period, the staff will initiate delisting proceedings if the company has not regained compliance with the continued listing standards.
If the company, within twelve months of the end of the 18-month plan period (including any early termination of the 18-month plan period), is again determined to be below continued listing standards, the Exchange will examine the relationship between the two incidents of falling below continued listing standards and re-evaluate the company's method of financial recovery from the first incident. It will then take appropriate action, which, depending upon the circumstances, may include immediately initiating delisting procedures.
With respect to continued listing, the Amex is proposing to revise section 1003(a)(iii) of the
In addition, the Amex is proposing to modify the market value of public float continued listing standard contained in section 1003(b)(i)(C) of the
The proposed changes make adjustments to the procedures applicable to the review of initial listing determinations and revise the procedures applicable to the review of delisting determinations to conform them to initial listing procedures. The proposal provides issuers with the right to appeal a staff determination to deny initial or continued listing to a panel of at least three members of the Committee. The issuer has the right to appeal an adverse panel's decision to the full Committee.
A panel decision will be dispositive with respect to both listing and delisting decisions. In the case of an appeal of an initial listing denial, this means that if the panel determines to “reverse” the staff determination, the issuer's securities will be approved for listing and listed at the convenience of the issuer. In the case of an appeal of a delisting determination, the delisting action will be stayed pending the outcome of the panel's review. Following a panel determination to delist, trading in the company's securities will be suspended. If the company does not appeal the panel's decision to the full Committee, its securities will be delisted following the expiration of the appeal period, in accordance with section 12 of the Act
With respect to an initial listing application in which the company appeals an adverse panel decision to the full Committee, if the Committee “reverses” the panel decision and approves the listing, in order to avoid potential market disruptions and investor confusion, the securities will not begin trading unless and until the
While issuers will be able to request either an oral or written hearing at the panel level, appeals to the full Committee will be based on the written record only unless the Committee determines, in its sole discretion, to hold a hearing. All decisions of the full Committee will also be subject to a discretionary “call for review” by the Amex Board of Governors. If the Board's decision provides that the issuer's security or securities should be delisted, the Exchange will suspend trading in such security or securities as soon as practicable, if it has not already done so pursuant to section 1204(d), and an application will be submitted by the Exchange staff to the Commission to strike the security or securities from listing and registration in accordance with section 12 of the Act
Additionally, in order to recoup the costs associated with processing and conducting hearings in connection with issuer requests for review, the Amex will continue to charge a fee of $2,500 for an oral hearing and $1,500 for a written review. Thus, an issuer requesting an oral hearing before a panel will be assessed a fee of $2,500, while an issuer requesting a written review by a panel will be assessed a fee of $1,500. Should the issuer appeal the panel's decision to the full Committee, it will be assessed an additional fee of $2,500. Issuers will not be charged fees in connection with a “call for review” by the Board of Governors.
The Commission received two comment letters regarding the proposal.
In Amendment No. 3, the Amex withdrew proposed section 101(d) of the
The Commission has reviewed the Amex's proposed rule change and finds, for the reasons set forth below, that the proposal, as amended, is consistent with the requirements of section 6 of the Act
At the outset, the Commission believes that the adoption of firm quantitative standards enhances the transparency of the Amex's listing program and provides clarity to investors. Investors are likely to assume that the companies listed on Amex meet the Exchange's listing standards, and the proposed amendments recognize that practicality. The
With respect to continued listing, the Commission believes that the revision to section 1003(a)(iii), to provide that a company will continue to qualify for listing if it has stockholders' equity of at least $6 million, even if it has sustained losses from continuing operations and/or net losses in its five most recent fiscal years, is reasonable. In its experience, the Amex has noted that many development and research-oriented companies often take a number of years to reach profitability. Although not all these companies become profitable, the Amex believes that the ability to raise capital, as evidenced by significant shareholders' equity, is often an indication of a company's strength.
The Commission similarly believes that the revision to section 1003(b)(i)(C), to modify the market value of public float continued listing standard, is reasonable. The Amex is proposing that a company not be considered below continued listing standards unless the aggregate market value of its shares publicly held is less than $1 million for more than ninety consecutive days. Currently, a literal reading of the provision would result in a listed company technically falling below the requirement if the market value of its public float fell below $1 million for even one day. In view of the volatility of the markets, the Amex believes it is appropriate to evaluate this listing standard over a period of time.
The Commission also believes that the modifications to the Exchange's continued listing program and appeal procedures under Parts 10 and 12 of the Amex
Finally, the Commission believes that changes to the Amex management reporting process will help to protect investors and the public interest. The Amex represents that it has augmented its management reporting system to ensure that senior Exchange management is regularly alerted to any developing trends emerging from the listing qualifications process, with respect to outstanding listing applications, recently approved companies, and companies failing to meet or in jeopardy of failing to meet the continued listing standards. In addition, Amex states that the management review will also encompass the continued status of companies approved pursuant to the proposed alternative standards as compared to those approved pursuant to the regular standards. The Amex believes that this comparison will enable the staff to provide feedback to the Committee and the Board of Governors as to the effectiveness of the Amex listing standards.
The Commission finds good cause for approving Amendment No. 3 to the proposed rule change prior to the thirtieth day after the date of publication of notice thereof in the
Interested persons are invited to submit written data, views and arguments concerning Amendment No. 3, including whether Amendment No. 3 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 Amex. All submissions should refer to File No. SR-Amex-2001-47 and should be submitted by June 4, 2002.
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its membership dues and fees schedule (“Schedule”) to provide for wider application of a recently-enacted specialist fee exemption
In its filing with the Commission, the Exchange included statements concerning the purpose of, and the 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. CHX 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 Schedule to provide wider application of a recently-enacted specialist fee exemption in the case of certain modestly traded NNM securities and certain modestly traded Tape B securities. Specifically, the proposed changes to the Schedule would modify the definition of “Exemption Eligible Securities,''
(a) any NNM security, which averages fewer than 1000 trades per day that are reported to the consolidated tape on an average daily basis during the applicable three-month measuring period. In the case of an NNM security assigned to a CHX specialist, the CHX shall make a semi-annual determination based on the most recent available data for the three-month period preceding the determination date. In the case of an NNM security that is not currently assigned to a CHX specialist, the CHX shall make its determination based on the most recent available data for the three-month period preceding the date on which a specialist submits an application for assignment of the security. Any NNM security that has had trades reported to the consolidated tape for less than three months (or for which three months' data is unavailable) is expressly excluded from this definition.
(b) any Tape B issue, which averages fewer than 400 trades per day in the national market system on an average daily basis during the applicable three-month measuring period. In the case of a Tape B issue assigned to a CHX specialist, the CHX shall make a semi-annual determination based on the most recent available data for the three-month period preceding the determination date. In the case of a Tape B issue that is not currently assigned to a CHX specialist, the CHX shall make its determination based on the most recent available data for the three-month period preceding the date on which a specialist submits an application for assignment of the security. Any Tape B issue that has been traded in the national market system for less than three months (or for which three months' data is unavailable) is expressly excluded from this definition.
As set forth in the Exchange's recently-enacted specialist fee exemption, the Exchange believes that the fee exemption constitutes an appropriate means of ensuring that the Exchange continues to trade an appropriate number of modestly traded securities. For a variety of reasons, some specialists have deregistered from certain issues formerly assigned to such specialists for trading on the CHX pursuant to unlisted trading privileges. At the same time, CHX floor brokers continue to receive orders for many of these “dropped” issues; such floor brokers view continued CHX trading of a wide variety of issues to be critical to their customers and an important part of the Exchange's overall strategic plan. Accordingly, the CHX has devised the proposed fee exemption, which the CHX believes will provide sufficient economic incentive for specialists to continue trading a wide array of issues.
Following one month's review and analysis of the effect of the recently-enacted fee exemption, the Exchange has determined that it is appropriate to expand the definition of “Exemption Eligible Securities” to include NNM securities with average daily volume of up to 1000 trades in the Nasdaq marketplace, as well as Tape B issues with average daily volume of up to 400 trades in the national market system.
The Exchange anticipates that by expanding the scope of issues to which the exemption applies, the Exchange will provide the intended incentive for firms to continue trading issues that might otherwise be “dropped” from trading at the CHX.
The proposed rule change is consistent with Section 6(b) of the Act,
The CHX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective on filing pursuant to Section 19(b)(3)(A) 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 the principal office of the CHX. All submissions should refer to File No. SR-CHX-2002-08 and should be submitted by June 4, 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 (the “Act”),
The Board is filing herewith a proposed rule change relating to electronic mail representatives. Below is the text of the proposed rule change. Proposed new language is italicized; proposed deletions are in brackets.
(a) Description of Books and Records to be Made. Except as otherwise specifically indicated in this rule, every broker, dealer and municipal securities dealer shall make and keep current the following books and records, to the extent applicable to the business of such broker, dealer or municipal securities dealer:
(i)-(xxi) No change.
(b)-(e) No change.
(f) Compliance with Rule 17a-3. Brokers, dealers and municipal securities dealers other than bank dealers which are in compliance with rule 17a-3 of the Commission will be deemed to be in compliance with the requirements of the rule, provided that the information required by subparagraph (a)(iv)(D) of this rule as it relates to uncompleted transactions involving customers; paragraph (a)(viii); and paragraphs (a)(ix) through (a)[(xxi)]
(g) No change.
(a) No change.
(b) Records to be Preserved for Three Years. Every broker, dealer and municipal securities dealer shall preserve the following records for a period of not less that three years:
(i)-(xiii) No change.
(xiv) the records to be maintained pursuant to rule G-8(a)(xx); [and]
(xv) the records to be maintained pursuant to rule G-8(a)(xxi)[.]
(xvi)
(c)-(g) No change.
In its filing with the Commission, the MSRB 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 texts of these statements may be examined at the places specified in Item IV below. The MSRB has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
(a) The events of September 11th, as well as the weeks that followed, emphasized the importance of, and need for, a formalized business continuity plan that includes an efficient and reliable means of official communication between regulators and the industry. Establishing a reliable method for electronic communication is needed to allow the MSRB to efficiently alert dealers to official communications, including time-sensitive developments, rule changes, notices, etc., and will facilitate dealers' internal distribution of such information. In addition, the MSRB has discontinued publication of
Paragraph (a) of Rule G-40 requires that each dealer appoint an “Electronic Mail Contact” to serve as its official contact person for purposes of communicating with the MSRB, and that such person be a registered municipal securities principal of the dealer. Paragraph (b) requires that each dealer, upon completion of its Rule A-12 submissions and assignment of an MSRB Registration Number,
Upon Commission approval of the proposed rule change, the MSRB will contact its current list of dealers (since these dealers will have previously satisfied their Rule A-12 submissions) to obtain completed Forms G-40. Thereafter, any new dealer will be required to send its initial Form G-40 by
The proposed rule change also amends Rule G-8, on books and records, to require that dealers maintain records reflecting copies of Form G-40 and any amended forms, as required by Rule G-40. The proposed rule change amends Rule G-9, on preservation of records, to require that dealers retain these records for a period of three years.
(b) The MSRB has adopted the proposed rule change pursuant to Section 15B(b)(2)(I) of the Exchange Act, which authorizes the MSRB to adopt rules that provide for the operation and administration of the MSRB.
The MSRB does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act since it would apply equally to all brokers, dealers and municipal securities dealers.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve the 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 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 submissions, 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 the filing will also be available for inspection and copying at the Board's offices. All submissions should refer to File No. SR-MSRB-2002-05 and should be submitted by June 4, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On March 21, 2002, pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The Commission published the proposed rule change for comment in the
The MSRB proposed rule change consists of an amendment to Rule G-3, on professional qualifications, to address a new category of principals that serve permanently as municipal fund securities limited principals. Under MSRB Rule G-3, which governs professional qualifications, a broker, dealer or municipal securities dealer (“dealer”) must have at least one municipal securities principal (and in some cases two municipal securities principals), even if the dealer's only municipal securities transactions are sales of municipal fund securities.
The MSRB acknowledges that many dealers that wish to participate in the market for municipal fund securities do not currently, and do not plan to, engage in any municipal securities activities other than with respect to municipal fund securities. Since these dealers will not participate in the market for municipal debt securities and the features of municipal fund securities differ significantly from those of debt securities, the MSRB believes that no investor protection purpose is served by requiring principals responsible for supervision of such firms' municipal fund securities activities to demonstrate their understanding of the application of MSRB rules other than with respect to municipal fund securities.
To qualify as a municipal fund securities limited principal would be by means of an examination consisting of questions on the broad range of MSRB-specific topics that are relevant to municipal fund securities activities.
An individual qualified as a municipal fund securities limited principal would be permitted to supervise only the municipal fund securities activities of the dealer and would have no authority to supervise the activities of the dealer with respect to any other type of municipal securities. However, an individual qualified as a municipal securities principal (Series 53) would continue to be qualified to supervise all municipal securities activities of the dealer, including activities relating to municipal fund securities.
If a dealer's municipal securities activities are limited to municipal fund securities, the proposed rule change also would count all municipal fund securities limited principals toward the numerical requirement for principals regardless of the number of associated persons engaging in such activities. Thus, any dealer that does not engage in any municipal securities activities other than with respect to municipal fund securities could fully discharge its obligation with respect to municipal securities principals with individuals qualified as municipal fund securities limited principals.
Further, existing rule language indirectly permits investment company/variable contracts limited representatives (Series 6) to take the Series 53 examination to become qualified as municipal securities principals.
In addition, the proposed rule change extends the existing temporary provision permitting general securities principals and investment company/variable contracts limited principals to supervise municipal fund securities activities from July 31, 2002 to December 31, 2002 in order to provide dealers with an adequate opportunity to prepare potential candidates for the new examination. During the extended transition period, the numerical requirement with respect to principals would be simplified so that all dealers, not just those with fewer than eleven associated persons engaged in municipal fund securities activities, could fully meet their principal requirements with principals acting in the temporary capacity permitted under the transition provisions. This rule change makes clear that, beginning on January 1, 2003, all municipal fund securities limited principals (including general securities principals and investment company/variable contracts limited principals supervising municipal fund securities activities under the temporary transition period who wish to continue such supervisory activities after December 31, 2002) must be qualified by taking the new qualification examination.
Finally, the MSRB rule change provides the NASD or any other appropriate regulatory agency the power to waive qualification requirements with respect to municipal fund
The Commission received two comment letters on the proposal.
In favor of the MSRB proposal, the ICI letter states that the new classification of limited principals will provide “needed relief” to firms whose sole securities business consists of municipal fund securities.
The comment letter sent by Federated opposes the MSRB's establishment of the new permanent category of municipal fund securities limited principals by stating that it creates “unnecessary and inappropriate burdens”.
The MSRB believes that the proposed rule change would in fact decrease dealers' regulatory burden. Without the amendment, dealers would be required to use fully qualified municipal securities principals to meet their Rule G-3 principal requirement.
The MSRB believes that the proposed rule change is consistent with section 15B(b)(2)(A) of the Exchange Act, which provides that it is the MSRB's responsibility to propose and adopt rules which require that no municipal securities broker or municipal securities dealer shall effect any transaction in municipal securities unless, “such municipal securities broker or municipal securities dealer and every natural person associated with such municipal securities broker or municipal securities dealer meets such standards of training, experience, competence, and such other qualifications as the Board finds necessary or appropriate in the public interest or for the protection of investors.”
Section 15B(b)(2)(A) of the Exchange Act also provides that the MSRB may appropriately classify municipal securities brokers and municipal securities dealers and their associated personnel and require persons in any such class to pass tests prescribed by the MSRB.
The Commission must approve a proposed MSRB rule change if the Commission finds that the proposal is consistent with the requirements set forth under the Exchange Act, the rule and regulations thereunder, which govern the MSRB.
After careful review, the Commission finds that the MSRB's proposed rule change consisting of an amendment to Rule G-3, on professional qualifications, which relates to municipal fund securities limited principals, meets the statutory standard. The Commission believes that this proposed rule change is consistent with the requirements of the Exchange Act, and the rules and regulations thereunder. In addition, the Commission finds that the proposed rule is consistent with the requirements of section 15B(b)(2)(C) of the Exchange Act, set forth above.
IT IS THEREFORE ORDERED, pursuant to Section 19(b)(2) of the Exchange Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Tennessee Valley Authority (Meeting No. 1539).
9 a.m. (CDT), May 16, 2002.
Huntsville Marriott, 5 Tranquility Base, Huntsville, Alabama.
Open.
Approval of minutes of meeting held on March 26, 2002.
B1. Supplement to contract with EMC Corporation for disk array storage device hardware, software, and maintenance.
B2. Contracts with Great Southern Wood Preserving, Inc., Landstar, and Kaplan Trucking for purchase of truckload transportation services for TVA operations.
C1. Extended operation of Browns Ferry Nuclear Plant and recovery of Unit 1.
C2. Contracts with Flowserve Corporation and Tencarva Machinery Company, Inc., for pump repair parts and repair services at any TVA fossil plant.
C3. Contract with Trans-Ash, Inc., for offsite fly ash utilization at Johnsonville Fossil Plant.
C4. Term coal contract with The American Coal Sales Company for coal supply to Johnsonville Fossil Plant.
C5. Contract with United Conveyor Corporation to design and furnish mechanical ash-handling systems for any TVA fossil plant
C6. Supplement to Contract No. 2889 with LaRoche Industries, Inc., to engineer and design ammonia storage and supply facilities and to supply ammonia for the nitrogen oxide reduction programs for any TVA fossil plant.
E1. Sale of a noncommercial, nonexclusive permanent easement to John Jansheski for construction and maintenance of recreational water-use facilities affecting approximately 0.27 acre of Tellico Reservoir shoreline in Loudon County, Tennessee (Tract No. XTELR-228RE).
E2. Abandonment of certain easement rights and modificatioin of a restrictive covenant to allow Windel and Kermit Lester to develop their land for residential purposes affecting approximately 1.1 acres of land on South Holston Reservoir (a portion of Tract Nos. SH-584F and SH-585F) in Washington County, Virginia.
