Forest Service
Natural Resources Conservation Service
Rural Housing Service
Committee for Purchase From People Who Are Blind or Severely Disabled
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Federal Energy Regulatory Commission
Presidential Documents
Commission of Fine Arts
Food and Drug Administration
National Institutes of Health
Fish and Wildlife Service
Minerals Management Service
National Park Service
Drug Enforcement Administration
Employment Standards Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Aviation Administration
Federal Railroad Administration
Surface Transportation Board
Transportation Security Administration
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.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Aviation Administration, DOT.
Final rule; request for comments, correction.
This document makes corrections to Airworthiness Directive (AD) 2002-21-10, applicable to Pratt and Whitney (PW) model 4000 series turbofan engines, that was published in the
November 12, 2002. The incorporation by reference of certain publications listed in the rule is approved by the Director of the
Diane Cook, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7133, fax (781) 238-7199.
A final rule; request for comments FR Doc. 02-26909, airworthiness directive applicable to Pratt and Whitney (PW) model 4000 series turbofan engines, was published in the
On page 65491, in the Regulatory Information, second column, paragraph (k)(2)(i), sixth line, remove the phrase “September 15, 2001. If the HPC rear hook is.” and add in its place “March 15, 2002 or September 15, 2001. If the rear hook is.”
Also, on page 65492, in the Regulatory Information, the table for Documents That Have Been Incorporated by Reference is corrected by adding the following:
Also, on page 65493, in the Regulatory Information, first column, thirteenth line, remove the phrase “PW4ENG72-749, dated June 17, 2002, EM” and add in its place “PW4ENG72-749, dated June 17, 2002, CIR 51A357, section 72-35-68, Inspection/Check-04, Indexes 8-11, dated March 15, 2002, EM”.
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective December 6, 2002. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 6, 2002.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
4. The Office of the Federal Register, 800 North Capitol Street, NW., Suite 700 Washington, DC.
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standards Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication the
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information is some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments require making them effective in less than 30 days.
Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C. 106(g); and 14 CFR 11.49(b)(2)
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, ISMLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is issuing a final rule amending the final monographs for over-the-counter (OTC) antiemetic, antihistamine, antitussive, and nighttime sleep-aid drug products to add a warning statement for oral products containing diphenhydramine citrate or diphenhydramine hydrochloride. The warning advises consumers not to use oral OTC diphenhydramine products with any other product containing diphenhydramine, including products used topically. This final rule also includes the agency's conclusions on additional warning statements and a direction statement for OTC external analgesic drug products containing diphenhydramine hydrochloride. These conclusions will be incorporated into the final monograph for OTC external analgesic drug products in a future issue of the
Michael T. Benson, Center for Drug Evaluation and Research (HFD-560), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-2222.
In the
Twenty-four months after the date of publication in the
(Comment 1) One comment contended that the proposed label changes for diphenhydramine products are not necessary and would have no significant impact. The comment stated that the 23 reported cases of toxicity between 1979 and 1989 discussed in the proposal (62 FR 45767 at 45768) are minute compared to the millions of applications of these topical products. Further, in all cases, the toxicity was due to consumer noncompliance with directions and indications. In the majority of cases, no treatment was required except for discontinuance of the drug, with affected consumers released from medical care in 24 hours. The comment concluded that additional warnings would have no effect on consumers who have obviously ignored the existing warnings.
The agency disagrees. The agency recognizes that the number of reports is small compared to the total doses used. However, there is particular concern because of the reports of toxic psychosis, especially in children, discussed in the proposed rule. There is also concern of underreporting because there is no current reporting
As noted, our decision to require the warning set forth in this final rule is based on other comments made in response to the proposed rule and our analysis of numerous adverse event reports that document the potential health risks associated with the concurrent use of OTC drug products that contain diphenhydramine. Mandating a warning does not require a finding that any or all of the OTC drug products that contain diphenhydramine actually caused an adverse event, and FDA does not so find. Nor does FDA's mandate of a warning repudiate the OTC drug monographs under which the affected drug products have been lawfully marketed. Rather, as a consumer protection agency, FDA has determined that this additional warning is necessary to ensure that these OTC drug products continue to be safe and effective for their labeled indications under ordinary conditions of use as those terms are defined in the Federal Food, Drug, and Cosmetic Act. This judgment balances the benefits of these drug products against their potential risks, and reflects our conclusion that even a potential link between the overuse of diphenhydramine and serious adverse health consequences warrants this action (see 21 CFR 330.10(a)).
FDA's decision to act in an instance such as this one need not meet the standard of proof required to prevail in a private tort action (
The distinction between avoidance of risk through regulation and compensation for injuries after the fact is a fundamental one. In the former, risk assessments may lead to control of a toxic substance even though the probability of harm to any individual is small and the studies necessary to assess the risk are incomplete; society as a whole is willing to pay the price as a matter of policy. In the latter, a far higher probability (greater than 50%) is required since the law believes it is unfair to require an individual to pay for another's tragedy unless it is shown that it is more likely than not that he caused it * * * .
(Comment 2) Two comments contended that OTC topical diphenhydramine products indicated for “pain and itch of sunburn and poison ivy” should not be contraindicated for the same uses and that the agency's proposed warning could confuse consumers. The comments added that the proposed labeling could be interpreted to mean that usage on large areas of the body is permitted as long as the product is not used more than three to four times daily. One comment stated that the proposal only cited two reports of toxicity when the drug was applied topically to a widespread area of intact sunburned skin and to a severe case of poison ivy. There were no reported cases when the drug was applied on limited areas of skin compromised with poison ivy or sunburn. The comment recommended that the labeling state “do not use more often than directed,” and that this part of the warning be moved to “Directions” because the statement relates to dosing.
Another comment agreed that topical diphenhydramine products should not be used on large areas of skin either intact or with open lesions. However, it objected to warning against use on damaged skin conditions, specifically broken, blistered, or oozing skin, contending that such labeling may confuse consumers seeking use for skin conditions such as minor cuts, minor burns, or insect bites that are characterized by broken, blistered, or oozing skin. Further, the comment was unable to find any adverse event cases reported when the product was applied according to the labeled directions on limited areas of damaged skin. A second comment also was unable to find any adverse reports associated with use on limited areas of damaged skin. It noted the cited cases in the proposal concerned application on compromised skin over a large skin surface. The comment suggested that this problem is best addressed by the warning against use “on large areas of the body.”
The agency agrees that topical diphenhydramine products should be indicated for use on limited areas of skin with poison ivy or sunburn and that the warning is intended to alert consumers not to use these products over large areas of the body or more often than directed for any condition. Because sunburn, poison ivy, and other conditions for which topical diphenhydramine is used (e.g., minor cuts and burns, and insect bites) could be characterized by “broken, blistered, or oozing skin,” the agency is removing these conditions from the proposed warning.
Since the proposal was published, the agency has established a new labeling format for all OTC drug products (see section III in this document). That labeling format conveys information in a segmented manner. Based on the new labeling format and the revisions described in the previous paragraph, the information in the final warning for topical products would now appear as follows: “Do not use [bullet] on large areas of the body [bullet] with any other product containing diphenhydramine, even one taken by mouth,” “Ask a doctor before use [bullet] on chicken pox [bullet] on measles,” and under “Directions [bullet] do not use more often than directed.” The proposed monograph directions for external analgesic drug products containing diphenhydramine are “Apply to affected area not more than 3 to 4 times daily.” The agency concludes that the revised warnings and directions should be clearer and more understandable to consumers.
(Comment 3) One comment recommended changing “Do not use on chicken pox” to “Do not use on chicken pox, except as directed by a physician.” The comment cited additional toxicity reports not included in the proposed rule in which diphenhydramine was applied liberally on children with large areas of chicken pox. However, the comment stated that since physicians may find use appropriate in select cases, consumers should be advised to consult their physicians. Another comment agreed because a doctor may advise use on a few itchy spots to help prevent scratching and the scarring that could result.
One comment from a manufacturer proposed that “measles” be included because a case of diphenhydramine toxicity after treatment with diphenhydramine for measles had been reported to the company. The comment noted that the adverse event was similar to the chicken pox cases discussed in the proposed rule, and that both chicken pox and measles may appear as a widespread rash. Another comment concurred and proposed the following:
The agency agrees. In the proposal, the agency stated that because none of the case reports was associated with measles, that condition was not specifically listed in the warning (62 FR 45767 at 45771). The agency invited comments related to any adverse events associated with the topical application of diphenhydramine to measles. As there has been at least one measles case report and since chicken pox and measles may appear similar to consumers, the agency is including both conditions in product labeling. The agency did not receive any comments opposed to including measles in labeling. When the monograph for OTC external analgesic drug products becomes final, it will contain the following warning for topical diphenhydramine products: “Ask a doctor before use [bullet] on chicken pox [bullet] on measles.”
(Comment 4) Two comments agreed that it was reasonable to add a warning to the labeling of OTC oral diphenhydramine products. The comments recommended revising the last part of the agency's proposed warning from “including one applied topically” to “even one used on skin” for two reasons. First, the revised language comprises six syllables in five words instead of nine syllables in four words, making it easier to read. Second, consumers who do not understand the meaning of the word “topically” are more likely to know what is meant by “on skin.”
The agency agrees and has revised the labeling for OTC diphenhydramine oral products to read: “Do not use: [bullet] with any other product containing diphenhydramine, even one used on skin.”
(Comment 5) One comment expressed concern over the cost of implementing the new labeling for a small manufacturer of topical products and contended: (1) The proposed labeling is an example of the type of regulation that Executive Order 12866 and the Regulatory Flexibility Act were intended to eliminate; (2) the cost to relabel would be substantially more than the $2,000 to $3,000 the agency mentioned in the proposal because of ordering requirements for tubes and boxes and a low dollar volume of annual sales; (3) existing inventory would have to be destroyed because it would not be used prior to the effective date for new labeling; and (4) there would be excessive costs associated with producing new graphics for labeling all products. The comment did not provide any specific data or figures to support its cost speculation.
The agency disagrees that the proposed labeling is an example of the type of regulation that Executive Order 12866 and the Regulatory Flexibility Act were intended to eliminate. The agency has determined that the additional warning statement is necessary for the safe and effective use of OTC drug products that contain diphenhydramine. The proposed rule (62 FR 45767 at 45772 to 45773) and this final rule (section V of this document) examine the impacts of the rule under Executive Order 12866 and the Regulatory Flexibility Act.
The $2,000 to $3,000 relabeling cost stated by the agency in the proposal (62 FR 45767 at 45772) was based on information that the agency obtained from various drug manufacturers, both small and large. That relabeling cost included the cost associated with producing new graphics for labeling products and the cost of tubes and boxes on which the labeling would be printed.
The agency does not anticipate that significant existing inventory would have to be destroyed because it would not be used prior to the effective date for new labeling. It has been almost 5 years since the proposed rule was published, and existing inventory should have been reduced during this time. In addition, manufacturers still have adequate time to deplete existing stocks of inventory. This final rule has a compliance date of 24 months after its publication in the
Since the proposal was published in 1997, the agency issued a final rule on March 17, 1999 (64 FR 13254) establishing a new standardized labeling format and content for all OTC drug products (the 1999 final rule). That final rule contained an extensive discussion of the costs of relabeling OTC drug products, including the impact on small businesses (64 FR 13254 at 13284 to 13285). In an effort to reduce the economic impact on small businesses, the agency generally provides an additional 12 months of compliance time for relabeling of OTC drug products with annual sales less than $25,000 which is being provided for oral diphenhydramine drug products in this final rule.
In the 1999 final rule, the agency established standardized format and standardized content requirements for the labeling of OTC drug products set forth in § 201.66 (21 CFR 201.66). The requirements relate to the labeling for diphenhydramine-containing OTC drug products by including bullets prior to certain words under the “Warnings” subheadings “Do not use” and “Ask a doctor before use” and prior to the direction “do not use more often than directed.” The subheadings are highlighted in bold type in accordance with § 201.66(c)(5). Pertinent parts of the new labeling are in tables 1 and 2 of this document.
Based on the available evidence, the agency is issuing a final rule amending the final monographs for orally administered OTC antiemetic,
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), 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). Under the Regulatory Flexibility Act, if a rule has a significant economic impact on a substantial number of small entities, an agency must analyze regulatory options that would minimize any significant impact of the rule on small entities. Section 202(a) of the Unfunded Mandates Reform Act requires that agencies prepare a written statement and economic analysis before proposing any rule that may result in an expenditure in any one year by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted annually for inflation).
The agency concludes that this final rule is consistent with the principles set out in the Executive order and in these two statutes. The final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. As discussed in this section, FDA has determined that this final rule will not have a significant economic impact on a substantial number of small entities. The Unfunded Mandates Reform Act does not require FDA to prepare a statement of costs and benefits for this final rule because the final rule is not expected to result in any 1-year expenditure that would exceed $100 million adjusted for inflation. The current inflation adjusted statutory threshold is about $110 million.
The purpose of this final rule is to add the same warning statement for four categories of OTC drugs in three different OTC drug monographs that include products containing diphenhydramine taken orally. Based on information in the agency's drug listing system (DLS), there are approximately 95 manufacturers, 59 repackers, and 247 distributors of about 800 to 1,000 oral diphenhydramine products. The agency does not believe these companies would need to increase the package size to add this warning and, thus, they should incur only minor costs to relabel their products. The agency believes that relabeling costs of the type required by this final rule generally average about $2,000 to $3,000 per stock keeping unit (SKU) (individual products, packages, and sizes). Assuming that there are about 800 to 1,000 affected SKUs in the marketplace, total one-time costs of relabeling would be $1.6 million ($2,000 per SKU x 800 SKUs) to $3 million ($3,000 per SKU x 1,000 SKUs). The agency believes the actual cost would be lower because most of the labeling changes will be made by private label manufacturers that tend to use simpler and less expensive labeling.
Manufacturers of oral diphenhydramine-containing products will incur most of the costs associated with this final rule. The impact on any one firm will vary based on the number and types of products that need relabeling. About 85 percent of the manufacturers meet the Small Business Administration's definition of a small entity (fewer than 750 employees). In the proposal (62 FR 45767 at 45772 to 45773), the agency estimated that the proposed rule may have a significant impact on some small entities. On further analysis, the agency now believes that the final rule will not have a significant impact on a substantial number of small entities because about one-half of the firms have listed only one diphenhydramine-containing product with the agency, another 30 percent have listed two or three products, and all of the manufacturers produce a number of other OTC drug products not affected by this rule. The agency does not believe the cost to any one firm to relabel its products subject to this final rule will approach 1 percent of the entity's income.
The DLS also identifies approximately 30 manufacturers, 4 repackers, and 53 distributors of about 100 topical diphenhydramine products. The cost for these companies to relabel their products will be discussed in the final monograph for OTC external analgesic drug products.
The agency considered but rejected several alternatives: (1) A shorter or longer implementation period, and (2) an exemption from coverage for small entities. While the agency believes that consumers would benefit from having this new labeling in place as soon as possible, the agency also acknowledges that a shorter implementation period could significantly increase the compliance costs and these costs could be passed through to consumers. A longer time period would unnecessarily delay the benefit of new labeling to consumers who self-medicate with these OTC antiemetic, antihistamine, antitussive, and nighttime sleep-aid drug products. The agency rejected an exemption for small entities because the new labeling is also needed by consumers who purchase products marketed by those entities. However, a longer compliance date until 24 months after date of publication in the
For the reasons in this section and under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the agency certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Therefore, under the Regulatory Flexibility Act, no further analysis is required.
FDA concludes that the labeling requirements in this document are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The agency has determined under 21 CFR 25.31(a) 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.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies 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. Accordingly, the agency has concluded that the rule does
Labeling, Over-the-counter drugs.
21 U.S.C. 321, 351, 352, 353, 355, 360, 371.
(c) * * *
(8)
21 U.S.C. 321, 351, 352, 353, 355, 360, 371.
(c) * * *
(5) “Do not use [bullet]
21 U.S.C. 321, 351, 352, 353, 355, 360, 371.
(c) * * *
(6) * * *
(iv)
(7)
7. Section 341.74 is amended by adding paragraphs (c)(4)(viii)(C) and (c)(4)(ix)(C) to read as follows:
(c) * * *
(4) * * *
(viii) * * *
(C) “Do not use [bullet]
(ix) * * *
(C) “Do not use [bullet] with any other product containing diphenhydramine, even one used on skin”.
Coast Guard, DOT.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the drawbridge operation regulations for the Wreck Lead Bridge, mile 4.4, across Reynolds Channel at Hempstead, New York. This deviation from the regulations allows the bridge to remain in the closed position from 6:30 a.m. on December 10, 2002 through 6:30 a.m. on December 13, 2002. This deviation is necessary to facilitate scheduled maintenance at the bridge.
This deviation is effective from December 10, 2002 through December 13, 2002.
Joseph Schmied, Project Officer, First Coast Guard District, at (212) 668-7165.
The bridge owner, Long Island Railroad, requested a temporary deviation from the drawbridge operating regulations to facilitate necessary structural repairs, replacement of structural bracing, couplings, and deteriorated concrete, at the bridge.
Under this deviation the Wreck Lead Bridge, mile 4.4, across Reynolds Channel at Hempstead, New York, may remain in the closed position from 6:30 a.m. on December 10, 2002 through 6:30 a.m. on December 13, 2002.
There have been few requests to open this bridge during the requested time period scheduled for these structural repairs in past years. The Coast Guard and the bridge owner coordinated this closure with the facilities upstream from the bridge and no objections to this scheduled closure were received.
This deviation from the operating regulations is authorized under 33 CFR 117.35, and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is temporarily changing the drawbridge operation regulations that govern the Glen Island Bridge, at mile 0.8, across New Rochelle Harbor at New Rochelle, New York. This change to the drawbridge operation regulations allows the bridge to remain closed to navigation from 7 a.m. on December 1, 2002 through 5 p.m. on April 1, 2003. This action is necessary to facilitate necessary repairs at the bridge.
This rule is effective from December 1, 2002 through April 1, 2003.
Documents indicated in this preamble as being available in the docket are part of docket (CGD01-02-134) and are available for inspection or copying at the First Coast Guard District, Bridge Administration Office, 408 Atlantic Avenue, Boston, Massachusetts, 02110-3350, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Mr. Joseph Schmied, Project Officer, First Coast Guard District, (212) 668-7165.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard coordinated the bridge repair project and related temporary bridge closure with the mariners who use this waterway. The mariners agreed that the temporary bridge closure will not affect the needs of waterway users. There is an alternate route to open water that mariners may use during this temporary bridge closure. The effective period of this temporary rule is traditionally the most dormant season for the vessel traffic on this waterway and accordingly, the best time to perform the necessary repairs at the bridge.
The Coast Guard believes that an NPRM is unnecessary because of the relatively low number of opening requests received at the bridge December through April, and the fact that an alternate route is available to the mariners.
Good cause exists for making this regulation effective in less than 30 days after publication in the
The Glen Island Bridge has a vertical clearance of 13 feet at mean high water and 20 feet at mean low water. The existing regulations are listed at 33 § CFR 117.802.
The bridge owner, Westchester Department of Public Works, asked the Coast Guard to temporarily change the drawbridge operation regulations to facilitate mechanical and structural repairs at the bridge to be performed from 7 a.m. on December 1, 2002 through 5 p.m. on April 1, 2003.
The Coast Guard contacted the mariners who operate on New Rochelle Harbor River regarding this temporary bridge closure and no objections were received.
The Coast Guard is temporarily changing the drawbridge operation regulations governing the Glen Island Bridge, mile 0.8, across New Rochelle Harbor at New Rochelle, New York. This temporary change to the drawbridge operation regulations will allow the bridge to remain in the closed position to navigation from 7 a.m. on December 1, 2002 through 5 p.m. on April 1, 2003.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3), of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).
This conclusion is based on the fact that the mariners may use an alternate route to open water.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b), that this rule will not have a significant economic impact on a substantial number of small entities.
This conclusion is based on the fact that the mariners may use an alternate route to open water.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found to not have a significant effect on the environment. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Bridges.
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
(c) The draw of the Glen Island Bridge, mile 0.8, at New Rochelle, New York, need not open for the passage of vessel traffic from 7 a.m. on December 1, 2002 through 5 p.m. on April 1, 2003.
Coast Guard, DOT.
Final rule.
The Coast Guard is establishing moving and fixed security zones around and under all cruise ships located on San Pedro Bay, California, in and near the ports of Los Angeles and Long Beach. These security zones are needed for national security reasons to protect the public and ports from potential terrorist acts. Entry into these zones will be prohibited unless specifically authorized by the Captain of the Port Los Angeles-Long Beach.
This rule is effective December 1, 2002.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (COTP Los Angeles-Long Beach 02-004) and are available for inspection or copying at U.S. Coast Guard Marine Safety Office/Group Los Angeles-Long Beach, 1001 South Seaside Avenue, Building 20, San Pedro, California, 90731 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Junior Grade Rob Griffiths, Assistant Chief of Waterways Management Division, at (310) 732-2020.
On October 28, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; San Pedro Bay, CA” in the
On January 18, 2002, we published a similar temporary final rule (TFR) entitled “Security Zones; Port of Los Angeles and Catalina Island” in the
On May 13, 2002, we published a similar temporary final rule (TFR) entitled “Security Zones; Cruise Ships, San Pedro Bay, CA” in the
The Captain of the Port has determined the need for continued security regulations exists. Accordingly, this final rule creates a permanent regulation for security zones in the same locations covered by the temporary final rule published May 13, 2002.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Since the September 11, 2001, terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and growing tensions in Iraq have made it prudent for U.S. ports to be on a higher state of alert because the al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.
In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and
In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against a cruise ship would have on the public interest, the Coast Guard is establishing security zones around and under cruise ships entering, departing, or moored within the ports of Los Angeles and Long Beach. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against cruise ships. The Coast Guard has determined the establishment of security zones is prudent for cruise ships because they carry multiple passengers.
We received no letters commenting on the proposed rule. No public hearing was requested, and none was held. Therefore, we have made no changes and will implement the provisions of the proposed rule as written.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT)(44 FR 11040, February 26, 1979).
We received no letters commenting on this section and have made no changes to the proposed rule.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
We received no letters commenting on this section and have made no changes to the proposed rule.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. We received no letters commenting on this section and have made no changes to the proposed rule.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
We received no letters commenting on this section and have made no changes to the proposed rule.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We received no letters commenting on this section and have made no changes to the proposed rule.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
We received no letters commenting on this section and have made no changes to the proposed rule.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We received no letters commenting on this section and have made no changes to the proposed rule.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
We received no letters commenting on this section and have made no changes to the proposed rule.
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 received no letters commenting on this section and have made no changes to the proposed rule.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action”
We received no letters commenting on this section and have made no changes to the proposed rule.
We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are proposing to establish security zones. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
We received no letters commenting on this section and have made no changes to the proposed rule.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
(a)
(b)
(1) All waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is anchored at a designated anchorage either inside the Federal breakwaters bounding San Pedro Bay or outside at designated anchorages within 3 nautical miles of the Federal breakwaters;
(2) The shore area and all waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is moored, or is in the process of mooring, at any berth within the Los Angeles or Long Beach port areas inside the Federal breakwaters bounding San Pedro Bay; and
(3) All waters, extending from the surface to the sea floor, within 200 yards ahead, and 100 yards on each side and astern of a cruise ship that is underway either on the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within 3 nautical miles seaward of the Federal breakwaters.
(c)
(2) Persons desiring to transit the area of the security zone may contact the Captain of the Port at telephone number 1-800-221-USCG (8724) or on VHF-FM channel 16 (156.8 MHz) to seek permission to transit the area. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port or his or her designated representative.
(3) When a cruise ship approaches within 100 yards of a vessel that is moored, or anchored, the stationary vessel must stay moored or anchored while it remains within the cruise ship's security zone unless it is either ordered by, or given permission from, the COTP Los Angeles-Long Beach to do otherwise.
(d)
(e)
Department of Veterans Affairs.
Final rule.
This document establishes regulations regarding provision of vocational training and rehabilitation for women Vietnam veterans' children with covered birth defects. It revises the current regulations regarding vocational training and rehabilitation for Vietnam veterans' children suffering from spina bifida to also encompass vocational training and rehabilitation for women Vietnam veterans' children with certain other birth defects. This is necessary to provide vocational training and rehabilitation for such children in accordance with recently enacted legislation.
Charles A. Graffam, Consultant, Vocational Rehabilitation and Employment Service (282), Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420; (202) 273-7344.
In a document published in the
Prior to the enactment of Public Law 106-419 on November 1, 2000, the provisions of 38 U.S.C. chapter 18 only
Two companion proposed rule documents concerning the provision of benefits for certain children of Vietnam veterans under that legislation were also set forth in the January 2, 2002, issue of the
For the proposed rule on vocational training and rehabilitation, we provided, except for the information collection provisions, a thirty-day period for public comments, which ended on February 1, 2002. Pursuant to the Paperwork Reduction Act, we provided for the information collections in the document a 60-day comment period, which ended on March 4, 2002. We received comments from the Spina Bifida Association of America and from two individuals. None of the comments concerned the information collections.
A comment was received from the Spina Bifida Association of America that discussed the importance of higher education for individuals with disabilities and requested that the regulations be changed to offer “48 months of either vocational or educational assistance.” No changes are made based on this comment.
With respect to this commenter's request to include educational assistance, the provisions in proposed 38 CFR 21.8010, 21.8050, and 21.8120 appropriately reflect the legal limits on VA's authority to consider a program of education at an institution of higher learning to be within or outside the scope of vocational training benefits for children who are eligible for benefits under 38 U.S.C. chapter 18. Under the provisions concerning vocational training for children eligible for benefits under 38 U.S.C. chapter 18, 38 U.S.C. 1804(c)(1)(B) provides that a vocational training program “may include a program of education at an institution of higher learning if the Secretary determines that the program of education is predominantly vocational in content.” We have no other legal authority to provide benefits for a program of education at an institution of higher learning for these children of Vietnam veterans.
With respect to the commenter's request that 48 months be the length of vocational assistance under these regulations, the proposed regulations in 38 CFR 21.8016, 21.8020, and 21.8170 appropriately reflect the statutory limits on the length of vocational assistance. Under 38 U.S.C. 1804(d)(1) and 1814, 24 months is the maximum length of a vocational training program for these children of Vietnam veterans, except that the Secretary may grant an extension for up to 24 additional months when the requirements of 38 U.S.C. 1804(d)(2) are met.
One of the individual commenters felt that the U.S. government is displaying a bias in favor of women veterans in this regulation and that the hidden effect of Agent Orange may also have remained dormant in men's systems and produced chromosomal disorders in their children. No changes are made based on this comment. Public Law 106-419, which was based on a comprehensive health study conducted by VA of 8,280 women Vietnam-era veterans, provides benefits specifically for women Vietnam veterans' children with certain birth defects. We have no legal authority to award the statute's new vocational training benefits to children of male Vietnam veterans.
The other individual commenter suggested adding to 38 CFR 21.8370 a new paragraph concerning payment of transportation expenses that would constitute a substantive change in the provisions of § 21.8370 concerning those payments. The proposed rule in § 21.8370 has the same language concerning transportation expenses, with the exception of nonsubstantive changes, as in the current § 21.8370 concerning vocational training and rehabilitation for Vietnam veterans' children with spina bifida. We believe that a substantive change to the provisions concerning payment of transportation expenses for beneficiaries under 38 U.S.C. chapter 18 is beyond the scope of this rulemaking.
That same commenter also suggested changing the first sentence of proposed 38 CFR 21.8370(a), which states that “VA will authorize transportation services * * *”, by replacing the word “will” with “shall” to show the obligation of VA. The commenter noted that “shall” is used in § 21.8370 as in effect prior to this final rule. In our view, adopting the proposed rule's change from “shall” to “will” would not change the meaning of the sentence. However, we have concluded that neither term is necessary in this context, and we are making in this final rule a nonsubstantive change from the proposed rule for purposes of clarification to state that “VA authorizes transportation services * * *. ”
We are also making nonsubstantive changes from the proposed rule for purposes of clarity or to remove obsolete nomenclature.
Based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule as a final rule without change, except that we are making the changes discussed above and we are adding a statement following each of the sections in the rule with information collection requirements to reflect the approval by the Office of Management and Budget (OMB) of the information collection requirements contained in those sections.
This rule provides for new benefits and otherwise merely makes nonsubstantive changes. To avoid delay in furnishing the new benefits, we find that there is good cause to make this final rule effective without a 30-day delay of its effective date. Accordingly, under 5 U.S.C. 553, there is no need for delay in this rule's effective date.