E3. Grant of a permanent easement, without charge, except for payment of TVA's administrative costs, to the Fort Loudoun Electric Cooperative, for an electrical transmission line and substation affecting approximately 3.3 acres of land on Tellico Reservoir in Monroe County, Tennessee (Tract No. XTTELR-40SS).
E4. Modification of a restrictive covenant, at the request of the Tennessee Wildlife Resources Agency, without charge, except for payment of TVA's administrative costs, affecting approximately 0.30 acre of former TVA land on Fort Patrick Henry Reservoir (portion of Tract No. XTFHR-2) in Sullivan County, Tennessee.
E5. Grant of a 30-year term public recreation easement, with a conditional option for renewals, without charge, except for payment of TVA's administrative costs, to the city of Loudon, Tennessee, affecting approximately 11 acres of land on Watts Bar Reservoir in Loudon County, Tennessee (Tract No. XTWBR-143RE).
E6. Grant of a 30-year term public recreation easement, with a conditional option for renewals, without charge, except for payment of TVA's administrative costs, to the town of Murphy, North Carolina, affecting approximately 22.5 acres of land on Hiwassee Reservoir in Cherokee County, North Carolina (Tract No. XTFBR-30RE).
E7. Grant of a permanent easement to the State of Tennessee Department of Transportation for highway and drainage system improvement purposes, without charge, except for payment of TVA's administrative costs, affecting approximately 1.2 acres of TVA land on Chickamauga Reservoir in Hamilton County, Tennessee (Tract No. XTCR-200H).
E8. Grant of permanent and temporary construction easements, without charge, except for payment of TVA's administrative costs, to the State of Tennessee Department of Transportation for highway and bridge improvement purposes affecting approximately 2.2 acres of land on the Saltillo Generation Plant site in Hardin County, Tennessee (Tract No. XSAGP-1H).
F1. Approval to file condemnation cases to acquire transmission line easements and rights-of-way affecting Tract Nos. (CPGSSC-7 and CPGSSC-9, Center-Point Swamp Creek, Whitfield County, Georgia; and Tract No. MNHS-2, Madison-North Huntsville Transmission Line, Madison County, Alabama.
1. Restatement and documentation of delegation of approval authorities to the President and Chief Operating Officer, or that officer's designated representative, for power purchase or sale agreements of up to two years in duration; for the purchase or resale of transmission service associated with such purchases or sales of power; and enabling, master, or service agreements associated with the aforementioned types of transactions.
2. Approval of a deed modification affecting approximately 37.6 acres of former TVA land on Guntersville Reservoir in Marshall County, Alabama (Tract No. XGR-13).
3. Approval of the filing of condemnation cases to acquire transmission line easements and rights-of-way affecting Tract No. BWAC-58, Pleasant View-Ashland City Loop Into Ashland City; Tract Nos. CLWC-9 and CLWC-11, Maryland-Crossville Tap to West Crossville; Tract Nos. HCVB-36, HCVB-62A, and HCVB-63, Hanceville-Bremen; and Tract No. RSCP-133, Rock Springs-Center Point; and Tract No. SEM-34, Sturgis-Eupora Tap to Maben Transmission Line.
4. Approval of the filing of condemnation cases to acquire transmission line easements, rights-of-way, and right to enter effecting Tract No. CHMDMW-33, Cordova-Holly Springs Tap to Miller Substation Tap to DeSoto Road Substation Tap to Mineral Wells; Tract No. CPGSSC-12, Center Point-Swamp Creek; Tract Nos. 2PMNS-1000TE, 2PMNS-1001TE, 2PMNS-1002TE, Pickwick-Memphis Second Circuit Tap to North Selmer; and Tract No. WPSVT-1000TE, Wartrace Primary-Shelbyville Tap to Deason Transmission Line.
5. Approval of amendments to the provisions of the TVA Savings and Deferral Retirement 401(k) Plan.
6. Approval of the 2002 edition of the Transmission Service Guidelines and the rates for transmission service and ancillary services.
7. Approval of an agreement amending TVA's power contract with the Knoxville Utilities Board.
8. Approval of a three-year power purchase contract with Calpine Energy Services, L.P., and delegation of authority to the President and Chief Operating Officer, or a designated representative, to negotiate and execute a written definitive agreement for the transaction.
9. Concurrence in the issuance of up to $1 billion in TVA Power Bonds.
Coast Guard, DOT.
Notice of meeting.
The Navigation Safety Advisory Council (NAVSAC) will meet to discuss various issues relating to the safety of navigation. The meetings are open to the public.
NAVSAC will meet on Thursday and Friday, June 6 and 7, 2002, from 8:30 a.m. to 5 p.m., and on Saturday, June 8, 2002, from 8 a.m. to 12 noon. The meeting may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before May 31, 2002. Requests to have material distributed to each member of the Council prior to the meeting should reach the Executive Director of NAVSAC along with 25 copies of the material on or before May 24, 2002.
NAVSAC will meet at The Eastland Park Hotel, 157 High Street, Portland, ME 04101. Send written material and requests to make oral presentations to Margie G. Hegy, Commandant (G-MW), U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001. This notice is available on the Internet at
Margie G. Hegy, Executive Director of NAVSAC, telephone 202-267-0415, fax 202-267-4700.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2.
The agenda includes the following:
(1) Maritime security update and member information exchange.
(2) Update on the Marine Transportation System (MTS) Initiative.
(3) Overview/Update on Navigation Technology.
(4) Towing Industry input to NAVSAC's Position on Barge Lighting.
(5) Status report on ballast water issues.
(6) Acceleration of Automatic Identification System (AIS) Implementation.
All meetings are open to the public. Please note that the meeting may close early if all business is finished. At the Chair's discretion, members of the public may make oral presentations during the meetings. If you would like to make an oral presentation, please notify the Executive Director no later than May 31, 2002. Written material for distribution at a meeting should reach the Coast Guard no later than May 31, 2002. If you would like a copy of your material distributed to each member of the Council in advance of the meeting, please submit 25 copies to the Executive Director no later than May 24, 2002.
For information on facilities or services for individuals with disabilities or to request special assistance at the meetings, contact the Executive Director as soon as possible.
Federal Highway Administration (FHWA), DOT.
Emergency notice.
The FHWA has submitted the following request for emergency processing of a public information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995. The collection involves surveying transportation and resource agencies involved in environmental streamlining in order to measure their performance. The information that is collected will be used to provide benchmarks for the agencies themselves and to focus on areas where process improvements can be made.
Please submit comments by May 24, 2002.
Mr. Kreig Larson, 202-366-2056, Planning and Environment, Federal Highway Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:00 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays.
The purpose of the survey is to: (1) Collect the perceptions of agency professionals involved in conducting the decisionmaking processes mandated by the National Environmental Policy Act (NEPA) and other resource protection laws in order to develop benchmark performance measures; and (2) identify where the performance of the process might be improved by the application of techniques for streamlining.
The survey is an essential aspect of one of the goals of the U.S. DOT's Strategic Plan, which is to “Improve environmental decisionmaking processes in order to expedite surface transportation projects * * *” The FHWA Administrator has designated Environmental Stewardship and Streamlining as one of the agency's “Vital Few” initiatives, meaning it is a goal to which the FHWA will focus its activities and efforts to meet the
The FHWA has requested the emergency OMB approval by May 24, 2002, in order to respond promptly to the needs of Congress, and our partners, in addressing improvements to the environmental review process for transportation projects.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for proposed transportation improvements in the Trunk Highway (TH) 8 corridor between Interstate 35 (I-35) to the west in Chisago County, Minnesota and the TH 8/Highway 35 intersection to the east in Polk County, Wisconsin.
Cheryl Martin, Federal Highway Administration, Galtier Plaza, 380 Jackson Street, Suite 500, St. Paul, Minnesota 55101, Telephone (651) 291-6120; or Stan Thompson, Project Manager, Minnesota Department of Transportation—Metro Division, Waters Edge Building, 1500 West County Road B-2, Roseville, Minnesota 55113, Telephone (651) 582-1307; (651) 296-9930 TTY.
The FHWA, in cooperation with the Minnesota Department of Transportation (Mn/DOT) and the Wisconsin Department of Transportation (Wis/DOT), will prepare an EIS on a proposal to provide safety, operational and capacity improvements to the TH 8 Corridor from I-35 to the west in Chisago County, Minnesota to the intersection of TH 8/Highway 35 to the east in Polk County, Wisconsin.
The proposed improvements could include capacity expansion on sections of TH 8, upgrading existing roadway systems in the Corridor, providing geometic/traffic control and access improvements along TH 8, and providing new roadway facilities including some alternatives that utilize the TH 243 bridge crossing over the St. Croix River.
The EIS will evaluate the social, economic, transportation and environmental impacts of alternatives, including: (1) No-Build (2) Improvements within the existing TH 8 Alignment (3) Improvements on a new location.
The “Trunk Highway 8 Scoping Document/Draft Scoping Decision Document” will be published in the Summer 2002. A press release will be published to inform the public of the document's availability. Copies of the scoping document will be distributed to agencies, interested persons and libraries for review to aid in identifying issues and analyses to be contained in the EIS. A thirty-day comment period for review of the document will be provided to afford an opportunity for all interested persons, agencies and groups to comment on the proposed action. A public scoping meeting will also be held during the comment period. Public notice will be given for the time and place of the meeting.
A Draft EIS will be prepared based on the outcome of the scoping process. The Draft EIS will be available for agency and public review and comment. In addition, a public hearing will be held following completion of the Draft EIS. Public Notice will be given for the time and place of the public hearing on the Draft EIS.
Coordination has been initiated and will continue with appropriate Federal, State and local agencies and private organizations and citizens who have previously expressed or are know to have an interest in the proposed action. The TH 8 Task Force made up of local agencies and citizens and a Technical Advisory Committee made up of Federal, State, and local officials has been established and has provided input in the development and refinement of alternatives and impact evaluation activities.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Federal Highway Administration (FHWA), DOT.
Notice of intent; correction.
The FHWA published a notice of intent in the
Kenneth H. Davis, District Engineer, Federal Highway Administration, One Arizona Center, Suite 410, 400 East Van Buren Street, Phoenix, AZ 85004-2285, Telephone (602) 379-3646.
In the
Kenneth H. Davis, District Engineer, Federal Highway Administration, One Arizona Center, Suite 410, 400 East Van Buren Street, Phoenix, AZ 85004-2285, Telephone (602) 379-3646.
In the same document, on page 5143, in the first column, after the first sentence of the
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for proposed highway improvements to Trunk Highway (TH) 23 in Paynesville, Stearns County, Minnesota.
Cheryl Martin, Federal Highway Administration, Galtier Plaza, 380 Jackson Street, Suite 500, St. Paul, Minnesota 55101, Telephone (651) 291-6120; or Lowell Flaten, Pre-Design Engineer, Minnesota Department of Transportation—District 8, P.O. Box 768, 2505 Transportation Road, Willmar, Minnesota 56201. Telephone (320) 214-3698; (651) 296-9930 TTY.
The FHWA, in cooperation with the Minnesota Department of Transportation, will prepare an EIS on a proposal to improve TH 23 from the western Stearns County line, to approximately 1.0 mile (1.6 kilometers) east of the crossing of the North Fork of the Crow River, in Stearns County, Minnesota, a distance of approximately 4.4 miles (7.0 kilometers).
The proposed action is being considered to address future transportation demand, safety problems, access management, interregional trade corridor status, and pavement condition. Alternatives under consideration include (1) No-Build (2) three variations of “Build” alternatives involving reconstruction and/or realignment and new construction of TH 23 (3) “Build” alternative involving improvements along the existing alignment of TH 23.
The “Trunk Highway 23 Scoping Document/Draft Scoping Decision Document” will be published in the Summer 2002. A press release will be published to inform the public of the document's availability. Copies of the Scoping Document will be distributed to agencies, interested persons and libraries for review to aid in identifying issues and analyses to be contained in the EIS. A thirty-day comment period for review of the document will be provided to afford an opportunity for all interested persons, agencies and groups to comment on the proposed action. A public scoping meeting will also be held during the comment period. Public notice will be given for the time and place of the meeting.
A Draft EIS will be prepared based on the outcome of the scoping process. The Draft EIS will be available for agency and public review and comment. In addition, a public hearing will be held following completion of the Draft EIS. Public Notice will be given for the time and place of the public hearing on the Draft EIS.
Coordination has been initiated and will continue with appropriate Federal, State and local agencies and private organizations and citizens who have previously expressed or are known to have an interest in the proposed action. To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Federal Highway Administration (FHWA), DOT.
Notice of public meeting.
The Federal Highway Administration, as “Lead Federal Agency” for the Uniform Relocation Assistance and Real Property Action Policies Act (Uniform Act), will hold a series of listening sessions in Los Angeles, California; Washington, District of Columbia; Philadelphia, Pennsylvania; and Fort Worth, Texas.
The purpose of the listening sessions is to solicit comments on the need to update provisions of the Uniform Act and its implementing regulations 49 CFR Part 24. The Uniform Act provides for uniform and equitable treatment of persons displaced from their homes, business, or farms by Federal and federally assisted programs and establishes uniform and equitable land acquisition policies for Federal and federally assisted programs. The agenda for the listening sessions may be examined on the FHWA web site at the following address
The Uniform Act listening sessions are scheduled from 10 am to 2 pm as follows:
For the June 14, 2002, session: 819 Taylor Street, Room 1A03, Fort Worth, TX 76102.
For the June 25, 2002, session: 300 North Los Angeles Street, Room 8529, Los Angeles, CA 90012.
For the June 27, 2002, session: U.S. Department of Transportation, 400 7th Street, SW., Room 3200, Washington, DC 20590.
For the July 9, 2002, session: The Wanamaker Building, 100 Penn Square East, Room 818, Philadelphia, PA 19107.
Persons needing further information should contact FHWA Office of Real Estate Services representatives Reginald Bessmer (202) 366-2037 or Ronald Fannin (202) 366-2042 or by FAX at (202) 366-3713, U.S. Department of Transportation, Federal Highway Administration, 400 Seventh Street, SW, Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
An electronic copy of this document may be downloaded using a modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at
Pub. L. 91-646 as amended, 23 U.S.C. 315, 49 CFR 1.48.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
The FMCSA has received an application from Joest Racing USA, Inc. (petitioner), a private carrier based in Tucker, GA, for an exemption from the commercial driver's licensing (CDL) requirements. Petitioner states an exemption is necessary to enable four drivers it employs to engage in interstate commerce transporting private property, comprised of race cars and related parts. Petitioner points out that its drivers are citizens and residents of Germany who would only enter the United States on average three times a year, for up to three months per trip. In support of its application, petitioner asserts that granting the exemption would have no impact on public safety because the drivers involved presently hold valid Germany-issued CDLs. In addition, petitioner states the comprehensive training and testing, that drivers holding German CDLs must undergo, ensures a greater level of safety. FMCSA invites interested parties to submit comments on the merits of the application, including whether FMCSA should grant or deny it.
Comments must be submitted by June 13, 2002.
You may submit your comments to the Docket Clerk, Docket No. FMCSA-2002-12162, U.S. Department of Transportation, Dockets Management System (DMS), Room PL-401 (Plaza Level), 400 Seventh Street, SW., Washington, DC 20590. Please note that due to delays in the delivery of U.S. mail, we recommend sending your comments by fax at (202) 493-2251, via the Internet using the DMS Web site at
Ms. Teresa Doggett, (202) 366-2990, Office of Bus and Truck Standards and Operations (MC-PSD); or Mr. Charles Medalen, (202) 366-0834, Office of the Chief Counsel (MC-CC), Federal Motor Carrier Safety Administration, DOT, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal holidays.
All comments and related documents in the docket are also available for inspection and copying through the DMS Web site at
Section 4007 of the Transportation Equity Act for the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107, now codified at 49 U.S.C. 31315 and 31316), requires FMCSA to publish a notice in the
On December 8, 1998, FMCSA published an interim final rule implementing section 4007 of TEA-21 (63 FR 67600). The regulations at 49 CFR part 381 establish the procedures to be followed to request waivers and to apply for exemptions from the FMCSRs, and the provisions used to process them.
Joest Racing USA, Inc., a private motor carrier of property as defined by 49 CFR 390.5, filed an application for an exemption from the commercial driver's licensing rules in 49 CFR part 383, that would allow drivers—Peter Ungar, Michael Schlemmer, Udo Wilhelm, and Hubert Neumann—to operate two commercial motor vehicles (CMVs) within the United States. According to its application, Joest has no employees in the United States; for economic reasons, its German CMV drivers double as race car mechanics; the value of its race cars is over $1 million each; it requires CMV drivers that are professionally trained in Germany in the loading and bracing of racing cars and parts; and to employ U.S. commercial drivers and train them would require considerable time and expense. A copy of the application for exemption is in the docket.
FMCSA is responsible for the administration and enforcement of the Federal Motor Carrier Safety Regulations (FMCSRs), including the commercial driver's license requirements. Section 383.23(a)(2) states that no person shall operate a CMV unless such person possesses a CDL issued by his or her jurisdiction of domicile. There is an exception to this rule which states that CMV drivers domiciled in other jurisdictions that do not test drivers and issue licenses in accordance with Federal regulations must obtain a nonresident CDL from a State which does comply with the Federal testing and licensing standards.
Joest Racing USA, Inc. seeks an exemption because the drivers it employs are citizens and residents of Germany. These drivers are not able to obtain nonresidential CDLs in the United States because the States generally do not issue nonresidential CDLs to foreign drivers. The drivers hold valid CDLs issued by German authorities that meet license testing and driver qualification standards, including medical examinations, which are comparable with U.S. standards, and they have behind the wheel experience operating Joest's special type of CMV. Joest has two CMVs which are used to transport its private property (
Joest Racing USA, Inc. does not anticipate any adverse safety impacts from this exemption due to the fact that the German CDLs and German
There will always be two qualified drivers in each motor vehicle. The drivers employed by Joest Racing USA, Inc. are fully qualified CMV operators with valid German CDLs. The company ensures that the qualifications are maintained and all current German laws are followed. Due to strict regulations in Germany for drivers holding German CDLs, Joest Racing USA, Inc. believes there will be a greater level of safety than by using United States drivers unfamiliar with its special type of truck/trailer.