This rule is applicable retroactively to the statutory effective date of December 1, 2001, for benefits added by section 401 of Public Law 106-419. This rule is otherwise applicable on the rule's effective date, December 6, 2002, for the already existing program of vocational training and rehabilitation for Vietnam veterans' children determined under 38 CFR 3.814 to suffer from spina bifida.
Information collection requirements associated with this final rule in 38 CFR 21.8014 and 21.8370 have been approved by OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3520) and have been assigned OMB control numbers 2900-0579 and 2900-0580. The information collection requirements of § 21.8014 concern applications for vocational training benefits for certain children of Vietnam veterans. The information collection requirements of § 21.8370 concern requests for transportation expense reimbursement. (In addition, OMB has approved VA's request to discontinue the information collection approval for 38 CFR 21.8016 concerning an election between benefits because its information collection requirements
OMB assigns a control number for each collection of information it approves. VA 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.
This final rule has been reviewed by OMB under Executive Order 12866.
The Secretary of Veterans Affairs hereby certifies that this rule 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. It is estimated that there are only 1,200 Vietnam veterans' children who suffer from spina bifida and women Vietnam veteran's children who suffer from spina bifida or other covered birth defects. They are widely dispersed geographically, and the services provided to them would not have a significant impact on any small businesses. Moreover, the institutions capable of providing appropriate services and vocational training to Vietnam veteran's children with covered birth defects or spina bifida are generally large capitalization facilities. Therefore, pursuant to 5 U.S.C. 605(b), this rule 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 will have no consequential effect on State, local, or tribal governments.
The Catalog of Federal Domestic Assistance program number for benefits affected by this rule is 64.128. There is no Catalog of Federal Domestic Assistance program number for other benefits affected by this rule.
Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflicts of interest, Defense Department, Education, Employment, Government contracts, Grant programs-education, Grant programs-veterans, Health care, Loan programs-education, Loan programs-veterans, Manpower training programs, Personnel training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.
For the reasons set forth in the preamble, 38 CFR part 21 is amended as set forth below:
38 U.S.C. 101, 501, 512, 1151 note, 1802, 1804-1805, 1811, 1811 note, 1812, 1814, 1816, 1821-1824, 5112, unless otherwise noted.
(a)
(b)
(1) CP (Counseling psychologist);
(2) Program of education;
(3) Rehabilitation facility;
(4) School, educational institution, or institution;
(5) Training establishment;
(6) Vocational goal;
(7) VRC (Vocational rehabilitation counselor); and
(8) Workshop.
VA will provide an evaluation to an eligible child to determine the child's potential for achieving a vocational goal. If this evaluation establishes that it is feasible for the child to achieve a vocational goal, VA will provide the child with the vocational training, employment assistance, and other related rehabilitation services authorized by this subpart that VA finds the child needs to achieve a vocational goal, including employment.
(a)
(1) Be in writing over the signature of the applicant or the person applying on the child's behalf;
(2) Provide the child's full name, address, and VA claim number, if any, and the parent Vietnam veteran's full name and Social Security number or VA claim number, if any; and
(3) Clearly identify the benefit sought.
(b)
(a)
(b)
(c)
(d)
(a)
(1) A CP or VRC must determine that achievement of a vocational goal by the child is reasonably feasible; and
(2) The child and VR&E staff members must work together to develop and then agree to an individualized written plan of vocational rehabilitation identifying the vocational goal and the means to achieve this goal.
(b)
(1) Section 21.250(a) and (b)(2);
(2) Section 21.252;
(3) Section 21.254;
(4) Section 21.256 (not including paragraph (e)(2));
(5) Section 21.257; and
(6) Section 21.258.
(c)
(1) Has achieved a vocational objective;
(2) Has voluntarily ceased vocational training under this subpart, but the case manager finds the child has attained sufficient skills to be employable; or
(3) VA determines during evaluation that the child already has the skills necessary for suitable employment and does not need additional training, but to secure suitable employment the child does need the employment assistance that paragraph (b) of this section describes.
(d)
(e)
(2)
(i) The extension is necessary for the child to achieve a vocational goal identified before the end of the basic 24-month entitlement period; and
(ii) The child can achieve the vocational goal within the extended period.
(3)
(a)
(b)
(a)
(1) Applies for a vocational training program; and
(2) Has been determined to be an eligible child as defined in § 21.8010.
(b)
(1) To ascertain whether achievement of a vocational goal by the child is reasonably feasible; and
(2) If a vocational goal is reasonably feasible, to develop an individualized plan of integrated training, services, and assistance that the child needs to prepare for and participate in vocational training or employment.
(a)
(b)
(1) Assessment of feasibility by a CP or VRC;
(2) Review of feasibility assessment and of need for special services by the Vocational Rehabilitation Panel;
(3) Provision of medical, testing, and other diagnostic services to ascertain the child's capacity for training and employment; and
(4) Evaluation of employability by professional staff of an educational or rehabilitation facility, for a period not to exceed 30 days.
(c)
(a)
(1) Vocationally oriented training, services, and assistance, to include:
(i) Training in an institution of higher education if the program is predominantly vocational; and
(ii) Tuition, fees, books, equipment, supplies, and handling charges.
(2) Employment assistance including:
(i) Vocational, psychological, employment, and personal adjustment counseling;
(ii) Services to place the individual in suitable employment and post-placement services necessary to ensure satisfactory adjustment in employment; and
(iii) Personal adjustment and work adjustment training.
(3) Vocationally oriented independent living services only to the extent that the services are indispensable to the achievement of the vocational goal and do not constitute a significant portion of the services to be provided.
(4) Other vocationally oriented services and assistance of the kind VA provides veterans under the 38 U.S.C. chapter 31 program, except as paragraph (c) of this section provides, that VA determines the program participant needs to prepare for and take part in vocational training or in employment.
(b)
(c)
(1) Loan;
(2) Subsistence allowance;
(3) Automobile adaptive equipment;
(4) Training at an institution of higher education in a program of education that is not predominantly vocational in content;
(5) Employment adjustment allowance;
(6) Room and board (other than for a period of 30 days or less in a special rehabilitation facility either for purposes of an extended evaluation or to improve and enhance vocational potential);
(7) Independent living services, except those that are incidental to the pursuit of the vocational training program.
(Authority: 38 U.S.C. 1804(c), 1814)
(a)
(b)
(c)
(d)
(1) Training requirements for employment in the child's vocational goal in the area where the child lives or will seek employment exceed those job seekers generally need for that type of employment;
(2) The child is preparing for a type of employment in which he or she will be at a definite disadvantage in competing with nondisabled persons and the additional training will offset the competitive disadvantage;
(3) The choice of a feasible occupation is limited, and additional training will enhance the child's employability in one of the feasible occupations; or
(4) The number of employment opportunities within a feasible occupation is restricted.
(e)
(1) The proposed vocational training would not normally require a person without a disability more than 24 months of full-time pursuit, or the part-time equivalent, for successful completion; and
(2) The program of training and other services the child needs, based upon VA's evaluation, will not exceed 24 months or the part-time equivalent. In calculating the proposed program's length, the CP or VRC will follow the procedures in § 21.8074(a).
(f)
(a)
(b)
(i) Be designed to enable the child to complete the prior vocational goal or a different vocational goal; and
(ii) Meet the same provisions as apply to training for new participants.
(2) An eligible child who has previously achieved a vocational goal in a vocational training program under this subpart may not receive additional training under paragraph (b)(1) of this section unless a CP or VRC sets aside the child's achievement of that vocational goal under § 21.8284.
(c)
(1) The child has completed more than half of the planned training; and
(2) The child is making satisfactory progress.
(a)
(1) Count the number of actual months and days of the child's:
(i) Pursuit of vocational education or training;
(ii) Receipt of extended evaluation-type services and training, or services and training to enable the child to prepare for vocational training or employment, if a veteran in a 38 U.S.C. chapter 31 program would have received a subsistence allowance while
(iii) Receipt of employment and post-employment services (any period of employment or post-employment services is considered full-time program pursuit).
(2) Do not count:
(i) The initial evaluation period;
(ii) Any period before the child enters a vocational training program under this subpart;
(iii) Days of authorized leave; and
(iv) Other periods during which the child does not pursue training, such as periods between terms.
(3) Convert part-time training periods to full-time equivalents.
(4) Total the months and days under paragraphs (a)(1) and (a)(3) of this section. This sum is the period of the child's participation in the program.
(b)
(a)
(b)
(1) Is available;
(2) Is as suitable as using only institutional training for accomplishing the goals of the program; and
(3) Will meet the child's vocational training program needs.
(a)
(b)
(c)
(i) The CP or VRC determines that achievement of a vocational goal is still reasonably feasible and that the new individualized written plan of vocational rehabilitation or goal is necessary to enable the eligible child to prepare for and participate in vocational training or employment; and
(ii) Reentrance is authorized under § 21.8284 in a case when the child has completed a vocational training program under this subpart.
(2) A CP or VRC may approve a change of vocational goal from one field or occupational family to another field or occupational family if the child can achieve the new goal:
(i) Before the end of the basic 24-month entitlement period that § 21.8020(e)(1) describes; or
(ii) Before the end of any allowable extension under §§ 21.8020(e)(2) and 21.8072 if the new vocational goal in another field or occupational family was identified during the basic 24-month entitlement period.
(3) A change from one occupational objective to another in the same field or occupational family does not change the planned vocational goal.
(4) The child must have sufficient remaining entitlement to pursue the new individualized written plan of vocational rehabilitation or goal, as § 21.8020 provides.
(d)
An eligible child requesting or receiving services and assistance under this subpart will receive professional counseling by VR&E and other qualified VA staff members, and by contract counseling providers, as necessary, in a manner comparable to VA's provision of these services to veterans under the 38 U.S.C. chapter 31 program, as §§ 21.100 and 21.380 provide.
(a)
(b)
(1) Remedial, deficiency, and refresher training; and
(2) Training that leads to an identifiable vocational goal. Under this program, VA may authorize all forms of programs that §§ 21.122 through 21.132 describe. This includes education and training programs in institutions of higher education. VA may authorize the education and training at an undergraduate or graduate degree level, only if the degree program is predominantly vocational in nature. For an eligible child to participate in a graduate degree program, the graduate degree must be a requirement for entry into the child's vocational goal. For example, a master's degree is required to engage in social work. The program of training is predominantly vocational in content if the majority of the instruction provides the technical skills and knowledge employers generally regard as specific to, and required for, entry into the child's vocational goal.
(c)
(1) There is more than one facility in the area in which the child resides that:
(i) Meets the requirements for approval under §§ 21.290 through 21.298 (except as provided by § 21.8286(b)),
(ii) Can provide the training, services and other supportive assistance the child's individualized written plan of vocational rehabilitation specifies, and
(iii) Is within reasonable commuting distance; or
(2) The child wishes to train at a suitable facility in another area, even though a suitable facility in the area where the child lives can provide the training. In considering the costs of providing training in this case, VA will use the provisions of § 21.120 (except 21.120(a)(3)), § 21.370 (however, the words “under § 21.282” in § 21.370(b)(2)(iii)(B) do not apply), and § 21.372 in a manner comparable to that for veterans under the 38 U.S.C. chapter 31 program.
(d)
(1) Transportation of the child, but not the child's family, personal effects, or household belongings, to another area where necessary services are available; or
(2) Use of an individual instructor to provide necessary training in a manner comparable to that for veterans under the 38 U.S.C. chapter 31 program, as § 21.146 describes.
(a)
(1) Evaluate vocational training and employment potential;
(2) Provide a basis for planning:
(i) A program of services and assistance to improve the eligible child's preparation for vocational training and employment; or
(ii) A vocational training program;
(3) Reevaluate the vocational training feasibility of an eligible child participating in a vocational training program; and
(4) Remediate deficiencies in the child's basic capabilities, skills, or knowledge to give the child the ability to participate in vocational training or employment.
(b)
(1) An initial or extended evaluation; or
(2) Pursuit of a vocational training program.
(c)
(d)
(1) Diagnostic services;
(2) Personal and work adjustment training;
(3) Referral for medical care and treatment pursuant to §§ 17.900 through 17.905 of this title for the spina bifida, covered birth defects, or related conditions;
(4) Vocationally oriented independent living services indispensable to pursuing a vocational training program;
(5) Language training, speech and voice correction, training in ambulation, and one-hand typewriting;
(6) Orientation, adjustment, mobility and related services; and
(7) Other appropriate services to assist the child in functioning in the proposed training or work environment.
(e)
(a)
(b)
(c)
(1) An initial or extended evaluation;
(2) Vocational training, services, and assistance to reach the point of employability; or
(3) Employment services.
(d)
(1) Section 21.216(a)(3) pertaining to special modifications, including automobile adaptive equipment;
(2) Section 21.220(a)(1) pertaining to advancements from the revolving fund loan;
(3) Section 21.222(b)(1)(x) pertaining to discontinuance from an independent living services program.
The provisions of § 21.262 pertaining to reimbursement for training and other program costs apply, in a comparable manner as provided under the 38 U.S.C. chapter 31 program for veterans, to payments to facilities, vendors, and other providers for training, supplies, and other services they deliver under this subpart.
Subject to the limitations in § 21.8022, the date an eligible child is inducted into a vocational training program will be the date the child first begins to receive training, services, or assistance under an individualized written plan of vocational rehabilitation.
A case manager may terminate a vocational training program under this subpart for cause, including lack of cooperation, failure to pursue the individualized written plan of vocational rehabilitation, fraud, administrative error, or finding that the child no longer has a covered birth defect. An eligible child for whom a vocational goal is reasonably feasible remains eligible for the program subject to the rules of this subpart unless the child's eligibility for or entitlement to a vocational training program under this subpart resulted from fraud or administrative error or unless VA finds the child no longer has a covered birth defect. The effective date of termination will be the earliest of the following applicable dates:
(a)
(b)
(c)
(d)
VA may provide an additional period of training or services under a vocational training program to an eligible child who has completed training for a vocational goal and/or been suitably employed under this subpart, if the child is otherwise eligible and has remaining program entitlement as provided in § 21.8072(b), only under one of the following conditions:
(a) Current facts, including any relevant medical findings, establish that the child's disability has worsened to the extent that he or she can no longer perform the duties of the occupation which was the child's vocational goal under this subpart;
(b) The occupation that was the child's vocational goal under this subpart is now unsuitable;
(c) The vocational training program services and assistance the child originally received are now inadequate to make the child employable in the occupation which he or she sought to achieve;
(d) Experience has demonstrated that VA should not reasonably have expected employment in the objective or field for which the child received vocational training program services and assistance; or
(e) Technological change that occurred after the child achieved a vocational goal under this subpart now prevents the child from:
(1) Performing the duties of the occupation for which VA provided training, services, or assistance, or in a related occupation; or
(2) Securing employment in the occupation for which VA provided training, services, or assistance, or in a related occupation.
(a)
(b)
(a)
(1) Effects of his or her disability;
(2) Family responsibilities;
(3) Travel;
(4) Reasonable adjustment to training; and
(5) Other circumstances affecting the child's ability to pursue training.
(b)
(c)
(d)
The provisions of § 21.326, pertaining to the commencement and termination dates of a period of employment services, apply to children under this subpart in a manner comparable to that provided for veterans under the 38 U.S.C. chapter 31 program. References in that section to an individualized employment assistance plan or IEAP are considered as referring to the child's individualized written plan of vocational rehabilitation under this subpart.
(a)
(b)
(c)
The provisions for satisfactory conduct and cooperation in §§ 21.362 and 21.364, except as otherwise provided in this section, apply to children under this subpart in a manner comparable to the way they apply to veterans under the 38 U.S.C. chapter 31 program. If an eligible child fails to meet these requirements for satisfactory conduct or cooperation, the VR&E case manager will terminate the child's vocational training program. VA will not grant an eligible child reentrance to a vocational training program unless the reasons for unsatisfactory conduct or cooperation have been removed.
(a)
(1) Transportation for evaluation or counseling under § 21.376;
(2) Intraregional travel under § 21.370 (except that assurance that the child meets all basic requirements for induction into training will be determined without regard to the provisions of § 21.282) and interregional travel under § 21.372;
(3) Special transportation allowance under § 21.154; and
(4) Commuting to and from training and while seeking employment, subject to paragraphs (c) and (d) of this section.
(b)
(c)
(1) Reimburse the facility at which the child is training if the facility provided transportation or related services; or
(2) Reimburse the child for his or her actual commuting expense if the child paid for the transportation.
(d)
(1) Is gainfully employed;
(2) Is eligible for, and entitled to, payment of commuting costs through other VA and non-VA programs; or
(3) Can commute to school with family, friends, or fellow students.
(e)
(f)
(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0580)
The following regulations are applicable to children in this program in a manner comparable to that provided for veterans under the 38 U.S.C. chapter 31 program: §§ 21.380, 21.412, 21.414 (except (c), (d), and (e)), 21.420, and 21.430.
The Secretary delegates authority for making findings and decisions under 38
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing approval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the
This rule is effective on January 6, 2003.
You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You can inspect copies of the submitted SIP revisions at the following locations:
A copy of the rule may also be available via the Internet at
Charnjit Bhullar, EPA Region IX, (415) 972-3960.
Throughout this document, “we,” “us” and “our” refer to EPA.
On April 24, 2002 (67 FR 20078), EPA proposed to approve the following rule into the California SIP.
We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.
EPA's proposed action provided a 30-day public comment period. During this period, we received no adverse comments.
As authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP. This permanently terminates all sanction and FIP clocks associated with our September 1, 2000 final action on a previous version of Rule 4354.
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 this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it 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. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is 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. This rule does 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 February 4, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 rule 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, Volatile organic compounds.
42 U.S.C. 7401
(a) * * *
(301) Amended regulation for the following APCD was submitted on March 5, 2002, by the Governor's designee.
(i) Incorporation by reference.
(A) San Joaquin Valley Unified Air Pollution Control District.
(
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the State of New Hampshire. This action approves New Hampshire's one-hour ozone attainment demonstration for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area, submitted by the New Hampshire Department of Environmental Services on June 30, 1998. This action is based on the requirements of the Clean Air Act (CAA) as amended in 1990, related to one-hour ozone attainment demonstrations. EPA is establishing an attainment date of November 15, 2007 for the entire multi-state nonattainment area, and is approving the attainment-level motor vehicle emissions budgets submitted by New Hampshire for the New Hampshire portion of the nonattainment area. A notice of proposed rulemaking was published on this action on October 21, 2002. EPA received no comments on that proposal.
This rule will become effective on January 6, 2003.
Copies of the documents relevant to this action are available for public inspection by appointment weekdays from 9 a.m. to 4 p.m., at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA—New England, One Congress Street, 11th floor, Boston, MA; and at the Air Resources Division, Department of Environmental Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095. Please telephone in advance before visiting.
Richard P. Burkhart, (617) 918-1664.
This supplementary information section is organized as follows:
A one-hour ozone attainment demonstration SIP was submitted on June 30, 1998 by the New Hampshire Department of Environmental Protection for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. The SIP revision was subject to public notice and comment by the state and a hearing was held in June 1998.
EPA published a Notice of Proposed Rulemaking (NPR) for the New Hampshire attainment demonstration SIP on October 21, 2002 (67 FR 64582). In that action, EPA proposed to approve the ozone attainment demonstration and attainment-level motor vehicle emissions budgets submitted by the state. The rationale for EPA's action is discussed in full in the proposal, and readers are referred to the proposal for further information. EPA received no comments on the proposal.
EPA proposed approval of the Massachusetts ozone attainment demonstration for this nonattainment area on October 15, 2002 (67 FR 63586), and proposed an attainment date of November 15, 2007 for the entire nonattainment area including the New Hampshire portion. Final action on the Massachusetts ozone attainment demonstration for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area can be found in a document published elsewhere in this issue of the
On June 30, 1998, New Hampshire submitted its ozone attainment demonstration to EPA which establishes attainment-level motor vehicle emissions budgets for both VOC and NO
EPA is approving the ground-level one-hour ozone attainment demonstration SIP for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. EPA is approving the attainment date for this area as November 15, 2007. EPA also approves the attainment-level volatile organic compound and nitrogen oxide motor vehicle emissions budgets for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area for use in transportation conformity.
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 this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it 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), because it 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. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is 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. This rule does 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 February 4, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
3. Section 52.1534 of subpart EE is amended by adding paragraph (b) to read as follows:
(b) Approval—Revisions to the State Implementation Plan submitted by the New Hampshire Department of Environmental Protection on June 1, 1998. The revisions are for the purpose of satisfying the one-hour ozone attainment demonstration requirements of section 182(c)(2)(A) of the Clean Air Act, for the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. The revision establishes a one-hour attainment date of November 15, 2007 for the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. This revision establishes motor vehicle emissions budgets of 10.72 tons per day of volatile organic compounds (VOC) and 21.37 tons per day of nitrogen oxides (NO
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Massachusetts. This action approves Massachusetts' one-hour ozone attainment demonstration for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area, submitted by the Massachusetts Department of Environmental Protection on July 27, 1998, and supplemented on September 6, 2002. This action is based on the requirements of the Clean Air Act (CAA) as amended in 1990, related to one-hour ozone attainment demonstrations. EPA is establishing an attainment date of November 15, 2007, for the entire multi-state nonattainment area, and is approving the 2007 motor vehicle emissions budgets submitted by Massachusetts for the Massachusetts portion of the nonattainment area. EPA is also finding the 2003 motor vehicle emissions budgets submitted previously by Massachusetts inadequate. A notice of proposed rulemaking was published on this action on October 15, 2002. EPA received comments on that proposal. In this action, EPA responds to those comments.
This rule will become effective on January 6, 2003.
Copies of the documents relevant to this action are available for public inspection by appointment weekdays from 9 a.m. to 4 p.m., at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA-New England, One Congress Street, 11th Floor, Boston, MA; and Division of Air Quality Control, Department of Environment Protection, One Winter Street, 8th Floor, Boston, MA 02108. Please telephone in advance before visiting.
Richard P. Burkhart, (617) 918-1664.
This supplementary information section is organized as follows:
A one-hour ozone attainment demonstration SIP was submitted on July 27, 1998, by the Massachusetts Department of Environmental Protection for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. The SIP revision was subject to public notice and comment by the State and a hearing was held in June 1998. A supplement to the attainment demonstration SIP was submitted by the Massachusetts Department of Environmental Protection on September 6, 2002. The attainment demonstration supplement included a reasonably available control measures (RACM) analysis and 2007 motor vehicle emissions budgets for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. In the supplement, Massachusetts requested an attainment date for this area of November 15, 2007, and included a demonstration of how attainment will be reached by that date. The supplemental SIP revision was also
EPA published a notice of proposed rulemaking (NPR) for the Massachusetts attainment demonstration SIP on October 15, 2002 (67 FR 63586). In that action, EPA proposed to approve the ozone attainment demonstration submitted by the state, which includes a RACM analysis and 2007 motor vehicle emissions budgets with an attainment date of November 15, 2007. The proposed notice states EPA's conclusions regarding the approvability of the various portions of the SIP, which will not be repeated here. EPA also proposed to find the 2003 motor vehicle emissions budgets inadequate. The 2003 budgets were from the Massachusetts ozone attainment demonstration submitted in 1998. Readers are directed to the proposal for further information.
Comments received on the NPR for the attainment demonstration SIP for the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area and EPA's responses are discussed in section V. below.
EPA proposed approval of the New Hampshire ozone attainment demonstration for this nonattainment area on October 21, 2002 (67 FR 64582). Final action on the New Hampshire ozone attainment demonstration for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area can be found in a document published elsewhere in this issue of the
On September 6, 2002, Massachusetts submitted motor vehicle emissions budgets for the 2007 attainment year for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area in their SIP. The attainment year motor vehicle emissions budgets established by this plan that we are approving are 86.700 tons per day for VOC and 226.363 tons per day for NO
EPA is making a finding of inadequacy on the 2003 motor vehicle emission budgets of 117.118 tons per summer day for VOC, and 243.328 tons per summer day for NO
The approved 2007 motor vehicle emissions budgets would apply in all future conformity determinations for an analysis year of 2007 and later. Note that a conformity determination with an analysis year between the present and 2006 would use the year 1999 motor vehicle emissions budgets of 147.108 tons per summer day of VOC and 262.580 tons per summer day of NO
In the proposed rulemaking for the Massachusetts attainment demonstration SIP published on October 15, 2002, EPA stated that it intended to publish final rulemaking on the Massachusetts Low Emission Vehicle (LEV) program regulations which replaced the previously federally approved Massachusetts LEV I rules either before or at the same time as publication of final approval of the attainment demonstration. Approval of the emission reductions associated with this measure is needed to fully approve the attainment demonstration.
Final approval of Massachusetts LEV SIP was granted by EPA Region I's Regional Administrator on November 26, 2002. This approval will be published elsewhere in the
EPA received comments on the Notice of Proposed Rulemaking published on October 15, 2002 (67 FR 63586). A letter dated November 13, 2002, from the Alliance of Automobile Manufacturers (“the Alliance”) provided comments on two separate EPA proposed rulemaking notices published in the
As described above, EPA does not believe any of the comments received on the proposal published for the attainment demonstration SIP revision for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area change the basis for our proposed approval. Thus, EPA is approving the ground-level one-hour ozone attainment demonstration SIP for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. EPA is also approving the attainment date for this area as November 15, 2007. EPA also approves both the RACM analysis and the 2007 volatile organic compound and nitrogen oxide motor vehicle emissions budgets for the Massachusetts portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area for use in transportation conformity. Lastly, EPA is finding the 2003 motor vehicle emissions budgets previously submitted by Massachusetts inadequate.
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 this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it 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), because it 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. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is 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. This rule does 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 February 4, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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 rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(d) Approval—Revisions to the State Implementation Plan submitted by the Massachusetts Department of Environmental protection on July 27, 1998, and September 6, 2002. The revisions are for the purpose of satisfying the one-hour ozone attainment demonstration requirements of section 182(c)92)(A) pof the Clean Air Act, for the Boston-Lawrence-Worcester, MA-NH serious ozone nonattiainment area. The revision establishes a one-hour attainment date of November 15, 2007l, for the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area. This revision establishes motor vehicle emissions budgets for 2007 of 86.7 tons per day of volatile organic compounds and 226.363 tons per day of nitrogen oxides to be used in transportation conformity in the Massachusets portion of the Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
EPA has received adverse comments on our October 7, 2002 direct final rule (see 67 FR 62395) to approve revisions to various air pollution control rules in the North Dakota State Implementation Plan (SIP), which were submitted by the Governor of North Dakota with a letter dated June 21, 2001. In the October 7, 2002 direct final rule (67 FR 62395), we stated that if we received adverse comments by November 6, 2002, the direct final rule would be withdrawn and would not take effect. EPA has received adverse comments from the Dakota Resource Council, submitted with a letter dated November 6, 2002. The comments are specific to the North Dakota air pollution control rule regarding prevention of significant deterioration. Therefore, the sections of the direct final rule regarding the revisions to the North Dakota air pollution control rules are being withdrawn and all public comments received will be addressed in a subsequent final rule based on EPA's October 7, 2002 proposed rule (
Please note that this withdrawal does not withdraw or impact the sections of EPA's October 7, 2002 direct final rule regarding notice of delegation of authority for New Source Performance Standards nor the change to the
The additions of 40 CFR 52.1820(c)(32) is withdrawn as of December 6, 2002.
Amy Platt, Environmental Protection Agency, Region VIII, (303) 312-6449.
See the information provided in the direct final rule located in the Rules and Regulations section of the October 7, 2002
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control, Arsenic, Asbestos, Benzene, Beryllium, Hazardous substances, Mercury, and Vinyl chloride.
Accordingly, the addition of 40 CFR 52.1820(c)(32) is withdrawn as of December 6, 2002.
Environmental Protection Agency (EPA).
Final rule; amendments.
The EPA is taking final action today on certain amendments to the national emission standards for the portland cement manufacturing industry, which were originally promulgated on June 14, 1999 under the authority of section 112 of the Clean Air Act (CAA). The amendments make improvements to the implementation of the emission standards, primarily in the areas of applicability, testing, and monitoring where issues and questions were raised since promulgation of the rule.
On April 5, 2002, the EPA promulgated amendments to the national emission standards for the portland cement manufacturing industry as a direct final rule with a parallel proposal. On July 2, 2002, we withdrew certain provisions in the direct final rule in order to assess adverse comments. This action promulgates the amendments previously withdrawn based on the parallel proposal published on April 5, 2002.
December 6, 2002.
Docket A-92-53, containing supporting information used in developing these amendments, is available for public inspection and copying between 8 a.m. and 5:30 p.m., Monday through Friday (except for Federal holidays) at the following address: U.S. EPA, Air and Radiation Docket and Information Center (6102T), 1301 Constitution Avenue, NW., Washington, DC 20460 in room B-108, or by calling (202) 260-7548. A reasonable fee may be charged for copying docket materials.
Mr. Joseph Wood, P.E., Minerals and Inorganic Chemicals Group, Emission Standards Division (C504-05), Office of Air Quality Planning and Standards, U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5446, facsimile number (919) 541-5600, electronic mail address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that the EPA is now aware could potentially be regulated by this action. To determine whether your facility, company, business organization, etc., is regulated by this action, you should carefully examine the applicability criteria in § 63.1340 of the rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
On June 14, 1999 (64 FR 31898), we published the final rule entitled “National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry” (40 CFR part 63, subpart LLL). The American Portland Cement Alliance (APCA) petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the final rule under section 307(b)(1) of the CAA. (See 42 U.S.C. 7607(b)(1).) The APCA and the EPA have agreed to the terms of a settlement agreement and its implementation.
Consistent with the settlement agreement, we promulgated amendments to the national emission standards for hazardous air pollutants (NESHAP) on April 5, 2002. We issued the amendments as a direct final rule (67 FR 16614) with a parallel proposal (67 FR 16625) which we would finalize in the event that we received any adverse comments on the direct final rule. The amendments made specific changes to the NESHAP, generally relating to applicability, performance testing, and monitoring.
We received a total of five comment letters on the direct final rule amendments. Three comment letters were from the APCA, one was from an individual cement company, and one was from a private citizen. These commenters mainly requested additional clarification of and corrections to the final rule amendments. In response to some of the comments we received, we published a notice containing corrections and clarifications of two issues arising from explanatory language in the preamble to the direct final rule amendments (67 FR 44766, July 5, 2002).
Two adverse comments on the direct final rule amendments were included in the industry comments, and we also received three adverse comments from the private citizen. Consequently, we withdrew those amendments for which adverse comments were received (67 FR 44371, July 2, 2002). The amendments withdrawn were §§ 63.1340(c), 63.1344(a)(3), 63.1349(e)(3), and 63.1350(a)(4)(v) through (vii), (c)(2)(i), (d)(2)(i), and (e). In the withdrawal document, we stated that the adverse comments would be addressed in a subsequent final rule based on the proposed rule published on April 5, 2002. The remaining amendments not withdrawn became effective July 5, 2002.
After full and careful consideration of the adverse comments, we are promulgating the proposed amendments with a few minor changes summarized as follows. In the amendment related to the exemption from monitoring totally enclosed conveying system transfer points (§ 63.1350(a)(4)(v) through (vii)), we now require that the enclosures for these transfer points be operated and maintained as total enclosures on a continuing basis, as part of the source's operations and maintenance plan. In the amendments related to the daily monitoring of certain affected sources (§ 63.1350(c)(2)(i), (d)(2)(i), and (e)), we are dropping the requirement that the monitoring be conducted in accordance with § 63.7(e).
As to the comments regarding the emission limit and MACT for crushers under this rule, since crushers are not affected sources, there is no emission limit that applies to crushers.
Under Executive Order 12866 (58 FR 5173, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in standards 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 entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the
Pursuant to the terms of Executive Order 12866, it has been determined that these final rule amendments do not constitute a “significant regulatory action” because they do not meet any of the above criteria. Consequently, this action was not submitted to OMB for review under Executive Order 12866.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
These final rule amendments do not have federalism implications. They 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, because State and local governments do not own or operate any sources that would be subject to the amendments. Thus, Executive Order 13132 does not apply to these final rule amendments.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” These final rule amendments do not have tribal implications, as specified in Executive Order 13175, because they will not have any substantial direct effects on an Indian tribe, the relationship between the Federal Government and an Indian tribe, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Thus, Executive Order 13175 does not apply to these final rule amendments.
Executive Order 13045 (63 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, 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. These final rule amendments are not subject to Executive Order 13045 because they are not an economically significant regulatory action as defined by Executive Order 12866, and because they are based on technology performance and not on health or safety risks.
These final rule amendments are not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because they are 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, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures 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 an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
The EPA has determined that these final rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in aggregate, or the private sector in any 1 year, nor do the amendments significantly or uniquely impact small governments, because they contain no requirements that apply to such governments or impose obligations upon them. Thus, the requirements of the UMRA do not apply to these amendments.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A portland cement manufacturing company with less than 750 employees; (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)
After considering the economic impacts of today's final rule amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. Sections 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive effect on the small entities subject to the rule. The amendments in today's rule make improvements to the emission standards, primarily by clarifying issues in the areas of applicability, testing, and monitoring. We have, therefore, concluded that today's final rule amendments will have no adverse impacts on any small entities and may relieve burden in some cases.
Although the final rule amendments will not have a significant economic impact on a substantial number of small entities, we worked with the portland cement industry, including small entities, throughout the rulemaking process. Meetings were held on a regular basis with industry representatives in connection with the settlement agreement to discuss the development of the final rule, exchange information, and solicit comments on final rule requirements.
The information collection requirements in the existing rule were submitted to and approved by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
Today's action makes clarifying changes to the existing rule and imposes no new information collection requirements on industry. Because only clarifying changes are being made, there is no additional burden on industry as a result of these final rule amendments and the ICR has not been revised.
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 purpose of collecting, validating, and verifying information; process and maintain information and disclose and provide information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information; search existing data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law 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 (such as materials specifications, test methods, sampling procedures, business practices) developed or adopted by voluntary consensus standards bodies. The NTTAA requires Federal agencies to provide Congress, through annual reports to OMB, with explanations when an Agency does not use available and applicable voluntary consensus standards.
Because today's action contains no new test methods, sampling procedures or other technical standards, there is no need to consider the availability of voluntary consensus standards.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, chapter 1, part 63 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
(c) For portland cement plants with on-site nonmetallic mineral processing facilities, the first affected source in the sequence of materials handling operations subject to this subpart is the raw material storage, which is just prior to the raw mill. Any equipment of the on-site nonmetallic mineral processing plant which precedes the raw material storage is not subject to this subpart. In addition, the primary and secondary crushers of the on-site nonmetallic mineral processing plant, regardless of whether they precede the raw material storage, are not subject to this subpart. Furthermore, the first conveyor transfer point subject to this subpart is the transfer point associated with the conveyor transferring material from the raw material storage to the raw mill.
(a) * * *
(3) If the in-line kiln/raw mill is equipped with an alkali bypass, the applicable temperature limit for the alkali bypass specified in paragraph (b) of this section and established during the performance test, with or without the raw mill operating, is not exceeded.
(e) * * *
(3) In preparation for and while conducting a performance test required in paragraph (e)(1) of this section, a source may operate under the planned operational change conditions for a period not to exceed 360 hours, provided that the conditions in paragraphs (e)(3)(i) through (iv) of this section are met. The source shall submit temperature and other monitoring data that are recorded during the pretest operations.
(i) The source must provide the Administrator written notice at least 60 days prior to undertaking an operational change that may adversely affect compliance with an applicable standard under this subpart, or as soon as practicable where 60 days advance notice is not feasible. Notice provided under this paragraph shall include a description of the planned change, the emissions standards that may be affected by the change, and a schedule for completion of the performance test required under paragraph (e)(1) of this section, including when the planned operational change period would begin.
(ii) The performance test results must be documented in a test report according to paragraph (a) of this section.
(iii) A test plan must be made available to the Administrator prior to testing, if requested.
(iv) The performance test must be conducted, and it must be completed within 360 hours after the planned operational change period begins.
The revisions and additions read as follows:
(a) * * *
(4) * * *
(v) The requirement to conduct Method 22 visible emissions monitoring under this paragraph shall not apply to any totally enclosed conveying system transfer point, regardless of the location of the transfer point. “Totally enclosed conveying system transfer point” shall mean a conveying system transfer point that is enclosed on all sides, top, and bottom. The enclosures for these transfer points shall be operated and maintained as total enclosures on a continuing basis in accordance with the facility operations and maintenance plan.
(vi) If any partially enclosed or unenclosed conveying system transfer point is located in a building, the owner or operator of the portland cement plant shall have the option to conduct a Method 22 visible emissions monitoring test according to the requirements of paragraphs (a)(4)(i) through (iv) of this section for each such conveying system transfer point located within the building, or for the building itself, according to paragraph (a)(4)(vii) of this section.
(vii) If visible emissions from a building are monitored, the requirements of paragraphs (a)(4)(i) through (iv) of this section apply to the monitoring of the building, and you must also test visible emissions from each side, roof and vent of the building for at least 1 minute. The test must be conducted under normal operating conditions.
(c) * * *
(2) * * *
(i) Perform daily visual opacity observations of each stack in accordance with the procedures of Method 9 of appendix A to part 60 of this chapter. The Method 9 test shall be conducted while the affected source is operating at the representative performance conditions. The duration of the Method 9 test shall be at least 30 minutes each day.
(d) * * *
(2) * * *
(i) Perform daily visual opacity observations of each stack in accordance with the procedures of Method 9 of appendix A to part 60 of this chapter. The Method 9 test shall be conducted while the affected source is operating at the representative performance conditions. The duration of the Method 9 test shall be at least 30 minutes each day.
(e) The owner or operator of a raw mill or finish mill shall monitor opacity by conducting daily visual emissions observations of the mill sweep and air separator PMCD of these affected sources in accordance with the procedures of Method 22 of appendix A to part 60 of this chapter. The Method 22 test shall be conducted while the affected source is operating at the representative performance conditions. The duration of the Method 22 test shall be 6 minutes. If visible emissions are observed during any Method 22 visible emissions test, the owner or operator must:
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of cyromazine in or on bean, dry at 3.0 parts per million (ppm). The Interregional Research Project Number 4 (IR-4), requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act (FQPA) of 1996.
This regulation is effective December 6, 2002. Objections and requests for hearings, identified by docket ID number OPP-2002-0237, must be received on or before February 4, 2003.
Written objections and hearing requests may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit VI. of the
Sidney Jackson, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,Washington, DC 20460-0001; telephone number: (703) 305-7610; e-mail address:
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
• Industry (NAICS 111, 112, 311, 32532),
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
In the
The petition requested that 40 CFR 180.414 be amended by establishing a tolerance for residues of the insecticide cyromazine, (
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).
Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a tolerance for residues of cyromazine on dry bean at 0.3 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by cyromazine are discussed in Table 1 of this unit as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies reviewed.
The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intra species differences.
For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor (SF) is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.
For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.
The linear default risk methodology (Q*) is the primary method currently
1.
i.
ii.
iii.
iv.
Section 408(b)(2)(F) of the FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of the FFDCA, EPA may require registrants to submit data on PCT.
The Agency used PCT information as follows.
Cantaloupe 0.3%; cucurbits 0.1%; lettuce 2.6%; leafy vegetables, other 9.4%; celery 14.2%; spinach 6.0%; onions 2.4%; pepper 5.3%; peppers, bell 9.0%; tomatoes 5.8%; tomatoes, fresh 22.2%; and watermelon 1.5%.
The Agency believes that the three conditions listed in this unit have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which cyromazine may be applied in a particular area.
2.
The Agency uses the FQPA Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS), to produce estimates of pesticide concentrations in an index reservoir. The SCI-GROW model is used to predict pesticide concentrations in shallow groundwater. For a screening-level assessment for surface water EPA will use FIRST (a tier 1 model) before using PRZM/EXAMS (a tier 2 model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. While both FIRST and PRZM/EXAMS incorporate an index reservoir environment, the PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.
None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would exceed human health levels of concern.
Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to cyromazine they are further discussed in the aggregate risk sections in Unit E.
Based on the FIRST and SCI-GROW models the EECs of cyromazine for chronic exposures are estimated to be 16 parts per billion (ppb) for surface water and 5.0 ppb for ground water.
3.
Cyromazine is not registered for use on any sites that would result in residential exposure.
4.
Cyromazine is a member of the triazine class of chemicals. EPA evaluated available scientific evidence to determine whether a common mechanism of toxicity exists among certain triazine-containing pesticides. Based on the available weight-of-evidence, cyromazine can not be grouped with other triazines based on a common mechanism of toxicity. EPA determined that only atrazine, simazine, propazine, and their specified degradants could be grouped based a common mechanism of toxicity for disruption of the hypothalamic-pituitary-gonadal (HPG) axis. For purposes of this tolerance action, EPA has concluded that cyromazine does not have a common mechanism of toxicity with other triazine-containing compounds. If additional data become available to support its inclusion in a common mechanism group, these data will be considered. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).
1.
2.
3.
i. There are no data deficiencies and hence there are no residual uncertainties for pre- and/or post-natal exposure, and no additional traditional SFs are needed with regard to the completeness of the cyromazine toxicity data base;
ii. There is no evidence of increased susceptibility of rat or rabbit fetuses following
iii. There is no evidence of increased susceptibility of young rats in the reproduction study with cyromazine; and
iv. There are also no residual uncertainties identified in the exposure data bases.
To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC.
A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer.
When EECs for surface water and groundwater are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.
1.
2.
3.
Cyromazine is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.
4.
5.
Analytical methods, AG-408 and AG-417, as listed in the Food and Drug Administration's Pesticide Analytical Manual (PAM) II, are adequate for tolerance enforce purposes.
There are currently no codex, Canadian or Mexican limits for residues of cyromazine on dry bean.
Therefore, the tolerance is established for residues of cyromazine, (
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of the FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2002-0237 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 4, 2003.
1.
Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.
2.
EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.
3.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes a tolerance under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides
21 U.S.C. 321(q), 346(a) and 371.
(a) * * *
(1) * * *
Federal Emergency Management Agency, FEMA.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are suspended on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will be withdrawn by publication in the
The effective date of each community's suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you wish to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office or the NFIP servicing contractor.
Edward Pasterick, Division Director, Risk Communication Division, Federal Insurance and Mitigation Administrator, 500 C Street, SW.; Room 411, Washington, DC 20472, (202) 646-3098.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001
In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues a final rule to extend the applicability date of the existing regulations for the interim North Pacific Groundfish Observer Program (Observer Program), which otherwise expire December 31, 2002, through 2007. This final rule also amends regulations governing the Observer Program. These changes clarify and improve observer certification and decertification processes; change the duties and responsibilities of observers and observer providers to eliminate ambiguities and strengthen the regulations; and grant NMFS the authority to place NMFS staff and other qualified persons aboard vessels and at shoreside or floating stationary plants to increase NMFS' ability to interact effectively with observers, fishermen, and processing plant employees. These parts of the action are necessary to improve Observer Program support of the management objectives of the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs) for those industry sectors already subject to such requirements. The intended effect is better managed fishery resources that result in the effective conservation of marine resources and habitat.
Amendments to § 679.50 are effective December 31, 2002. Amendments to § § 679.2, 679.79(a)(3), and 679.43(e) are effective January 1, 2003.
Copies of the Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this action may be obtained by contacting the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall. Send comments on information collection requirements to NMFS and to OMB, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 (Attn: NOAA Desk Officer).
Sue Salveson, 907-586-7228; or
NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801,
Groundfish fisheries in waters of the Gulf of Alaska (GOA) and Bering Sea and Aleutian Islands management area (BSAI) are managed under quotas set annually for groundfish species and for several other species that the groundfish fishery is prohibited from retaining. These quotas may be apportioned among areas, seasons, gear types, processor and catcher vessel sectors, cooperatives, and individual fishermen. Both retained and discarded catch are credited against these annual quotas, which generally are based on stock assessments generated principally by NMFS and on recommendations from the North Pacific Fishery Management Council (Council). NMFS' Alaska Region is responsible for monitoring the progress of fisheries toward attainment of those quotas and allocations thereof and for closing the fisheries when quotas are reached. Stock assessments, quota monitoring, and management require collection of data from the fishery to account for all groundfish and prohibited species catch, including the portion of the catch that is discarded. North Pacific groundfish observers aboard vessels and at shoreside or floating stationary processors collect the data necessary for these purposes.
Observer requirements have been in place in Alaska since the mid-1970s, when the Fishery Conservation and Management Act (later re-named the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)) was implemented and monitoring and phasing out foreign groundfish fisheries in the U.S. Exclusive Economic Zone (EEZ) was a priority. Because these foreign fisheries ended by 1991, the Observer Program infrastructure was changed to provide observer coverage for domestic vessels and shoreside processing plants participating in the Alaskan groundfish fisheries. A domestic Observer Program was developed by NMFS in consultation with the Council and implemented through Amendment 18 to the GOA FMP and Amendment 13 to the BSAI FMP (54 FR 50386, December 6, 1989, and 55 FR 4839, February 12, 1990). The Observer Program established observer coverage requirements that have remained generally unchanged through 2002.
High quality observer data are a cornerstone of Alaska groundfish fisheries management. Numerous changes to the Observer Program have been implemented to promote continued collection of quality data. These changes have ranged from relatively minor adjustments to the Program to changes that would address fundamental concerns. Minor adjustments, for example, may address logistic or data acquisition concerns. Changes that would address fundamental concerns, however, may address issues of data quality, the distribution of costs for observer coverage, and accountability of observer providers and observers for maintaining specified performance standards. Several attempts for long term restructuring of the Observer Program to address these fundamental issues have failed. One attempt to rectify these failures has been the Council's recommendation for establishment of an interim Observer Program in anticipation of developing a long term restructuring plan. The existing observer Program expires at the end of 2002.
At its April 2002 meeting, the Council recommended an extension of the interim Observer Program through 2007, as well as changes to the program to address several legal concerns, to clarify responsibilities of observers and observer providers and to authorize placement of NMFS staff aboard vessels or at shoreside or floating processors to support observer functions. As in past years, the Council's recommended action is intended to allow additional time for the development and analysis of alternatives that would address
The objective of these actions is to ensure that the Observer Program will continue to perform and improve its critical scientific, conservation, and management functions. As noted above, data provided by the Observer Program are, collectively, a critical element in the conservation and management of groundfish, other living marine resources, and their habitat. These data contribute to the current level of confidence in the management of federally managed fisheries in Alaska. Accurate catch accounting results in prosecution of fisheries at harvest levels that better approach actual allocations without exceeding them, thereby maintaining resource management objectives and avoiding, to the extent practicable, losses of revenue from potential misallocations resulting from the underharvest of total allowable catch (TAC). In recent years, the reliance on observer data for individual vessel accounting has been of particular importance in the management of the Western Alaska Community Development Quota (CDQ) program and American Fisheries Act (AFA) fisheries.
Because of the critical uses of observer data, extending the Observer Program beyond 2002 is essential. Improvements to the Observer Program are necessary to address both perceived and actual sources of data quality problems. In the absence of observer data or of some equivalent alternative source of fishery data, NMFS cannot fulfill its conservation and management obligations, as prescribed under the Magnuson-Stevens Act and other law.
On September 16, 2002, a proposed rule to extend the Observer Program through December 31, 2007, with modifications, was published in the
The denial of an observer certification or observer provider permit will be appealable. The Alaska Region's Office of Administrative Appeals (OAA) will review denials for both observers and observer providers upon request. Each decision from the OAA will be referred to the Regional Administrator. If the Regional Administrator does not act to overturn the OAA decision within 30 days, the OAA decision becomes the final agency action. Final agency action can be further appealed to the U.S. District Court. The specific processes for appeals of a denial of an observer provider permit or an observer certification are summarized below (See Observer Provider Permit Application and Observer Certification Process).
Observer providers previously certified by NMFS to provide observers and who actively deployed observers in Alaska groundfish fisheries in 2002 would be considered to be qualified for these permits in 2003 by their demonstrated performance and their existing documentation on file. Such providers will not be required to submit a new application, and the owner(s) will be issued a permit based on their existing record. These observer providers will continue to be accountable for any violations of regulations that occurred while they were functioning as NMFS-certified observer providers prior to January 1, 2003. Upon issuance of a new observer provider permit, these observer provider permit holders must comply with all applicable regulations promulgated by NMFS while participating in the Observer Program. Former NMFS-certified providers need only comply with those regulations in force at the time of their participation in the program.
Because accurate identification of the business' ownership is required for issuance of the permit, each existing NMFS-certified provider will be required to correct or update any changes to ownership, management, and/or contact information set forth under § 679.50(i)(1)(ii)(A)and (B) of this final rule within 30 days of receiving a permit. Subsequent changes in ownership of an observer provider that involve a new person will require the observer provider to submit a new permit application prior to the effective date of the new ownership arrangement.
A new applicant for an observer provider permit will be required to submit a narrative application that contains information necessary for NMFS to evaluate the applicant to determine if he or she is qualified to be an observer provider. Observer providers contribute an important service to NMFS by recruiting, hiring, and deploying high-quality individuals to serve as observers. NMFS must ensure that observer providers meet minimum requirements so that this important service is consistently maintained. NMFS would permit all applicants who: (1) demonstrate that they understand the scope of applicable regulations; (2) document how they will comply with those regulations; (3) demonstrate that they have the business infrastructure necessary to carry out the job; (4) are free from conflict of interest;
Each application for an observer provider permit must contain several elements. These elements are fully described and justified in the proposed rule (67 FR 58452, September 16, 2002) and are summarized below as follows:
(A) Identification of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company including, but not limited to, owners, board members, officers, authorized agents, and staff. If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.
(B) Contact information for the owner, authorized agent, and company information. This information includes mailing addresses, physical location of the company, telephone and fax numbers, and business e-mail address for each office and authorized agent.
In addition, an applicant with ownership based outside of the United States would be required to identify an authorized agent and provide contact information for that agent, including mailing address, and phone and fax numbers where the agent can be contacted for official correspondence.
(C) A signed acknowledgment, under penalty of perjury, from each owner, or owners, board members and officers, of a corporation, certifying that they are free from a conflict of interest as defined in the final rule at § 679.50(i)(3). NMFS will provide an acknowledgment template form, which applicants may use to satisfy this part of the application.
(D) A statement signed under penalty of perjury from each owner, or owners, board members and officers of a corporation, describing any criminal convictions, performance ratings on any Federal contracts held by the observer provider, and any previous decertification while working as an observer or observer provider.
(E) A description of any prior experience the applicant may have in placing individuals in remote field and/or marine work environments. This includes, but is not limited to recruiting, hiring, deployment, and personnel administration.
(F) A description of the applicant's ability to carry out the responsibilities and duties of an observer provider, and the arrangements to be used to achieve such responsibilities and duties.
The final rule also requires observer providers to notify and update NMFS through the Observer Program Office within 30 days when any of the required elements listed in § 679.50(i)(1)(ii)(A) and (B) of the final rule change. Signed statements from new board members or corporation officers under § 679.50(i)(1)(ii)(C) or (D) also will be required (See changes from the proposed rule to the final rule). These requirements will help facilitate the communication between NMFS and observer providers and help ensure ongoing credibility and accountability of observer providers.
The criteria that will be used to evaluate an application are listed below; the proposed rule (57 FR 58452, September 16, 2002) explained why each criterion is needed.
(1) Absence of conflict of interest. Observer providers cannot have a conflict of interest as defined under § 679.50(i)(3) of this final rule.
(2) Absence of criminal convictions related to embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements or receiving stolen property; or the commission of any other offense indicating a lack of business integrity or business honesty that would seriously and directly affect the fitness of an applicant in providing observer services under this section.
(3) Performance ratings on a Federal contract. This evaluation criterion would help eliminate applicants with a history of past performance problems as a Federal contractor.
(4) Absence of any history of decertification as either an observer or observer provider.
The review board will make an initial administrative determination to approve the application or provide written notice of an evidentiary period for the applicant to provide additional information or evidence to support the application. If the review board approves the application, NMFS will issue an observer provider permit to the applicant. The applicant will then be authorized to provide observers to industry and will also be subject to the regulations governing observer providers.
If the review board provides an applicant with written notice of an evidentiary period to provide further information, it would be due to the application being deficient in some manner. The written notice will identify where the application is deficient and provide the applicant with a 60-day period to provide additional information to correct the deficiency. After that 60-day period, the review board will review any additional material provided and issue an Initial Administrative Determination (IAD) that would either approve or deny the application.
An applicant for an observer provider permit who is issued an IAD denying the application may appeal the determination to the OAA. Under existing regulations at § 679.43, the OAA would review the appeal and make an independent judgement. No right to administrative appeal for the OAA decision is available. However, the Regional Administrator, on his or her own initiative, may overturn the OAA decision; in this case, the Regional Administrator's decision would become final agency action. This Regional Administrator discretion will be required to be exercised within 30 days. If the Regional Administrator does not act to overturn the OAA decision within 30 days, the OAA decision becomes the final agency action. Final agency actions can be further appealed to the U.S. District Court. As part of the change to this appeals process under this final rule, regulations at § 679.43 are amended to provide for the establishment of an Address of Record for the observer provider applicant who wishes to appeal an adverse IAD.
If a permit lapses after a period of 12 months of inactivity as described above,
this IAD will be issued an interim permit so they can operate while their appeal is reviewed.
The NOVA and Notice of Permit Sanction procedures are established at 15 CFR part 904. This final rule removes all the observer provider suspension and decertification procedure regulations at § 679.50, to the extent they are replaced by 15 CFR part 904. The Observer Program/Alaska Regional Office will cease to maintain a separate process for suspension or revocation of an observer provider permit. Under 15 CFR part 904, appeals of enforcement actions are heard through an ALJ system. The ALJ is an entity independent from NOAA and the observer provider. The ALJ's decision is appealable to the U.S. District Court.
Observers who completed sampling activities between June 30, 2001, and December 31, 2002, and have not since been decertified or had their certification suspended will be considered to have met certification requirements under this final rule. NMFS will issue each of these observers a new certification and certification training endorsement prior to their first deployment after December 31, 2002, unless NMFS determines that the observer has not been deployed, performed sampling duties, and debriefed successfully in the preceding 18 months. Under the final rule, these observers would be required to obtain subsequently the appropriate endorsements (described below) to their certification prior to each subsequent deployment. These observers will be subject to any enforcement actions for violations that occurred prior to January 1, 2003, as well as to all regulations governing observers beginning January 1, 2003.
The observer provider is required to submit substantiating information for certification, with one exception, to NMFS at least 5 business days prior to the beginning of a scheduled observer training. If the required observer information is not submitted 5 business days prior to the beginning of a scheduled training session, the observer provider could still register a candidate for a subsequent training session, provided all relevant materials are submitted in a timely manner for that training session. The exception to the above submission deadline is that the required, signed statement from a licensed physician asserting that the observer candidate is in proper health and physical condition for the job must be submitted prior to certification. While individuals whose certification has expired previously can be re-certified by successfully completing specified requirements, an individual who has previously been decertified cannot obtain a new observer certification.
The determination to either certify or deny certification will be made by a certification official within the Observer Program, appointed by the Regional Administrator. As is current practice, certification will be issued when the candidate has demonstrated his or her abilities and has met all certification requirements.
If a candidate fails training, he or she will be verbally notified on or before the last day of training. Within 10 business days of the verbal notification, the candidate and his or her observer provider will be notified in writing. The written notification will indicate the reasons the candidate failed the training and whether the candidate would be allowed to retake the training. If the candidate is allowed to retake the training, the conditions for re-training will be specified in the notice. If a determination is made that the candidate may not pursue further training, notification will be in the form of an IAD denying certification.
Candidates' appeals from an IAD to deny certification would be made to the OAA rather than to the Observer Program Office, as is the current practice. Regulations at § 679.43 are amended under this final rule to provide for the establishment of an Address of Record for the observer or observer candidate who wishes to appeal an adverse IAD. A candidate who appeals the IAD and prevails will not receive certification until after the final resolution of that appeal. If unsuccessful, the candidate could further appeal to the U.S. District Court.
(1) Certification training endorsement. A certification training endorsement will signify the successful completion of the training course required to obtain observer certification. This endorsement will be granted with the initial issuance of an observer certification and will be required for any deployment as an observer in the BSAI or GOA groundfish fisheries. This endorsement will expire when the observer has not been deployed and performed sampling duties as required by the Observer Program for a period of time, specified by the Observer Program Office, after his or her most recent debriefing. An observer may renew this endorsement by successfully completing the certification training course once more.
(2) Annual general endorsements. Each observer will be required to obtain an annual general endorsement to his or her certification prior to his or her first deployment within any calendar year subsequent to a year in which a certification training endorsement is obtained. To obtain an annual general endorsement, an observer will be required to successfully complete the annual briefing requirements specified in writing by the Observer Program Office.
(3) Deployment endorsements. Each observer who has completed an initial deployment after certification or an annual briefing will be required to receive a deployment endorsement to his or her certification prior to any subsequent deployments that year. An observer will be able to obtain a deployment endorsement by successfully completing all pre-cruise briefing requirements, including, but not limited to, all briefing attendance requirements, and by maintaining all performance and conduct standards. These requirements will be specified in writing by the Observer Program Office during the observer's most recent debriefing.