Drivers applying to obtain a German CDL must take both a knowledge test and skills test before a license to operate CMVs is issued. Prior to taking the tests, drivers must complete approximately 40 hours of driving lessons. The required driving lessons are generally considered by licensing experts to be among the most difficult in the world. Therefore, the process for obtaining a CDL in Germany is considered to be comparable to, or as effective as the requirements of Part 383 of the Federal requirements and adequately assess the driver's ability to operate CMVs in the United States.
Once a driver is granted a German CDL he is allowed to drive any CMV currently allowed on German roads. There are no limits to types or weights of vehicles that may be operated by the drivers. The drivers affected by the exemption will be operating tractor-trailer units. The drivers expect to operate CMVs through the States of Alabama, Arkansas, Arizona, California, Colorado, Florida, Georgia, Iowa, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Nebraska, New Mexico, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, and Wyoming.
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA is requesting public comment from all interested persons on this exemption application. All comments received before the close of business on the comment closing date will be considered and will be available for examination in the docket at the location listed under the address section of this notice. Comments received after the comment closing date will be filed in the public docket and will be considered to the extent practicable, but FMCSA may make its decision at any time after the close of the comment period. In addition to late comments, FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should continue to examine the public docket for new material.
49 U.S.C. 31136 and 31315; and 49 CFR 1.73.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel
As authorized by Pub. L. 105-383, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a description of the proposed service, is listed below. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. If MARAD determines that in accordance with Pub. L. 105-383 and MARAD's regulations at 46 CFR part 388 (65 FR 6905, February 11, 2000) that the issuance of the waiver will have an unduly adverse effect on a U.S.-vessel builder or a business that uses U.S.-flag vessels, a waiver will not be granted.
Submit comments on or before June 13, 2002.
Comments should refer to docket number MARAD-2002-12264. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Kathleen Dunn, U.S. Department of Transportation, Maritime Administration, MAR-832 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-2307.
Title V of Pub. L. 105-383 provides authority to the Secretary of Transportation to administratively waive the U.S.-build requirements of the Jones Act, and other statutes, for small commercial passenger vessels (no more than 12 passengers). This authority has been delegated to the Maritime Administration per 49 CFR 1.66, Delegations to the Maritime Administrator, as amended. By this notice, MARAD is publishing information on a vessel for which a request for a U.S.-build waiver has been received, and for which MARAD requests comments from interested parties. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD'S regulations at 46 CFR part 388.
(1) Name of vessel and owner for which waiver is requested.
(2) Size, capacity and tonnage of vessel.
(3) Intended use for vessel, including geographic region of intended operation and trade.
(4) Date and Place of construction and (if applicable) rebuilding.
(5) A statement on the impact this waiver will have on other commercial passenger vessel operators.
(6) A statement on the impact this waiver will have on U.S. shipyards.
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel
As authorized by Pub. L. 105-383, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a description of the proposed service, is listed below. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. If MARAD determines that in accordance with Pub. L. 105-383 and MARAD's regulations at 46 CFR part 388 (65 FR 6905, February 11, 2000) that the issuance of the waiver will have an unduly adverse effect on a U.S.-vessel builder or a business that uses U.S.-flag vessels, a waiver will not be granted.
Submit comments on or before June 13, 2002.
Comments should refer to docket number MARAD-2002-12293. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at
Kathleen Dunn, U.S. Department of Transportation, Maritime Administration, MAR-832 Room 7201, 400 Seventh Street, SW., Washington, DC 20590. Telephone 202-366-2307.
Title V of Pub. L. 105-383 provides authority to the Secretary of Transportation to administratively waive the U.S.-build requirements of the Jones Act, and other statutes, for small commercial passenger vessels (no more than 12 passengers). This authority has been delegated to the Maritime Administration per 49 CFR 1.66, Delegations to the Maritime Administrator, as amended. By this notice, MARAD is publishing information on a vessel for which a request for a U.S.-build waiver has been received, and for which MARAD requests comments from interested parties. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD'S regulations at 46 CFR part 388.
(1) Name of vessel and owner for which waiver is requested.
(2) Size, capacity and tonnage of vessel.
(3) Intended use for vessel, including geographic region of intended operation and trade.
(4) Date and Place of construction and (if applicable) rebuilding.
(5) A statement on the impact this waiver will have on other commercial passenger vessel operators.
(6) A statement on the impact this waiver will have on U.S. shipyards.
By Order of the Maritime Administrator.
Surface Transportation Board.
Petition for exemption.
The Board, under 49 U.S.C. 10502, exempts the trackage rights described in STB Finance Docket No. 34194
This exemption is effective on June 13, 2002. Petitions to stay must be filed by May 24, 2002. Petitions to reopen must be filed by June 3, 2002.
An original and 10 copies of all pleadings referring to STB Finance Docket No. 34194 (Sub-No. 1) must be filed with the Surface Transportation Board, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of all pleadings must be served on petitioner's representative Michael E. Roper, The Burlington Northern and Santa Fe Railway Company, 2500 Lou Menk Drive, P.O. Box 961039, Fort Worth, TX 76161-0039.
Beryl Gordon, (202) 565-1600. [TDD for the hearing impaired: 1-800-877-8339.]
Additional information is contained in
Board decisions and notices are available on our Web site at
By the Board, Chairman Morgan and Vice Chairman Burkes.
Customs Service, Department of the Treasury.
Notice of designation of international athletic event for purposes of preferential tariff provision.
This notice advises the public of the designation of the Volvo Ocean Race, a round-the-world international sailing competition, as a qualifying international athletic event under subheading 9817.60.00, Harmonized Tariff Schedule of the United States (HTSUS).
Effective for merchandise entered or withdrawn from warehouse for consumption on or after March 1, 2002.
Craig A. Walker, Office of Regulations & Rulings (202-927-1116).
Section 1456 of the Tariff Suspension and Trade Act of 2000 (the “Act”) (Public Law 106-476, 114 Stat. 2101) promulgated the duty-free treatment provided under subheading 9817.60.00, HTSUS, for certain articles brought into the U.S. for certain international athletic events. Subheading 9817.60.00, HTSUS, which implements section 1456(a) of the Act, states:
Section 1456(b) of the Act, as implemented in Note 6 of Subchapter XII, HTSUS, provides that “[a]ny article exempt from duty under heading 9817.60.00 shall be free of taxes and fees that may otherwise be applicable, but shall not be free or otherwise exempt or excluded from routine or other inspections as may be required by the Customs Service.”
The Volvo Ocean Race (formerly known as the Whitbread Round the World Race) is a premier international sailing competition that takes place every four years and touches five continents and nine countries around the world. The current race, with seven teams participating, began in Southampton England on September 23, 2001, and is expected to take approximately nine months from start to finish. The fifth and sixth stopovers during the race are Miami, Florida, and Baltimore/Annapolis, Maryland.
Counsel for the Volvo Ocean Race has requested that the event be designated as a qualifying international athletic event for purposes of subheading 9817.60.00, HTSUS.
Section 1456 of the Tariff Suspension and Trade Act of 2000 provides that the Secretary of Treasury may determine that international athletic events not explicitly mentioned in the statute qualify as similar to those mentioned for purposes of the duty-free treatment provided for in subheading 9817.60.00, HTSUS.
It is determined that the Volvo Ocean Race qualifies as a similar international athletic event in accordance with section 1456 of the Tariff Suspension and Trade Act of 2000. Therefore, articles meeting the conditions and requirements set forth in subheading 9817.60.00, HTSUS, imported in connection with the Volvo Ocean Race, will be entitled to duty-free treatment.
U.S. Customs Service, Department of the Treasury.
Announcement of the quota quantity for tuna for Calendar Year 2002.
The tariff-rate quota for Calendar Year 2002, on tuna classifiable under subheading 1604.14.20, Harmonized Tariff Schedule of the United States (HTSUS).
Each year the tariff-rate quota for tuna fish described in subheading 1604.14.20, HTSUS, is based on the United States canned tuna production for the preceding calendar year. This document sets forth the quota for calendar year 2002.
The 2002 tariff-rate quota is applicable to tuna fish entered, or withdrawn from warehouse, for consumption during the period January 1, through December 31, 2002.
Connie Chancey, Chief, Quota Branch, Textile Enforcement and Operations Division, Trade Programs, Office of Field Operations, U.S. Customs Service, Washington, DC 20229, (202) 927-5399.
In notice document 02-11067 beginning on page 22412 in the issue of Friday, May 3, 2002 make the following correction:
On page 22413, in the first column, under “
In notice document 02-11073 appearing on page 22413 in the issue of Friday, May 3, 2002 make the following correction:
On page 22413, in the third column, under “
In notice document 02-11070 beginning on page 22413 in the issue of Friday, May 3, 2002 make the following corrections:
1. On page 22414, in the first column, under “
2. On the same page, in the same column, under “
Fish and Wildlife Service, Interior.
Proposed rule and notice of determinations of whether designation of critical habitat is prudent.
We, the U.S. Fish and Wildlife Service (Service), propose critical habitat for five (
We propose critical habitat designations for five species on three islands (Nihoa, Necker, and Laysan) totaling approximately 498 hectares (ha) (1,232 acres (ac)). If this proposal is made final, section 7 of the Act requires Federal agencies to ensure that actions they carry out, fund, or authorize do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the conservation of the species. Section 4 of the Act requires us to consider economic and other relevant impacts of specifying any particular area as critical habitat.
We solicit data and comments from the public on all aspects of this proposal, including data on the economic and other impacts of the proposed designations. We may revise this proposal to incorporate or address new information received during the comment period.
We will accept comments until July 15, 2002. Public hearing requests must be received by June 28, 2002.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of the following methods:
(1) You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., P.O. Box 50088, Honolulu, HI 96850-0001.
(2) You may hand-deliver written comments to our Pacific Islands Office at 300 Ala Moana Blvd., Room 3-122, Honolulu, HI 96850.
You may view comments and materials received, as well as supporting documentation used in the preparation of this proposed rule by appointment, during normal business hours at the Pacific Islands Office.
Paul Henson, Field Supervisor, Pacific Islands Office (
In the Lists of Endangered and Threatened Plants (50 CFR 17.12), there are six plant species that, at the time of listing, were reported from the Northwestern Hawaiian Islands (Nihoa Island, Necker Island, French Frigate Shoals, Gardner Pinnacles, Maro Reef, Laysan Island, Lisianski Island, Pearl and Hermes Atoll, Midway Atoll, and Kure Atoll) (Table 1).
In previously published proposals we proposed that critical habitat was prudent for
In this proposal, we propose that critical habitat designation is prudent for
In this proposal, we propose designation of critical habitat for five (
Critical habitat is proposed for designation on the islands of Nihoa, Necker, and Laysan. The land area for these three islands totals approximately 498 ha (1,232 ac).
The NWHI are a chain of islands that extend along a linear path approximately 1,600 kilometers (km) (1,000 miles (mi)) northwest from Nihoa Island to Kure Atoll (Figure 1). They are remnants of once larger islands that have slowly eroded and subsided, which today exist as small land masses or coral atolls that cover the remnants of the volcanic islands (Department of Geography 1998; U.S. Fish and Wildlife Service (USFWS) 1998).
Nihoa rises approximately 274 meters (m) (900 feet (ft)) above sea level and has an area of approximately 69 ha (171 ac). Its steep topography and crater shape reveal its volcanic origin. Necker Island, less than 92 m (300 ft) in elevation and 19 ha (46 ac) in area, consists of thin-layered weathered lava flows. La Perouse Pinnacles at French Frigate Shoals and Gardner Pinnacles are the last exposed volcanic remnants in the archipelago. French Frigate Shoals is a crescent shaped atoll nearly 29 km (18 mi) across. More than a dozen small sandy islands dot the fringes of this atoll. Maro Reef is a largely submerged area marked by breakers and a few pieces of coral that intermittently protrude above the waterline. Laysan Island is nearly 5.18 square kilometer (sq km) (2 square miles (sq mi)) in size and is fringed by a reef. An 81 ha (200 ac) hypersaline lagoon is located in the center of the island. Lisianski Island is 147 ha (364 ac) in size, but is bounded to the north by an extensive reef system. A central lagoon once found on this island has filled with sand. Pearl and Hermes Reef, an inundated atoll, includes nearly 40,469 ha (100,000 ac) of submerged reef and seven small sandy islets totaling less than 34 ha (85 ac). Midway Atoll is approximately 8 km (5 mi) in diameter and includes three islands: Sand, Eastern, and Spit. Both Sand and Eastern islands are highly altered by man. Kure Atoll is the northernmost exposed land in the Hawaiian archipelago. Two islands, Green and Sand, are found on the southern edge of the atoll and are included in the Hawaii State Seabird Sanctuary System. Green Island was altered considerably in the past and today suffers from enormous alien species problems (Elizabeth Flint, USFWS, pers. comm., 2000; USFWS 1986).
One listed plant species was known from Kure Atoll (
Nihoa (209 km (140 mi) from Niihau) and Necker (an additional 290 km (180 mi) beyond Nihoa) are closest to the main Hawaiian Islands. Both are small, residual fragments of volcanoes that formed 7.2 and 10.3 million years ago respectively (USFWS 1986). Although both of these islands were uninhabited at the time of their modern discovery in
In 1892, a guano mining business began operation on Laysan and flourished until the last load was shipped in 1904. During this time, rabbits were introduced to Laysan for a rabbit canning industry, and allowed to reproduce and roam freely (Morin and Conant 1998, Tomich 1986). This, too, failed as a profitable business and no attempt was made to control the number of rabbits on the island. The rabbits were finally eradicated from the island in the early 1920s, though not before the vegetation had been thoroughly devastated. Since then, the vegetation of Laysan has recovered to a remarkable degree, though some species, like the native palms (
Kure Atoll was discovered and named in 1827 by the captain of a Russian vessel. Between 1876 and 1936 Australian Copra & Guano Ltd. mined guano from Green Island and Sand Island, the two islands that make up Kure Atoll. Military bases were built on the islands during World War II and a Loran C station with two 158 m (518 ft) high masts was operated until 1998. The towers are no longer on the islands. The airstrip built on Green Island is no longer usable and landing is only possible by boat (USFWS 1998a).
Midway Atoll was discovered and named Middlebrook Islands in 1859 by Captain Nick Brooks. The atoll was taken into possession by the United States in 1867 and in 1903 President Theodore Roosevelt placed the atoll under the control of the Navy. In 1935 Pan American World Airways set up an airbase for the weekly Trans-Pacific Flying Clipper Seaplane service. In 1941, the Japanese attacked Midway Atoll on their return from the attack on Pearl Harbor, but in 1942 the United States ambushed and defeated the Japanese Fleet north of the atoll, turning the tide of World War II in the Pacific. In 1988, the atoll was added to the National Wildlife Refuge system and in 1996 the jurisdiction of Midway Atoll was transferred from the U.S. Navy to the Department of Interior (USFWS 2000). Despite this evidence of earlier human use, these islands continue to support an assemblage of endemic plants and animals not found elsewhere in the archipelago (Department of Geography 1998).
The reefs and islets of the Northwestern Hawaiian chain from Nihoa Island through Pearl and Hermes Atoll are protected as the Hawaiian Islands National Wildlife Refuge (HINWR). The HINWR was established in 1909 to protect the large colonies of seabirds, which were being slaughtered for the millinery trade, as well as a variety of other marine organisms, including sea turtles and the critically endangered Hawaiian monk seal (
On December 4, 2000, President Clinton issued an Executive Order establishing the 33,993,594 ha (84 million ac) Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve that includes the marine waters and submerged lands of the NWHI, extending approximately 2,222 km (1,200 nautical mi) long and 185 km (100 nautical mi) wide. The Reserve is adjacent to the State of Hawaii waters and submerged lands and the Midway Atoll National Wildlife Refuge, and includes the HINWR outside of state waters.
The threats to
The threats to
All but one historically known colony of
The threats to
Little is known about the life history of this plant. Reproductive cycles,
Historically,
This species was threatened by competition with various alien plant species, seed predation by rats and mice, and, potentially, alien insects, and fire.
Individuals of
Historically,
The threats to
The pollination biology of
Currently,
The primary threats to
Federal action on these plants began as a result of Section 12 of the Act, which directed the Secretary of the
General comments received in response to the 1976 proposal are summarized in an April 26, 1978,
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. At the time each plant was listed, we determined that designation of critical habitat was not prudent because it would not benefit the plant and/or would increase the degree of threat to the species.
The not prudent determinations for these species, along with others, were challenged in
Regarding our determination that designating critical habitat would have no additional benefits to the species above and beyond those already provided through the section 7 consultation requirement of the Act, the Court ruled that we failed to consider the specific effect of the consultation requirement on each species (
On August 10, 1998, the Court ordered us to publish proposed critical habitat designations or non-designations for at least 100 species by November 30, 2000, and to publish proposed designations or non-designations for the remaining 145 species by April 30, 2002 (24 F. Supp. 2d 1074).
On November 30, 1998, we published a notice in the
To comply with the Court's order, we are publishing seven rules that will include proposed determinations of whether critical habitat is prudent, along with proposed designations if appropriate. Each rule, arranged by island or island group (Kauai and Niihau; Maui and Kahoolawe; Lanai; Molokai; Northwestern Hawaiian Islands; Hawaii; Oahu), has or will contain the prudency determination (or incorporate the prudency determination when it has been published in a prior proposal) and, when appropriate, proposed designations of critical habitat for each plant species known to occur from that island or group of islands. The proposed rules for Kauai and Niihau, Maui and Kahoolawe, Lanai, and Molokai have already been published. On November 7, 2000, we published the first of the court-ordered prudency determinations and proposed critical habitat designations for Kauai and Niihau plants (65 FR 66808). The prudency determinations and proposed critical habitat designations for Maui and Kahoolawe plants were published on December 18, 2000 (65 FR 79192), for Lanai plants on December 27, 2000 (65 FR 82086), and for Molokai plants on December 29, 2000 (65 FR 83158). All of these proposed rules were sent to the
Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of proposed
Critical habitat also provides non-regulatory benefits to the species by informing the public and private sectors of areas that are important for species recovery and where conservation actions would be most effective. Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features that are essential for the conservation of that species, and can alert the public, as well as land-managing agencies to the importance of those areas. Critical habitat also identifies areas that may require special management considerations or protection, and may help provide protection to areas where significant threats to the species have been identified to help to avoid accidental damage to such areas.