(4) Level 2 and Level 2 “Lead” endorsements. Observers wishing to deploy aboard vessels participating in CDQ fisheries and in AFA fisheries as “level 2” observers currently are required to meet specific levels of observer experience and to successfully complete additional training to obtain a “CDQ” certification. Under this final rule, these requirements would not change, with one nomenclature exception. The term “CDQ certification” will be changed to “Level 2 endorsement” on the observer's basic certification. This change reflects the similarities in the additional level of experience and training required to monitor the CDQ and AFA fisheries. The term “Level 2” is more generic in terms of applicability to various fisheries management programs, specifically denoting an observer with a higher level of experience and training. The certification will be changed to an endorsement for the reasons stated above. Similar changes for current Level 2 “lead” observer certifications are made as well. A level 2 “lead” endorsement reflects specific experience on different types of vessels using different gear types.
One minor change to criteria for obtaining the Level 2 endorsement is that an observer would be required to receive an evaluation rating that the observer has met NMFS' deployment expectations for his or her most recent deployment. Current regulations require a deployment rating of “1” or “2” (meets or exceeds NMFS' deployment expectations), but the Observer Program has changed its deployment rating system. This action will require that an observer receive an evaluation by NMFS that indicates that the observer's performance met Observer Program expectations for the previous deployment.
Under this final rule, the Regional Administrator will appoint an observer suspension/decertification officer or officers to review cases referred by Observer Program staff for suspension or decertification, or both, and to issue a written notice to the observer if NMFS intends to proceed with the action. If the action is pursued, this notice will detail the reasons for and the terms of the action. The notice will also indicate to the observer his or her right to appeal the decision and the procedure for filing such an appeal. The observer would have an opportunity to present documentation that would show mitigating circumstances or refute the evidence before the official. Under this procedure, the observer suspension/decertification officer will create a written record. If the observer does not contest the proposal to decertify or suspend the certificate, the observer suspension/decertification officer's initial decision will become final.
If the observer wants to appeal an adverse initial determination by the observer suspension/decertification officer(s), the decision will be referred to the OAA. The OAA will provide a hearing officer who has special training in reviewing administrative records. Additionally, the OAA could preside over fact-finding hearings, hear testimony or review evidence and issue written decisions with determinations of factual issues and application of the regulations. The OAA's determination will be referred to the Regional Administrator. The Regional Administrator, on his or her own initiative, may overturn the OAA decision; in this case, the Regional Administrator's decision would become final agency action. The Regional Administrator will be required to exercise this discretion within 30 days. If the Regional Administrator does not act to overturn the OAA decision within 30 days, the OAA decision becomes the final agency action. Final agency actions can be further appealed to the U.S. District Court.
The OAA system will provide an efficient mechanism for decisions on observer appeals, suited to observers' needs for a straight-forward procedure and for pursuing appeals and resolution. Rather than resulting in monetary fines, these cases result in administrative sanctions, which the OAA is appropriately prepared to address.
The agency will continue to refer to NMFS' Alaska Enforcement Division (AED) certain cases for investigation that may involve serious observer misconduct, such as the exceptional cases where observers should be prosecuted for criminal offenses or receive monetary sanctions for egregious violations of the regulations. These would be instances of fraud, assault, or other more serious violations. Prosecution of these cases will continue to be handled by GCEL/AK, with appeals directed to ALJs. Successful prosecution of these cases will result in penal sanctions. Penal sanctions are those penalties that result from criminal prosecution or from civil prosecution that result in monetary fines.
A full description of the new responsibilities and reasons for them are set forth in the preamble to the proposed rule (67 FR 58452, September 16, 2002) and are not repeated here. NMFS did propose an additional requirement, which is included in the final rule, that will require observer providers to have a signed written contract or contract addendum with each observer prior to each deployment. Most observer providers already follow this practice. However, this provision is necessary to ensure the observer's protection against potential non-payment for work performed and as added insurance of observer compliance with certain assigned duties and requirements.
The Magnuson-Stevens Act provisions authorizing collection of information for purposes of conservation and management of a fishery provide statutory authority to place observers aboard vessels. However, current regulations at § 679.2 define an observer as “any individual who is awarded NMFS certification to serve as an observer under this part, is employed by an observer contractor (provider) for the purpose of providing observer services to vessels, shoreside processors, or stationary floating processors under this part, and is acting within the scope of his/her employment.” This final rule modifies the definition of an observer to include NMFS staff and individuals authorized by NMFS and provides the regulatory authority to deploy staff to vessels or processors to perform observer duties or collect related information to be used for the conservation and management of marine resources.
Staff observers will provide information that could be used to better train, support, and debrief groundfish observers. Staff observer deployments will be used to improve fisheries conservation and management through: (1) solving sampling issues specific to individual vessels, shoreside processors, or stationary floating processors; (2) creating new sampling protocols; (3) developing and implementing research projects; (4) maintaining knowledge of current vessel, shoreside processor, or stationary floating processors operations; and (5) providing on-site training for an observer(s) employed by an observer provider. Further discussion and justification of this program is presented in the preamble to the proposed rule (67 FR 58452, September 16, 2002).
A majority of staff deployments to vessels and processors are expected to satisfy requirements for observer coverage as specified in §§ 679.7(f)(4) and 679.50(c) and (d). A determination on whether any staff deployment will meet coverage requirements for a specific vessel or processor will be made by NMFS in advance of each staff deployment. Notification of the determination will be made in writing to the vessel owner and/or operator, as well as to any observer provider contracted by the vessel to provide observer coverage. This determination largely will be based on whether NMFS staff or individuals authorized by NMFS are deployed to perform the duties of an observer. If the duties of the deployed staff observer do not include complete collection of data normally performed by an observer procured through a permitted observer provider for purposes of meeting regulatory coverage requirements, the staff observer deployment may not be used to satisfy observer coverage requirements.
The Observer Program would work with vessels and processors that are selected to carry NMFS staff or an individual authorized by NMFS to determine when and where deployments would begin and end. NMFS also will notify affected observer providers to the extent that the deployment of NMFS staff or other authorized individuals would affect prior arrangements for observer coverage. NMFS will not have regulatory authority to order a vessel to port to commence such a deployment. However, a vessel selected for a deployment will be required to work with NMFS to develop deployment logistics. This will include communicating vessel schedule and logistics to NMFS. NMFS does not intend to alter fishing operations or schedules in order to facilitate these deployments and will be responsible for
Four letters were received during the public review and comment period on the proposed rule. These letters contained 40 unique comments that are summarized and responded to below.
Comment 1: The permit process for the observer providers needs to include observer input as part of the evaluation process. In our opinion, the permit is analogous to a Federal contract and services provided under such contracts are evaluated at regular intervals. We do not feel that a permitted provider should be exempt from similar evaluations.
Response: NMFS disagrees that issuance of an observer provider permit is analogous to a Federal contract. NMFS does value the input from observers concerning the performance of their observer providers and has given observers the opportunity to provide that input through an anonymous exit survey at the end of each cruise. A portion of this survey questions observers specifically about their observer provider's performance. At least once a year, NMFS summarizes this information and reviews it with each provider. NMFS will continue this type of review under the new regulations. NMFS has not conducted formal evaluations of observer provider performance for many years and does not intend to begin doing so. NMFS will continue to address performance issues as they arise with individual providers. Comment 2: Previously, the regulations included a caveat to lower hiring standards if an insufficient number of applications were submitted from candidates with bachelor degrees. Is this regulation no longer applicable?
Response: A December 30, 1997, final rule extended the Observer Program through 1998 and included a change to the non-codified elements of the Observer Program that outline observer qualifications. For prospective observers, the change established: (1) minimum education and experience requirements, (2) specific coursework and skills requirements, and (3) that candidates successfully complete a screening test of basic mathematics, algebra, and computer skills. Since this was a new, non-codified requirement, NMFS included a caveat that if a sufficient number of candidates meeting these requirements were not available, the observer provider could seek approval from NMFS to substitute individuals with either a senior standing in an acceptable major, or an Associate of Arts degree in fisheries, wildlife science, equivalent degree, or other relevant experience or training.
The caveat was inserted to help providers during the transition to higher standards, but the education and experience requirements have been in place for over 4 years and NMFS feels the observer providers are finding and recruiting qualified applicants. For that reason, the non-codified exception to these requirements has been removed and is no longer applicable.
Comment 3: At § 679.50 (i)(2)(vii), the proposed rule states, “Unless alternative arrangements are approved by the Observer Program Office, an observer provider must not: (B) deploy an observer for more than 90 days;”. It would be useful to define when deployment time starts and stops. Our current understanding is that the countdown begins the day the observer boards his or her first vessel and ends the day the observer disembarks his or her last vessel. With the current wording, deployment time could be defined as starting when an observer leaves the site of their briefing for the field and continuing until they leave the field to debrief.
Response: Deployment is defined at § 679.2. The definition reads, “Deployment means the period between an observer's arrival at the point of embarkation and the date the observer disembarks for travel to debriefing.” To further clarify, arrival at the point of embarkation is when an observer boards his or her first vessel or arrives onsite at his or her first processor.
Comment 4: We have requested that safety training for prior observers be modified to coincide with requirements of sea-going NMFS staff, other survey staff such as IPHC, or other observer programs. This request does not appear to be addressed in the proposed rule. We would like to see this policy modified within the Observer Program regardless of whether it appears in the final rule.
Response: Safety training is an important priority in the Observer Program. In September and October 2002, NMFS held four meetings on observer safety to gather ideas. Participants in these meetings included representatives from the Association for Professional Observers, observers, observer providers, NMFS staff, and Observer Training Center (OTC) staff. Once compiled, the results of each meeting will be used to modify and improve the safety training observers receive. In addition, NMFS has been working with the OTC to evaluate observer training and to explore options for offering returning observers advanced training.
Comment 5: Paragraph one on page 58468 of the proposed rule states, “The proposed regulation would require that observers complete a NMFS electronic vessel and/or processor survey prior to their final debriefing...” Did you mean “prior to being deployed in a non-groundfish fishery?”
Response: NMFS agrees that the proposed rule preamble language was not completely accurate. However, the proposed regulatory text did correctly require that observers complete a NMFS electronic vessel and/or processor surveys before performing other jobs or duties which are not part of NMFS groundfish observer requirements.
Comment 6: The proposed rule states development and implementation of research projects are a component that will justify NMFS placement of staff on board vessels. We support this justification but request the agency publish an annual report or summary of these projects. We have requested specific information on data needs and priorities from NMFS for almost a decade to no avail. Some people feel the lack of agency articulation regarding data needs is a major stumbling block in redesigning/restructuring the Observer Program.
Response: If requested by the Council, NMFS will provide periodic reports on NMFS staff involvement in the development and implementation of research projects that this rule making will allow. NMFS may also pursue other outlets such as the Alaska Fisheries Science Center's Quarterly Report. The broader issue of requesting specific information on data needs and priorities is beyond the scope of this rule making. Nonetheless, NMFS is committed to working with the Council and other interested parties in providing information necessary to support long term planning for the Observer Program. Also see response to Comment 30.
Comment 7: It concerns us to find proposed regulations in the
Response: NMFS acknowledges that the development of regulatory text after Council action, and the subsequent agency and NOAA General Counsel review of draft text, resulted in numerous changes or additions to regulatory text to meet or clarify intent. NMFS disagrees that regulatory provisions were included in the proposed rule that had been “rejected” by the Council. The opportunity for prior public notice and comment on the proposed regulations is intended to give additional opportunity for public review of policy and intent beyond the Council process and how that intent is incorporated in proposed rule making. While not all detailed issues may be addressed in the Council process, they must be addressed by NMFS during the public rule making process. This process complies with the Magnuson-Stevens Act, the Administrative Procedure Act, and other applicable law.
Comment 8: Section 679.50 (h) Procurement of observer services. As written in the proposed rule, this regulation has no qualification or certification process for NMFS staff assigned to vessels. Significant potential exists for untrained individuals to be assigned to vessels in lieu of qualified observers.
Response: It would serve no purpose for NMFS to deploy untrained individuals in lieu of observers. NMFS intends to deploy NMFS staff and other qualified persons who meet or exceed the requirements an observer must meet. Most if not all individuals being considered for deployment are former groundfish observers who currently train or debrief groundfish observers.
Comment 9: Without a cap on the number of days NMFS can deploy staff on vessels, the possibility arises that NMFS could use this regulation to alter the Observer Program extensively without further deliberation in the Council process. The potential impact on free enterprise has not been considered, nor the enforcement and monitoring implications to the vessels.
Response: NMFS presented several options to the Council that would have limited the number of annual deployment days. Following deliberation on these options, the Council selected no annual cap. NMFS does not have the budget or staff to extensively impact free enterprise with respect to providing observer services and intends to deploy NMFS staff or qualified persons in lieu of observers only when necessary. NMFS fails to see how the lack of a cap on NMFS deployments has enforcement and monitoring implications for vessels.
Comment 10: We would like to request that NMFS notify the observer provider that a vessel they provide coverage for will be required to carry NMFS staff at the same time NMFS notifies the vessel or processor.
Response: NMFS agrees that observer providers need as much advance notice as possible when a vessel or processor will carry NMFS staff in lieu of an observer. NMFS will make these notifications to observer providers.
Comment 11: The owner and operator's right to contact NMFS in writing to request assistance in improving observer data quality and resolving observer issues at § 679.50 (e)(3) should be extended to observers and observer providers.
Response: Observers and observer providers may contact NMFS with requests and the appropriate changes have been made to § 679.50 (e)(3).
Comment 12: In the preamble on page 58457 NMFS would require all observer applicants to meet all pre-deployment requirements established by the Observer Program. We are uncertain what these requirements are and how they would affect the observer providers and observers.
Response: The preamble to the proposed rule states that NMFS would certify individuals who: (1) meet any educational or other requirements for registration in an observer certification training class; (2) successfully complete the NMFS-approved observer training class; and (3) meet all pre-deployment requirements established by the Observer Program. The pre-deployment requirements were described in the proposed rule in two places, at § 679.50 (i)(2)(i)(A)(
Comment 13: NMFS states they will notify observer candidates in writing if the candidate fails the training class. We would like to request that NMFS also notify the observer providers in writing if an observer candidate fails.
Response: NMFS has amended § 679.50 (j)(1)(iii)(B)(
NMFS is not able to provide either verbal or written notification of this type to observer providers under the Privacy Act unless the observer candidate has signed a written waiver authorizing the disclosure of this information to an observer provider. However, contract provisions between observer providers and observer candidates could include such a waiver so that NMFS could release this information to observer providers. Similarly, observer candidates could provide their observer provider any written correspondence from NMFS. Given Privacy Act constraints and options to observer providers to obtain this information under consent of an observer candidate, NMFS is not pursuing a regulatory change that would authorize the release of verbal or written notification to observer providers.
Comment 14: Under the proposed regulation change an observer candidate will be notified whether he or she will be allowed to retake the training class should he or she fail training. We request that NMFS clarify the criteria for applicants retaking the NMFS training class.
Response: Historically, NMFS has not allowed candidates to retake training if they failed the NMFS certification training. NMFS has allowed candidates to retake training if they withdrew from training to address personal issues that developed during the course of the training or to address deficiencies noted prior to the end of training. NMFS will continue to allow candidates who meet the two conditions noted above to retake training. Outside of those conditions, candidates may fail for a host of reasons ranging from behavior problems to lack of technical skills. For this reason, each observer candidate must be evaluated on a case-by-case basis taking into account the reasons behind their failure. Regardless of whether NMFS decides an observer can or cannot retake the certification training, NMFS' decision can be appealed by the observer under the new regulations.
Comment 15: Under the proposed rule, NMFS would require observer providers to contact the Observer Program within 5 days after completion of an observer's deployment to schedule a debriefing. Please clarify if that is 5 calendar days or 5 business days?
Response: NMFS has clarified the requirement at § 679.50(i)(2)(x)(E) as 5 business days.
Comment 16: We would like clarification as to how NMFS-provided pamphlets and other literature describing observer duties and the Observer Program's drug and alcohol policy may be distributed to observer candidates. Does each candidate need to be mailed or faxed a hard copy or can
Response: The informational pamphlet on observer duties and the Observer Program's drug and alcohol policy will be available in hard copy upon request and on the Observer Program's web site. NMFS agrees that this information can be provided to observer candidates electronically. The pamphlet on observer duties will describe what role observers fill, the job training, living and working conditions, observer job duties, and basic requirements to qualify as an observer.
Comment 17: The proposed rule requires observer providers to distribute copies of the NMFS drug and alcohol policies to their observers. We are not opposed to having or distributing such policies, but we would like the opportunity to comment on such policies before distributing them.
Response: NMFS solicited comments from a variety of sources and distributed a draft of the Drug and Alcohol policy to all observer providers on August 26, 2002. NMFS requested comments by September 15, 2002, but no comments were received by the deadline. One observer provider commented after the deadline and their comments will be taken into account as we finalize the policy. If subsequent input on this policy suggest the policy should be modified, NMFS will consider doing so.
Comment 18: The proposed rule requires a statement from observer (provider) applicants “describing any criminal convictions” by the applicant, which are later described in § 679.50(i)(1)(iii)(A)(
Response: Criminal conviction disclosure will be in place for persons wishing to become new observer providers and any new persons in the management, organizational structure, and ownership structure of an observer provider. Without this information, NMFS could not be assured of having knowledge of new applicants, managers or owners, and it is in the public interest for NMFS to screen these applicants. This screening process includes an evaluation of their criminal convictions because convictions relating to embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property could influence a person's ability to fulfill the expectations of an observer provider and predispose an applicant toward future compliance issues. Given these factors, NMFS needs to have the ability to assess persons relative to potential regulatory compliance issues and protect the fishing industry and observers from individuals whose credibility and accountability to the program are questionable. Also see response to Comment 7.
Comment 19: In reference to observer candidates disclosing criminal convictions, we are concerned that this regulation, in its present form, has not been discussed with the observer providers. We are also concerned about the use and intent of this regulation. Will some applicants not be admitted to training and could prior observers lose their job? We would like to see specific information and guidelines as to how NMFS will use this information. The types of convictions an observer must disclose is vague, the regulation should be refined to include either felonies as discussed with the Council or be expanded similar to the observer provider disclosure.
Response: This regulation was discussed at length during the Council process. Observers whose certification was current prior to this rule taking effect will not be required to disclose their history unless their certification lapses and they need to reapply for certification (see § 679.50(j)(iii)). Applicant disclosure of criminal convictions will be used to screen applicants and may be grounds for not admitting individuals to training. NMFS received specific guidance from the Council on this issue and the Council motion suggested NMFS screen applicants on a case-by-case basis and that applicants disclose their past criminal record without regard to the type of conviction. The outcome of each screening will be based on the nature of the criminal conviction as it relates to the job NMFS expects observers to perform.
Comment 20: Some of the background provided as supplementary information for this rule making is clearly out of date. For instance (from the proposed rule, pg. 58452), “Competitive pressure to reduce coverage costs to the industry keeps observer salaries low, resulting in reduced observer availability.” Observer salaries will range from $3,900 per month for new observers to $5,610 per month for experienced observers in 2003. Also, “Instability in the fishing and observer provider industries has created situations in the past where observers were not paid for work performed.” That would have been 1994 or so: if observer morale is still low, as the background alleges, events of 1994 can not be blamed.
Response: NMFS agrees that some of the issues experienced within the Observer Program in past years no longer appear to be a problem. However, we have no assurance that similar issues will not be encountered again in the future. A strong, credible Observer Program is of paramount importance to the monitoring and management of the North Pacific fishery resources. Recognition of this fact continues to provide the initiative for improvements to this program, including this final rule.
Comment 21: The new permitting, certification, and decertification procedures for observers and observer providers appear in large part to be a continuation of current practice dressed up in new terminology. We want to point out that any new system of “observer certification endorsements” needs to be implemented in such a way as to allow the “certification official” to issue these endorsements on the very afternoon an observer completes training or briefing. If the new system is not able to meet this time line, it will result in an Observer Program that is less efficient and less responsive to industry needs which will cost industry more money.
Response: NMFS understands the need for timely decisions for all observer endorsements under the new system. The system will be set up such that the certification official can issue endorsements the same day observers successfully complete training or briefing, which will ensure they are available for immediate deployment.
Comment 22: The proposed rule calls for providers to replace lost or damaged gear, but that raises the question as to whether gear that wears out due to normal use is also our responsibility. It would also be helpful if the Observer Program would provide us with a list of required and optional gear that NMFS provides for observers and with a list of vendors and replacement cost for each item in the event we need to purchase replacement gear. Would the observer provider replace the gear itself or simply reimburse NMFS? How and when will NMFS notify us that gear has been lost or damaged? We request that NMFS be required to notify providers within 5 business days of receiving an observer's gear of any items in need of
Response: Upon request, NMFS can provide a list of required and optional gear that includes a list of accountable items. NMFS does not expect observer providers to replace gear that wears out due to normal use. NMFS does not have a way of accepting reimbursements for lost or damaged gear. Instead, observer providers are expected to purchase replacement gear and have it shipped to the nearest Observer Program facility. If an accountable gear item is lost or damaged NMFS will notify observer providers within 5 business days of learning accountable gear has been lost or damaged. Included with that notification will be a list of vendors and estimated cost for replacement.
Comment 23: This proposed rule requires observer providers to provide observers as requested by vessels and processors who need to fulfill their observer coverage requirements. Will we be required to respond to any such request, even if it is made by a vessel who failed to pay us last year? By a vessel we abandoned as unsafe last month? By a vessel who calls only two weeks or two days before needing an observer? By a vessel with which we have no contract? The answer we will give to any of these questions is “No”, but the question is, by so answering, will we be in violation? If the answer to that question is “Yes”, then the proposed text needs to be re-written. We suggest the wording to this regulation be changed to, “An observer provider must provide an observer for deployments as requested by vessels and processors, with which the provider has a current signed contract, to fulfill vessel and processor requirements...” Similar wording was proposed in an earlier draft, but it has been changed. This change is necessary to protect the provider from being penalized for not providing observers for vessels that have not been offered a contract.
Response: The proposed rule does not change existing regulatory text addressing the expectation that observer providers supply observers as requested by vessels and processors to fulfill industry observer coverage requirements. As in the past, NMFS and NOAA will take into account any and all mitigating factors (such as those outlined in the comment) prior to making a decision to pursue an enforcement action against an observer provider. While NMFS supports private contract arrangements between observer providers and their clientele, NMFS is not optimistic about a contract requirement being able to unilaterally assure industry that observers always will be available when necessary to satisfy coverage requirements, particularly if a lack of planning results in last minute requests. NMFS also recognizes countervailing needs of observer providers and vessel or processor owners and operators who require observer services to maintain compliance with observer coverage requirements. Observer providers cannot be forced to enter into a contract arrangement with a person they believe represents inappropriate business or safety risks. Conversely, industry members need assurance that observer services will be available when they need them so that fishing operations are not negatively impacted. NMFS is optimistic that the existing program can be enhanced in the future to address these issues and is working with the Council and its Observer Advisory Committee to develop alternatives for analysis.
Comment 24: The proposed rule requires that a written contract exist between observer providers and observers. Most observers are currently employed by providers who have a contract with the Alaska Fisheries Division of the United Industrial Workers. These providers have contracts with the union, not with individual observers. To be accurate, the text should require either “written contracts” for non-union providers or “written contract addendums” for union providers.
Response: NMFS recognizes there are both union and non-union observer providers and has made a change to the regulation language at § 679.50(i)(2)(i)(C) to include both contracts and contract addendums.
Comment 25: During the Council process it was decided that language would be added that allows for observers to verbally agree to a contract extension. In some cases observers are working different contracts (i.e., ADF&G Shellfish, NMFS Marine Mammal). Observer providers may ask a prior observer to switch between assignments in the field. Providers should only be required to provide new contracts if there is a substantial change in contract language or during the first contract for a new calendar year. We suggest the language, “The contract must be signed by the observer and observer provider prior to the observer's deployment...” be replaced with, “The contract must be signed by the observer and observer provider prior to the observer's initial deployment in a new calendar year...”
Response: For each cruise an observer participates in it is important there be a signed contract or contract addendum between the observer and observer provider. As pointed out in Comment 24, not all observer providers have a contract with the union, therefore, without this regulation NMFS has no assurances that observers will have the protection of a contract. In addition, regulations such as § 679.50(i)(2)(v) rely on there being a contract between the observer and observer provider.
Comment 26: Observers often line up work while they are traveling and without access to fax, e-mail, or mail. In addition, observers often arrive in Seattle and depart for Anchorage that same evening, and in such cases we should not be expected to get a contract addendum to them until they are already in briefing. In other cases, observers who have been granted a briefing waiver and are being deployed on an emergency basis (to take the place of an injured or ill observer for instance) do not stop in Seattle or Anchorage before reaching their port of embarkation. In these cases we should not be expected to get a contract addendum to them until early in their field deployment. As written, this requirement for a contract between an observer and their provider will decrease the flexibility we have developed to cope with unforseen coverage problems. We are bound by our contract with the union whether or not we have a signed addendum with an observer; as a union contractor, we find this regulation unnecessary.
Response: Regulations at § 679.50(i)(2)(C) require that a written contract must be signed prior to an observer's deployment. According to § 679.2, a deployment begins upon arrival at the point of embarkation (see also response to Comment 3). Except for emergency situations, as outlined in the comment, obtaining a signed written contract should not be problematic for observer providers. At least one observer provider has an office in each of the major ports or cities observers travel through on their way to deployments (i.e., Anchorage, Seattle, Kodiak and Dutch Harbor). Given the fact that an observer must travel through at least one of these locations in order to reach a vessel or processor, NMFS believes observer providers will have ample opportunity to get a contract or contract addendum to observers prior to their deployment. See also response to Comments 24 and 25.
Comment 27: We are opposed to the proposed regulation that NMFS would require observer providers to obtain a signed contract from the observer prior to deployment. We had a teleconference on this issue and after much discussion, NMFS said they would not pursue this
Response: NMFS would like to clarify. The meeting referred to in the comment occurred on November 7, 2001, which was very early on in the regulatory process. At this meeting NMFS agreed to not pursue a requirement that observer providers have a signed contract with each observer before the observer enters training or briefing. NMFS agreed to this for the reasons outlined in Comment 26. The regulation was resurrected in a new format, which requires a signed contract prior to deployment, as the regulations were developed for reasons outlined in the response to Comment 25. See also response to Comment 7.
Comment 28: In the section of the proposed regulations that deals with new physical ailments prior to observer deployment, we believe the word “not” has been misplaced. We believe the regulation should read, “An observer provider must assign to vessels or shoreside or floating processors only observers: who have not informed the observer provider at the time of embarkation that he or she is experiencing any new physical ailments or injury since submission of the physician's statement...” By rewording the regulation observers will only be required to contact their provider if there is a problem, which will cut down on unnecessary communication expenses and free up time better spent dealing with observers who have informed us of an illness or injury. We think it is a mistake to single out “physical” ailments for reporting. Mental illness needs to be included in whatever language is settled upon.
Response: NMFS agrees and has made the necessary word change and added mental illness to § 679.50(i)(2)(iii)(B).
Comment 29: Observers are responsible for informing us in a timely manner if they are sick or injured, and we are responsible for having their illness or injury addressed before they return to work, whether on the same or another vessel. Under our approach, medical personnel determine whether an observer can work or not. Usually the medical personnel and the observer are in agreement as to the observer's fitness, but where there is disagreement, the situation is most likely to be one where the observer thinks they can go on working, but medical staff disagree. The proposed text, which would allow the provider to take an observer's word as to their fitness, could lead us to deploy observers who are less fit as a group than the observers who get deployed under our current approach.
Response: NMFS agrees. See response to comment 28.
Comment 30: We view this regulatory package as yet another short-term band-aid for problems that require a long-term solution. The background statement indicates the Observer Advisory Committee and Council have failed to develop a new plan. The agency needs to take the lead to revamp the Observer Program by instituting the Research Plan (or something similar) with or without the Council's approval. The Council process has not produced a solution in over a decade; why should we expect this to change within the next five years?
Response: NMFS agrees that long term solutions to several longstanding issues within the Observer Program have been difficult to identify, develop, and implement. NMFS recognizes that a leadership role exists for the agency in providing long term changes to the Observer Program and is committed to refocusing effort toward this goal. NMFS recognizes, however, that effective change will require support from the Council and intends to work within the public Council process to develop and ultimately implement necessary changes. Notwithstanding lack of action since repeal of the Research Plan in 1995, we remain optimistic that meaningful changes can and will be pursued over the next 5-year period.
Comment 31: The proposed rule states, “Vessels carrying observers are required under regulations at § 679.50(f)(1)(ii) to have on board a valid commercial fishing vessel safety decal issued by the Coast Guard. However, obtaining this decal through a Coast Guard inspection is a voluntary program and vessels are not prevented from operating without one.” This language is confusing since many vessels require 100 percent observer coverage and the general prohibitions of the Magnuson-Stevens Act (MSA) at § 600.725(s) state that vessels may not “fish without an observer when the vessel is required to carry an observer.” The proposed rule seems to conflict with the MSA.
Response: NMFS would like to clarify statements made in the preamble to the proposed rule. Vessels carrying observers are required under regulations at § 679.50(f)(1)(ii) to have on board a valid commercial fishing vessel safety decal issued by the Coast Guard. From the perspective of the Coast Guard, this program is voluntary as the Coast Guard does not require commercial fishing vessels to undergo these inspections. NMFS, however, mandates otherwise in regulations that require fishing vessels carrying observers to obtain a Coast Guard inspection in order to be issued a valid commercial fishing vessel safety decal. Thus, while the Coast Guard program is voluntary, obtaining a valid safety decal is mandatory under NMFS regulations for vessels carrying observers. NMFS disagrees that this approach conflicts with the Magnuson-Stevens Act.
Comment 32: While we would prefer that staff be able to verify fishing vessel safety decals, it just is not possible for staff to be in every single port where we deploy observers. If an observer verifies the decal, will that alone meet this NMFS requirement? If our records indicated that an observer verified the decal last week or last month and that it is still current, does that suffice, or does the next observer need to call it in too? Would it be more efficient to have safety decal information provided by the Observer Program and/or the Coast Guard about who has current stickers and/or safety concerns/complaints?
Response: On page 58467 of the proposed rule, NMFS outlined who could verify fishing vessel safety decals to satisfy this requirement. One of the options allows observer provider employees, including observers, to verify the presence of a valid decal and convey that information to the observer provider via phone, fax, or e-mail. As outlined above, this verification must be conveyed to the observer provider prior to the observer(s) embarking. A decal must be verified before every observer or set of observers embarks on a vessel. In addition to decals expiring, they can be revoked by the Coast Guard if safety violations are noted. For this reason, NMFS believes the most efficient way to verify safety decal information is for the observer provider to do it prior to each observer embarking on a vessel.
Comment 33: A fishing vessel safety decal does not ensure a vessel is currently safe. Decals are good for two years! Having a Coast Guard safety decal is not an effective solution to the problem at hand. We feel the regulations should be strengthened on the backside of the issue. What steps does an observer provider take if an observer reports an unsafe vessel? Our policy has always been to support the observer should he or she decide not to board a vessel due to safety concerns.
Response: NMFS agrees that having a valid fishing vessel safety decal does not guarantee a vessel is safe. However, it does mean that the vessel has undergone an inspection by Coast Guard personnel who are specialists in fishing vessel safety. If an observer reports an unsafe vessel to their provider, regulations at § 679.50(i)(2)(x)(I)(
Comment 34: NMFS should focus on improving the communication between NMFS, providers, USCG, and vessels to create a database of safety issues. NMFS must notify providers if observers or NMFS staff raise safety concerns about a vessel. NMFS should develop training protocols to ensure observers can verify vessel safety. The proposed regulation on verifying fishing vessel safety decals does not adequately address the issue, and it will be difficult to enforce. It seems the main purpose of this regulation is to protect NMFS' liability interests and not the real issue of vessel safety.
Response: NMFS has worked very closely with the Coast Guard, NMFS Enforcement, observer providers, and the fishing industry when vessel safety issues arise. This cooperation will continue in the future. NMFS continues to develop observer safety training and works in cooperation with the Coast Guard to ensure observers are able to identify and verify safety equipment when they board a vessel. Safety issues identified by NMFS staff and observers are documented and passed on to the appropriate authorities for resolution. Specific recommendations on how to improve observer safety are welcome. Also see responses to Comment 4 and Comments 31 - 33.
Comment 35: The regulation requiring mid-cruise data reviews has been debated endlessly, and we agree with the final wording in principle, but we request it be amended to read, “The observer does not at any time during their deployment travel through a location where Observer Program staff are available and able to complete in a timely manner an in-person data review.” We are concerned that if NMFS staff are not able to complete mid-cruises in a timely manner (e.g., due to office closures, observers arriving in Anchorage after business hours, etc.) that observers, vessels, and observer providers will be forced to wait. We would also like NMFS to clarify that the observer providers will not have to change their normal logistics if doing so would adversely affect the deployment of observers. For example, there will be situations where an observer will fly through Anchorage but only to make a connecting flight to another port.
Response: As worded, this regulation states that NMFS staff must be available for an observer to complete an in-person mid-deployment data review. If an observer will be traveling on a weekend, holiday, or after business hours through a location where the Observer Program has staff, NMFS has committed to making staff available for in-person mid-deployment data reviews. NMFS staff expect observer providers to advise them in advance in these situations. If after such notification NMFS staff are not available, the observer provider would be required to ensure their observer complete a phone or fax mid-deployment data review as described in the observer manual. In certain situations it may be necessary for NMFS to affect normal deployment logistics if an observer's errors were so egregious that the agency felt they could only be dealt with in-person. NMFS does not believe this will happen very often, but affecting logistics for an in-person data review would be in the public's interest if it does.
Comment 36: In the preamble, NMFS states, “The duties of an observer aboard a vessel delivering to a shoreside or floating processor are complete only when the vessel has finished offloading its catch and the observer has sampled that catch as it flows past the observer on a conveyor, typically as the fish enters the plant.” This is true of pollock but not of cod, rockfish, flatfish, etc. In its current form, this topic has not been addressed and will place unnecessary financial burden on both observer providers and industry.
Response: The preamble language of the proposed rule was too vague and did not adequately describe the new regulation. However, the regulatory text was correct. At § 679.50(i)(2)(vii)(D) the regulations state, “An observer provider must not: (D) Move an observer from a vessel or floating or shoreside processor before that observer has completed his or her sampling or data transmission duties.” NMFS asserts that in the pollock fishery an observer samples the catch typically as it enters the plant, but observers delivering from other fisheries typically do not have duties at the plant other than transmitting their data to NMFS. The regulation clearly describes that observers must be allowed to sample and transmit their data, neither of which will place an unnecessary burden on observer providers or industry.
Comment 37: There was no discussion of a NMFS-provided pamphlet to be distributed to physicians by the observer provider at any time during the Council process. We have not had time to review this regulation with the Council or NMFS and are uncertain what function it would serve. We feel it would duplicate unnecessarily information that is already provided to observers, observer providers, and physicians. We request this regulation be removed for proper review.
Response: NMFS did not specifically discuss the distribution of the pamphlet to physicians with the Council. NMFS did, however, discuss the necessity for this pamphlet to be distributed to potential observers. The purpose of the pamphlet, in part, is to provide consistent, factual information about observing to observer candidates so that they can make an informed decision as to whether observing is for them. NMFS feels that physicians, who judge an observer candidate's fitness for this job, should have that same information. Regulations at § 679.50(i)(2)(x)(C) require that, ”...prior to the examination, the physician was made aware of the duties of the observer and the dangerous, remote, and rigorous nature of the work...” NMFS feels distribution of the NMFS-provided pamphlet to physicians by observer providers is the most effective way to ensure they make informed decisions on observer fitness. See also response to Comment 16.
Comment 38: Within the proposed regulation at § 679.50(j)(2)(ii)(D)(
Response: If the performance or non-performance of an observer's duties would benefit or harm the value or substance of vessel or processing plant personnel or the profits such individuals receive, it would meet the definition of “substantially affected.” NMFS encourages observer providers to seek guidance from NMFS for unique situations to better ensure that conflict of interest standards are not violated.
Comment 39: With respect to observer provider responsibilities in the proposed rule, item 2 under § 679.50(i)(2)(i)(C) requires the observer's signed contract to contain, as a condition of continued employment, a provision that catch messages be submitted to the Observer Program at least every 7 days. If an observer has been deployed to shoreside fisheries and is not able to submit their catch message prior to their next assignment (due to waiting for a fish ticket, paperwork not complete, no access to communications equipment at the plant,
Response: NMFS has specified that catch messages be received at least every 7 days because that schedule typically satisfies the quota tracking needs. In certain situations (e.g., a fishery is about to close), NMFS requests that observers submit their catch messages twice per week or daily to allow for a more exact estimation of when fishing needs to cease before the quota is exceeded. The wording, “unless otherwise specified by the Observer Program” is necessary to accommodate more frequent data needs in these situations. As outlined in the comment, situations exist when an observer cannot submit their catch message at least every 7 days, and NMFS fully understands this. When catch messages are not being received at least every 7 days, NMFS will examine the situation and make a determination as to whether the observer is being negligent in the performance of their duties and therefore not fulfilling an element of their contract. This information will be provided to the observer provider.
Comment 40: NMFS would like to require that observer providers submit in a weekly deployment/logistics report the location of unassigned observers. This is another new requirement added with no previous discussion. We would like NMFS to provide information as to why this is important and how it will be used. An unassigned observer's location may change several times before the next weekly report is submitted. Why does NMFS need to know where these individuals are?
Response: Following the Council process and during the development of these regulations, NMFS recognized that groundfish observers work as observers in other fisheries and sometimes have breaks in the middle of a cruise. NMFS also recognized that it did not always know where these observers were. At times NMFS needs to locate these individuals to get data that has not been received, correct data that may be erroneous, or put them in contact with NMFS Enforcement for a violation they witnessed. While NMFS understands than an observer's location may be in flux, the agency feels it is important to know where observers with an open cruise are or at least have an idea of where they are throughout their cruise so they may be contacted.
Several changes from the proposed rule to the final rule are implemented under this action. These changes and the reasons for them are listed below.
This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act and which have been approved by OMB under OMB control number 0648-0318. These requirements and their associated burden estimates per response are: 60 hours for application for a new observer provider permit; 15 minutes for observer candidates to provide copies of college transcripts and disclosure statements to their observer provider; 15 minutes for observer providers to submit to NMFS copies of observer candidates' college transcripts and disclosure statements; 5 minutes for notice of observer physical examination; 2 hours for observer time for a physical examination; 7 minutes for notice of projected observer assignment; 7 minutes for submission of information to register observers for different types of briefing sessions; 12 minutes for certificate for insurance; 15 minutes for copies of different types of contracts; 7 minutes for weekly deployment/logistics report; 7 minutes for notice of observer debriefing registration; 2 hours for report of observer harassment, observer safety concerns, or observer performance problems; 30 minutes for Industry Request for Assistance in Improving Observer Data Quality Issues; 15 minutes for the addition of permit information updates by observer providers to keep permit information current; 40 hours for the observer provider appeals process if a provider disagrees with agency action to deny issuance of a permit; and 20 hours for an observer candidate's appeal if denied certification.
The response times 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 this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
This rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a FRFA, which describes the impact this final rule may have on small entities. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA) and its findings. A copy of the FRFA is available from NMFS (see
Alaska, Fisheries, Recordkeeping and reporting requirements.
16 U.S.C. 773
(1) Individual who is awarded NMFS observer certification to carry out observer responsibilities under this part, and who is employed by an observer provider for the purposes of providing observer services to vessels, shoreside processors or stationary floating processors under this part; or
(2) NMFS staff or other individual authorized by NMFS deployed, at the
(a) * * *
(3)
(ii) Except where observer services are provided by NMFS staff or other individuals authorized by NMFS under § 679.50(e), provide observer services to the North Pacific Groundfish fisheries without an observer provider permit issued under § 679.50(i)(1).
(e)
a. Revise the references “(h)(1)(i)(D) and (E)” to read “(j)(1)(v)(D) and (E)” in paragraphs (c)(4)(i), (c)(4)(ii), and (c)(4)(vi)(B) and (c)(4)(vi)(C);
b. Revise the reference “(h)(1)(i)(D)” to read “(j)(1)(v)(D)” in paragraphs (c)(4)(iv), (c)(4)(v)(A), and (d)(4)(i);
c. Revise the reference “(h)(1)(i)(E)” to read “(j)(1)(v)(E)” in paragraphs (c)(4)(iii), (c)(4)(v)(B), and (c)(4)(vi)(A).
d. Revise the reference “(h)(1)(i)(E)(
e. Remove paragraph (j); redesignate paragraphs (e) through (i) as (f) through (j), respectively; add a new paragraph (e); and revise the section heading and the newly redesignated paragraphs (h), (i), and (j) to read as follows:
* * * * *
(e)
(2) Prior to deployment of NMFS staff or individuals authorized by NMFS, the agency will provide written notification to the owner or operator of a vessel, shoreside processor, or stationary floating processor whether observer coverage credit will be granted for that deployment.
(3) Vessel, shoreside processor, and stationary floating processor owners and operators, as well as observers and observer providers, may contact NMFS in writing to request assistance in improving observer data quality and resolving observer sampling issues. Requests may be submitted to: NMFS Observer Program Office, P.O. Box 15700, Seattle, Washington 98115-0070 or transmitted by facsimile to 206-526-4066.
* * * * *
(h)
(1) Owners of vessels, shoreside processors, or stationary floating processors are required to procure observer services directly from NMFS when the agency has determined and notified them under paragraph (e) of this section that their vessel, shoreside processor, or stationary floating processor will use NMFS staff or an individual authorized by NMFS in lieu of an observer provided through a permitted observer provider to satisfy requirements under paragraphs (c) and (d) of this section or for other conservation and management purposes.
(2) Owners of vessels, shoreside processors, or stationary floating processors are required to procure observer services directly from NMFS and a permitted observer provider when NMFS has determined and notified them under paragraph (e) of this section, that their vessel, shoreside processor, or stationary floating processor will use NMFS staff or individuals authorized by NMFS, in addition to an observer provided through an observer provider to satisfy requirements under paragraphs (c) and (d) of this section or for other conservation and management purposes.
(i)
(B)
(C)
(ii)
(A) Identification of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company, including but not limited to owners, board members, officers, authorized agents, and staff. If the applicant is a
(B)
(
(
(C) A statement signed under penalty of perjury from each owner, or owners, board members, and officers if a corporation, that they are free from a conflict of interest as described under paragraph (i)(3) of this section.
(D) A statement signed under penalty of perjury from each owner, or owners, board members, and officers if a corporation, describing any criminal convictions, Federal contracts they have had and the performance rating they received on the contract, and previous decertification action while working as an observer or observer provider.
(E) A description of any prior experience the applicant may have in placing individuals in remote field and/or marine work environments. This includes, but is not limited to, recruiting, hiring, deployment, and personnel administration.
(F) A description of the applicant's ability to carry out the responsibilities and duties of an observer provider as set out under paragraph (i)(2) of this section, and the arrangements to be used.
(iii)
(
(
(
(
(
(
(B) The evaluation by the review board will provide a basis for the board's initial agency determination (IAD) on whether the application is complete and all evaluation criteria are met.
(iv)
(v)
(B)
(vi)
(vii)
(B) The Regional Administrator will provide a written determination to an observer provider if NMFS deployment records indicate that the permit has expired. An observer provider who receives a written IAD of permit expiration may appeal under § 679.43. A permit holder who appeals the IAD will be issued an extension of the expiration date of the permit until after the final resolution of that appeal.
(viii)
(2)
(i)
(
(
(
(
(B) Prior to hiring an observer candidate, the observer provider must:
(
(
(C) For each observer employed by an observer provider, either a written
(
(
(
(
(
(
(ii)
(A) Once an observer is scheduled for a final deployment debriefing under paragraph (i)(2)(ix)(E) of this section, submit to NMFS all data, reports required by the Observer Manual, and biological samples from the observer's deployment by the completion of the electronic vessel and/or processor survey(s);
(B) Complete NMFS electronic vessel and/or processor surveys before performing other jobs or duties which are not part of NMFS groundfish observer requirements;
(C) Report for his or her scheduled debriefing and complete all debriefing responsibilities; and
(D) Return all sampling and safety gear to the Observer Program Office.
(iii)
(A) With valid North Pacific groundfish observer certifications and endorsements to provide observer services;
(B) Who have not informed the provider prior to the time of embarkation that he or she is experiencing a mental illness or a physical ailment or injury developed since submission of the physician's statement, as required in paragraph (i)(2)(ix)(C) of this section that would prevent him or her from performing his or her assigned duties; and
(C) Who have successfully completed all NMFS required training and briefing before deployment.
(iv)
(v)
(vi)
(vii)
(A) Deploy an observer on the same vessel or at the same shoreside or stationary floating processor for more than 90 days in a 12-month period;
(B) Deploy an observer for more than 90 days in a single deployment;
(C) Include in a single deployment of an observer assignments to more than four vessels, including groundfish and all other vessels, and/or shoreside processors; or
(D) Move an observer from a vessel or floating or shoreside processor before that observer has completed his or her sampling or data transmission duties.
(viii)
(A) an employee of the observer provider, including the observer, visually inspects the decal aboard the vessel and confirms that the decal is valid according to the decal date of issuance; or
(B) the observer provider receives a hard copy of the USCG documentation of the decal issuance from the vessel owner or operator.
(ix)
(x)
(A)
(
(
(
(
(
(
(
(
(B)
(C)
(D)
(E)
(F)
(
(
(
(
(G)
(
(
(
(
(
(H)
(I) Reports of the following must be submitted in writing to the Observer Program Office by the observer provider via fax or email address designated by the Observer Program Office within 24 hours after the observer provider becomes aware of the information:
(
(
(
(
(
(xi)
(3)
(i) Must not have a direct financial interest, other than the provision of observer services, in a North Pacific fishery managed under an FMP for the waters off the coast of Alaska, including, but not limited to,
(A) Any ownership, mortgage holder, or other secured interest in a vessel, shoreside or floating stationary processor facility involved in the
(B) Any business involved with selling supplies or services to any vessel, shoreside or floating stationary processing facility participating in a fishery managed pursuant to an FMP in the waters off the coast of Alaska, or
(C) Any business involved with purchasing raw or processed products from any vessel, shoreside or floating stationary processing facilities participating in a fishery managed pursuant to an FMP in the waters off the coast of Alaska.
(ii) Must assign observers without regard to any preference by representatives of vessels, shoreside processors, or floating stationary processors other than when an observer will be deployed.
(iii) Must not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who conducts fishing or fish processing activities that are regulated by NMFS, or who has interests that may be substantially affected by the performance or nonperformance of the official duties of observer providers.
(j)
(ii)
(iii)
(B)
(
(
(
(
(
(
(
(
(
(iv)
(B)
(C)
(v)
(A)
(B)
(C)
(D)
(
(
(
(
(E) An observer who has achieved a Level 2 endorsement to their observer certification as specified in paragraph (j)(1)(v) (D) of this section may additionally receive a Level 2 “lead” observer endorsement by meeting the following requirements:
(
(
(
(vi)
(2)
(
(
(
(
(
(
(
(B) Provisions for remuneration of observers under this section do not constitute a conflict of interest.
(ii)
(A) Observers must perform their assigned duties as described in the Observer Manual or other written instructions from the Observer Program Office.
(B) Observers must accurately record their sampling data, write complete reports, and report accurately any observations of suspected violations of regulations relevant to conservation of marine resources or their environment.
(C) Observers must not disclose collected data and observations made on board the vessel or in the processing facility to any person except the owner or operator of the observed vessel or processing facility, an authorized officer, or NMFS.
(D) Observers must refrain from engaging in any illegal actions or any other activities that would reflect negatively on their image as professional scientists, on other observers, or on the Observer Program as a whole. This includes, but is not limited to:
(
(
(
(3)
(ii)
(A) When it is alleged that the observer has committed any acts or omissions of any of the following:
(
(
(B) Upon conviction of a crime or upon entry of a civil judgement for:
(
(
(
(iii)
(iv)
Board of Governors of the Federal Reserve System.
Proposed rule; official staff commentary.
This proposal would revise the official staff commentary to Regulation Z, which implements the Truth in Lending Act. The commentary interprets the requirements of Regulation Z. The proposed update would clarify the status of certain credit card-related fees. It also discusses the rules for replacing an accepted credit card with one or more cards; the treatment of private mortgage insurance payments in disclosing the payment schedule; and the selection of Treasury security yields for the purpose of determining whether a mortgage loan is covered by provisions in Regulation Z that implement the Home Ownership and Equity Protection Act.
Comments must be received on or before January 27, 2003.
Comments should refer to Docket No. R-1136 and should be mailed to Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551, or mailed electronically to
Krista P. DeLargy or Dan S. Sokolov, Attorneys, or Daniel G. Lonergan, Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667 or 452-2412; for users of Telecommunications Device for the Deaf (“TDD”) only, contact (202) 263-4869.
The purpose of the Truth in Lending Act (TILA), 15 U.S.C. 1601
TILA is implemented by the Board's Regulation Z (12 CFR part 226). The Board has delegated to officials in the Board's Division of Consumer and Community Affairs authority to issue official staff interpretations of Regulation Z. These interpretations, except in unusual circumstances, are incorporated in the official staff commentary (12 CFR part 226 (Supp. I)), which provides guidance to creditors in applying the regulation to specific transactions. Good faith compliance with the commentary affords creditors protection from liability under section 130(f) of TILA. The commentary is a substitute for individual staff interpretations; it is updated periodically to address significant questions that arise.
Comments on all aspects of the proposed revision to the official staff commentary are invited. It is expected that final revisions to the commentary will be adopted in March 2003. To the extent the revisions impose new requirements on creditors, the effective date for mandatory compliance would be October 1, 2003. See TILA section 105(d).
Representatives of the credit card industry have requested official guidance on the status under Regulation Z of two fees charged to consumers in connection with open-end credit plans—a fee imposed when a consumer requests that a particular payment on the credit plan be expedited and a fee imposed when a consumer requests expedited mailing of a credit card. Because the proper characterization of these fees under TILA previously has been unclear, the proposal would revise comment 6(b) to provide guidance on how these fees should be treated for purposes of Regulation Z. For purposes of the proposal, “expedited” refers to any form of payment or delivery other than the standard mail service generally made available to the creditor's customers.
Under Regulation Z, creditors must disclose fees that are “finance charges,” which are defined as “charges payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.” For open-end credit plans, fees that are not finance charges must be disclosed as “other charges” if they are significant fees related to the plan. Regulation Z does not require disclosure of charges that are not considered finance charges or “other charges.”
Card issuers increasingly have been making expedited payment services available to consumers. The expedited payment service provides consumers an alternative to mailing a payment that might not reach the card issuer by the due date. To avoid being assessed a late payment fee, the consumer requests expedited payment service for a lesser charge. The service is typically an electronic funds transfer or a draft on the customer's checking account.
A fee charged for expediting a consumer's payment would not appear to be incidental to the extension of credit if this payment method is not established as the regular payment method for the account. Accordingly, the proposal indicates that an expedited payment charge under these
Comment 6(b)-1 provides examples of “other charges” that must be disclosed to consumers under Regulation Z. The proposal would revise comment 6(b)-1 to indicate that a card issuer's fee for expediting a particular payment should be disclosed as an “other charge” provided that the method of payment was not authorized in advance as the regular payment method for the account. The charge appears to be a significant charge related to the credit plan because the fee is for a service provided in connection with a consumer's payment on the account and because typically the fee is paid to enable the consumer to avoid a late payment fee that is also considered to be an “other charge” for purposes of Regulation Z. Moreover, both expedited payment fees and late payment fees might be imposed on many consumers participating in a credit card plan and, for some consumers, might be regularly occurring charges.
The proposal would also amend comment 6(b)-2, which provides examples of charges that are not “other charges” under Regulation Z, to indicate that a card issuer's fee for expediting delivery of a credit card is not required to be disclosed either as a finance charge or as an “other charge” under the regulation. An expedited delivery fee does not appear to be a finance charge because it would not be incidental to the extension of credit where the card is also available to consumers by standard mail service without paying the fee.
Moreover, the charge would not appear to be an “other charge” under Regulation Z. The service does not appear to be a significant part of the credit plan because the card is also available without paying the fee and because the service is requested by consumers only occasionally, such as when a consumer seeks to replace a lost or stolen credit card and requests expedited mailing.
Staff notes that where a creditor merely passes through a third-party delivery charge, such as an express courier fee, and the creditor does not require the use of the service or retain any portion of the fee, the fee is not a finance charge or “other charge” that must be disclosed under Regulation Z.
Comment 9(c)(2)-1 would be revised to indicate that a change-in-terms notice is not required when the change involves the fee charged for expediting a consumer's payment. Card issuers generally inform consumers of the amount of the specific charge at the time the consumer agrees to the expedited service. As noted above, consumers typically request the service and pay the expedited payment fee to avoid a late fee. Accordingly, the proposed comment would treat expedited payment fees that are disclosed as “other charges,” consistent with the treatment of fees for unanticipated late payment, which also do not require a change-in-terms notice.
Section 132 of TILA, which is implemented by § 226.12(a) of Regulation Z, generally prohibits creditors from issuing credit cards except in response to requests or applications for cards. Section 132 explicitly exempts from this prohibition credit cards issued as renewals of or substitutes for previously accepted credit cards. Existing comment 12(a)(2)-5, the “one-for-one rule,” interprets these statutory and regulatory provisions by providing that, in general, a creditor may not issue more than one credit card as a renewal of or substitute for an accepted card (as that term is defined under Regulation Z). The existing staff commentary, however, does not construe Section 132 as requiring one-for-one replacement in all circumstances: existing comment 12(a)(2)-6 provides that an accepted credit/debit card may be replaced by a credit card, and a second card with only debit functions (with or without overdraft capability), since debit cards may be issued on an unsolicited basis under the Electronic Fund Transfer Act and the Board's Regulation E.
Advances in the technology used to send transaction information have allowed card issuers to issue credit cards in different sizes and formats. These changes may generally enhance consumer convenience. A merchant's equipment, however, may determine whether a consumer can use a particular credit card. Certain cards that are reduced in size can be used only if they are swiped through a card reader, while some merchants and automated teller machines use equipment that requires insertion of a “full-size” credit card. Accordingly, some card issuers have requested guidance on the issuance of cards using new technologies, which are intended to supplement but not necessarily replace a cardholder's existing card.
To address these developments, comment 12(a)(2)-6 would be revised consistent with the statute and legislative purpose, to indicate that card issuers may replace an accepted card with more than one renewal or substitute card on the same account where the consumer's total liability for unauthorized use with respect to the account does not increase. In addition, any replacement cards must access only the account of the accepted card and all cards issued under that account must be governed by the same terms and conditions.
Section 132 was one of several credit card provisions added to TILA in 1970, in response to the then-existing practice of mailing unsolicited credit cards to consumers. Proponents of these provisions asserted that unsolicited credit card mailings encouraged some consumers to spend beyond their means, were inconvenient to dispose of, were too easily stolen in the mails, and were a source of anxiety for consumers worried about theft and their own personal liability for unauthorized use. The legislative history also reflects concern about the resulting inconvenience to consumers of refuting unwarranted claims of liability.
Under section 133 of TILA, consumers have no liability for unauthorized use of a credit card unless they have accepted the card. A credit card issued as a renewal or substitution is not deemed to be accepted until it is received by the cardholder. See 12 CFR 226.12(a), footnote 21. To avoid monetary losses from the theft of credit cards sent though the mail, card issuers generally send cards that are not activated and employ security procedures requiring the consumer to verify receipt of the card. These industry practices should be as effective when replacing an accepted card with one or more renewal or substitute cards.
The proposed commentary revision is limited to interpreting the provision in section 132 of TILA that allows an unrequested card to be sent as a renewal of or substitution for an accepted card. Comment is also solicited on whether it would be appropriate to apply this view to additional cards issued for an existing account on the conditions specified in the proposal even when there is no renewal of or substitution for the cardholder's existing card.
The disclosures for closed-end loans must include the number, amounts, and timing of payments scheduled to repay
A technical amendment to comment 19(b)(1)-2 is proposed to change the citation to comment 19(b)-5, as amended (65 FR 17129, March 31, 2000). No substantive change is intended.
Section 226.32 implements the Home Ownership and Equity Protection Act of 1994 (HOEPA), which is part of the Truth in Lending Act. HOEPA requires additional disclosures and provides substantive protections for certain home-secured loans carrying rates or fees above a specified amount. HOEPA's rate-based trigger covers mortgage loans where the annual percentage rate (APR) on the loan exceeds the yield on Treasury securities with a comparable maturity by a specified number of percentage points (8 for first-lien loans, 10 for subordinate-lien loans). For purposes of determining coverage under HOEPA, the loan's APR is compared with the yield on Treasury securities as of the 15th day of the month immediately preceding the month of application. Comment 32(a)(1)(i)-4 would be revised to clarify how creditors should determine the applicable yield on Treasury securities.