In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)). Section 3(5)(C) of the Act states that not all areas that can be occupied by a species should be designated as critical habitat unless the Secretary determines that all such areas are essential to the conservation of the species. Our regulations (50 CFR 424.12(e)) also state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.”
Section 4(b)(2) of the Act requires that we take into consideration the economic impact, and any other relevant impact, of specifying any particular areas as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.
Our Policy on Information Standards Under the Endangered Species Act, published on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that decisions made by the Service represent the best scientific and commercial data available. It requires that our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing rule for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, and biological assessments or other unpublished materials.
Section 4 requires that we designate critical habitat based on what we know at the time of the designation. Habitat is often dynamic, however, and populations may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Habitat areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, and the section 9 take prohibition, as determined on the basis of the best available information at the time of the action. It is possible that federally funded or assisted projects affecting listed species outside their designated critical habitat areas could jeopardize those species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning and recovery efforts if new information available to these planning efforts calls for a different outcome.
As previously stated, designation of critical habitat is not prudent when one or both of the following situations exist: (i) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species; or (ii) such designation of critical habitat would not be beneficial to the species (50 CFR 424.12(a)(1)).
To determine whether critical habitat would be prudent for
We examined the evidence available for
In the absence of finding that critical habitat would increase threats to a species, if there are any benefits to critical habitat designation, then a prudent finding is warranted. The potential benefits include: (1) Triggering section 7 consultation in new areas where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species.
In the case of
Therefore, we propose that designation of critical habitat is prudent for
In accordance with section 4(b)(2) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features that are essential to the conservation of the species and that may require special management considerations or protection. Such requirements include, but are not limited to, space for individual and population growth, and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring, germination, or seed dispersal; and, habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
We are proposing to define the primary constituent elements on the basis of general habitat features of the areas in which the plant species are reported from, such as the type of plant community, associated native plant species, locale information (
On Nihoa Island, the currently known primary constituent elements of critical habitat for
On Laysan and Nihoa islands, the currently known primary constituent elements of critical habitat for
On Nihoa Island, the currently known primary constituent elements of critical habitat for
On Laysan Island, the currently known primary constituent elements of critical habitat for
On Nihoa and Necker islands, the currently known primary constituent elements of critical habitat for
As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain those physical and biological features that are essential for the conservation of the five plant species. This information included site-specific species information from the Hawaii Natural Heritage Program (HINHP) and our rare plant database, biological surveys and reports, our recovery plans for these five species, discussions with botanical experts, and recommendations (see below) from the Hawaii and Pacific Plant Recovery Coordinating Committee (HPPRCC) (HINHP 2000; HPPRCC 1998; USFWS 1998d, 1999).
In 1994, the HPPRCC initiated an effort to identify and map habitat it believed to be important for the recovery of 282 endangered and threatened plant species. The HPPRCC identified these areas on most of the islands in the Hawaiian chain, and in
Because the HPPRCC identified essential habitat areas for all listed, proposed, and candidate plant species and evaluated species of concern to determine if essential habitat areas would provide for their habitat needs as well, the HPPRCC's mapping of habitat is distinct from the regulatory designation of critical habitat as defined by the Act. More data has been collected since the recommendations made by the HPPRCC in 1998. Much of the area that was identified by the HPPRCC as inadequately surveyed has now been surveyed in some way. New location data for many species has been gathered. Also, the HPPRCC identified areas as essential based on species clusters (areas that included listed species, as well as candidate species, and species of concern) while we have only delineated areas that are essential for the conservation of the five listed species at issue. As a result, the proposed critical habitat designations in this proposed rule include habitat that was not identified as essential habitat in the 1998 recommendations.
We considered several criteria in the selection and proposal of specific boundaries for critical habitat units for these five species. These criteria, which follow the recommendations in the approved recovery plans, include expansion of existing wild populations and reestablishment of wild populations within historic range of each species (USFWS 1998d, 1999). The long-term probability of the conservation of these species is dependent upon the protection of existing population sites and suitable unoccupied habitat within historic range.
For these five plant species from the Northwestern Hawaiian Islands, currently and historically occupied habitat was examined. Critical habitat is not proposed for
Critical habitat boundaries were delineated to include the entire island on which the species are found or were historically found, for mapping convenience. Within the critical habitat boundaries, adverse modification could occur only if the primary constituent elements are affected. Therefore, not all activities within critical habitat would trigger an adverse modification conclusion. In addition, existing man-made features and structures within boundaries of the mapped unit, such as buildings, roads, aqueducts, telecommunications equipment, radars, telemetry antennas, missile launch sites, arboreta and gardens, heiau (indigenous places of worship or shrines), airports, other paved areas, and other rural residential landscaped areas do not contain one or more of the primary constituent elements and would be excluded under the terms of this proposed regulation. Federal actions limited to those areas would not trigger a section 7 consultation unless they affect the species or primary constituent elements in adjacent critical habitat.
All currently or historically occupied sites containing one or more of the primary constituent elements considered essential to the conservation of the five plant species were examined to determine if additional special management considerations or protection are required above those currently provided. We reviewed all available management information on these plants at these sites including published and unpublished reports, surveys, and plans; internal letters, memos, trip reports; and, section 7 consultations. Additionally, we considered current management for these plants on national wildlife refuge lands.
For the five species for which designation of critical habitat is prudent, we know of no areas in the HINWR at this time that do not require special management or protection.
In summary, the proposed critical habitat areas described below constitute our best assessment of the physical and biological features needed for the conservation of the five plant species (
Proposed critical habitat includes habitat for five species on the islands of Nihoa, Necker, and Laysan. Lands proposed are under Federal ownership and managed by the Department of the Interior (the Service). The entire islands of Nihoa, Necker, and Laysan are proposed as critical habitat. A brief description of each island is presented below.
Key for Nihoa, Necker, and Laysan.
‡ Not all suitable habitat is proposed to be designated, only those areas essential to the conservation of the species.
1. This unit is needed to meet the recovery plan objectives of 8 to 10 viable populations (self perpetuating and sustaining for at least 5 years) with 100 to 500 mature, reproducing individuals per species throughout its historical range as specified in the recovery plans.
2. Island endemic.
3. Multi-island species with current locations on other islands.
4. Multi-island species with no current locations on other islands.
5. Current locations do not necessarily represent viable populations with the required number of mature individuals.
6. Several current locations may be affected by one naturally occurring, catastrophic event.
7. Species with variable habitat requirements, usually over wide areas. Wide ranging species require more space per individual over more land area to provide needed primary constituent elements to maintain healthy population size.
8. Not all currently occupied habitat was determined to be essential to the recovery of the species.
9. Life history, long-lived perennial-100 mature, reproducing individuals per population.
10. Life history, short-lived perennial-300 mature, reproducing individuals per population.
11. Life history, annual-500 mature, reproducing individuals per population.
12. Narrow endemic, the species probably never naturally occurred in more than a single or a few populations.
13. Species has extremely restricted, specific habitat requirements.
14. Hybridization is possible so distinct populations of related species should not overlap, requiring more land area.
The proposed unit Nihoa provides occupied habitat for three species:
Nihoa has an area of approximately 69 ha (171 ac). Nihoa is owned solely by the Federal government.
The proposed unit Necker provides occupied habitat for one species,
Necker has an area of approximately 18 ha (46 ac). Necker is owned solely by the Federal government.
The proposed unit Laysan provides occupied habitat for two species:
Laysan has an area of approximately 411 ha (1,015 ac). Laysan is owned solely by the Federal government.
Section 7(a)(2) of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. Destruction or adverse modification of critical habitat occurs when a Federal action directly or indirectly alters critical habitat to the extent it appreciably diminishes the value of critical habitat for the conservation of the species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical (50 CFR 402.02). Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act means that Federal agencies must evaluate their actions with respect to any proposed or designated critical habitat. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. If a Federal action may affect critical habitat, the responsible Federal agency must enter into consultation with us. If, at the conclusion of consultation, we issue a biological opinion concluding that the project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat.
Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain a biological opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as a biological opinion when the critical habitat is designated, if no significant new information or changes in the action alter the content of the opinion.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions under certain circumstances, including instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control or is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conferencing with us on actions for which formal consultation has been completed if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.
Activities on lands being proposed as critical habitat for these five species or activities that may indirectly affect such lands and that are conducted by a Federal agency, funded by a Federal agency or require a permit from a Federal agency will be subject to the section 7 consultation process. Federal actions not affecting critical habitat will not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. We note that such activities may also jeopardize the continued existence of the species. Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to:
(1) Activities that appreciably degrade or destroy habitat defined in the discussion of primary constituent elements including but not limited to: clearing or cutting of native live trees and shrubs, whether by burning or mechanical, chemical, or other means (
(2) Construction activities by the U.S. Department of Interior (U.S. Fish and Wildlife Service);
(3) Research activities funded by the U.S. Department of Interior (U.S. Fish and Wildlife Service) or National Oceanic and Atmospheric Administration (National Marine Sanctuaries Program, National Marine Fisheries Service); and
(4) Activities not mentioned above funded or authorized by the Department of Interior (U.S. Geological Survey, National Park Service), Department of Commerce (National Oceanic and Atmospheric Administration), Western Pacific Regional Fisheries Council, or any other Federal agency.
If you have questions regarding whether specific activities will constitute adverse modification of critical habitat, contact the Field Supervisor, Pacific Islands Office (see
Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species concerned. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the
We will utilize the final economic analysis, and take into consideration all comments, and information regarding economic or other impacts submitted during the public comment period and any public hearings, if requested, to make final critical habitat designations. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as part of critical habitat; however, we cannot exclude areas from critical habitat when such exclusion will result in the extinction of the species.
It is our intent that any final action resulting from this proposal be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule.
We invite comments from the public that provide information on whether lands within proposed critical habitat are currently being managed to address conservation needs of these listed plants. As stated earlier in this proposed rule, if we receive information that any of the areas proposed as critical habitat are adequately managed, we may delete such areas from the final rule, because they would not meet the definition in section 3(5)(A)(i) of the Act.
We are soliciting comments in this proposed rule on whether current land management plans or practices applied within the areas proposed as critical habitat adequately address the threats to these listed species.
In addition, we are seeking comments on the following:
(1) The reasons why critical habitat for any of these species is prudent or not prudent as provided by section 4 of the Act and 50 CFR 424.12(a)(1), including whether the benefits of designation would outweigh any threats to these species due to designation;
(2) The reasons why any particular area should or should not be designated as critical habitat for any of these species, as critical habitat is defined by section 3 of the Act (16 U.S.C. 1532 (5));
(3) Specific information on the amount and distribution of habitat for
(4) Land use practices and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(5) Any economic or other impacts resulting from the proposed designations of critical habitat, including any impacts on small entities or families; and
(6) Economic and other potential values associated with designating critical habitat for the above plant species such as those derived from non-consumptive uses (
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (
In accordance with our policy published on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing and critical habitat decisions are based on scientifically sound data, assumptions, and analyses. We will send copies of this proposed rule to these peer reviewers immediately following publication in the
We will consider all comments and data received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.
Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical language or jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the proposed rule in the “Supplementary Information” section of the preamble helpful in understanding the document? (5) What else could we do to make the proposed rule easier to understand?
Send a copy of any comments that concern how we could make this notice easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW, Washington, DC 20240.
At the time we listed
In accordance with Executive Order 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB) in accordance with the four criteria discussed below. We are preparing a draft analysis of this proposed action, which will be available for public comment, to determine the economic consequences of designating the specific areas as critical habitat. The availability of the draft economic analysis will be announced in the
a. While we will prepare an economic analysis to assist us in considering whether areas should be excluded pursuant to section 4 of the Act, we do not believe this rule will have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or
Under the Act, critical habitat may not be adversely modified by a Federal agency action; critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored, authorized, or permitted by a Federal agency.
Section 7 requires Federal agencies to ensure that they do not jeopardize the continued existence of these species. Based upon our experience with these species and their needs, we conclude that most Federal or Federally-authorized actions that could potentially cause an adverse modification of the proposed critical habitat would currently be considered as “jeopardy” under the Act in areas occupied by the species. Designation of critical habitat in areas that are not known to be occupied by any of these five species also is highly unlikely to have a significant economic affect because all of the lands proposed as critical habitat are federally owned and managed as part of the Service's national wildlife refuge system. Economic uses on a national wildlife refuge are limited by the National Wildlife Refuge System Administration Act, 16 U.S.C. 668dd, to activities that are compatible with the purposes of the refuge. We are not aware of any commercial activities occurring on the refuge. Taken with the remove location and inaccessibility of these islands, we believe there will be a few economic impacts resulting from this designation. In addition, each of the 3 units contains occupied habitat for one or more species.
b. We do not believe this rule would create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions not jeopardize the continued existence of
c. We do not believe this proposed rule, if made final, would materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of a listed species, and, as discussed above, we do not anticipate that the adverse modification prohibition, resulting from critical habitat designation, will have any significant incremental effects in areas of occupied habitat. However, in those limited cases where activities occur on designated critical habitat where one or more of these five plant species are not found at the time of the action, section 7 consultation may be necessary for actions funded, authorized, or carried out by Federal agencies. Designation of critical habitat in areas that are not known to be occupied by any of these five species will also not likely result in a significant increased regulatory burden because the Service already reviews proposed projects on refuge lands to ensure compatibility with refuge purposes. We will evaluate any additional impacts as part of an economic analysis.
d. OMB has determined that this rule may raise novel legal or policy issues, and as a result, this rule has undergone OMB review.
Under the Regulatory Flexibility Act (5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations, such as independent non-profit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule as well as the types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.
To determine if the rule would affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (
Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation. In areas where the species is present, Federal agencies are already required to consult with us under section 7 of the Act on activities that they fund, permit, or implement that may affect
Even if the duty to avoid adverse modification does not trigger additional regulatory impacts in areas where the species is present, designation of critical habitat could result in an additional economic burden on small entities due to the requirement to reinitiate consultation for ongoing Federal activities. However, since these five plant species were listed (between 1994 and 1996), there have been no formal or informal consultations conducted involving these five plant species in NWHI. The NWR system is not a small entity. Therefore, the requirement to reinitiate consultations for ongoing projects will not affect a substantial number of small entities on any of the Northwestern Hawaiian Islands.
In areas where the species is clearly not present, designation of critical habitat could trigger additional review of Federal activities under section 7 of the Act, that would otherwise not be required. However, only one of the three units (Nihoa) being proposed for designation includes habitat for a species that is not verified to occur there (
In the NWHI, all of the designations are on Federal land. All of the land within the critical habitat units will have limited suitability for development, land uses, and activities because of remote locations and lack of access. Also, all of this land is within a National Wildlife Refuge (NWR) where Federal laws and/or policies severely limit development and most activities. We are not aware of any commercial activities occurring on these islands. Therefore, we conclude that the proposed rule would not affect a substantial number of small entities.
Even where the requirements of section 7 might apply due to critical habitat designation, based on our experience with section 7 consultations for all listed species, virtually all projects-including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations under section 7 consultations-can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures must be economically feasible and within the scope of authority of the Federal agency involved in the consultation.
As required under section 4(b)(2) of the Act, we will conduct an analysis of the potential economic impacts of this proposed critical habitat designation, and will make that analysis available for public review and comment before finalizing these designations. In the absence of this economic analysis, we believe that the designations would have modest economic impacts because all of the land within the critical habitat units has limited suitability for development, land uses, and activities because of remote locations and lack of access. In addition, these lands are within a National Wildlife Refuge where Federal laws and/or policies severely limit development and activities. The proposed critical habitat designations are expected to cause little or no increase in the number of section 7 consultations; few, if any, increases in costs associated with consultations; and few, if any delays in, or modifications to planned projects, land uses and activities.
In summary, we have considered whether this proposed rule would result in a significant economic effect on a substantial number of small entitites. It would not affect a substantial number of small entities. None of the lands proposed as critical habitat are on state or private lands. All of the land proposed as critical habitat are Federal lands within the National Wildlife Refuge system. The most likely future section 7 consultation resulting from this rule would be for intra-Service consultations on natural resource management activities, species-specific surveys and research projects. These consultations would not likely affect a substantial number of small entities because the managing agency, the Service, is not a small entity. Therefore we are certifying that the proposed designation of critical habitat for the following species:
On May 18, 2001, the President issued Executive Order 13211, on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
a. We believe this rule, as proposed, will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will not be affected unless they propose an action requiring Federal funds, permits or other authorizations. Any such activities will require that the Federal agency ensure that the action will not adversely modify or destroy designated critical habitat. However, as discussed above, these actions are currently subject to equivalent restrictions through the listing protections of the species, and no further restrictions are anticipated to result from critical habitat designation of occupied areas. In our economic analysis, we will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation.
b. This rule, as proposed, will not produce a Federal mandate on State or local governments or the private sector of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the five species on three islands or atolls (Nihoa, Necker, and Laysan) within the Northwestern Hawaiian Islands. The takings implications assessment concludes that this proposed rule does not pose significant takings implications. Once the economic analysis is completed for this proposed rule, we will review and revise this preliminary assessment as warranted.
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of Interior policy, we requested information from appropriate State agencies in Hawaii. The designation of critical habitat in areas currently occupied by these species imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designations may have some benefit to these governments in that the areas essential to the conservation of these species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are specifically identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long range planning rather than waiting for case-by-case section 7 consultations to occur.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of
This rule does not contain any information collection requirements for which Office of Management and Budget (OMB) approval under the Paperwork Reduction Act is required. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.