Currently, comment 32(a)(1)(i)-4 provides that creditors may use the actual results of Treasury auctions or the Board's “Selected Interest Rates” (statistical release H-15), which is published daily and lists the yield on actively traded issues adjusted to constant maturities. The H-15 is posted on the Board's Internet Web site at:
The proposed comment would clarify that for purposes of HOEPA's rate-based trigger, creditors should compare the APR on 30-year loans (and other loans longer than 20 years) with the yield for a 20-year constant maturity, and not with the average long-term yield for maturities over 25 years or an estimate for a 30-year yield.
Some financial institutions offer a service to transaction account customers that is commonly referred to as “bounce protection.” Institutions apparently provide “bounce protection” in lieu of establishing an overdraft line of credit for the customer. The service varies among institutions and questions have been raised about whether there are circumstances in which the service might be covered by TILA and Regulation Z.
Although the institution generally reserves the right not to pay particular items, under these bounce protection programs, the institution typically establishes a dollar limit for the account holder, and then routinely pays overdrafts on the account up to that amount without a case-by-case assessment. Account holders whose overdrafts are paid pursuant to this service are assessed a fee; in some cases it may be the same amount that would be charged for an overdraft item that is returned unpaid or that is paid by the institution on an ad hoc basis.
In the case of the traditional overdraft line of credit, a financial institution pays an overdraft on a consumer transaction account and extends consumer credit. An institution is not a “creditor” subject to the disclosure requirements of TILA and Regulation Z, however, if the extension of credit is not subject to a finance charge.
Fees imposed in connection with “bounce protection” services may or may not meet the definition of a finance charge.
Comment letters should refer to Docket No. R-1136 and, when possible, should use a standard typeface with a font size of 10 or 12; this will enable the Board to convert text submitted in paper form to machine-readable form through electronic scanning, and will facilitate
Section 722 of the Gramm-Leach-Bliley Act of 1999 requires the Board to use “plain language” in all proposed and final rules published after January 1, 2000. The Board invites comments on whether the proposed commentary is clearly stated and effectively organized, and how the Board might make the commentary easier to understand.
Consumer protection, Disclosures, Federal Reserve System, Truth in lending.
Certain conventions have been used to highlight the proposed revisions to the text of the staff commentary. New language is shown inside bold-faced arrows while language that would be deleted is set off with bold-faced brackets. Comments are numbered to comply with
For the reasons set forth in the preamble, the Board proposes to amend 12 CFR part 226 as follows:
1. The authority citation for part 226 continues to read as follows:
12 U.S.C. 3806; 15 U.S.C. 1604 and 1637(c)(5).
2. In Supplement I to Part 226:
a. Under
b. Under
c. Under
d. Under
e. Under
f. Under
1.
[i. Late payment and over-the-credit-limit charges.]
▸i. Over-the-credit-limit charges, late payment charges, and charges imposed for expediting a consumer's payment provided that method of payment was not established as the regular payment method for the account.◂
2.
i. Fees charged for documentary evidence of transactions for income tax purposes.
ii. Amounts payable by a consumer for collection activity after default; attorney's fees, whether or not automatically imposed; foreclosure costs; post-judgment interest rates imposed by law; and reinstatement or reissuance fees.
iii. Premiums for voluntary credit life or disability insurance, or for property insurance, that are not part of the finance charge.
iv. Application fees under § 226.4(c)(1).
v. A monthly service charge for a checking account with overdraft protection that is applied to all checking accounts, whether or not a credit feature is attached.
vi. Charges for submitting as payment a check that is later returned unpaid (see commentary to § 226.4(c)(2)).
vii. Charges imposed on a cardholder by an institution other than the card issuer for the use of the other institution's ATM in a shared or interchange system. (See also comment 7(b)-2.)
viii. Taxes and filing or notary fees excluded from the finance charge under § 226.4(e).
▸ix. Fees to expedite delivery of a credit card, either at account opening or during the life of the account, when card delivery is also available by standard mail service without paying the fee.◂
1.
i. A change in the consumer's credit limit.
ii. A change in the name of the credit card or credit card plan.
iii. The substitution of one insurer for another.
iv. A termination or suspension of credit privileges.
v. Changes arising merely by operation of law; for example, if the creditor's security interest in a consumer's car automatically extends to the proceeds when the consumer sells the car.
▸vi. A change in late payment charges or over-the-limit-charges, or a change in the charge for expediting a consumer's payment provided that method of payment was not established in advance as the regular payment method for the account.◂
6.
▸ii. Replacing an accepted card with more than one renewal or substitute card, provided that: any replacement cards access only the account of the accepted card; all cards issued under that account are governed by the same terms and conditions; and under the account's terms the consumer's total liability for unauthorized use with respect to the account does not increase.◂
5.
▸4.
i. If the H-15 contains a yield for Treasury securities with constant maturities of 7 years and 10 years and no maturity in between, the annual percentage rate for an 8-year mortgage loan is compared with the yield of securities having a 7-year maturity, and the annual percentage rate for a 9-year mortgage loan is compared with the yield of securities having a 10-year maturity.
ii. If a mortgage loan has a term of 15 years, and the H-15 contains a yield of 5.21 percent for constant maturities of 10 years, and also contains a yield of 6.33 percent for constant maturities of 20 years, then the creditor compares the annual percentage rate for a 15-year mortgage loan with the yield for constant maturities of 10 years.
iii. If a mortgage loan has a term of 30 years, and the H-15 does not contain a yield for 30-year constant maturities, but contains a yield for 20-year constant maturities, and an average yield for securities with remaining terms to maturity of 25 years and over, then the annual percentage rate on the loan is compared with the yield for 20-year constant maturities.◂
[4.
By order of the Board of Governors of the Federal Reserve System, acting through the Director of the Division of Consumer and Community Affairs under delegated authority, November 26, 2002.
Small Business Administration.
Advanced notice of proposed rulemaking (ANPRM).
The U.S. Small Business Administration (SBA) is considering ways to improve coverage of the Certified Development Company (CDC) Loan Program (the “CDC Program” or the “504 Program”) to ensure that all small businesses have access to long-term fixed-rate financing. After a review of public comments, SBA will consider proposing amendments to existing program regulations that will improve overall program management. SBA also anticipates that some changes suggested by commenters may ultimately require new legislation.
SBA is revisiting the 504 Program policies as a prudent management exercise in light of major changes in the economy, the financial services industry, technology, and in CDCs' operations since the program's inception in 1980. The review has also been prompted by SBA's on-going discussions with the 504 industry and by specific requests made to SBA to expand CDCs' product base to include 7(a) loans or Small Business Investment Companies. In particular, SBA is seeking comments on the following: Whether the 504 Program is meeting its statutory purpose as defined in section 501(a) of the Small Business Investment Act; the appropriate long-term goals and annual performance measures for the program given its statutory requirement; the appropriate data elements required to assure solid program oversight while minimizing public data collection burdens; operational or regulatory impediments to providing long-term financing in rural or urban areas; and programmatic changes that could increase CDC competition and increase small businesses' access to loans.
This ANPRM and request for comments are intended to stimulate dialogue on these and other issues pertaining to the CDC Program.
All interested parties are invited to submit written comments. Comments must be received on or before February 4, 2003.
Mail written comments to: James E. Rivera, Associate Administrator for Financial Assistance, U.S. Small Business Administration, 409 Third Street, SW., 8th Floor, Washington, DC 20416. Comments may be sent by e-mail to
Gail H. Hepler, Chief, 504 Loan Policy Branch, U.S. Small Business Administration, 409 Third Street, SW., 8th Floor, Washington, DC 20416. Questions may be sent by e-mail to
During the late 1970s and early 1980s, the prime interest rate and unemployment reached historically high levels. It was generally believed that long-term, fixed-rate money was not available at a reasonable cost to small businesses because of these high prevailing rates and that this was hindering job creation.
Congress enacted Section 503 of Title V of the Small Business Investment Act in 1980. The 504 Program was intended to provide fixed-rate financing for small businesses at favorable terms unavailable in the marketplace. Congress specified in the Act that this program “foster economic development and create or preserve job opportunities in both urban and rural areas by providing long-term financing for small business concerns . . .”
The statute authorizes SBA to guarantee debentures backing long-term, fixed-asset loans (504 Loans) issued by Certified Development Companies (CDCs). It also authorizes SBA to pool the guarantees and sell interests in the pools to investors.
SBA guarantees the debentures pursuant to terms and conditions set forth in SBA regulations. These regulations are found at 13 CFR Part 120. Sections 120.800 through 120.991 are exclusive to the CDC Program. In support of the statutory mandate to create or preserve jobs, SBA currently requires each CDC to affirm that its 504 loan portfolio creates, on average, one job per $35,000 of CDC financing.
Since enactment of the 504 program, the CDC industry has been developed to meet the job creation and economic development goals of the program. Several hundred CDCs either were started in local communities or amended their existing operations to participate in the program. There are currently approximately 270 CDCs. Each CDC has a specific geographic area of operations. In general, CDCs have a membership comprised of financial institutions, community organizations, businesses, and government organizations responsible for economic development in the CDC's area of operations. Over the years, SBA has made changes to the CDC program to help ensure its vitality. For example, the original job opportunity objective was one job created or retained per $15,000 of guaranteed debenture investment. In 1990, SBA raised the job opportunity objective to one job per $35,000 of guaranteed debenture investment to reflect the inflationary factors of the previous 10 years. Congress also has amended the program legislation in a variety of ways including incorporating other economic development goals such as assisting businesses located in rural areas or veteran-owned businesses.
The characteristics of individual CDCs vary significantly. Some are independent entities devoted primarily to making 504 Loans. Others are part of local or state governments. These organizations use the 504 Program along with many other economic development programs such as HUD 108 and EDA revolving loan funds. For these entities, the 504 Program is but one program in an array of economic development tools. Any cash flow over and above related 504 staff and overhead expenses is available to these CDCs to support other economic development activities such as establishing revolving loans funds or microloan programs. Most CDCs fall in between these two types of entities.
The role of a CDC in the 504 Program loan process has expanded over the years. Initially, the CDC identified prospective small business borrowers and assisted with application processing and servicing. SBA made all credit decisions and approved, in advance, all servicing actions. The CDC did not have any financial stake in the loan other than the on-going servicing fee that it was paid by the borrower. As the program has evolved and SBA's personnel resources have diminished, CDCs, along with other types of lenders, have developed substantial SBA lending expertise and have assumed greater processing, closing, and servicing responsibilities. Some CDCs even liquidate defaulted loans. These responsibilities have increased the ability of CDCs to serve small business borrowers.
Under the Premier Certified Lenders Program (PCLP) authorized by the Congress through Public Law 103-403, approved October 22, 1994, participating CDCs have increased authority to perform origination, servicing, and liquidation functions for their 504 Loans. By statute, all PCLP CDCs are required to deposit into a reserve fund one percent of the value of all PCLP loans that they fund. Cash from these reserve funds is then available to reimburse SBA for 10 percent of any loss incurred by SBA in connection with any individual PCLP loan. The reserve also creates a financial incentive for PCLP CDCs to originate high-quality loans and to service and liquidate their loans in a prudent manner. PCLP authority is limited to those CDCs that demonstrate on an on-going basis sound and effective loan processing, servicing, and liquidation practices.
As a result of the CDC Program, long-term, fixed-asset financing by SBA has grown dramatically since its inception. Almost 5,500 504 loans for an approximate total of $2.47 billion were approved in FY 2002. Over the life of the program, more than $15 billion has been funded. Combined with the required private sector financing this represents $42 billion in funding for growing small businesses. This tremendous growth is largely attributable to the solid program structure, the hard work of the CDCs, and the ability of the program to provide financing appropriate for the economic times. Overall, more than 39,000 loans have been approved resulting in the creation or retention of over 1,000,000 jobs since 1980.
Since the CDC program was initially authorized, both the CDC industry and the economic environment in which it operates have changed significantly. As a result, it is vitally important that the SBA and those interested in the 504 Program work together to re-examine existing program policies and to consider new or revised policies to assure the program's continuing vitality and compliance with its statutory purpose, to foster economic development and create or preserve jobs.
For example, a CDC that has managed to accumulate substantial cash reserves from its fee income has requested that SBA permit it to establish a subsidiary to make 7(a) Guaranty loans. This subsidiary would be initially financed by the CDC, managed by the CDC, and owned 100 percent by the CDC to make 7(a) loans. Other CDCs wishing to expand or new CDCs that wish to establish themselves where existing, active CDCs operate are finding it increasingly difficult to meet the membership requirements and have asked for waivers of the membership requirements. While SBA may have the legal discretion to grant these requests, it is not clear whether or how these changes would serve the broader purpose of the statutory authorization. It
In addition, SBA continues to be concerned that a large proportion of the counties in the country are not receiving 504 financing even though there are active CDCs that include those counties in their areas of operations. For example, of the 67 counties in Alabama, 31 did not receive any 504 Loan approvals for the 24 month-period between November 1, 1999 and October 31, 2001. During that same time period, 59 of the 75 counties in Arkansas did not. Nationwide, more than 64 percent of the counties did not receive one 504 Loan approval per 100,000 population per year averaged over a two-year period. Most of these counties are included in one or more CDC's area of operations. A large proportion of these counties have small populations.
SBA needs additional information to determine the reasons why these areas are not receiving 504 financing. If there is a lack of demand for small business capital in general, or if there are other, more attractive, small business financing opportunities in these areas, a change that would permit additional CDC competition in these areas, such as a relaxation of the CDC membership requirements may not have any appreciable effect. Similarly, a new CDC loan product designed specifically for rural counties, such as a stand-alone debenture that does not require the participation of a first mortgage lender, might be warranted, but only if existing 504 loans do not meet the existing unmet demand for small business capital.
Issues raised by the noted circumstances as well as those arising through the SBA/financial services industry dialogue are among those addressed by the questions posed to the public for comment in this advance notice of proposed rulemaking. Additional questions relate to issues raised in connection with regulations published on July 11, 2000 (65 FR 42624) which permitted CDCs to apply to expand their areas of operations beyond their state of incorporation into a contiguous state beyond a local economic area.
Financial markets change over time, and the Agency wants to insure that the CDC Program is flexible enough to meet the long-term, fixed-asset needs of small businesses in all geographic locations.
While SBA has posed specific questions in this ANPRM, SBA seeks input from the public on the entire 504 program. The public, including the CDCs and small businesses, are welcome to provide comment on all aspects of the program, from its regulatory structure to the ability of the program to meet its statutory goals, and to suggest amendments to the program. SBA is also willing to consider changes that may require additional statutory authorization. SBA intends to pursue feasible suggestions that further the statutory purposes of the program.
SBA would like feedback on whether the program is meeting its goals to bring economic development loan funds into local communities. The Agency also seeks to determine if there are unmet needs in business lending that the financial services industry is not serving. As the SBA is a “gap lender,” the Agency is interested in hearing from both SBA borrowers and individuals who may wish to use the 504 Program in the future.
In addition, as part of SBA's review of the 504 program, SBA is evaluating its goals and performance measurements for the 504 Program, particularly in the context of the Government Performance and Results Act of 1993 (Pub. L. 103-62).
SBA invites public comments on the following questions as well as any other topic related to the 504 program. Comments may be addressed to one, all, or any combination of the following questions. Questions are grouped under the following headings for ease of review by the public.
1. Does the problem which the 504 Program was created to remedy, lack of small business access to long-term fixed-rate capital, still exist? What evidence exists to demonstrate this need?
2. Is the 504 Program optimally designed to address the problem?
3. Is the 504 Program designed to make a unique contribution in addressing the problem (
4. Does the 504 Program collaborate and coordinate effectively with related programs that share a similar purpose?
5. How would the 504 Program demonstrate adequate progress in meeting the statutory goals of the program?
6. What long-term performance goals would be appropriate for the 504 Program? Performance goals should be specific, ambitious, focused on outcomes, and meaningfully reflect the purpose of the program. In other words, how can we demonstrate the scale of the problem and show that the 504 Program is working to remedy the problem?
7. What kind of evaluation would be most beneficial in measuring program effectiveness, both over the short term and the long term? Does the program currently gather the information necessary to make this evaluation?
8. Does the performance of this program compare favorably to other programs with similar purposes, if any, and goals?
9. Because 64% of all counties nationally did not receive any 504 funding averaged over a 2-year period, are the CDCs meeting all of the public demand for capital in both rural and urban areas?
10. Would “special programs” in rural areas attract the needed capital that does not currently exist in the market today?
11. Is the process for receiving a 504 Loan reasonable compared to other business lending? Substantive comments/recommendations are encouraged to provide the broadest benefit to the Agency.
12. Does the cost, time and requirements of receiving a 504 Loan make the program unattractive compared to the 7(a) program?
13. Is the 504 Program fulfilling its mission to bring fixed-rate financing to small business? If not, what steps can be taken to further the mission of the program?
14. Many of the stated uses for 504 funding are similar to requests for funding for 7(a) loans. Are the programs redundant, are there additional changes that are required to the 504 Program to fill the lending gap to small business borrowers?
15. Should the CDC membership requirements be changed? If so, how should they be changed and still meet the test that the membership represents the economic development interests of the CDC's area of operations? For example, should a CDC be permitted to only have financial institutions as members? Should there be fewer members than 25?
16. Should SBA permit for-profit CDCs again? If so,why? If not, why not? Should the existing, for-profit CDCs be required to become non-profit CDCs and thus meet the regulations governing all other CDCs? If so, by what period of time?
17. Should SBA establish requirements to assure that a CDC remains viable? For example, should
18. What modifications to the regulations governing PCLP CDCs should be considered to increase participation by a larger number of CDCs?
19. If a CDC has an existing area of operations in which it is not meeting the “adequately served” benchmark of one 504 Loan per 100,000 population per year averaged over a 2-year period, should it be permitted to expand its area of operations? Should it be required to shrink its area of operations?
20. Should this same CDC have to shrink its area of operations by those counties in which it has not made a 504 Loan? If so, when? What would be the period of time that would be reviewed?
21. Even if a county is “adequately served,” should a new CDC or an existing CDC be permitted to apply to include that county in its area of operations if there is only one CDC currently including that county in its area of operations?
22. Depending on when a statewide CDC was approved and depending on whether other CDCs have been decertified or have been converted to Associate Development Companies, a statewide CDC may or may not include the entire state in its area of operations. Should all statewide CDCs be permitted to include the entire state in their area of operations?
23. Should the definition of “adequately served” change to something other than one 504 Loan per 100,000 population per year averaged over twenty-four months? If so, what would be a better benchmark?
24. When the Section 503 Development Company Loan Program was authorized in 1980, its purpose was to provide financing through corporations “formed by local citizens whose primary purpose is to improve their community's economy. They assist in the planned economic growth of the community by promoting and assisting the development of small business concerns in their area.” (Legislative History, Pub. L. 100-590, p. 22) Should SBA eliminate the requirement that a CDC have a specific area of operations? If so, how would the purpose of economic development be defined and monitored for each CDC?
25. Would permitting applications for a multi-state CDC where the state is not contiguous to the CDC's state of incorporation provide greater access and a wider range of choices for borrowers?
26. Should CDCs be required to adequately serve certain areas (
27. Should SBA relax its standard of two CDC loan approvals per year for those CDCs that operate in a rural area?
28. How can SBA best assure that small businesses in rural areas, where lack of population density makes lending more difficult and more expensive, have appropriate access to the 504 Program?
29. Should SBA promulgate regulations that recognize that operational difference between CDCs that, because of local government affiliation or support, are limited to serving specified areas, and those CDCs that do not have such constraints.
30. In order to encourage a variety of thoughtful comments, the following are potential scenarios presented to encourage commenters to consider the ramifications of various approaches to ensuring equal access by all eligible borrowers, regardless of their geographic location. These are not meant to address every issue that may be relevant but are designed to illuminate the various approaches that could be applied to encourage complete coverage.
1. County population is less than 125,000; or
2. County population is more than 125,000 but less than 500,000, and the population density of the county is less than the population density of the entire state. Neither of these criteria would apply in any state where the population density is greater than 600 per square mile.
CDCs that serve a county (or portion of a county) meeting the sheltered criteria will have “right of first refusal” on a loan in that county. The CDC must act to the satisfaction of the borrower within 30 days or the borrower may opt to use the services of another CDC willing to consider the loan, even if that CDC does not serve the sheltered county. New CDCs can be approved in sheltered areas where there is no coverage, or where an existing CDC poses no objection. As an exception to policy, SBA may declare as sheltered, a portion of a county that does not meet
For areas not meeting the sheltered criteria, any CDC who can service a loan would be allowed to make a loan. All existing CDCs would be grandfathered into their current areas of operations. New CDCs (and expansions of existing CDCs) could occur so long as they met the representation requirements.
31. Presently only 10 and 20-year fixed-rate debentures are offered. Would 504 Program economic development objectives be better served if SBA made changes to the terms of debentures offered?
32. What would the costs and benefits to borrowers, CDCs, private sector lenders, and any other party be if SBA provided a debenture product that amortizes monthly rather than semi-annually?
33. Are there benefits to allowing CDCs to jointly participate in a 504 Loan project?
34. Would a stand-alone debenture (no third-party lender requirement) for projects located in rural counties make 504 financing more attractive in these under-represented counties? If so, should there be a dollar limit on the project?
35. SBA has developed a system that enables SBA and the CDC to track a CDC's 504 Loan portfolio performance as measured against SBA-established benchmarks as well as the CDC's peer group. In order to insure the quality of the 504 Loan portfolio as well as the accessibility of the program that could be severely jeopardized if defaults increase and/or recoveries decrease, resulting in an increase in future borrowers' fees to maintain the program at its zero subsidy, should SBA establish 504 Loan portfolio performance requirements by CDC as a regulation? If so, since CDCs with large portfolios have a proportionately greater effect on the overall portfolio performance, but CDCs' with small portfolios are disproportionately affected by the failure of 1 loan, should there be a minimum portfolio size under which the regulation takes affect? If so, what should the size be?
36. Should SBA require CDCs to have a financial stake in the performance of all of their 504 Loans, not just in the performance of any loan processed under PCLP authority? If so, what should be the requirement?
37. What regulatory impediments are there to processing or closing 504 Loans?
38. If a 7(a) lender closes and disburses a loan that SBA subsequently determines to be ineligible, SBA can deny liability under its regulations. If a CDC closes and disburses a 504 Loan that SBA subsequently determines to be ineligible, what financial or other penalty should be imposed on the CDC?
39. Current regulations require a CDC to provide evidence to SBA that it has created at least one job per $35,000 of 504 debentures that it has issued. At the two-year anniversary of the small business's receipt of the loan proceeds, the CDC is required to document how many jobs were actually created. Should SBA require CDCs to provide evidence of other economic development in their Areas of Operations in addition to creating jobs? If so, what other evidence of economic development should be required, and what quantitative measures should be used?
40. Should SBA develop a list of acceptable “economic development activities” in which SBA permits a CDC to invest its resources? If yes, what activities should be included? What activities should be excluded?
41. Should SBA permit a CDC to contribute to the financial support of a 7(a) lender? Is this economic development as intended by Congress when it created the development company loan program?
42. Should SBA permit a CDC to establish an affiliate relationship with a 7(a) lender through a management contract? Are there any benefits or drawbacks for borrowers?
43. Should SBA permit a CDC to establish or acquire a 7(a) lender subsidiary? Is this economic development as intended by Congress? What are the benefits and drawbacks for borrowers?
44. SBA's regulations prohibit a financial institution, among others, from controlling a CDC. (§ 120.824) Should SBA permit a 7(a) lender to establish a CDC affiliate or subsidiary controlled by the 7(a) lender?
45. Should SBA permit a CDC to financially contribute to an SBIC? If so, under what limitations?
46. Should SBA permit a CDC to establish an affiliate relationship with an SBIC through a management contract?
47. Should SBA permit a CDC to establish an SBIC subsidiary? If so, under what limitations?
48. Should SBA permit a separate corporation to have control through common management of the corporation, a CDC, and other corporations such as a 7(a) lender, an SBIC and so on? If so, under what limitations?
Comments on any other aspect of the CDC Program are also welcome. SBA reminds commenters that all submissions by commenters are available to the public upon request.
Postal Service.
Proposed rule.
The Postal Service proposes to revise its standards concerning indemnity claims as set forth in the
Comments must be received on or before 30 days from date of publication.
Written comments should be mailed or delivered to the manager, Revenue and Field Accounting, 475 L'Enfant Plaza SW, Room 8831, Washington, DC 20260-5242. Copies of all written comments will be available at the above address for inspection and photocopying between 9 a.m. and 4 p.m. Monday through Friday.
Gilbert LeMarier, 202-268-3333.
The proposed changes fall into several categories. Each is addressed separately below.
The Postal Service is redesigning the claims system to ensure a more timely response to claims filed by our customers. The Customer Claims Response System (CCRS) will provide an interactive means, utilizing Web technology, to capture claim information from designated field units and to expedite claim adjudication. The product tracking system will be utilized to obtain delivery information.
In conjunction with the redesign of the claim system, time limits for filing a claim will be revised. The current policy that a customer must file a claim immediately when the contents of an article are damaged or missing will now have a clearly stated time limit of no later than 45 days from the mailing date. Also, for a lost article, a customer would be able to file sooner for certain special service products. Insured and bulk insured service customers would be able to file a claim 21 days from the mailing date versus the current 30-day requirement. Customers of COD mail, Express Mail COD, and registered COD special services would be able to file a claim 45 days from the mailing date versus the current 60-day requirement.
For Insured Mail, Registered Mail, and COD services, the Postal Service proposes that the maximum time limit for filing a claim be reduced to no later than 180 days from the mailing date. These proposed changes will enhance the efficient and timely processing of claims and reduce the retention period of undeliverable, accountable mail.
The Postal Service also proposes to reduce the retention of undelivered Insured Mail items. Currently, undeliverable mail is forwarded to mail recovery centers (MRCs). Under current procedures, information about undeliverable accountable mail items (Insured Mail, Registered Mail, and COD mail) is logged into a national claims database and the accountable article is held for 1 year from the date of receipt, the maximum time limit allowed for filing a claim from the mailing date. The Postal Service proposes that retention periods for accountable mail be shortened to 180 days from the date of receipt to match the new proposed maximum time limit allowed for filing a claim. This also would relieve capacity constraints on MRCs.
Under current mailing standards, only the sender may file a claim for the complete loss of Registered Mail, Insured Mail, COD, or Express Mail articles. The Postal Service proposes that either the sender or addressee, whoever is in possession of the mailing receipt, may now file a claim for the complete loss of a Registered Mail, numbered Insured Mail, COD, or Express Mail article. Only the sender would be allowed to file a claim for the complete loss of an unnumbered, insured article.
As evidence of value when a sales receipt or invoice is not available, the acceptance of a customer's statement with sufficient detail to determine whether the value claimed is accurate would be accepted only for items valued up to $100. Other acceptable evidence of value would be a copy of a canceled check, money order receipt, credit card statement, or other documentation indicating the amount paid. For Internet transactions conducted through a Web-based payment network, acceptable evidence of value is a computer printout of an online transaction identifying the purchaser and seller, price paid, date of transaction, description of item purchased, and an indication the status of the transaction is
As is the case with current policy, customer statements, receipts, or other evidence of value supplied by the customer will not necessarily be determinative of the value of the lost or damaged article, particularly if other information indicates the actual value at the time of mailing is different.
To file a claim, the addressee must present the article, packaging, and mailing container to the Postal Service for inspection. If the sender, in conjunction with the CCRS, files the claim and the damaged article is in the custody of the addressee, the sender's Post Office or designated site will enter the claim data into the CCRS. The CCRS will generate a letter to the addressee instructing that the article, packaging, and container be presented to the Postal Service for inspection.
The Postal Service proposes that indemnity will not be paid for collect on delivery (COD), Insured Mail, Registered Mail, or for Express Mail service in the following situations:
• Mailer refusing to accept delivery of the mailpiece on return.
• Mail not bearing the complete names and addresses of the sender and addressee, or both the recipient's address and return address, and therefore is undeliverable.
• Event tickets received after the event.
• Software installed onto computers that have been lost or damaged.
• A personal check remitted to the mailer for a COD article and not honored by the financial institution upon which it is drawn.
• Damaged articles not claimed within the prescribed time limits set forth in
• Personal time used to make handmade, hobby, or craft items.
The Postal Service proposes to clarify the time limit in which a customer may forward an appeal to the Consumer Advocate, Headquarters. If the manager of Claims Appeals at the St. Louis Accounting Service Center (ASC) sustains a denial of a claim, any further appeal must be filed with the Consumer Advocate, within 60 days from the date of that decision.
The Postal Service proposes to clarify that the appropriate mailing receipt must be postmarked in order to be acceptable evidence of insurance.
The Postal Service proposes to clarify that the mailer of a collect on delivery (COD) article may not stipulate “CASH ONLY” and that the recipient has the option to pay the charges by cash or personal check.
Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites comments on the following revisions of the
Administrative practice and procedure, Postal Service.
1. The authority citation for 39 CFR part 111 continues to read as follows:
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
2. The following sections of the
A claim may be filed by:
a. Only the sender, for the complete loss of an unnumbered, insured article.
b. Either the sender or addressee, who is in possession of the mailing receipt, for the complete loss of a registered, numbered insured, COD, or Express Mail article.
A customer must file a claim no later than 45 days from the mailing date when the contents of an article are damaged or missing from the mailing container. For a lost article, a customer must file a claim within the time limits in the chart below.
a. After 45 days if article sent First-Class Mail, space available mail (SAM), or parcel airlift (PAL) services.
b. After 45 days if article sent COD.
c. After 75 days if article sent by surface.
For a claim involving registered, insured, COD, or Express Mail service, the customer must present any of the following evidence showing that the particular service was purchased:
a. The original postmarked mailing receipt issued at the time of mailing (reproduced copies are not acceptable).
c. The original sales receipt from an automated retail terminal listing the mailing receipt number and insurance amount, only if the original mailing receipt is not available (reproduced copies are not acceptable).
The customer must submit acceptable evidence to establish the cost or value of the article at the time it was mailed. (Other evidence may be requested to help determine an accurate value.) Examples of acceptable evidence are:
b. For items valued up to $100, the customer's own statement describing the lost or damaged article and including the date and place of purchase, the amount paid, and whether new or used (only if a sales receipt or invoice is not available). If the article is handmade, the statement must include the price of the materials. The statement must describe the article in sufficient detail to determine whether the value claimed is accurate.
g. A copy of a canceled check, money order receipt, credit card statement, or other documentation indicating the amount paid.
h. For Internet transactions conducted through a Web-based payment network, a computer printout of an online transaction identifying the purchaser and seller, price paid, date of transaction, description of item purchased, and assurance that the transaction status is completed.
If a claim is filed because some or all of the contents are missing, the addressee must present the container and packaging to the Postal Service when a claim is filed. Failure to do so results in the denial of the claim.
If the addressee files the claim, the addressee must present the article with the packaging and mailing container to the Postal Service for inspection. If the sender files the claim, the St. Louis ASC will notify the addressee by letter to present the article, packaging, and container to the Postal Service for inspection. Failure to do so results in the denial of the claim.
To file a claim, the sender must provide proof of loss for unnumbered, insured mail. Proof of loss is not required for registered mail, numbered insured, COD, or Express Mail claims. Any one of these documents is acceptable:
a. A letter or statement from the addressee, dated at least 21 days after the date that the unnumbered insured article was mailed, reporting that the addressee did not receive the article. The statement or a copy of it must be attached to the claim.
A customer must file any duplicate claim for any mail type or service within the following time limits:
No sooner than 30 days and no later than 60 days from the date the original claim was filed.
Indemnity is not paid for collect on delivery (COD), insured mail, registered mail, or Express Mail services in these situations unless otherwise stated:
r. Negotiable items (defined as instruments that can be converted to cash without resort to forgery), currency, or bullion except as provided in S911.2.0 for registered mail items or S010.2.12.c for Express Mail items.
ac. Mailer refusing to accept delivery of the parcel on return.
ad. Mail not bearing the complete names and addresses of the sender and addressee, or not deliverable to either the addressee or sender.
ae. Event tickets (
af. Software installed onto computers that have been lost or damaged.
ag. Personal check remitted to the mailer for a COD article and not honored or otherwise payable by the financial institution upon which it is drawn. If the personal check is lost in transit, it is the mailer's responsibility to obtain a replacement check from the addressee. Indemnity to the mailer is limited to stop payment charges incurred by the addressee for the issuance of a replacement check, if the mailer establishes that the addressee incurred the charge and was reimbursed by the mailer for this amount.
ah. Damaged articles not claimed within the prescribed time limits set forth in
ai. Personal time used to make handmade, hobby, craft, or similar items.
If the sender and the addressee both claim insurance and cannot agree on which one should receive the payment, any payment due is made to the sender unless the claim has already been paid to the addressee upon presentation of the mailing receipt.
A customer may appeal a claim decision by filing a written appeal within 60 days of the date of the original decision. Except for an unnumbered, insured article, the customer must send the appeal directly to Claims Appeals (see G043 for address). For an unnumbered, insured article, the customer must send the appeal to the post office where the claim was filed. That post office forwards the appeal to the manager of Claims Appeal at the St. Louis ASC.
If the manager of Claims Appeals at the St. Louis ASC sustains the denial of a claim, then the customer may submit an additional appeal within 60 days for final review and decision to the Consumer Advocate, Postal Service Headquarters, who may waive standards in S010 in favor of the customer.
For each insured article mailed, the mailer receives the appropriate postmarked receipt:
a. Form 3813 when the insurance coverage is $50 or less.
b. Form 3813-P when the insurance coverage is more than $50.
c. Form 3877 when multiple accountable mail articles are mailed at one time.
The particulars required on the form must be filled in by hand with ink, typewritten, or computer printed. The Postal Service is not responsible for errors that a mailer makes in stating charges to be collected. The mailer can not stipulate “CASH ONLY”. The recipient has the option to pay the charges by cash or personal check.
An appropriate amendment to 39 CFR 111.3 to reflect these changes will be published if the proposal is adopted.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues a proposed rule in accordance with framework procedures for adjusting the management measures of the Final Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks (HMS FMP), and Amendment 1 to the Atlantic Billfish Fishery Management Plan (Billfish FMP). This proposed rule would modify existing regulations for Atlantic highly migratory species (HMS) exempted fishing activities. The intent of the changes is to improve monitoring of exempted fishing activities for Atlantic HMS. NMFS will hold a public hearing to receive comments from fishing participants and other members of the public regarding the proposed exempted fishing specifications.
Comments must be received no later than 5 p.m., eastern standard time, on January 6, 2003.
The public hearing date is December 16, 2002, 7 p.m.—9 p.m.
Written comments on the proposed rule should be submitted to Christopher Rogers, Chief, Highly Migratory Species Management Division (F/SF1), Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments also may be sent via facsimile (fax) to 301-713-1917. Comments regarding the collection-of-information requirement contained in this proposed rule should be sent to the Highly Migratory Species Management Division (F/SF1), 1315 East-West Highway, Silver Spring, MD 20910, and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).
Comments will not be accepted if submitted via e-mail or the internet.
The public hearing location is: Sea World Adventure Park, Ports of Call
Sari Kiraly at 301-713-2347, fax 301-713-1917, e-mail
Under 50 CFR 635.32, and consistent with 50 CFR 600.745, NMFS may authorize for limited testing, public display, and scientific data collection purposes, the target or incidental harvest of species managed under an FMP or fishery regulations that would otherwise be prohibited. Exempted fishing may not be conducted unless authorized by an Exempted Fishing Permit (EFP) or a Scientific Research Permit (SRP) issued by NMFS in accordance with criteria and procedures specified in those sections. As necessary, an EFP or SRP would exempt the named party(ies) from otherwise applicable regulations under 50 CFR part 635. Such exemptions could address fishery closures, possession of prohibited species, commercial permitting requirements, and retention and minimum size limits.
This proposed action was developed in response to ongoing concerns related to past EFPs for the purpose of capturing regulated HMS, particularly sharks collected for public display, and is intended to strengthen the existing regulations that govern such EFP related activities. The proposed rule is in accordance with framework procedures for adjusting management measures provided in the Final HMS FMP, and Amendment 1 to the Billfish FMP.
With respect to exempted fishing activities, NMFS proposes the following new requirements:
(1) Collectors of HMS for display purposes would be required to notify the local NMFS Office for Law Enforcement 72 hours prior to departing on a collection trip in federal or state waters as to collection plans and location, and number of animals to be collected. Also, at the end of each collection trip, upon return to port the collector would be required to call the local NMFS Office for Law Enforcement to report the conclusion of the trip and whether any regulated HMS were collected. In addition, in cases of HMS being shipped to other locations, the collector would be required to notify the local NMFS Office for Law Enforcement 48 hours prior to shipment.
(2) In lieu of the conventional dart tags currently supplied to collectors by NMFS, all live HMS collected for the purpose of public display would be required to have microchip Passive Integrated Transponder (PIT) tags, which will be supplied by NMFS, implanted by the collector. The use of PIT tags is intended to eliminate problems that frequently occur following implantation of the conventional dart tags. Collectors would not be required to obtain PIT tag readers, but are advised to do so in order to verify that the PIT tag is properly implanted and can be read, and also to have available should law enforcement authorities other than NMFS Enforcement board the fishing vessel. If a NMFS law enforcement officer is unable to detect with the NMFS reader a PIT tag in a HMS collected for display, the collection will be deemed unauthorized.
(3) To minimize mortality associated with the live capture of HMS, permit conditions regarding fishing activities, such as gear deployment, monitoring, or soak time, would be specified on a case-by-case basis. If such measures are not effective in limiting mortalities, other restrictions, such as allowing the use of only certain types of gear for the live capture of HMS for display, could be instituted to minimize the possibility of dead discards.
(4) NMFS would reserve the right to place on-board an authorized collection vessel a fisheries observer to monitor activities governed by an EFP.
(5) The proposed rule also modifies EFP requirements for swordfish offloading. For the directed swordfish fishery, if vessel monitoring systems (VMS) are installed on vessels, separate EFPs to allow delayed offloading would no longer be required.
NMFS proposes to enhance data collection and reporting by requiring the following:
(1) To reinforce the importance of the year-end report to NMFS concerning the activities conducted under the EFP, in addition to the information currently required for submission, all applications for permit renewals would also be required to include the year-end report from the previous year in order to be considered complete. Renewal applications would not be deemed complete until the year-end report containing all the specified information, is submitted.
(2) In addition to reporting the retention of live HMS, all dead HMS caught and discarded under the permit would have to be reported - these dead discards will be counted against appropriate annual quotas. Additionally, any HMS collected under state-issued permits by persons issued federal EFPs would have to be reported to NMFS within 5 days of collection. Reporting of HMS collected under state permits will provide important information as to the actual numbers of animals that are being removed from the stocks. If no HMS are collected in either federal or state waters in any given month, a “no-catch” report would have to be submitted to NMFS within 5 days of the last day of that month.
(3) Several prohibitions are proposed to be added or modified to address a) submission of false information on permit applications or activity reports, and b) violations of any of the terms and conditions of the EFP. These prohibitions are needed to facilitate enforcement of EFP application and reporting requirements. Essentially, they extend the permitting, record-keeping, and reporting requirements otherwise applicable to vessels and dealers to those persons issued EFPs.
In addition to the changes proposed in this proposed rule, comments are requested on the below-listed potential regulatory requirements. These measures are not being proposed at this time. If, after receiving comments, NMFS decides to issue regulations to implement any of these provisions, NMFS will publish a proposed rule.
(1) To qualify for an EFP for the live collection of HMS for public display purposes, the applicant would be required to demonstrate that holding facilities adequate for animal husbandry are maintained. NMFS will consider accreditation in the American Zoo and Aquarium Association (AZA), or equivalent standards, as meeting these requirements.
(2) Based on available information on disease or mortalities while in captivity, NMFS could limit the issuance of EFPs for the collection of HMS species that are not likely to survive well in captivity, until such time that the best available new information indicates otherwise. This measure could potentially reduce mortality of HMS held in captivity.
(3) EFPs for the purpose of collecting live animals for public display could be issued only to aquariums and other display facilities that meet the AZA standards for such facilities - third party collectors would no longer be issued EFPs, but would be allowed to collect HMS as a third party contractor to the authorized institution.
(4) Public display facilities, including aquariums that are not otherwise authorized by a collection permit, would be required to obtain from NMFS a display permit in order to maintain HMS in captivity. To qualify for this
This proposed rule is published under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
For the purposes of NOAA Administrative Order (NAO) 216-6, the AA has preliminarily determined that this action would not have a significant effect, individually or cumulatively, on the human environment, that it has been sufficiently analyzed in a prior FMP, and that it involves only minor technical additions, corrections or changes to the regulations. Accordingly, under sections 5.05 and 6.03a3(b) of NAO 216-6, this action is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB Control Number.
This proposed rule contains a new collection-of-information requirement subject to review and approval by OMB under the PRA. The requirement for exempted fishing activity reporting has been submitted to OMB for approval. Public reporting burden for this collection of information is estimated to average 5 minutes per notification phone call at the beginning and completion of a collection trip and upon shipment of any animals. The estimated time to prepare a catch report required by an EFP issued for display collection is 5 minutes, and to prepare a “no-catch” report the estimated time is 2 minutes. The estimated application preparation and year-end report preparation times for display EFPs are 30 minutes each. Application of a PIT tag to a HMS captured for display is estimated to take 2 minutes.
Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency; 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 these or any other aspects of the collection of information to NMFS and OMB (
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel of Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows. Most of the entities that would be affected by this proposed rule would be considered small entities. The cost to EFP applicants is minimal, estimated at $3.75 per applicant for the letter, information card, and telephone calls needed to apply, report, and notify. The cost of PIT tags will be incurred by NMFS, which will supply the tags to each permittee. If NMFS decided to select a vessel governed by an EFP for observer coverage, pursuant to 50 CFR 645.7, there would be no significant economic impact. NMFS would provide the observer, and the vessel operator would only be required to provide accommodations and food for the observer equivalent to those provided to the crew. Thus, there would be no significant economic impact on a substantial number of small entities. Accordingly, an initial regulatory flexibility analysis was not prepared for this proposed rule.
The proposed action would not significantly change the operations of any HMS fishery and is not expected to increase threats to endangered or threatened species listed under the Endangered Species Act. A Biological Opinion (BiOp) issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of sea turtle species under NMFS jurisdiction. NMFS has implemented the reasonable and prudent alternative specified in the BiOp in a final rule July 9, 2002 (67 FR 45393). The measures proposed would not have any additional impact on sea turtles as these actions would not likely increase or decrease pelagic longline effort, nor are they expected to shift effort into other fishing areas. No irreversible and irretrievable commitment are expected from this proposed action that would have the effect of foreclosing the implementation of the requirements of the BiOp.
It is not anticipated that this proposed action would have any impacts on essential fish habitat and, therefore, no consultation is required.
The AA has determined that this action would have no impacts on the enforceable policies of those Atlantic, Gulf of Mexico, and Caribbean coastal states that have approved coastal zone management plans under the Coastal Zone Management Act. Accordingly, NMFS has submitted consistency determinations to those states with a request for concurrence.
Fisheries, Fishing , Fishing Vessels, Foreign Relations, Intergovernmental Relations, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.
1. The authority citation for part 635 continues to read as follows:
16 U.S.C. 971
(c) * * *
(1) * * *
(i) * * *
(A) No more than 15 swordfish per trip may be possessed in or from the Atlantic Ocean north of 5° N. lat. or landed in an Atlantic coastal state on a vessel using or having on board a longline. However, Atlantic swordfish legally taken prior to the effective date of the closure may be possessed in the Atlantic Ocean north of 5° N. lat. or landed in an Atlantic coastal state on a vessel with a longline on board, provided the harvesting vessel does no fishing after the closure in the Atlantic Ocean north of 5° N. lat., and reports positions with a vessel monitoring system, as specified in § 635.69. NMFS may adjust the incidental catch retention limit by filing with the Office of the
(c)
(3) * * *
(i) Collectors of HMS for display purposes must notify the local NMFS Office for Law Enforcement 72 hours, excluding weekends and holidays, prior to departing on a collection trip in federal or state waters as to collection plans and location, and the number of animals to be collected. Also, at the end of each collection trip, upon return to port the collector must call the local NMFS Office for Law Enforcement to report the conclusion of the trip and whether any regulated HMS were collected. In addition, in the case of HMS being shipped to other locations, the collector must notify the local NMFS Office for Law Enforcement 48 hours prior to shipment.
(ii) All live HMS collected for the purpose of public display are required to have microchip Passive Integrated Transponder (PIT) tags, which will be supplied by NMFS, implanted by the collector. Collectors are not required to obtain PIT tag readers, but are advised to do so in order to verify that the PIT tag is properly implanted and can be read. If a NMFS law enforcement officer is unable to detect a PIT tag in a HMS collected for display with the NMFS reader, the collection will be deemed unauthorized.
(iii) Permit conditions regarding fishing activities, such as gear deployment, monitoring, or soak time, will be specified on a case-by-case basis. If such measures are not effective in limiting mortalities, other restrictions, such as allowing the use of only certain types of gear for the live capture of HMS for display, may be instituted to minimize the possibility of dead discards.
(iv) NMFS reserves the right to place on-board an authorized collection vessel a fisheries observer to monitor activities governed by an EFP.
(4) Written reports on fishing activities and disposition of catch for each fish collected under the permit must be submitted to NMFS, at an address designated by NMFS, within 5 days of the collection. An annual written summary report of all fishing activities and disposition of all fish collected under the permit must also be submitted to NMFS at an address designated by NMFS. NMFS will provide specific conditions and requirements consistent with the Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks in the EFP. In addition, all dead HMS caught and discarded under the permit must be reported. Also, any HMS collected under state-issued permits by persons issued federal EFPs must be reported to NMFS within 5 days of collection. If no HMS are collected in either federal or state waters in any given month, a “no-catch” report must be submitted to NMFS within 5 days of the last day of that month.
(a) * * *
(6) Falsify or fail to record, report, or maintain information required to be recorded, reported, or maintained, as specified in § 635.5 or in the terms and conditions of a permit issued under § 635.4 or an exempted fishing permit or scientific research permit issued under the authority of § 635.32.
(26) Violate the terms and conditions or any provision of a permit issued under § 635.4, or an exempted fishing permit or scientific research permit issued under the authority of § 635.32.
U.S. Agency for International Development (USAID) has submitted the following information collection to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding this information collection are best assured of having their full effect if received within 30 days of this notification. Comments should be addressed to: Desk Officer for USAID, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503. Copies of the information collection and supporting documents may be obtained by calling (202) 712-1365.
Office of the Secretary, USDA.
Notice to amend Privacy Act system of records.
Notice is hereby given that the United States Department of Agriculture (USDA) proposes to amend the Privacy Act system of records FCIC-7, entitled Accounts Receivable. The system of records is maintained by the Federal Crop Insurance Corporation (FCIC), a wholly-owned Government Corporation administered by the Risk Management Agency (RMA), an agency of USDA. The accounts receivable system of records is being revised to reflect changes in the administration and management of the Federal crop insurance program and to reflect more completely the types of information collected and maintained in this system of records.
This notice will be effective without further notice on January 6, 2003, unless modified by a subsequent notice to incorporate comments received from the public. Although the Privacy Act requires only that the portion of the system which describes the routine uses of the system be published for comment, USDA invites comment on all portions of this notice. Comments must be received by the contact person listed below on or before January 6, 2003.
Chief, Fiscal Operations Branch, Risk Management Agency, Federal Crop Insurance Corporation, 6501 Beacon Drive, Stop 0814, Kansas City, MO 64133-4676, telephone (816) 926-7033.
RMA is responsible for the administration of FCIC programs that affect agricultural producers in the United States. Programs are administered through the Washington D.C. Headquarters Office, Kansas City Office, ten regional offices and six compliance offices. At all of the above locations, RMA collects information about individuals and other legal entities; and retains, utilizes, and distributes information from the Privacy Act Systems of Records.
Information contained in the system will include name, address, tax identification numbers, and information relating to debt identification, such as policy number and basis for establishing debt. Debtors identified are indebted to FCIC or private insurance companies reinsured by FCIC. Information captured will be used to facilitate collection and tracking of delinquent debtors until such time as debts are satisfied. Revisions to the existing system of records are being made in the following areas:
The system location has been revised to reflect government reorganization and downsizing. In addition to the Kansas City Office, the system is now located in regional offices, and compliance offices of the Risk Management Agency. Addresses for these offices are now available from the Deputy Administrator, Insurance Services, Risk Management Agency, Room 6709, Mail Stop 0805, 1400 Independence Avenue, SW., Washington, DC 20250-0805. All references to addresses have been revised to reflect these changes. Categories of individuals have been expanded to include other legal entities. Categories of records have been revised and expanded to reflect more completely the types of information collected and maintained. This information includes individual identifying information, indebtedness information, and collection action by FCIC.
The current routine uses are revised as follows: Routine use number (1) has been revised to include agencies that regulate. Routine use number (2) has been revised to permit disclosure to any judicial or administrative tribunal if the record sought is relevant. Routine uses number (3) and number (5) have been revised to update the authority for reporting debts to credit reporting and collection agencies. Routine use number (7) has been deleted. Routine use number (8) has been combined with
New routine uses have been added as follows: A new routine use number (8) permits referral of delinquent debts to the Department of Treasury, Financial Management Service, through participation in the Treasury Offset Program, and to other Federal agencies for administrative offset of eligible Federal payments, and for cross-servicing of debtor accounts. A new routine use number (9) allows delinquent debt to be disclosed to employers for wage garnishment. New routine use (10) permits information to be disclosed to private insurance companies reinsured by FCIC for tracking of delinquent debtors. New routine use number (11) permits information to be disclosed for research and analysis to identify potential areas of fraud, waste or abuse. A new routine use number (12) permits information to be disclosed for use in the administration, analysis, and evaluation of the Federal crop insurance program.
In compliance with Federal regulations, retention and disposal of records has been revised to include shredding of records supplied by other Federal agencies.
The source of information in these records has been expanded to include identification of delinquent debtors and debts certified to FCIC from private insurance companies reinsured by FCIC.
In conformance with 5 U.S.C. 552a(r), as implemented by OMB Circular A-130, the Department of Agriculture sent a report describing the proposed changes to the Chairman, Committee on Governmental Affairs, United States Senate; the Chairman, Committee on Government Reform, United States House of Representatives; and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget on November 27, 2002.
Accounts Receivable.
None.
Kansas City Office, Federal Crop Insurance Corporation, Risk Management Agency, 6501 Beacon Drive, Stop 0814, Kansas City, Missouri 64133-4676 and regional and compliance offices for the Federal Crop Insurance Corporation. Addresses of the regional offices may be obtained from the Deputy Administrator, Insurance Services, Risk Management Agency, United States Department of Agriculture, 1400 Independence Avenue, SW., Stop 0805, Room 6709-S, Washington, DC 20250-0803.
The system consists of information on any individual or other legal entity that is indebted to the Federal Crop Insurance Corporation (FCIC) or a private insurance company.
The system consists of standardized records containing identifying information on individuals or other legal entities such as the name of individuals legally responsible for the debt, address, tax identification number (social security number or employer identification number); information relating to debt identification, such as policy number; codes identifying the type of debt and the basis for establishing the debt; date the debt arose; principal debt amount; interest rate and date interest accrues on the debt; information related to changes in debt amount and debt status; and brief remarks that identify or clarify actions being taken by FCIC.
7 U.S.C. 1501
Records contained in this system may be used as follows:
(1) Referral to the appropriate agency, whether Federal, State, local or foreign, charged with the responsibility of investigating or prosecuting a violation of law, or of enforcing or implementing a statute, rule, regulation or order issued pursuant thereto, of any record within this system when information available indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute or by rule, regulation or order issued pursuant thereto.
(2) Disclosure to a court, magistrate or administrative tribunal or to opposing counsel in a proceeding before a court, magistrate, or administrative tribunal, of any record within the system which constitutes evidence in that proceeding, or which is sought in the course of discovery, to the extent that FCIC determines that the records sought are relevant to the proceeding.
(3) Disclosures may be made from this system with respect to debts to a credit reporting agency in accordance with 31 U.S.C. 3701, 3711(f), 3720B, 4 CFR 102.3, 4 CFR 3.35 and 7 CFR part 400, subpart K in order to assist in collecting delinquent debts.
(4) Referral of past due legally enforceable debts to the Department of the Treasury, Internal Revenue Service (IRS), to be offset against any tax refund that may become due the debtor for the tax year in which the referral is made in accordance with 31 U.S.C. 3720 A, and 26 CFR 301.6402-6T.
(5) Referral to a collection agency, when FCIC determines such referral is appropriate for collecting the debtor's account in accordance with 31 U.S.C. 3711, 3718; 7 CFR part 400, subpart K; 7 CFR 3.36.
(6) Disclosure may be made to a congressional office from the record of an individual in response to any inquiry from the congressional office made at the request of that individual.
(7) Referral of information regarding indebtedness to the Department of Defense, and the United States Postal Service, for the purpose of conducting computer matching programs to identify and locate individuals receiving Federal salary or benefit payments and who are delinquent in their repayment of debts owed to the U.S. Government under certain programs administered by the FCIC in order to collect debts in accordance with the Debt Collection Act of 1982 (Pub. L. 97-365) by voluntary repayment, administrative or salary offset procedures, or through the use of collection agencies.
(8) Referral of delinquent debts to the Department of Treasury, Financial Management Service, and other Federal agencies for administrative offset of eligible Federal payments and for cross-servicing of debtor accounts in accordance with 31 U.S.C. 3716; 7 CFR part 3, subpart B.
(9) Referral of delinquent debts to the debtor's employer for wage garnishment in accordance with 31 U.S.C. 3720D.
(10) Disclosure may be made to private insurance companies delivering the FCIC program as authorized by the Federal Crop Insurance Act.
(11) Disclosure to contractors or other Federal agencies to conduct research and analysis to identify patterns, trends, anomalies, instances and relationships of private insurance companies, agents, loss adjusters and policyholders that may be indicative of fraud, waste, and abuse.
(12) Disclosure to private insurance companies, contractors, cooperators, partners of FCIC, and other Federal agencies for any purpose relating to the sale, service, administration, analysis of the Federal crop insurance program.
Records are maintained electronically, on computer printouts, microfiche, and in the file folders at the Kansas City Office.
Records may be indexed and retrieved by name of individual, tax identification number (including social security number), or contract number.
Records are accessible only to authorized personnel and are maintained in offices that are locked during non-duty hours. File folders and other hard copy records are stored in locked file cabinets. The electronic records are controlled by password protection and the computer network is protected by means of a firewall.
Records are maintained until the indebtedness is paid. Unless shredding is required by Federal regulations, paper records are delivered to custodial services for disposal as waste paper. Electronic records may be erased after the debt is settled and upon the expiration of the records retention period established by the National Archivist.
Fiscal Operations Branch, Risk Management Agency, Federal Crop Insurance Corporation, 6501 Beacon Drive, Stop 0814, Kansas City, Missouri 64133-4676. Telephone: (816) 926-7033.
An individual may request information regarding this system of records or information as to whether the system contains records pertaining to such individual from the Kansas City Office. The request for information should contain the individual's name and address; tax identification number (including social security number); State(s) and county(ties) where such individual farms; and individual crop insurance policy number(s), if known. Before information about any record is released, the System Manager may require the individual to provide proof of identity or require the requester to furnish an authorization from the individual to permit release of information.
An individual may obtain information as to the procedures for gaining access to a record in the system, that pertains to such individual, by submitting a written request to the Privacy Act Officer, Risk Management Agency, Program Support Staff, Room 6620-SB, AG Stop 0821, 1400 Independence Avenue, SW., Washington, DC 20250-0821. The envelope and letters should be marked, Privacy Act Request. A request for information should contain: name, address, ZIP code, tax identification number (including social security number), name of the system of records, year of records in question, and any other pertinent information to help identify the file.
Procedures for contesting records are the same as the procedures for record access. Include the reason for contesting the record and the proposed amendment to the information with supporting documentation to show how the record is inaccurate.
Information in this system comes primarily from the insurance company, individual debtor or from other Federal agencies.
USDA Forest Service.
Notice of intent to prepare environmental impact statement.
The USDA Forest Service will prepare an Environmental Impact Statement to document the analysis and disclose the environmental impacts of proposed actions to harvest timber, build roads, and regenerate new stands of trees in upper Georgetown Canyon of the Caribou National Forest in Bear Lake County, Idaho. The proposed project is located in T. 10 S., R. 44, Sections 1, 12, 13, 24 and T. 10 S., R. 44 E. sections 6 and 7, Boise Meridian. Implementing a regeneration cut to lodgepole pine stands will provide an Allowable Sale Q of sawlogs to industry and help meet the desired future condition for function, structure, and composition to lodgepole pine stands on suitable timberlands in the Georgetown Watershed.