We have determined we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act, as amended. We published a notice outlining our reason for this determination in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 and 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no Tribal lands essential for the conservation of
A complete list of all references cited in this proposed rule is available upon request from the Pacific Islands Office (
The primary authors of this notice are Christa Russell, Michelle Stephens, Marigold Zoll, and Gregory Koob (
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.12(h) revise the entries for
(h) * * *
3. Section 17.96, as proposed to be amended at 65 FR 66865 (November 7, 2000), 65 FR 79192 (December 18, 2000), 65 FR 82086 (December 27, 2000), 65 FR 83193 (December 29, 2000), 67 FR 4072 (January 28, 2002), 67 FR 9806 (March 4, 2002), 67 FR 15856 (April 3, 2002), and 67 FR 16492 (April 5, 2002) is proposed to be further amended as follows:
a. Add paragraph (a)(1)(i)(G) (paragraph (a)(1)(i) introductory text is republished); and
b. Amend paragraph (a)(1)(ii)(A) by adding the entries set forth below.
(a) * * *
(1) * * *
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(G)
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(
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(ii)
(A) Flowering plants.
Family Amaranthaceae:
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Family Arecaceae:
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Family Caryophyllaceae:
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Family Cyperaceae:
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Family Fabaceae:
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Environmental Protection Agency (EPA).
Proposed rule.
This action proposes national emission standards for hazardous air pollutants (NESHAP) for engine test cells/stands. We have identified engine test cells/stands as major sources of hazardous air pollutants (HAP) such as toluene, benzene, mixed xylenes, and 1,3-butadiene. These proposed NESHAP will implement section 112(d) of the Clean Air Act (CAA) which requires all major sources of HAP to meet emission standards reflecting the application of the maximum achievable control technology (MACT). These proposed standards will protect public health by reducing exposure to air pollution.
Mr. Jaime Pagan, Combustion Group, Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park, North Carolina 27711; telephone number (919) 541-5340; facsimile number (919) 541-0942; electronic mail (e-mail) address “pagan.jaime@epa.gov.”
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: Attention: Mr. Jaime Pagan, c/o OAQPS Document Control Officer, U.S. EPA, 411 W. Chapel Hill Street, Room 740B, Durham NC 27701. We 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 we receive it, the information may be made available to the public without further notice to the commenter.
A list of combustion related rules is available on the Combustion Group Website on the TTN at
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 engine test cell/stand is regulated by this action, you should examine the applicability criteria in § 63.9285 of the proposed rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. Engine test facilities were listed as a source category under the fuel combustion industry group, and rocket engine test firing was listed as a source category under the miscellaneous processes industry group in the
Section 112 of the CAA requires that we establish NESHAP for the control of HAP from both new and existing major sources. The CAA requires the NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as the MACT.
The MACT floor is the minimum control level allowed for NESHAP and is defined under section 112(d)(3) of the CAA. In essence, the MACT floor ensures that the standard is set at a level that assures that all major sources achieve the level of control at least as stringent as that already achieved by the better controlled and lower-emitting sources in each source category or
In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.
Emission data collected during development of the proposed NESHAP show that several HAP are emitted from engine test cells/stands. These HAP emissions are formed during combustion or result from HAP compounds contained in the fuel burned. Numerous HAP are emitted from combustion in engine test cells/stands; examples include toluene, benzene, mixed xylenes, and 1,3-butadiene.
The health effect of primary concern for toluene is dysfunction of the central nervous system (CNS). Toluene vapor also causes narcosis. Controlled exposure of human subjects produced mild fatigue, weakness, confusion, lacrimation, and paresthesia; at higher exposure levels there were also euphoria, headache, dizziness, dilated pupils, and nausea. After effects included nervousness, muscular fatigue, and insomnia persisting for several days. Acute exposure may cause irritation of the eyes, respiratory tract, and skin. It may also cause fatigue, weakness, confusion, headache, and drowsiness. Very high concentrations may cause unconsciousness and death.
Benzene is a known human carcinogen. The health effects of benzene include nerve inflammation, CNS depression, and cardiac sensitization. Chronic exposure to benzene can cause fatigue, nervousness, irritability, blurred vision, and labored breathing and has produced anorexia and irreversible injury to the blood-forming organs; effects include aplastic anemia and leukemia. Acute exposure can cause dizziness, euphoria, giddiness, headache, nausea, staggering gait, weakness, drowsiness, respiratory irritation, pulmonary edema, pneumonia, gastrointestinal irritation, convulsions, and paralysis. Benzene can also cause irritation to the skin, eyes, and mucous membranes.
Acute inhalation exposure to mixed xylenes in humans results in irritation of the nose and throat, gastrointestinal effects such as nausea, vomiting, and gastric irritation, mild transient eye irritation, and neurological effects. Chronic inhalation exposure of humans to mixed xylenes results primarily in CNS effects, such as headache, dizziness, fatigue, tremors and incoordination. Other effects noted include labored breathing and impaired pulmonary function, increased heart palpitation, severe chest pain and an abnormal electrocardiogram, and possible effects on blood and kidneys.
Acute exposure to 1,3-butadiene by inhalation in humans results in irritation of the eyes, nasal passages, throat, and lungs, and causes neurological effects such as blurred vision, fatigue, headache, and vertigo. Epidemiological studies have reported a possible association between 1,3-butadiene exposure and cardiovascular diseases. The Department of Health and Human Services has determined that 1,3-butadiene may reasonably be anticipated to be a carcinogen. This is based on animal studies that found increases in a variety of tumor types from exposure to 1,3-butadiene. Studies on workers are inconclusive because the workers were exposed to other chemicals in addition to 1,3-butadiene.
This proposed rule applies to you if you own or operate an engine test cell/stand which is located at a major source of HAP emissions. An engine test cell/stand is any apparatus used for testing uninstalled stationary or uninstalled mobile (motive) engines. A major source of HAP emissions is a plant site that emits or has the potential to emit any single HAP at a rate of 10 tons (9.07 megagrams) or more per year or any combination of HAP at a rate of 25 tons (22.68 megagrams) or more per year.
Each new or reconstructed engine test cell/stand used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more which is located at a major source of HAP emissions must comply with the requirements in this proposed rule. New or reconstructed test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) are not required to comply with the emission limitation in this proposed rule, but are required to submit an Initial Notification upon startup of the test cells/stands.
New or reconstructed test cells/stands used for testing combustion turbine engines or new or reconstructed test cells/stands used for testing rocket engines are not required to comply with the emission limitation or the recordkeeping or reporting requirements in this proposed rule.
Existing engine test cells/stands that are located at major sources of HAP emissions are not required to comply with the emission limitation or the recordkeeping or reporting requirements in this proposed rule.
This proposed rule also does not apply to engine test cells/stands that are located at area sources of HAP emissions. An area source is any source that is not a major source of HAP emissions.
This proposed rule covers four subcategories of engine test cells/stands located at major source facilities: (1) Cells/stands used for testing internal combustion engines with rated power of 25 hp (19 kW) or more, (2) cells/stands used for testing internal combustion engines with rated power of less than 25 hp, (3) cells/stands used for testing combustion turbine engines, and (4) cells/stands used for testing rocket engines. The rated power criteria for distinguishing between the two internal combustion engine subcategories is based on the largest engine (in terms of rated power) that is tested in the test cell/stand.
The sources of emissions are the exhaust gases from combustion of fuels in the engines being tested in the test cells/stands. Some of the HAP present in the exhaust gases from engine test cells/stands are toluene, benzene, mixed xylenes, and 1,3-butadiene.
As the owner or operator of a new or reconstructed test cell/stand used in whole or in part for testing internal combustion engines with rated power of 25 hp (19 kW) or more and located at a major source of HAP emissions, you must comply with one of the following two emission limitations by [3 YEARS FROM PUBLICATION OF THE FINAL
Finally, as mentioned earlier, new or reconstructed test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW), new or reconstructed test cells/stands used for testing combustion turbine engines, and new or reconstructed test cells/stands used for testing rocket engines are not required to comply with either emission limitation. In addition, neither existing test cells/stands located at major sources of HAP emissions nor new, reconstructed, or existing test cells/stands located at area sources of HAP emissions are required to comply with the emission limitations.
Your initial compliance requirements are different depending on whether you demonstrate compliance with the outlet CO concentration emission limitation or the percent CO reduction emission limitation. If you choose to comply with the outlet CO concentration emission limitation, you must install a CEMS to measure CO and O
If you comply with the percent reduction emission limitation, you must install two CEMS to measure CO and O
Several general continuous compliance requirements apply to engine test cells/stands required to comply with the applicable emission limitation. You are required to comply with the applicable emission limitation at all times, including startup, shutdown, and malfunction of your engine test cell/stand. You must operate and maintain your air pollution control equipment and monitoring equipment according to good air pollution control practices at all times, including startup, shutdown, and malfunction. You must conduct monitoring at all times that the engine test cell/stand is in operation except during periods of malfunction of the monitoring equipment or necessary repairs and quality assurance or control activities, such as calibration drift checks.
To demonstrate continuous compliance with the outlet CO concentration emission limitation, you must calibrate and operate your CEMS according to the requirements in 40 CFR 63.8. You must continuously monitor and record the CO and O
To demonstrate continuous compliance with the percent reduction emission limitation, you must calibrate and operate your CEMS according to the requirements in 40 CFR 63.8. You must continuously monitor and record the CO and O
For both emission limitations, you must also follow Procedure 1 of 40 CFR part 60, appendix F, to verify that the CEMS is working properly over time.
Continuous emission monitoring systems are available which can measure CO emissions accurately at the low concentrations found in the exhaust stream of an engine test cell/stand following an emission control device. Our performance specification for CO CEMS (PS4A) of 40 CFR part 60, appendix A, however, has not been updated recently and does not reflect the performance capabilities of newer systems. We are currently undertaking a review of PS4A of 40 CFR part 60, appendix A for CO CEMS and, in conjunction with this effort, we solicit comments on the performance capabilities of CO CEMS and their ability to measure accurately the low concentrations of CO experienced in the exhaust of an engine test cell/stand following an emission control device.
You must submit all of the applicable notifications as listed in the NESHAP General Provisions (40 CFR part 63, subpart A), including an initial notification, notification of performance evaluation, and a notification of compliance status for each engine test cell/stand required to comply with the emission limitations.
You must submit an initial notification for each new or reconstructed test cell/stand located at a major source of HAP emissions used for testing internal combustion engines with a rated power of less than 25 hp (19 kW).
You must record all of the data necessary to determine if you are in compliance with the applicable emission limitation. Your records must be in a form suitable and readily available for review. You must also keep each record for 5 years following the date of each occurrence, measurement, maintenance, report, or record. Records must remain on site for at least 2 years and then can be maintained off site for the remaining 3 years.
You must submit a compliance report semiannually for each engine test cell/stand required to comply with the applicable emission limitation. This report must contain the company name and address, a statement by a responsible official that the report is accurate, a statement of compliance, or documentation of any deviation from
Engine test cells/stands can be major sources of HAP emissions and, as a result, we listed them as a major source category for regulatory development under section 112 of the CAA. Section 112 of the CAA allows us to establish subcategories within a source category for the purpose of regulation. Consequently, we evaluated several criteria associated with engine test cells/stands which might serve as potential subcategories.
We identified four subcategories of engine test cells/stands located at major source facilities: (1) Test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more, (2) test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW), (3) test cells/stands used for testing combustion turbine engines, and (4) test cells/stands used for testing rocket engines.
Internal combustion engines, which can be classified as reciprocating or rotary, convert thermal energy into mechanical energy. In an internal combustion engine, a combustible fuel-air mixture is intermittently ignited and combusted in a confined space. The force exerted by the expanding gases from this combustion is used to turn a shaft and provide mechanical power.
An internal combustion engine intakes a mixture of fuel and air, the mixture is ignited and combusted, and the combustion gases are exhausted from the engine. This cycle of intake, ignition/combustion, and exhaust is repeated over and over.
The cyclical nature of the combustion process in an internal combustion engine is quite different from the combustion processes in combustion turbine and rocket engines, where the combustion process is more continuous in nature. Therefore, test cells/stands used for testing internal combustion engines are considered a separate subcategory.
Internal combustion engines are used for a wide range of applications, including motor vehicles (automobiles and motorcycles), marine, heavy-duty diesel (trucks and buses), locomotive, and a wide variety of nonroad equipment (agriculture, construction, general industrial, lawn and garden, utility, material handling, electric power generation, and along gas and oil pipelines). Internal combustion engines range in size from a rated power of less than one hp to more than 15,000 hp.
Engines with a rated power of less than 25 hp (19 kW) generally include those used in handheld equipment (chainsaws, string trimmers, and blowers) and lawn and garden equipment. Engines with a rated power of 25 hp (19 kW) or more, on the other hand, generally include those used in automobiles, trucks, motorcycles, all-terrain vehicles, forklifts, generators, compressors, snowmobiles, airport ground-service equipment, marine engines, heavy-duty construction equipment, electric power generation, etc. While not perfect, a rated power of 25 hp (19 kW) generally serves to distinguish between smaller internal combustion engines, which tend to be used in handheld equipment, and larger internal combustion engines, which tend to be used in non-handheld equipment. In addition, internal combustion engines with a rated power of less than 25 hp (19 kW) generally use gasoline as the primary fuel, whereas larger internal combustion engines can use a wide variety of fuels such as gasoline, diesel fuel, natural gas, liquified petroleum gas, sewage (digester) gas, or landfill gases.
These factors suggest that internal combustion engines with a rated power of 25 hp (19 kW) or more should be considered a separate subcategory from internal combustion engines with a rated power of less than 25 hp (19 kW). Indeed, the advance notice of rulemaking for Nonroad Engines and Highway Motorcycles (65 FR 76796, December 7, 2000) and the Nonroad Handheld Spark-Ignition Engines rulemaking (65 FR 24267, April 25, 2000), used a rated power criteria of 25 hp (19 kW) to distinguish between larger engines and smaller engines. Thus, a rated power of 25 hp (19 kW) provides an effective way of dividing internal combustion engines into two subcategories which recognizes the significant differences between larger and smaller engines.
Consequently, test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more and test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) are considered two separate subcategories of test cells/stands used for testing internal combustion engines.
In addition to these two subcategories of engine test cells/stands, we identified test cells/stands used for testing combustion turbine engines as a third subcategory. Combustion turbine engines are fuel-fired devices in which a continuous stream of hot combustion gases passes through and turns a turbine rotor that produces shaft power. Depending on whether or not the heat can be utilized, the hot exhaust gases are either emitted directly to the atmosphere or passed through a heat recovery device which extracts excess heat from the exhaust gases. Applications for these types of engines include aircraft (including turbines, turboprops, turbofans, turbojets, and propfans), other military applications (tanks and ships), auxiliary power units, power and electric generation, pumping gas or other fluids (e.g., pipelines), and pneumatic machinery.
In general, combustion turbine engines have much higher power ratings (e.g., in the range of 500 hp to 240,000 hp or 373 kW to 178,968 kW) and require much larger volumes of air to operate than internal combustion engines. As a result, the volumes of exhaust from test cells/stands used for testing combustion turbine engines are substantially greater than those from test cells/stands used for testing internal combustion engines. A typical jet engine combustion turbine, for example, with a rated power of 4,600 hp (3,500 kW) requires air flows of approximately 125,000 dry standard cubic feet per minute (dscfm), and a large power generation combustion turbine engine with a rated power of 200,000 hp (150 megawatts (MW)) can require air flows of as much as 2 million dscfm, compared to a typical airflow of 500 dscfm for an automobile engine. Also, most combustion turbine engines burn natural gas or jet fuel, while, as mentioned above, the larger internal combustion engines can burn a wide variety of fuels, and the smaller internal combustion engines generally burn gasoline. In addition, separate test cells/stands are used for testing internal combustion engines and combustion turbine engines. Consequently, test cells/stands used for testing combustion turbine engines are considered a separate subcategory.
Lastly, we identified test cells/stands used for testing rocket engines as a fourth subcategory. Rocket engines are used to launch or propel rockets and missiles through the air or into space. The working fluid expelled from a rocket-propelled vehicle is usually a hot, burning gas resulting from the combustion of chemical propellants. The hot reaction-product gases are ejected at a high velocity to impart momentum to the rocket vehicle system. Propellants are of several different types, classified according to their chemical and physical properties and the rocket engine type. Liquid
Not only are the fuels used in rocket engines quite different from other engine subcategories, but the volumetric energy release associated with these fuels are orders of magnitude higher than those used in either combustion turbine engines or internal combustion engines. This produces much greater temperatures and pressures in the combustion chambers and releases a much greater volume of exhaust. Consequently, test cells/stands used for testing rocket engines are considered a separate subcategory.
This proposed rule does not apply to engine test cells/stands located at area sources of HAP emissions. In developing our Urban Air Toxics Strategy (64 FR 38705, July 19, 1999), we identified area sources we believe warrant regulation to protect the environment and the public health and to satisfy the statutory requirements in section 112 of the CAA pertaining to area sources. Engine test cells/stands located at area sources were not included on that list and as a result, this proposed rule does not apply to engine test cells/stands located at area sources.
This proposed rule applies to each affected source, which is defined as any existing, new, or reconstructed engine test cell/stand used for testing uninstalled stationary or uninstalled mobile (motive) engines that is located at a major source of HAP emissions.
To determine the basis and level of the proposed emission limitations, we relied primarily on two sources: a MACT database and HAP emissions test reports. The MACT database is a summary of the information collected through an information collection request (ICR) for engine test cells/stands located at major and synthetic minor sources of HAP emissions. The HAP emissions test reports were collected from engine test facilities.
As established in section 112 of the CAA, MACT standards must be no less stringent than the MACT floor, which for existing sources is the average emission limitation achieved by the best performing 12 percent of existing sources. For new sources, the MACT floor is defined as the emission control that is achieved in practice by the best controlled similar source.
To determine MACT for test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more, we used data from the MACT database. The database contains information on approximately 1,093 test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more from major source and synthetic minor facilities. Since this number includes 1,055 test cells/stands from major source facilities and we estimate the total number of test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more located at major source facilities to be about 1,995, we estimate that the MACT database represents approximately 52 percent of test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more located at major source facilities in the United States. We consider the information contained in the MACT database to be representative of all test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more located at major source facilities.
Another approach we considered to identify a MACT floor was to review State regulations and permits. We could find no State regulations which limit HAP emissions from engine test cells/stands. Similarly, we found no State permits which limit HAP emissions from engine test cells/stands. Therefore, we concluded that State regulations or permits could not be used to identify a MACT floor.
We also considered whether the use of good operating practices and work practice standards might identify a MACT floor. There are no references, however, to “good operating practices” or “work practice standards” in the MACT database and a review of the general operation of engine test cells/stands failed to identify any good operating practices which might reduce HAP emissions. As a result, we concluded that neither good operating practices nor work practice standards can be used to identify a MACT floor for engine test cells/stands.
In addition to considering whether the use of add-on emission control technologies, State regulations or permits, or good operating practices might identify a MACT floor, we also considered whether other alternatives, such as the use of a specific fuel which might result in lower HAP emissions (e.g., switching from diesel fuel to gasoline) might identify a MACT floor. The purpose of engine testing, however, is to simulate the operation of a specific type of engine in a certain environment. This may be to confirm that the engine was assembled correctly and will function as intended. In other cases, engine testing may be conducted to measure or test the durability or performance of an engine, a new component within an engine, or a new engine design, all within the context of research and development.
The fuel burned in the engine during the test is an integral part of the test itself. One could not test the performance and durability of a new diesel engine design by burning gasoline in the engine, for example, nor could one test the performance and durability of a new gasoline engine design by burning diesel fuel in the engine. Use of a specific fuel to reduce HAP emissions, therefore, is not a viable emission control alternative for engine testing; indeed, such an alternative would defeat the very purpose of engine testing. For this reason, we concluded that use of a specific fuel cannot be used to identify a MACT floor for engine test cells/stands.
Consequently, the average of the best performing 12 percent of existing sources is no reduction in HAP emissions. As a result, we concluded that the MACT floor for existing test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more located at major sources is no reduction in HAP emissions.
To determine MACT for existing test cells/stands used for testing internal
We considered the costs, the reduction in HAP emissions, and the incremental cost per ton of HAP reduced associated with the use of oxidation emission control devices. Those analyses are shown in a memorandum in Docket A-98-29, titled “Control Costs.” In addition, we considered the non-air quality health and environmental impacts and energy requirements associated with this regulatory option, such as potential water pollution and solid waste disposal impacts and the increased energy consumption. Although we considered the non-air quality health and environmental impacts and energy requirements negligible, we concluded that costs associated with this regulatory option were unreasonable in light of the small reductions in HAP emissions that would result.
We were unable to identify any other feasible regulatory options. Thus, we concluded that MACT for existing sources is the MACT floor. Consequently, we concluded that MACT for existing test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more located at major source facilities is no reduction in HAP emissions.
We also considered whether the alternatives mentioned above, such as reviewing State permits and regulations, good operating practices and work practice standards, and using different fuels, which we considered to identify a MACT floor for existing test cells/stands, might identify a MACT floor for new engine test cells/stands. However, we concluded that just as none of those alternatives could be used to identify a MACT floor for existing engine test cells/stands, neither could they be used to identify a MACT floor for new engine test cells/stands.
Therefore, we concluded that the HAP emission limitation associated with the use of oxidation emission control devices is the MACT floor for new test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more located at major source facilities.
To determine MACT for new test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more, we considered options more stringent than the MACT floor, such as good operating practices and work practice standards, fuel switching, and the review of State permits and regulations to determine if other methods of control were being used. We are unaware of any option, including the alternatives just mentioned, which could reduce HAP emissions from a test cell/stand used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more beyond that obtained through the use of an oxidation emission control device.
Consequently, we concluded that MACT for new sources is the MACT floor. As a result, MACT for new test cells/stands used for testing internal combustion engines with a rated power of 25 hp (19 kW) or more is the HAP emission level associated with the use of oxidation emission control devices.
After establishing this basis for MACT, we determined the achievable emission limitation based on the data available from HAP emission test reports of the performance of oxidation emission control devices operating on engine test cells/stands. We examined the emission control efficiencies achieved by oxidation emission control devices and concluded that CO emission reductions are a good surrogate for HAP emissions reductions. In addition, we concluded that oxidation emission control devices can reduce CO emissions to 5 ppmvd or less, corrected to 15 percent O
To determine MACT for test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW), we used data from the MACT database. The database contains information on 307 test cells/stands used exclusively for testing internal combustion engines with a rated power of less than 25 hp (19 kW) from major source and synthetic minor source facilities. Since this number includes 219 test cells/stands from major source facilities, and we estimate the number of test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) located at major source facilities to be about 403, we estimate this database represents about 54 percent of test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) located at major source facilities in the United States. We consider the information contained in the MACT database to be representative of all test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) located at major source facilities.
Another approach we considered to identify a MACT floor was to review State regulations and permits. We could find no State regulations which limit HAP emissions from engine test cells/stands. Similarly, we found no State permits which limit HAP emissions from engine test cells/stands. Therefore, we concluded that State regulations and permits could not be used to identify a MACT floor.
We also considered whether the use of good operating practices and work practice standards might identify a MACT floor. There are no references, however, to “good operating practices” or “work practice standards” in the MACT database, and a review of the general operation of engine test cells/stands failed to identify any good operating practices which might reduce HAP emissions. As a result, we concluded that neither good operating practices nor work practice standards
In addition to considering whether the use of add-on emission control technologies, State regulations and permits, or good operating practices might identify a MACT floor, we also considered whether other alternatives, such as the use of a specific fuel which might result in lower HAP emissions (e.g., switching from diesel fuel to gasoline) might identify a MACT floor. The purpose of engine testing, however, is to simulate the operation of a specific type of engine in a certain environment, which could be to confirm that the engine was assembled correctly and will function as intended. In other cases, engine testing may be conducted to measure or test the durability or performance of an engine, a new component within an engine, or a new engine design, all within the context of research and development.
The fuel burned in the engine during the test is an integral part of the test itself. One could not test the performance and durability of a new diesel engine design by burning gasoline in the engine, for example, nor could one test the performance and durability of a new gasoline engine design by burning diesel fuel in the engine. Use of a specific fuel to reduce HAP emissions, therefore, is not a viable emission control alternative for engine testing; indeed, such an alternative would defeat the very purpose of engine testing. For that reason, we concluded that use of a specific fuel cannot be used to identify a MACT floor for engine test cells/stands.
Consequently, the average of the best performing 12 percent of existing sources is no reduction in HAP emissions. As a result, we concluded that the MACT floor for existing test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) located at major source facilities is no reduction in HAP emissions.
To determine MACT for existing test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) located at major source facilities, we evaluated regulatory options more stringent than the MACT floor. We considered the use of oxidation emission control devices as an emission control technology which could serve as the basis for MACT for existing sources. We also reconsidered alternatives, such as good operating practices and work practice standards, fuel switching, and the review of State permits and regulations, and again concluded they are not viable options for MACT. We considered the costs, the reduction in HAP emissions, and the incremental cost per ton of HAP reduced for this regulatory option. Those analyses are shown in a memorandum in Docket A-98-29, titled “Control Costs.” In addition, we considered the non-air quality health and environmental impacts and energy requirements associated with this regulatory option, such as potential water pollution and solid waste disposal impacts and the increased energy consumption. Although we considered the non-air quality health and environmental impacts and energy requirements negligible, we concluded that costs associated with this regulatory option were unreasonable in light of the small reductions in HAP emissions that would result.
We were unable to identify any other feasible regulatory options. Thus, we concluded that MACT for existing sources is the MACT floor. Consequently, we concluded that MACT for existing test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) located at major source facilities is no reduction in HAP emissions.
In addition to considering whether the use of add-on emission control technologies, such as oxidation emission control systems, might identify a MACT floor, we also considered whether any of the alternatives outlined above (e.g., good operating practices and work practice standards, fuel switching, and the review of State permits and regulations), which we considered to identify a MACT floor for existing engine test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW), might identify a MACT floor for new engine test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW). Again, we concluded that none of the alternatives could be used to identify a MACT floor for existing engine test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW).
Therefore, we concluded that the MACT floor for new test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW) located at major source facilities is no reduction in HAP emissions.
To determine MACT for new test cells/stands used for testing internal combustion engines with a rated power of less than 25 hp (19 kW), we evaluated regulatory options more stringent than the MACT floor. We considered the use of oxidation emission control devices as an emission control technology which could serve as the basis for MACT for new sources. We also reconsidered the alternatives mentioned above (
To determine MACT for test cells/stands used for testing combustion turbine engines, we used data from the MACT database. The database contains information on 287 test cells/stands used for testing combustion turbine engines from major source and synthetic minor source facilities. Since this number includes 252 test cells/stands from major source facilities, and we estimate the number of test cells/stands used for testing combustion turbine engines located at major source facilities to be about 328, we estimate this database represents about 77 percent of
In addition to considering whether the use of add-on emission control technologies, such as oxidation emission control systems, might identify a MACT floor, we also considered whether any of the alternatives mentioned above (
Consequently, the average of the best performing 12 percent of existing sources is no reduction in HAP emissions. As a result, we concluded that the MACT floor for existing test cells/stands used for testing combustion turbine engines located at major source facilities is no reduction in HAP emissions.
To determine MACT for existing test cells/stands used for testing combustion turbine engines located at major source facilities, we evaluated regulatory options more stringent than the MACT floor. The only control technology currently proven to reduce HAP emissions from combustion turbine engines is an oxidation catalyst emission control device, such as a CO oxidation catalyst. These control devices are used to reduce CO emissions and are currently installed on several stationary combustion turbine engines. As a result, we concluded they could be used on test cells/stands used for testing combustion turbine engines.
We also reconsidered the same alternatives that we looked at for identifying a MACT floor (
In addition to considering whether the use of add-on emission control technologies might identify a MACT floor, we also considered whether any of the alternatives outlined above (
Therefore, we concluded that the MACT floor for new test cells/stands used for testing combustion turbine engines located at major source facilities is no reduction in HAP emissions.
To determine MACT for new test cells/stands used for testing combustion turbine engines, we evaluated regulatory options more stringent than the MACT floor. We again considered the use of an oxidation catalyst emission control device as an emission control technology which could serve as the basis for MACT for new sources. We also reconsidered the alternatives mentioned above (
To determine MACT for test cells/stands used for testing rocket engines, we used data from the MACT database. The database contains information on 99 test cells/stands used for testing rocket engines from major source and synthetic minor source facilities. Since this number includes 75 test cells/stands from major source facilities and we estimate the number of test cells/stands used for testing rocket engines located at major source facilities to be about 100, we estimate this database represents about 75 percent of test cells/stands used for testing rocket engines located at major source facilities in the United States. We consider the information contained in the MACT database to be representative of all test cells/stands used for testing rocket engines located at major source facilities.
Another approach we considered to identify a MACT floor was to review State regulations and permits. We could find no State regulations which limit HAP emissions from engine test cells/stands. Similarly, we found no State permits which limit HAP emissions from engine test cells/stands. Therefore, we concluded that State regulations and permits could not be used to identify a MACT floor.
We also considered whether the use of good operating practices and work practice standards might identify a MACT floor. There are no references, however, to “good operating practices” or “work practice standards” in the MACT database, and a review of the general operation of engine test cells/stands failed to identify any good operating practices which might reduce HAP emissions. As a result, we concluded that neither good operating practices nor work practice standards can be used to identify a MACT floor for engine test cells/stands.
In addition to considering whether the use of add-on emission control technologies, State regulations and permits, and good operating practices might identify a MACT floor, we also considered whether other alternatives such as the use of a specific fuel which might result in lower HAP emissions might identify a MACT floor. The purpose of engine testing, however, is to simulate the operation of a specific type of engine in a certain environment, which could be to confirm that the engine was assembled correctly and will function as intended. In other cases, engine testing may be conducted to measure or test the durability or performance of an engine, a new component within an engine, or a new engine design, all within the context of research and development.
The fuel burned in the engine during the test is an integral part of the test itself. One could not test the performance and durability of a rocket engine design by burning a fuel other than the one it is designed to use. Use of a specific fuel to reduce HAP emissions, therefore, is not a viable emission control alternative for rocket engine testing; indeed, such an alternative would defeat the very purpose of the testing. For that reason, we concluded that use of a specific fuel cannot be used to identify a MACT floor for engine cells/stands used for testing rocket engines.
Consequently, the average of the best performing 12 percent of existing sources is no reduction in HAP emissions. As a result, we concluded that the MACT floor for existing test cells/stands used for testing rocket engines located at major source facilities is no reduction in HAP emissions.
To determine MACT for existing test cells/stands used for testing rocket engines located at major source facilities, we attempted to identify regulatory options more stringent than the MACT floor. We are unaware of any emission control technology which could be used to reduce HAP emissions from a test cell/stand used for testing rocket engines.
We also reconsidered the alternatives mentioned above, which we considered for identifying a MACT floor (
A number of characteristics of the exhaust from rocket engine testing (extremely high temperatures, extremely high volumetric flow rates, and very short test durations) and the infrequent timing of testing raise a number of unique problems that must be resolved for an emission control device to be considered a viable option for reducing HAP emissions from test cells/stands used for testing rocket engines. Consequently, we could identify no candidate MACT technologies for analysis. Without a viable emission control device, we are unable to estimate the potential costs associated with its use. Similarly, we are unable to estimate the potential reduction in HAP emissions which might result from the use of such a device.
Thus, we concluded that MACT for existing sources is the MACT floor. Consequently, MACT for existing test cells/stands used for testing rocket engines is no reduction in HAP emissions.
In addition to considering whether the use of add-on emission control technologies might identify a MACT floor, we also considered whether any of the alternatives outlined above (
Therefore, we concluded that the MACT floor for new test cells/stands used for testing rocket engines located at major source facilities is no reduction in HAP emissions.
We also considered regulatory options more stringent than the MACT floor. As explained in the previous paragraphs, we were unable to identify any emission control technology which could be used to reduce HAP emissions from a test cell/stand used for testing rocket engines. Thus, we concluded that MACT for new sources is the MACT floor, and we concluded that MACT for new test cells/stands used for testing rocket engines located at major source facilities is no reduction in HAP emissions.
The HAP emissions test reports which serve as the basis for the MACT emission limitations did not measure specific HAP, such as toluene, benzene, mixed xylenes, or 1,3-butadiene, etc. They measured CO emissions and, in most cases, they also measured total hydrocarbon (THC) emissions. In one case, emissions of non-methane organics (NMO) were also measured.
The HAP emitted from engine test cells/stands are hydrocarbons, as well as organics. As a result, if HAP emissions decrease, emissions of THC and NMO will decrease as well. Consequently, the measurements of THC or NMO emissions serve as surrogate measurements of HAP emissions, and we assessed the HAP emissions reduction performance of the oxidation emission control devices in terms of reductions in THC or NMO emissions.
In addition, the data from these HAP emissions test reports also demonstrate a direct relationship between emissions of CO and THC or NMO. If emissions of THC or NMO are reduced, CO emissions are also reduced. As a result, we concluded that CO emissions could also serve as a surrogate for HAP emissions, and we also assessed the HAP emissions reduction performance of the oxidation emission control devices in terms of reductions in CO emissions.
We considered three alternatives in terms of the format for the MACT emission limitations. We could have proposed the emission limitation in terms of THC, NMO, or CO emissions; however, there was only one emission test report available which measured NMO emissions, so we rejected the alternative of an emission limitation in terms of NMO emissions in favor of an emission limitation in terms of either THC or CO emissions.
As outlined earlier, we are proposing a MACT emission limitation in terms of CO emissions. We could have proposed an emission limitation in terms of THC emissions, but chose CO emissions primarily because the costs for CO CEMS are somewhat less than those for THC CEMS. However, since these costs are within the same range, some may prefer a MACT emission limitation in terms of THC, or they may prefer a choice of either the THC or CO emission limitation.
As a result, we specifically request public comment in this area. If we were to adopt a THC MACT emission limitation in place of the proposed CO emission limitation, or if we were to adopt a THC emission limitation in addition to the proposed CO emission limitation and allow affected sources to comply with either the THC or the CO emission limitation, based on the HAP emissions test reports mentioned above, we anticipate that the corresponding THC MACT emission limitation would be: An outlet THC concentration of 3 ppmvd or less, expressed as methane and corrected to 15 percent O
We recognize that this proposal will be of limited significance because it would require emission reductions from new major sources for only one of the four subcategories identified and that, standing alone, these new sources will likely have low HAP emissions. We nonetheless believe promulgation of standards for this source category is compelled by the Act. Section 112(a) defines “major source” as “any stationary source or group of stationary sources located within a contiguous area and under common control, that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” Thus, sources are considered part of a major source when they are collocated with other sources at facilities that in combination have the potential to emit over the major source thresholds. Because the statute is clear that such collocated sources must be considered major, we believe it is also clear in the statute that we must list categories that include such sources and promulgate standards for those categories pursuant to section 112(d).
In the interest of providing as much compliance flexibility as possible to these sources, we request comments on the possibility of averaging emissions across processes throughout the entire major source and allowing reductions from emission points covered by other MACT standards, within the facility, to be counted towards the emission limitations proposed in this action. Comments should include ideas on how such averaging scheme would work and be implemented. This type of provision, if implemented, could allow flexibility for the affected facility to determine an effective emission control strategy while, at the same time, achieving the emission reductions intended by this proposal.
We are proposing the use of CO and O
For sources complying with either the outlet CO concentration emission limitation or the CO percent reduction emission limitation, an initial performance evaluation of the CEMS is required. This performance evaluation will certify the performance of the CO and O
As mentioned above, we are proposing the use of CEMS to demonstrate compliance with the applicable emission limitation. If you must comply with the outlet CO concentration emission limitation or the CO percent reduction emission limitation, continuous compliance with the limitation is required at all times. We are proposing the use of Procedure 1 in 40 CFR part 60, appendix F, to ensure that the performance of the CEMS does not deteriorate over time.
We consider the use of CEMS the best means of ensuring continuous compliance with the emission limitation, and alternatives to CEMS are considered only if we consider the use of a CEMS technically or economically infeasible. For sources complying with either of the emission limitations, we believe requiring a CEMS is feasible because the costs of CO and O
Continuous emission monitoring systems are available which can measure CO emissions at the low concentrations found in the exhaust from an oxidation emission control device operating on an engine test cell/stand. Performance Specification 4A for CO CEMS has not been updated recently and does not reflect the performance capabilities of these CEMS.
As a result, we solicit comments on the performance capabilities of state-of-the-art CO CEMS and their ability to accurately measure the low concentrations of CO experienced in the exhaust of an engine test cell/stand. We also solicit comments with specific recommendations on the changes we should make to our performance specification for CO CEMS (PS4A) to ensure the installation and use of CEMS which can be used to determine compliance of engine test cells/stands with the proposed emission limitation. In addition, we solicit comments on the availability of instruments that can be used to measure the low CO concentrations emitted by some engine test cells/stands, and that are capable of meeting the recommended changes to our performance specifications for CO CEMS.
Today's proposal specifies the use of Method 3A or 3B of 40 CFR part 60, appendix A, as the reference method to certify the performance of O
As a result, we solicit comments with specific recommendations on the changes we should make to Method 10 and the performance criteria in addenda A, as they are related to the low CO levels emitted by some engine test cells/stands. If you recommend changes to Method 10 or the performance criteria, we also solicit comments on the availability of instruments that can be used to measure the low CO concentrations emitted by some engine test cells/stands, and that are capable of meeting those changes, while also meeting the remaining addenda A performance criteria.
The proposed notification, recordkeeping, and reporting requirements are based on the NESHAP General Provisions of 40 CFR part 63.
This proposed rule will reduce HAP emissions in the 5th year following promulgation by an estimated 135 tons (148.5 megagrams).
The total annualized cost of this proposed rule in the 5th year following promulgation is estimated to be about $7.4 million. This cost includes recordkeeping and reporting costs, CEMS costs, emission control device costs, and operating, maintenance, and annualized capital investment costs for emission control devices and CEMS.
This proposed rule is not expected to affect any of the existing engine test cells/stands located at major source facilities which test internal combustion engines, combustion turbine engines, or rocket engines.
We estimate that 148 new engine test cells/stands will be constructed in the next 5 years at engine research and development or production facilities which are major sources of HAP emissions. These new engine test cells/stands will be required to comply with the proposed rule.
We anticipate that 84 of these new engine test cells/stands will be built at auto, tractor, and diesel engine manufacturing facilities, and that 64 of these new engine test cells/stands will be built at military facilities.
The auto, tractor, and diesel engine manufacturing firms that are expected to construct new engine test cells/stands are large multi-national firms; thus, the cost of compliance is insignificant in comparison to firm revenues. The total sales for the potentially affected firms range from $6.5 billion to more than $184 billion. Thus, the impact on affected firms ranges from 0.0007 to 0.015 percent of corporate revenues. Likewise, the cost of compliance for military facilities that may be affected is insignificant when compared to selected facilities expenditures. The compliance costs account for 0.07 percent of facility expenditures on average, and 0.001 percent of the 2001 budget for U.S. defense. Therefore, the economic impacts associated with this proposed rule are considered negligible.
We do not expect any significant wastewater, solid waste, or energy impacts resulting from this proposed rule. Energy impacts associated with this proposed rule would be due to additional energy consumption that would be required by installing and operating control equipment. The only energy requirement for the operation of the control technologies is a very small increase in fuel consumption resulting from back pressure caused by the emission control system.
We are requesting comments on this proposed rule. We request comments on all aspects of this proposed rule, such as the proposed emission limitation, recordkeeping and monitoring requirements, as well as aspects you may feel have not been addressed.
We also request comments on the performance capabilities of state-of-the-art CO CEMS and their ability to measure the low concentrations of CO in the exhaust of engine test cells/stands.
We also request comments with recommendations on changes commenters believe we should make to our performance specifications for CO CEMS (PS4A) of 40 CFR part 60, appendix B, to Method 10 of 40 CFR part 60, appendix A, and the performance criteria in addenda A to Method 10 that will allow the measurement of low CO concentrations emitted by some engine test cells/stands. In addition, we request comments from these commenters on the availability of instruments that can be used to measure the low CO concentrations emitted by some engine test cells/stands, and that are capable of meeting the changes they recommend to our performance specification for CO CEMS (PS4A) of 40 CFR part 60, appendix B, Method 10 of 40 CFR part 60, appendix A, and addendum A to Method 10.
We also solicit comments on whether we should adopt a MACT emission limitation in terms of THC emissions rather than CO emissions. In addition, we solicit comments on whether we should adopt both THC and CO MACT emission limitations and allow affected sources to comply with either the THC or the CO MACT emission limitation.
We request any HAP emissions test data available from engine test cells/stands equipped with an oxidation emission control device or other equivalent emission control system; however, if you submit HAP emissions test data, please submit the full and complete emission test report with these data. Include the sections describing the specific type of engine and its operation during the test, discussion of the test methods employed and the Quality Assurance/Quality Control procedures followed, the raw data sheets, and all related calculations. The emissions data submitted without this information is not useful.
Finally, in the interest of providing as much compliance flexibility as possible to major sources, we request comments on the possibility of averaging emissions across processes throughout the entire major source and allowing reductions from emission points covered by other MACT standards, within the facility, to be counted towards the emission limitations proposed in this action. Comments should include ideas on how such averaging scheme would work and be implemented. This type of provision, if promulgated, could allow flexibility for the affected facility to determine an effective emission control strategy while, at the same time, achieving the emission reductions intended by this proposal.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether a 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 obligation 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, we have determined that this rule is not a “significant regulatory action” because it does not have an annual effect on the economy of over $100 million. As such, this action was not submitted to OMB for review.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.
We are required by section 112 of the CAA to establish the standards in this proposed rule. This proposed rule primarily affects private industry and does not impose significant economic costs on State or local governments. This proposed rule does not include an express provision preempting State or local regulations. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. We know of one company that reported operating engine test cells/stands that are owned by an Indian tribal government. However, these test cells/stands are used for testing rocket engines. Although test cells/stands used for testing rocket engines are covered by the proposed rule, test cells/stands used for testing rocket engines are not required to meet any emission limitation, reporting, or recordkeeping requirements. Thus, Executive Order 13175 does not apply to this proposed rule.
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 we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we 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.
We interpret 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. This proposed rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks.
This proposed rule is not subject to Executive Order 13211, (66 FR 28355, May 22, 2001) because it is not a significant regulatory action 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, we generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may
We have determined that this proposed rule does 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. Accordingly, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.
In addition, we have determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, today's proposed rule is 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 Procedures 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 today's proposed rule on small entities, small entity is defined as: (1) A small business whose parent company has either fewer than 500 employees if the business is involved in testing marine engines, or fewer than 1,000 employees if the business is involved in the testing of other types of engines; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
The requirements of this proposed rule apply only to major sources, which are defined as facilities that emit more than 10 tons per year of any one HAP, or more than 25 tons per year of a combination of HAP. According to our analyses, none of the identified major sources met the definition of a small business stated above. Therefore, this proposed rule will not impose any requirements on small entities. Pursuant to the provisions of 5 U.S.C. 605(b), we hereby certify that the proposed NESHAP, if promulgated, will not have a significant economic impact on a substantial number of small entities.
In 1998, we sent information collection requests (ICR) to over 100 companies representing over 300 individual facilities. The ICR requested information on HAP emissions from engine test cells/stands and on the number of employees of the parent company. Using that information, we determined that there are no major sources that are also small businesses.
In addition to the analyses of ICR data, we held several meetings with companies that operate engine testing facilities to inform them of the progress and development of the proposed rule. We also held a meeting on April 11, 2001 with the National Marine Manufacturers Association (NMMA), which represents the small businesses that had previously expressed concerns about the possible impacts of this proposed rule. That meeting helped clarify to NMMA and its member companies what type of facilities might be subject to this proposed rule. The meeting was followed up with phone conversations with NMMA and some of its member companies in order to obtain more information and to determine if any of the small entities emitted enough HAP to be considered a major source. Again, we concluded after the outreach activities that none of the small marine engine manufacturing businesses represented by NMMA would be subject to this proposed rule since they do not emit enough HAP to be considered major sources.
Although this proposed rule is not expected to regulate small entities, we have tried to reduce the impact of this proposed rule on all sources. In this proposed rule, we are applying the minimum level of control and the minimum level of monitoring, recordkeeping, and reporting to affected sources allowed by the CAA. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501
The information requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to Agency policies set forth in 40 CFR part 2, subpart B.
The proposed rule requires maintenance inspections of the control devices but does not require any notifications or reports beyond those required by the General Provisions. The recordkeeping requirements involve only the specific information needed to determine compliance.
The annual monitoring, reporting, and recordkeeping burden for this collection (averaged over the first 5 years after the effective date of the standards) is estimated to be 9,600 labor hours per year at a total annual cost of $440,800. This estimate includes a one-time (initial) CEMS performance evaluation, annualized capital monitoring equipment costs, semiannual compliance reports, maintenance inspections, notifications, and recordkeeping. Total annual costs associated with the new source control and monitoring requirements over the period of the ICR are estimated at $7.4 million.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of
An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for our regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Ave., NW, Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW, Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR between 30 and 60 days after May 14, 2002, a comment to OMB is best assured of having its full effect if OMB receives it by June 13, 2002. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) 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 an agency does not use available and applicable voluntary consensus standards.
This proposed rulemaking involves technical standards. We propose to use EPA Methods 3A, 3B, 10, 10B of 40 CFR part 60, appendix A, and PS3 and PS4A of 40 CFR part 60, appendix B. Consistent with the NTTAA, we searched for voluntary consensus standards which could be used in lieu of these methods/performance specifications. No applicable voluntary consensus standards were identified for EPA Method 10B and PS3 and PS4A.
One voluntary consensus standard was identified as an acceptable alternative to EPA Methods 3A and 10. The voluntary consensus standard ASTM D6522-00, “Standard Test Method for the Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers and Process Heaters Using Portable Analyzers” is an acceptable alternative to EPA Methods 3A and 10 for identifying oxygen and carbon monoxide concentrations, respectively, for this proposed rule when the fuel used during testing is natural gas.
Our search for emissions measurement procedures identified seven other voluntary consensus standards. Six of these seven standards identified for measuring emissions of the HAP or surrogates subject to emission standards in the proposed rule, however, were impractical alternatives to EPA test methods/performance specifications for the purposes of this proposed rule. Therefore, for the reason discussed below, we do not intend to adopt these voluntary consensus standards.
The standard, ASTM D3162 (1994) “Standard Test Method for Carbon Monoxide in the Atmosphere (Continuous Measurement by Nondispersive Infrared (NDIR) Spectrometry),” is impractical as an alternative to EPA Method 10 in this proposed rulemaking because this ASTM standard, which is stated to be applicable in the range of 0.5-100 ppm CO, does not cover the range of EPA Method 10 (20-1000 ppm CO) at the upper end (but states that it has a lower limit of sensitivity). Also, ASTM D3162 does not provide a procedure to remove carbon dioxide interference. Therefore, this ASTM standard is not appropriate for combustion sources. In terms of NDIR instrument performance specifications, ASTM D3162 has much higher maximum allowable rise and fall times (5 minutes) than EPA Method 10 (which has 30 seconds).
The following five voluntary consensus standards are impractical alternatives to EPA test methods for the purposes of this proposed rule because they are too general, too broad, or not sufficiently detailed to assure compliance with EPA regulatory requirements: ASTM D3154-91 (1995), “Standard Method for Average Velocity in a Duct (Pitot Tube Method),” for EPA Method 3B; ASTM D5835-95, “Standard Practice for Sampling Stationary Source Emissions, for Automated Determination of Gas Concentration,” for EPA Methods 3A and 10; ISO 10396:1993, “Stationary Source Emissions: Sampling for the Automated Determination of Gas Concentrations,” for EPA Methods 3A and 10; CAN/CSA Z223.2-M86(1986), “Method for the Continuous Measurement of Oxygen, Carbon Dioxide, Carbon Monoxide, Sulphur Dioxide, and Oxides of Nitrogen in Enclosed Combustion Flue Gas Streams,” for EPA Methods 3A and 10; and CAN/CSA Z223.21-M1978, “Method for the Measurement of Carbon Monoxide: 3—Method of Analysis by Non-Dispersive Infrared Spectrometry,” for EPA Method 10.
The seventh voluntary consensus standard identified in this search for EPA Methods 3A and 10, ISO/DIS 12039, “Stationary Source Emissions—Determination of Carbon Monoxide, Carbon Dioxide, and Oxygen—Automated Methods,” was not available at the time the review was conducted for the purposes of this proposed rulemaking because the method was under development by a voluntary consensus body. While we are not proposing to include this voluntary consensus standard in today's proposal, we will consider it when this voluntary consensus standard is final.
We invite comment on the compliance demonstration requirements included in the proposed rule and specifically solicit comment on potentially applicable voluntary consensus standards. Commenters should explain, however, why this proposed rule should adopt these voluntary consensus standards in lieu of or in addition to EPA's methods or performance specifications. Emission test methods and performance specifications submitted for evaluation should be accompanied with a basis for the recommendation, including method validation data and the procedure used to validate the candidate method (if a method other than Method 301, 40 CFR part 63, appendix A, was used).
Sections 63.9310 and 63.9325 to subpart PPPPP lists the testing methods/performance specifications included in the proposed rule. Under § 63.8 of subpart A of the General Provisions, a source may apply to EPA for permission
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, title 40, chapter I, part 63 of the Code of the Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 63 continues to read as follows:
42 U.S.C. 7401,
2. Part 63 is amended by adding subpart PPPPP to read as follows:
Subpart PPPPP establishes national emission standards for hazardous air pollutants (NESHAP) for engine test cells/stands located at major sources of hazardous air pollutants (HAP) emissions. This subpart also establishes requirements to demonstrate initial and continuous compliance with the emission limitations contained in this NESHAP.
You are subject to this subpart if you own or operate an engine test cell/stand that is located at a major source of HAP emissions.
(a) An engine test cell/stand is any apparatus used for testing uninstalled stationary or uninstalled mobile (motive) engines.
(b) A major source of HAP emissions is a plant site that emits or has the potential to emit any single HAP at a rate of 10 tons (9.07 megagrams) or more per year or any combination of HAP at a rate of 25 tons (22.68 megagrams) or more per year.
This subpart applies to each affected source.
(a)
(1)
(2)
(3)
(b) Existing engine test cells/stands do not have to meet the requirements of this subpart and of subpart A of this part.
(c) A new or reconstructed engine test cell/stand located at a major source which is used exclusively for testing internal combustion engines with a rated power of less than 25 horsepower (hp) (19 kilowatts (kW)) does not have to meet the requirements of this subpart and of subpart A of this part except for the initial notification requirements of § 63.9345(b).
(d) A new or reconstructed engine test cell/stand located at a major source which is used exclusively for testing combustion turbine engines or which is used exclusively for testing rocket engines does not have to meet the requirements of this subpart and of subpart A of this part.
(a)
(1) If you start up your new or reconstructed engine test cell/stand before [DATE THE FINAL RULE IS PUBLISHED IN THE
(2) If you start up your new or reconstructed engine test cell/stand on or after [DATE THE FINAL RULE IS PUBLISHED IN THE
(b)
(c) You must meet the notification requirements in § 63.9345 according to the schedule in § 63.9345 and in subpart A of this part.
For each new or reconstructed test cell/stand which is used in whole or in part for testing internal combustion engines with a rated power of 25 hp (19 kW) or more and which is located at a major source, you must comply with one of the two emission limitations in Table 1 of this subpart.
(a) You must be in compliance with the emission limitation which applies to you at all times, including startup, shutdown, or malfunction of your engine test cell/stand.
(b) If you must comply with an emission limitation, you must operate and maintain your engine test cell/stand, air pollution control equipment, and monitoring equipment in a manner consistent with good air pollution control practices for minimizing emissions at all times.
You must conduct the initial compliance demonstrations that apply to you in Table 2 of this subpart within 180 calendar days after the compliance date that is specified for your engine test cell/stand in § 63.9295 and according to the provisions in § 63.7(a)(2).
(a) You must conduct each initial compliance demonstration that applies to you in Table 2 of this subpart.
(b) You must conduct a performance evaluation of each continuous emissions monitor system (CEMS) according to the requirements in § 63.8 and according to the applicable Performance Specification (PS) of 40 CFR part 60, appendix B (PS3 or PS4A).
(c) If you chose to comply with the carbon monoxide (CO) concentration emission limitation, the initial demonstration of compliance consists of the first 4-hour rolling average CO concentration recorded after completion of the CEMS performance evaluation. You must correct the CO concentration at the outlet of the engine test cell/stand or the emission control device to a dry basis and to 15 percent oxygen (O
(d) If you chose to comply with the CO percent reduction emission limitation, the initial demonstration of compliance consists of the first 4-hour rolling average percent reduction in CO recorded after completion of the performance evaluation of the CEMS. You must complete the actions described in paragraphs (d)(1) through (2) of this section.
(1) Correct the CO concentrations at the inlet and outlet of the emission control device to a dry basis and to 15 percent O
(2) Calculate the percent reduction in CO using this Equation 2:
(a) To comply with the CO concentration emission limitation, you must install, operate, and maintain a CEMS to monitor CO and O
(b) To comply with the CO percent reduction emission limitation, you must install, operate, and maintain a CEMS to monitor CO and O
(c) To comply with either emission limitation, the CEMS must be installed and operated according to the requirements described in paragraphs (c)(1) through (4) of this section.
(1) You must install, operate, and maintain each CEMS according to the applicable PS of 40 CFR part 60, appendix B (PS3 or PS4A).
(2) You must conduct a performance evaluation of each CEMS according to the requirements in § 63.8 and according to PS3 of 40 CFR part 60, appendix B, using Method 3A or 3B of 40 CFR part 60, appendix A, for the O
(3) As specified in § 63.8(c)(4)(ii), each CEMS must complete a minimum of one cycle of operation (sampling, analyzing, and data recording) for each successive 15-minute period. You must have at least two data points, each representing a different 15-minute period within the same hour, to have a valid hour of data.
(4) All CEMS data must be reduced as specified in § 63.8(g)(2) and recorded as CO concentration in ppmvd, corrected to 15 percent O
(d) If you have CEMS that are subject to paragraph (a) or (b) of this section, you must properly maintain and operate the monitors continuously according to the requirements described in paragraphs (d)(1) and (2) of this section.
(1)
(2)
(i) You must conduct all monitoring in continuous operation at all times that the engine test cell/stand is operating, except for, as applicable, monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration drift checks and required zero and high-level adjustments). Quality assurance or control activities must be performed according to Procedure 1 of 40 CFR part 60, appendix F.
(ii) Data recorded during monitoring malfunctions, associated repairs, out-of-control periods, and required quality
(a) You must demonstrate initial compliance with the emission limitation that applies to you according to Table 3 of this subpart.
(b) You must submit the Notification of Compliance Status containing results of the initial compliance demonstration according to the requirements in § 63.9345(f).
(a) Except for monitor malfunctions, associated repairs, and required quality assurance or quality control activities (including, as applicable, calibration drift checks and required zero and high-level adjustments of the monitoring system), you must conduct all monitoring in continuous operation at all times the engine test cell/stand is operating.
(b) Do not use data recorded during monitor malfunctions, associated repairs, and required quality assurance or quality control activities for meeting the requirements of this subpart, including data averages and calculations. You must use all the data collected during all other periods in assessing the performance of the emission control device or in assessing emissions from the new or reconstructed engine test cell/stand.
(a) You must demonstrate continuous compliance with the emission limitation in Table 1 of this subpart that applies to you according to methods specified in Table 4 of this subpart.
(b) You must report each instance in which you did not meet the emission limitation which applies to you. You must also report each instance in which you did not meet the requirements in Table 6 of this subpart which apply to you. These instances are deviations from the emission limitations in this subpart and must be reported according to the requirements in § 63.9350.
(c) Deviations from the applicable emission limitation that occur during a period of malfunction of the control equipment as defined by § 63.9375 are not violations.
(a) You must submit all of the notifications in §§ 63.8(e), (f)(4) and (6) and 63.9(b), (g)(1) and (2), and (h) that apply to you by the dates specified.
(b) If you own or operate a new or reconstructed test cell/stand used for testing internal combustion engines, you are required to submit an Initial Notification as specified in paragraphs (b)(1) through (3) of this section.
(1) As specified in § 63.9(b)(2), if you start up your new or reconstructed engine test cell/stand before [DATE THE FINAL RULE IS PUBLISHED IN THE FEDERAL REGISTER], you must submit an Initial Notification not later than 120 calendar days after [DATE THE FINAL RULE IS PUBLISHED IN THE FEDERAL REGISTER].
(2) As specified in § 63.9(b), if you start up your new or reconstructed engine test cell/stand on or after [DATE THE FINAL RULE IS PUBLISHED IN THE FEDERAL REGISTER], you must submit an Initial Notification not later than 120 calendar days after you become subject to this subpart.
(3) If you are required to submit an Initial Notification but are otherwise not affected by the requirements of this subpart, in accordance with § 63.9290(c), your notification should include the information in § 63.9(b)(2)(i) through (v) and a statement that your new or reconstructed engine test cell/stand has no additional requirements, explaining the basis of the exclusion (for example, that the test cell/stand is used exclusively for testing internal combustion engines with a rated power of less than 25 hp (19kW)).
(c) If you are required to comply with an emission limitation in Table 1 of this subpart, you must submit a Notification of Compliance Status according to § 63.9(h)(2)(ii). For each initial compliance demonstration with an emission limitation, you must submit the Notification of Compliance Status before the close of business on the 30th calendar day following the completion of the initial compliance demonstration.
(d) You must submit a notification of performance evaluation of your CEMS at least 60 calendar days before the performance evaluation is scheduled to begin as required in § 63.8(e)(2).
(a) If you own or operate a new or reconstructed engine test cell/stand which must meet an emission limitation, you must submit a semiannual compliance report according to Table 5 of this subpart by the applicable dates specified in paragraphs (a)(1) through (5) of this section, unless the Administrator has approved a different schedule.
(1) The first semiannual compliance report must cover the period beginning on the compliance date specified in § 63.9295 and ending on June 30 or December 31, whichever date is the first date following the end of the first calendar half after the compliance date specified in § 63.9295.
(2) The first semiannual compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date follows the end of the first calendar half after the compliance date that is specified in § 63.9295.
(3) Each subsequent semiannual compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(4) Each subsequent semiannual compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date is the first date following the end of the semiannual reporting period.
(5) For each new or reconstructed engine test cell/stand that is subject to permitting regulations pursuant to 40 CFR part 70 or part 71, and if the permitting authority has established the date for submitting semiannual reports pursuant to 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), you may submit the first and subsequent compliance reports according to the dates the permitting authority has established instead of according to the dates in paragraphs (a)(1) through (4) of this section.
(b) If there is no deviation from the applicable emission limitation and the CEMS was not out-of-control, according to § 63.8(c)(7), the semiannual compliance report must contain the information described in paragraphs (b)(1) through (4) of this section.
(1) Company name and address.
(2) Statement by a responsible official, with that official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report.
(3) Date of report and beginning and ending dates of the reporting period.
(4) A statement that no deviation from the applicable emission limitation occurred during the reporting period and that no CEMS was out-of-control, according to § 63.8(c)(7).
(c) For each deviation from an emission limitation, the semiannual compliance report must include the information in paragraphs (b)(1) through (3) of this section and the information included in paragraphs (c)(1) through (4) of this section.
(1) The date and time that each deviation started and stopped.
(2) The total operating time of each new or reconstructed engine test cell/stand during the reporting period.
(3) A summary of the total duration of the deviation during the reporting period (recorded in 4-hour periods), and the total duration as a percent of the total operating time during that reporting period.
(4) A breakdown of the total duration of the deviations during the reporting period into those that are due to control equipment problems, process problems, other known causes, and other unknown causes.
(d) For each CEMS deviation, the semiannual compliance report must include the information in paragraphs (b)(1) through (3) of this section and the information included in paragraphs (d)(1) through (7) of this section.
(1) The date and time that each CEMS was inoperative except for zero (low-level) and high-level checks.
(2) The date and time that each CEMS was out-of-control, including the information in § 63.8(c)(8).
(3) A summary of the total duration of CEMS downtime during the reporting period (reported in 4-hour periods), and the total duration of CEMS downtime as a percent of the total engine test cell/stand operating time during that reporting period.
(4) A breakdown of the total duration of CEMS downtime during the reporting period into periods that are due to monitoring equipment malfunctions, non-monitoring equipment malfunctions, quality assurance/quality control calibrations, other known causes and other unknown causes.
(5) The monitoring equipment manufacturer(s) and model number(s) of each monitor.
(6) The date of the latest CEMS certification or audit.
(7) A description of any changes in CEMS or controls since the last reporting period.
(a) You must keep the records as described in paragraphs (a)(1) through (4) of this section.
(1) A copy of each notification and report that you submitted to comply with this subpart, including all documentation supporting any Initial Notification or Notification of Compliance Status that you submitted, as required in § 63.10(b)(2)(xiv).
(2) Records of performance evaluations as required in § 63.10(b)(2)(viii).
(3) Records of the occurrence and duration of each malfunction of the air pollution control equipment, if applicable, as required in § 63.10(b)(2)(ii).
(4) Records of all maintenance on the air pollution control equipment, if applicable, as required in § 63.10(b)(iii).
(b) For each CEMS, you must keep the records as described in paragraphs (b)(1) through (3) of this section.
(1) Records described in § 63.10(b)(2)(vi) through (xi).
(2) Previous (i.e., superceded) versions of the performance evaluation plan as required in § 63.8(d)(3).
(3) Request for alternatives to the relative accuracy test for CEMS as required in § 63.8(f)(6)(i), if applicable.
(c) You must keep the records required in Table 4 of this subpart to show continuous compliance with each emission limitation that applies to you.
(a) You must maintain all applicable records in such a manner that they can be readily accessed and are suitable for inspection according to § 63.10(b)(1).
(b) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(c) You must retain your records of the most recent 2 years on site, or your records must be accessible on site. Your records of the remaining 3 years may be retained off site.
Table 6 of this subpart shows which parts of the General Provisions in §§ 63.1 through 63.13 apply to you.
(a) This subpart can be implemented and enforced by us, the U.S. EPA, or a delegated authority such as your State, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to your State, local, or tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. You should contact your U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to your State, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under section 40 CFR part 63, subpart E, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and are not transferred to the State, local, or tribal agency.
(c) The authorities that cannot be delegated to State, local, or tribal agencies are as follows.
(1) Approval of alternatives to the emission limitations in § 63.9300 under § 63.6(g).
(2) Approval of major changes to test methods under § 63.7(e)(2)(ii) and (f) and as defined in § 63.90.
(3) Approval of major changes to monitoring under § 63.8(f) and as defined in § 63.90.
(4) Approval of major changes to recordkeeping and reporting under § 63.10(f) and as defined in § 63.90.
Terms used in this subpart are defined in the Clean Air Act (CAA); in 40 CFR 63.2, the General Provisions of this part; and in this section:
(1) Fails to meet any requirement or obligation established by this subpart, including but not limited to any emission limitation;
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Fails to meet any emission limitation in this subpart during malfunction, regardless or whether or not such failure is permitted by this subpart.
Potential to emit means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable.
The Office of the Federal Register is republishing the following document in a special format to illustrate proposed changes to the appearance of the printed and PDF pages of the daily Federal Register. This experimental format uses a two-column layout, sans serif fonts, larger and bolder headings in the preamble and tables, bullets in the Summary, more space between lines of regulatory text, and makes other changes to the appearance of text and tables. The format changes are intended to improve the readability and public understanding of Federal regulations and notices without increasing white space that would affect printing costs charged to agencies. The proposed format would result in no change or a slight decrease in the number of pages printed. The format changes shown below do not affect the legal status of the final rule issued by the National Archives and Records Administration.
We invite agencies and members of the public to comment on the proposed format by email at: fedreg.legal@nara.gov, or by U.S. mail at: National Archives and Records Administration, Office of the Federal Register (NF), Federal Register Format Changes, 700 Pennsylvania Ave., NW, Washington, DC 20408-0001. For more information the proposed format, go to the Federal Register web site at: http://www.nara.gov/fedreg/plainlan.html#top.
National Archives and Records Administration (NARA).
Final rule.
NARA is revising its Micrographic Records Management regulations to:
• Update the editions of standards incorporated by reference to the most current edition; and
• Rewrite the regulations in plain language format.
This rule is effective June 10, 2002. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of June 10, 2002.
Kim Richardson at telephone number 301-713-7360, ext. 240, or fax number 301-713-7270.
NARA published a proposed rule on September 11, 2001, at 66 FR 47125, for a 60-day public comment period. We received comments from 2 Federal agencies, 1 records management professional organization, and 2 members from the public. Following is a summary of the comments and a discussion of the changes that we made to the proposed rule.
ARMA International (ARMA) recommended replacing the term “records schedule” with “records retention schedule” in § 1230.7(f) and defining the suggested term in § 1230.4, Definitions. We did not adopt this comment because “records schedule” is a standard records management term that is used throughout NARA regulations. The term does not need to be included in Part 1230 because it is already defined in 36 CFR 1220.14, which applies to the entire Subchapter B.
A Federal agency asked if NARA would require agencies to request approval before discontinuing filming temporary records when the records, regardless of format, would be kept for the same period of time. Agencies are not required to request approval to film temporary records (§ 1230.10(b)) and the same is true for discontinuing microfilming temporary records. The principle, which has been in place for many years now, is that the nature and use of temporary records is not changed when the original paper is copied to microform.
A Federal agency pointed out that § 1230.14 no longer includes the phrase “when the original paper records will be destroyed or otherwise disposed of,” though § 1230.22 still makes that distinction. We did not intend to change § 1230.14(a) when we reformatted the paragraph in plain language, and have added the phrase in this final rule. We also modified § 1230.14(a)(2) for clarity.
A member from the public recommended that we consider revising the section to permit the use of dry silver film for filming permanent records. We did not adopt this change because for long-term retention, the dry-silver film is much riskier than the traditional silver-gelatin film.
• Dry silver film that meets the ISO standard has a life expectancy rating of only 100 years, while wet-processed silver-gelatin film with a polyester base has a higher life expectancy rating of 500 years.
• Dry silver film is never “fixed” meaning, it will remain potentially developable for an indefinite period of time. Fixing is the process of removing the light sensitive silver salts. This means if the film is ever exposed to high temperatures (e. g., 120 degrees Fahrenheit to 130 degrees Fahrenheit) such as with an air conditioner failure, the film will “develop” and turn completely black, causing a catastrophic loss of all the information on the film.
ARMA and a member from the public suggested adding a clause to the second sentence so that it will read as follows: “Perform resolution tests using a ISO 3334-1991 Resolution Test Chart or a commercially available certifiable target manufactured to comply with this standard, and read the patterns following the instructions of ISO 3334-1991.” We accept this comment and have incorporated the suggested clause.
ARMA recommended use of the ARMA glossary to define temporary records in this section. We did not adopt this comment. Section 1230.16(a) does not define “temporary records” but pertains to film and image requirements. We require that temporary records retained for 100 years or longer meet the same image requirements as permanent records. This is not a new requirement. It already exists in the current regulation.
ARMA suggested changing the inspection period from every 2 years to every 5 years because they believe the longer inspection period is sufficient under appropriate storage conditions and would be less costly. No Federal agency has objected to the 2-year inspection requirement that NARA selected.
We partially accept this comment. We believe that it is important to conduct an initial inspection when the microfilm is 2 years old to identify any problems that did not appear when the film was processed and to ensure that it is stored in the proper environment. Acetate-based microfilm stock, which was used prior to 1990, is more susceptible to deterioration than the polyester-based microfilm used today. Therefore, we are retaining the requirement for inspection every 2 years for microfilms produced before 1990. Unless there is a catastrophic event (e.g., extended failure of environmental controls), microfilms produced during or after 1990 must be inspected on a 5-year cycle after the initial 2-year inspection.
ARMA commented that § 1230.22(a) does not indicate the percentage of inspection sampling that is required. They questioned whether inspection is to cover 100 percent of all rolls of film or a lesser sampling. They recommended a sampling of approximately 10 percent because it would provide a reliable inspection and help reduce costs incurred with the inspection process. They also recommended adding a separate section to address
This final rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities. This rule does not have any federalism implications.
Archives and records, Incorporation by reference.
44 U.S.C. 2907, 3302 and 3312.
This part covers the standards and procedures for using micrographic technology to create, use, store, inspect, retrieve, preserve, and dispose of Federal records.§ 1230.2 What is the authority for this part?
44 U.S.C. chapters 29 and 33, authorize the Archivist of the United States to:
ISO 10602:1995(E), February 1, 1995, Second edition, Photography-Processed silver-gelatin type black-and-white film-Specifications for stability.
ANSI/PIMA IT9.2-1998, April 15, 1998, American National Standard for Imaging Materials—Photographic Processed Films, Plates, and Papers—Filing Enclosures and Storage Containers.
ANSI/ISO 5.2-1991, ANSI/NAPM IT2.19-1994, February 20, 1995, American National Standard for Photography—Density Measurements—Part 2: Geometric Conditions for Transmission Density.
ANSI/ISO 5-3-1995, ANSI/NAPM IT2.18-1996, March 8, 1996, American National Standard for Photography—Density Measurements—Part 3: Spectral Conditions.
ISO 18911: 2000(E), First edition, November 1, 2000, Imaging materials-Processed safety photographic films—Storage practices.
ANSI/AIIM MS1-1996, August 8, 1996, Standard Recommended Practice for Alphanumeric Computer-Output Microforms—Operational Practices for Inspection and Quality Control.
ANSI/AIIM MS5-1992, December 21, 1992, Standard for Information and Image Management-Microfiche.
ANSI/AIIM MS14-1996, August 8, 1996, Standard Recommended Practice-Specifications for 16mm and 35mm Roll Microfilm.
ANSI/AIIM MS19-1993, August 18, 1993, Standard Recommended Practice-Identification of Microforms.
ANSI/AIIM MS23-1998, June 2, 1998, Standard Recommended Practice-Production, Inspection, and Quality Assurance of First-Generation, Silver Microforms of Documents.
ANSI/AIIM MS32-1996, February 16, 1996, Standard Recommended Practice-Microrecording of Engineering Source Documents on 35mm Microfilm.
ANSI/AIIM MS41-1996, July 16, 1996, Dimensions of Unitized Microfilm Carriers and Apertures (Aperture, Camera, Copy and Image Cards).
ANSI/AIIM MS43-1998, June 2, 1998, Standard Recommended Practice-Operational Procedures-Inspection and Quality Control of Duplicate Microforms of Documents and From COM.
ANSI/AIIM MS45-1990, January 22, 1990, Recommended Practice for Inspection of Stored Silver-Gelatin Microforms for Evidence of Deterioration.
ANSI/ISO 3334-1991, ANSI/AIIM MS51-1991, May 10, 1991, Micrographics—ISO Resolution Test Chart No. 2—Description and Use.
The following definitions apply to this part:
Federal agencies must manage microform records by taking the following actions:
NARA recommends, but does not require, that agencies use the inspection by sampling procedures described in § 1230.22(a) and (b).
Some NARA records centers provide reimbursable microfilming services, including preparing, indexing, and filming of records, inspection of film, and labeling of film containers. Agencies desiring microfilming services from NARA should contact the Office of Regional Records Services (NR), 8601 Adelphi Rd., College Park, MD 20740-6001, or the director of the NARA records center serving the agency's records (see § 1228.150(a) of this chapter). The fees for microfilming services will appear in NARA bulletins, which are available on NARA's web site at http://www.nara.gov/records/policy/bulletin.html or from the Modern Records Programs (NWM), 8601 Adelphi Road, College Park, MD 20740-6001.
Due to a format error this document is being reprinted in its entirety. It was originally printed in the Federal Register on Thursday, May 9, 2002 at 67 FR 31692.