The Montpelier Ranger District of the Caribou National Forest proposes to harvest an estimated 2,500,000 million board feet of commercial timber on approximately 329 acres. All 329 acres would receive group seed tree cut. All units considered for cutting are mature lodgepole pine. An estimated 7.0 miles of road would need to be reconstructed, 1.9 miles would need to be constructed, 1.0 mile of existing road would be opened and 1.0 mile would be closed. Some road construction would occur on private ground. Approximately 54 acres would be harvested in the Dry Ridge Inventoried Roadless Area, #04164. All merchantable timber would be yarded using tractors. Natural regeneration is planned for in all the proposed cutting units. Logging slash will be available for firewood to the public. The remaining logging slash will then be burned. Ten to fifteen tons per acres of large woody debris will be left in each cutting unit for nutrient recycling.
The issues identified during scoping and the analysis process will determine alternatives to the proposed action. The no action alternative will be analyzed.
Written comments concerning the scope of the analysis described in this Notice should be received within 30 days of the date of publication of this Notice in the
Send written comments to Caribou-Targhee National Forest, Montpelier Ranger District, 322 North 4th Street, Montpelier, Idaho 83254.
Questions concerning the proposed action and EIS should be directed to Eric Mattson, Caribou-Targhee National Forest, Montpelier Ranger District, 322 N. 4th Street, Montpelier, Idaho 83254 (Telephone: (208) 847-0375).
The Forest Service is seeking information and comments from Federal, State and local agencies, as well as individuals and organizations that may be interested in, or affected by the proposed action. The Forest Service invites written comments and suggestions on the issues related to the proposal and the area being analyzed.
The responsible official is Jerry B. Reese, Forest Supervisor, Caribou-Targhee National Forest, 1405 Hollipark Dr., Idaho Falls, Idaho 83401.
The decision to be made is: The Forest Service needs to decide whether
The tentative date for filing the Draft EIS is 15 February 2003. The tentative date for filing the final EIS is 15 April 2003. The comment period on the draft environmental impact statement will be open for 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give viewers notice of several court ruling related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alert an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the Draft Environmental Impact Statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the Draft. Comments may also address the adequacy of the Draft Environmental Impact Statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received in response to this solicitation, including names and addresses of those who comment, will be considered part of the public record on this proposed action and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR 215 or 217. Additionally, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentially should be aware that, under the FOIA, confidentially may be granted in only limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentially, and where the request is denied, the agency will return the submission and notify the requester that the comments may be resubmitted with or without name and address within 10 days.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Priest Lake Ranger District on the Idaho Panhandle National Forests will prepare an environmental impact statement (EIS) on a proposal to treat forest vegetation over approximately 980 acres. The treatments are being proposed to restore forest communities to a more historical composition and structure and re-introduce fire into these ecosystems. Treatments include 780 acres of regeneration harvest and 200 acres of commercial thinning.
Comments concerning the scope of the analysis must be received within 30 days from the date of this notice in the
Send written comments to Chips Ahoy Project, Attn: Steve Johnson, Forest Supervisor's Office, 3815 Shreiber Way, Coeur d'Alene, ID 83815.
Steve Johnson, Project Leader, Idaho Panhandle Supervisor's Office at the above address, by calling (208) 765-7224, or
The project area is located within Bonner County, Idaho, and Pend Oreille County, Washington. The project area is located approximately twenty miles north of the community of Priest River, Idaho. A past bark beetle outbreak, in combination with root diseases, other insects and diseases and winter storm damage has left many of these stands poorly stocked.
The purpose and need for this action is to restore dry forest communities to a more natural composition and structure and re-introduce fire into these ecosystems and increase the amount of wet forest communities that are dominated by western white pine and western larch trees.
The proposed action is separated into three categories, vegetative treatments, fuel treatments and road treatments. The proposal is to treat forest vegetation over approximately 980 acres within the project area. Different types of treatments would be used depending upon the existing condition of the forest stands. These treatments include regeneration treatments on 780 acres and commercial thinning on the remaining 200 acres. After the tree cutting operations are complete, approximately 930 acres, or 95 percent of the vegetative treatment areas would be underburned to reduce the fuels, prepare the sites for reforestation, and to re-introduce fire onto these sites as a natural process. The remaining 5 percent of the vegetative treatment would not be burned. In order to access some of the proposed vegetative treatment areas, approximately 2.5 miles of temporary road would be constructed. These temporary roads would be recontoured following their use. Resource protection measures will be included to protect resources such as
Ranotta K. McNair, Forest Supervisor, Idaho Panhandle National Forests, 3815 Schreiber Way, Coeur d'Alene, ID 83815.
The Forest Supervisor of the Idaho Panhandle National Forests will decide whether or not to implement this project, and if so, in what manner.
The agency invites written comments and suggestions on the scope of the analysis. In addition to this notice, a proposed action letter will be sent to interested government officials, agencies, groups, and individuals on the Chips Ahoy mailing list. No public meetings are currently planned.
This notice of intent initiates the scoping process which guides the development of the environmental impact statement. Specific written comments on the proposed action will be most helpful.
A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early state, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
Forest Service, USDA.
Notice; intent to prepare an environmental impact statement.
The Forest Service will prepare an environmental impact statement (EIS) to disclose the effects of timber harvest, prescribed burning, road management changes, weed spraying, and stream channel restoration in a 44,000 acre project area approximately 25 miles northwest of Missoula, Montana.
Comments concerning the scope of the analysis should be received in writing no later than 30 days following publication of this notice.
Send written comments to: Deborah L. R. Austin, Forest Supervisor, Lolo National Forest, Building 24, Fort Missoula, Missoula, MT 59804.
Brian Riggers, EIS Team Leader, Building 24, Fort Missoula, Montana 59804, (406) 329-3793, or e-mail
The Lolo National Forest proposes to harvest trees on approximately 4,300 acres of low elevation benchlands within the project area. Most of these acres would be underburned following harvest, and an additional 6,500 acres of prescribed burning to reduce fuel levels would occur in areas not harvested (a total of about 10,400 acres of burning overall). Approximately 79 miles of road management changes are proposed. Most (48 miles) of these involve removing drainage structures and restoring vegetation on previously closed roads, but approximately 31 additional mile of low use or grown in roads would also be formally closed. Finally, weeds would be treated within about 6,000 acres where they currently occur. Approximately 1,200 acres would be aerially sprayed.
Lands affected are within the Mill, Roman, Houle, Sixmile, and lower Ninemile Creek (including Butler, Kennedy, and McCormick Creeks) watersheds. The project area is bounded by the Clark Fork River and Ninemile Creek to the southwest, and the Ninemile/Flathead Reservation divide to the northeast.
The purpose of the proposal is to carry out the goals and direction stated in the Lolo National Forest Plan using ecosystem management principles. The objectives are to:
(1) Reduce the potential for high severity fires within the low elevation ponderosa pine and Douglas-fir forests, while also improving fire protection on private property with all ownerships.
(2) Maintain/improve forest health and reduce the risk of damage from insects and disease while maintaining a natural appearing landscape.
(3) Reduce the expansion of new or less extensive weed species, and control exsisting weeds, under a comprehensive block planning effort.
(4) Reduce roads while maintaining reasonable access for recreation, but limiting further recreational development.
(5) Maintain/improve water quality and fish habitat throughout the landscape.
(6) Maintain/improve wildlife security and habitat.
(7) Protect and interpret historic sites.
Public involvement was conducted in 2002 through public meetings, letters,
The effects of the proposed action on vegetation, fire, wildlife, fisheries, recreation, historic interpretation, and the scenic character of the landscape have been identified as preliminary key issues. These issues will be used to develop a range of alternatives (including a no action alternative where none of the activities in the proposed action would be implemented) and assess environmental consequences.
Public participation is an important part of the development and analysis of this project. In addition to the initial collaboration, the public may visit Forest Service officials at any time during the analysis and prior to the decision. The Forest Service will be seeking information, comments, and assistance from Federal, State, and local agencies and other individuals or organizations that may be interested in, or affected by, the proposed action. There will be additional public meetings throughout this process. If you are interested in obtaining dates or information on these, please contact Brian Riggers at the location listed above.
The Federal Forest Service is the lead agency for preparing this EIS. They will consult with the United States Fish and Wildlife Service. The responsible official who will make the decision is Deborah L. R. Austin, Forest Supervisor. She will make a decision between alternatives after considering comments, responses, environmental consequences, applicable laws, regulations, and policies. The decision and rational will be documented in a Record of Decision.
The draft EIS is expected to be filed with the Environmental Protection Agency (EPA) and available for public review in April 2003. At that time, the EPA will publish a Notice of Availability of the Draft EIS in the
The Forest Service believes it is important at this early stage to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the DEIS should be as specific as possible. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Lassen Resource Advisory Committee, Susanville, California, USDA Forest Service.
Notice of meeting.
Pursuant to the authorities in the Federal Advisory Committees Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393) the Lassen National Forest's Lassen County Resource Advisory Committee will meet Thursday, December 12, 2002, in Susanville, California for a business meeting. The meetings are open to the public.
The business meeting on December 12th begins at 9 a.m., at the Lassen National Forest Headquarters Office, Caribou Conference Room, 2550 Riverside Drive, Susanville, CA 96130. Agenda topics will include: Review previous meeting minutes and approve, RAC member/subcommittee reports, Paul Chappell proposal example presentation, NEPA Overview with Questions and Answers, Proxy votes and absent voting members/Quorum, Overhead Discussion and Decision. Time will also be set aside for public comments at the end of the meeting.
Robert Andrews, Eagle Lake District Ranger and Designated Federal Officer, at (530) 257-4188; or RAC Coordinator, Heidi Perry, at (530) 252-6604.
Natural Resources Conservation Service (NRCS).
Notice of availability of record of decision.
M. Darrel Dominick, responsible Federal official for projects administered under the provisions of Section 14 of Public Law 83-566 (enacted by Section 313 of Public Law 106-472, otherwise known as “The Small Watershed Rehabilitation Amendments of 2000”) in the State of Oklahoma, is hereby providing notification that a record of decision to proceed with the installation of the Rehabilitation of Aging Flood Control Dams in Oklahoma is available. Single copies of this record of decision may be obtained from M. Darrel Dominick at the address shown below.
M. Darrel Dominick, State Conservationist, Natural Resources Conservation Service, State Office, 100 USDA Suite 206, Stillwater, Oklahoma, 74074-2655, telephone (405) 742-1227.
The Rural Housing Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Housing Service's (RHS) intention to request an extension for a currently approved information collection in support of the program for “Self-Help Technical Assistance Grants” (Rural Development Instruction 1944-I).
Comments on this notice must be received by February 4, 2003 to be assured of consideration.
Daryl L. Cooper, Senior Loan Specialist, Single Family Housing Direct Loan Division, RHS, U.S. Department of Agriculture, Stop 0783, 1400 Independence Ave., SW., Washington DC 20250-0783, Telephone (202) 720-1366.
Copies of this information collection can be obtained from Jean Mosely, Regulations and Paperwork Management Branch, Support Services Division at (202) 692-0041.
Committee for Purchase from People Who Are Blind or Severely Disabled.
Proposed additions to Procurement List.
The Committee is proposing to add to the Procurement List products and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
January 5, 2003.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly, (703) 603-7740.
This notice is published pursuant to 41 U.S.C 47(a) (2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the possible impact of the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in the notice for each product or service will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in
The following products and services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
Committee for Purchase from People Who Are Blind or Severely Disabled.
Additions to and deletions from Procurement List.
This action adds to the Procurement List products and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes from the Procurement List products previously furnished by such agencies.
January 5, 2003.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly, (703) 603-7740.
On May 10, September 20, October 4, October 11, and October 18, 2002, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (67 F.R. 31765, 59249, 62224, 63376, and 64351) of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.
2. The action will result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products deleted from the Procurement List.
After consideration of the relevant matter presented, the committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
Accordingly, the following products are deleted from the Procurement List:
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Board of Harbor Commissioners of the City of Long Beach, California, grantee of FTZ 50, requesting special-purpose subzone status for the copier, printer, thermal paper and related products manufacturing plant of Ricoh Electronics, Inc., at sites in the Orange County, California, area. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on November 19, 2002.
Ricoh's California facilities consist of five sites in the Orange County, California, area:
The facilities (800 employees) are requesting subzone status to produce digital copiers and remanufactured copiers (HTSUS 9009.12.0000—duty rate 3.7%), laser and multi-function printers (HTSUS 8471.60.5100 and 8472.90.8000—duty free), copier and printer peripherals, such as sorters, large capacity trays (HTSUS 8473.30.3000 and 8473.40.6000—duty free), and storage cabinets (HTSUS 9403.10.0040—duty free); printed circuit boards (HTSUS 8473.30.5000 and 8473.40.8000—duty free), secure fax machines (HTSUS 8517.21.0000—duty free), electronic data storage units (HTSUS 8471.70.9000 duty free), thermal label paper (HTSUS 4811.41.1000—duty rate 1.2% and HTSUS 4811.50.2050—duty free); tag paper (HTSUS 4811.90.8000—duty rate of 0.4%), thermal transfer ribbon (HTSUS 9612.10.9030—duty rate of 8.1%), TC film (HTSUS 3920.62.0000—duty rate 4.2%), toner cartridges (HTSUS 8473.30.5000, 8473.40.8000, 8517.90.0400, and 9009.99.4000—duty free), toner and developer (HTSUS 3707.90.3290—duty rate 6.5%), and remanufactured toner cartridges. The company may add other similar Ricoh products to its product line in the future.
Foreign-sourced materials will account for some 40 percent of finished product value, and include items from the following general categories: vegetable waxes; quartz; mineral oils; carbon; inorganic acids and oxygen compounds of nonmetals; aluminum oxide; iron oxides; titanium oxides; sulfates; carbonates; silicates; oxometallic or peroxometallic acids; acyclic alcohols; phenols; ethers; saturated acyclic monocarboxylic acids; polycarboxylic acids; amine function compounds; diazo-, azo-or azoxy-compounds; organic derivatives of hydrazine; organo-sulfur compounds; heterocyclic compounds; other organic compounds; paints and varnishes; surface-active agents; artificial waxes and prepared waxes; prepared glues and other prepared adhesives; photographic film; photographic paper, paperboard; chemical preparations for photographic uses; finishing agents; rubber accelerators; organic composite solvents and thinners; prepared binders for foundry molds; polymers of ethylene/propylene/styrene/vinyl chloride/vinyl acetate and acrylic; epoxide resins; polyamides in primary forms; amino-resins; silicones; cellulose; tubes, pipes and hoses; self-adhesive plates; sheets, film, foil, tape; other articles of plastics; other articles of unvulcanized rubber; conveyor or transmission belts; wood packing cases and boxes, uncoated paper and paperboard; paper cartons and boxes, cellulose wadding or fibers; bobbins, spools, cops and similar supports of paper pulp; cleaning seals for cartridge assembly; fabricated asbestos fibers; glass spheres; metal fasteners; copper springs; aluminum foil; aluminum tube or pipe fittings; tungsten; base metal mountings; metal office fasteners; air or vacuum pumps, air or other gas compressors and fans; centrifuges; automatic data processing machines; other office machines and parts and accessories; molds for metal foundry; taps, cocks, valves; ball or roller bearings; transmission shafts and cranks; gaskets and similar joints of metal sheeting; electric motors and generators; electrical transformers, static converters and inductors; electromagnets, permanent magnets; primary cells and primary batteries; industrial or laboratory electric furnaces and ovens; electric instantaneous or storage water heaters, electric space heating apparatus, electrothermic hairdressing apparatus; electrical apparatus for line telephony or telegraphy, videophones; electrical capacitors; electrical resistors; printed circuits; electrical apparatus for switching or protecting electrical circuits; electrical filament or discharge lamps; diodes, transistors, photosensitive semiconductor devices;
Zone procedures would exempt Ricoh from Customs duty payments on foreign materials used in production for export. On domestic sales, the company would be able to choose the duty rates that apply to the finished products (primarily duty-free, with some up to 8.1%) rather than the duty rates that would otherwise apply to the foreign-sourced materials noted above (duty-free to 12.5 percent, weighted average 4.3%). The application indicates that the savings from zone procedures will help improve the plant's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
A copy of the application and accompanying exhibits will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at address Number 1 listed above, and at the U.S. Department of Commerce Export Assistance Center, One World Trade Center, Suite 1670, Long Beach, California.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Georgia Foreign-Trade Zone, Inc., grantee of FTZ 26, requesting special-purpose subzone status for the toner cartridges, related toner products, and thermal paper products manufacturing plant of Ricoh Electronics, Inc. (Ricoh Electronics) in Lawrenceville, Georgia. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on November 19, 2002.
Ricoh Electronics' plant (73.13 acres/351,058 square feet, with a possible expansion of one additional building and expansion to existing buildings totaling 486,000 square feet) is located at 1125 Hurricane Shoals Road in Lawrenceville, Georgia.
The facility (340 employees) is requesting subzone status to produce thermal label paper (HTSUS 4811.41.1000—duty rate 1.2% and 4811.51.2050—duty free), tag paper (HTSUS 4811.90.8000—duty rate .4%), TC film (HTSUS 3920.62.0000—duty rate 4.2%), thermal transfer ribbon (HTSUS 9612.10.9030—duty rate 8.1%), toner cartridges (HTSUS 8473.30.5000, 8473.40.8000, 8517.90.0400, and 9009.99.4000—duty free), toner and developer (HTSUS 3707.90.3290—duty rate 6.5%), and remanufactured toner cartridges. The company may add other Ricoh products such as highly advanced digital copiers, laser and multi-function printers, copier and printer peripherals (such as sorters, large capacity trays, and copier stands), printed circuit boards, secure fax machines, eCabinets (electronic data storage units), and other products to their manufacturing line in the future. Foreign-sourced materials will account for some 40 percent of finished product value, and include items from the following general categories: Vegetable waxes; quartz; mineral oils; carbon; inorganic acids and oxygen compounds of nonmetals; aluminum oxide; iron oxides; titanium oxides; sulfates; carbonates; silicates; oxometallic or peroxometallic acids; acyclic alcohols; phenols; ethers; saturated acyclic monocarboxylic acids; polycarboxilic acids; amine function compounds; diazo-, azo- or azoxy-compounds; organic derivatives of hydrazine; organo-sulfur compounds; heterocyclic compounds; other organic compounds; paints and varnishes; surface-active agents; artificial waxes and prepared waxes; prepared glues and other prepared adhesives; photographic film; photographic paper, paperboard; chemical preparations for photographic uses; finishing agents; rubber accelerators; organic composite solvents and thinners; prepared binders for foundry molds; polymers of ethylene/propylene/styrene/vinyl chloride/vinyl acetate and acrylic; epoxide resins; polyamides in primary forms; amino-resins; silicones; cellulose; tubes, pipes and hoses; self-adhesive plates; sheets, film, foil, tape; other articles of plastics; other articles of unvulcanized rubber; conveyor or transmission belts; wood packing cases and boxes, uncoated paper and paperboard; paper cartons and boxes, cellulose wadding or fibers; bobbins, spools, cops and similar supports of paper pulp; cleaning seals for cartridge assembly; fabricated asbestos fibers; glass spheres; metal fasteners; copper springs; aluminum foil; aluminum tube or pipe fittings; tungsten; base metal mountings; metal office fasteners; air or vacuum pumps, air or other gas compressors and fans; centrifuges; automatic data processing machines; other office machines and parts and accessories; molds for metal foundry; taps, cocks, valves; ball or roller bearings; transmission shafts and cranks; gaskets and similar joints of metal sheeting; electric motors and generators; electrical transformers, static converters and inductors; electromagnets, permanent magnets; primary cells and primary batteries; industrial or laboratory electric furnaces and ovens; electric instantaneous or storage water heaters, electric space heating apparatus, electrothermic hairdressing apparatus; electrical apparatus for line telephony or telegraphy, videophones; electrical capacitors; electrical resistors; printed circuits; electrical apparatus for switching or protecting electrical circuits; electrical filament or discharge lamps; diodes, transistors, photosensitive semiconductor devices; electronic integrated circuits and microassemblies; insulated wire and
Zone procedures would exempt Ricoh Electronics from Customs duty payments on foreign materials used in production for export. Some 25 percent of the toner products are exported. On domestic sales, the company would be able to choose the duty rates that apply to the finished products (primarily duty-free, with some up to 8.1%) rather than the duty rates that would otherwise apply to the foreign-sourced materials noted above (duty-free to 12.5 percent, weighted average 4.7%). The application indicates that the savings from zone procedures will help improve the plant's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and three copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
The closing period for their receipt is February 4, 2003. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to February 19, 2003).
A copy of the application and accompanying exhibits will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at address Number 1 listed above, and at the U.S. Export Assistance Center, Marquis Two Tower, Suite 200, 285 Peachtree Center Avenue, NE., Atlanta, Georgia 30303-1229.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Board of Harbor Commissioners of the City of Los Angeles, grantee of FTZ 202, requesting authority to expand and reorganize its zone in the Los Angeles, California area, within and adjacent to the Los Angeles-Long Beach Customs port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on November 21, 2002.
FTZ 202 was approved on July 14, 1994 (Board Order 693, 59 FR 37464, July 22, 1994) and expanded on August 26, 1996 (Board Order 842, 61 FR 46763, September 5, 1996) and July 9, 1999 (Board Order 1043, 64 FR 38887, July 20, 1999). The zone project currently consists of 15 sites (4,514) at port facilities, industrial parks and warehouse facilities in Los Angeles County.
The applicant is now requesting authority to expand and reorganize the general-purpose zone to include on a permanent basis Temporary Sites 12, 13 and 14, to restore 44 acres deleted from Site 9, to permanently delete 78 acres from Site 3, and, to include seven new sites in Los Angeles and the adjacent “Inland Empire” area.
The sites to be made permanent are as follows:
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment on the application is invited from interested parties. Submissions (original and three copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
1. Submissions via Express/Package Delivery Services: Foreign-Trade Zones Board, U.S. Department of Commerce, Franklin Court Building—Suite 4100W, 1099 14th Street, NW., Washington, DC 20005; or
2. Submissions via the U.S. Postal Service: Foreign-Trade Zones Board, U.S. Department of Commerce, FCB—Suite 4100W, 1401 Constitution Avenue, NW., Washington, DC 20230.
The closing period for their receipt is February 4, 2003. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to February 19, 2003).
A copy of the application and accompanying exhibits will be available during this time for public inspection at
Import Administration, International Trade Administration, Department of Commerce.
On February 28, 2002, the Coalition Against Indian Flanges (“petitioners”) requested an administrative review of Bhansali Ferromet Pvt. Ltd., Echjay Forgings Limited, Isibars, Limited (“Isibars”), Panchmahal Steel, Ltd., Patheja Forgings and Auto Parts, Ltd., and Viraj Forgings, Ltd. The Department initiated the review on March 27, 2002 (
December 6, 2002.
Michael Ferrier, Enforcement Group III, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room 7866, Washington, DC 20230; telephone (202) 482-1394.
Unless otherwise indicated, all citations are to the provisions of the Tariff Act of 1930, as amended (the Act). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations at 19 CFR part 351 (2002).
The products under review are certain forged stainless steel flanges, both finished and not finished, generally manufactured to specification ASTM A-182, and made in alloys such as 304, 304L, 316, and 316L. The scope includes five general types of stainless steel flanges. They are weld-neck, used for butt-weld line connection; threaded, used for threaded line connections; slip-on and lap joint, used with stub-ends/butt-weld line connections; socket weld, used to fit pipe into a machined recession; and blind, used to seal off a line. The sizes of the flanges within the scope range generally from one to six inches; however, all sizes of the above-described merchandise are included in the scope. Specifically excluded from the scope of this order are cast stainless steel flanges. Cast stainless steel flanges generally are manufactured to specification ASTM A-351. The flanges subject to this order are currently classifiable under subheadings 7307.21.1000 and 7307.21.5000 of the Harmonized Tariff Schedule (HTS). Although the HTS subheadings are provided for convenience and customs purposes, the written description of the merchandise under review is dispositive of whether or not the merchandise is covered by the review.
On February 28, 2002, petitioners requested an administrative review of the six companies, including Isibars. The period of review is February 01, 2001 through January 31, 2002. On April 20, 2002, the Department issued the antidumping questionnaire. On May 28, 2002, Isibars submitted its section A response to the Department's questionnaire. On June 4, 2002 the Department issued its section A supplemental questionnaire. On July 3, 2002, Isibars submitted its response to the section A supplemental questionnaire. On August 12, 2002, Isibars submitted revised versions of its sections A and C responses to the Department's original antidumping questionnaire. On August 15, 2002, the respondent submitted section D of the Department's questionnaire. On September 10, 2002, and September 17, 2002, the Department issued sections C and D supplemental questionnaires, respectively. On September 24, 2002, Isibars submitted its response to the Department's supplemental C questionnaire. On October 8, 2002, Isibars submitted its supplemental section D response. On November 1, 2002, the Department issued an issues and decision memorandum stating our intent to rescind the administrative review for Isibars. The Department circulated this memorandum among interested parties and received no comments.
Pursuant to 19 CFR 351.213(d)(3), the Department may rescind an administrative review, in whole or only with respect to a particular exporter or producer, if the Secretary concludes that, during the period of review, there were no entries, exports, or sales of subject merchandise. On November 1, 2002, the Department issued an issues and decision memorandum stating our intent to rescind the administrative review for Isibars in light of the information on the record that Isibars did not sell, ship, or enter the subject merchandise during the period of review (“POR”).
In our memorandum, the Department noted that since Isibars only produces the billet, and does not forge the billet into a flange, Isibars is not the producer of the subject merchandise. Additionally, Isibars stated on the record of this proceeding that it did not negotiate and fix the price of the subject merchandise with the U.S. customer. We concluded that Isibars was not an exporter of the subject merchandise during the POR. U.S. Customs data confirmed that Isibars did not have any entries of forged stainless steel flanges during the POR to the United States. In our memorandum, we recommended rescinding this administrative review with respect to Isibars since there were no sales, entries, or exports of the subject merchandise by Isibars, in accordance with section 351.213 (d)(3) of the Department's regulations. For a more detailed discussion of these points,
This notice is issued and published in accordance with section 777(i) of the Act and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Expedited Sunset Review: Freshwater Crawfish Tail Meat From the People's Republic of China.
On August 2, 2002, the Department of Commerce (“the Department”) published the notice of initiation of a five-year sunset review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (“PRC”), pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
December 6, 2002.
Amir R. Eftekhari or James P. Maeder, Jr., Office of Policy for Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5331 or (202) 482-3330.
This review is conducted pursuant to sections 751(c) and 752 of the Act. The Department's procedures for the conduct of sunset reviews are set forth in Procedures for Conducting Five-year ( “Sunset”) Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 (March 20, 1998) (“Sunset Regulations”) and in 19 CFR part 351 (2002) in general. Guidance on methodological or analytical issues relevant to the Department's conduct of sunset reviews is set forth in the Department's Policy Bulletin 98:3 Policies Regarding the Conduct of Five-year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998) (“Sunset Policy Bulletin”).
The product covered by this review is freshwater crawfish tail meat, in all its forms (whether washed or with fat on, whether purged or unpurged), grades, and sizes; whether frozen, fresh, or chilled; and regardless of how it is packed, preserved, or prepared. Excluded from the scope of the investigation and order are live crawfish and other whole crawfish, whether boiled, frozen, fresh, or chilled. Also excluded are saltwater crawfish of any type, and parts thereof. Freshwater crawfish tail meat is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under HTSUS subheading 0306.19.00.10 and 0306.29.00.00. The HTSUS subheadings are provided for convenience and Customs purposes only. The written description of the scope of this proceeding is dispositive.
On August 2, 2002, the Department published the notice of initiation of the five-year sunset review of the antidumping duty order on freshwater crawfish tail meat from the PRC in accordance with section 751(c) of the Act.
On September 3, 2002, the Department received a complete substantive response from the domestic interested parties, as specified in the Sunset Regulations under section 351.218(d)(3)(i).
The Department did not receive a substantive response from any respondent interested party in this proceeding. Consequently, pursuant to section 751(c)(3)(B) of the Act, and 19 CFR 351.218(e)(1)(ii)(C), the Department conducted an expedited (120-day) sunset review of this order.
All issues raised by the domestic interested parties to this sunset review are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Jeffrey A. May, Director, Office of Policy, Import Administration, to Faryar Shirzad, Assistant Secretary for Import Administration, dated November 29, 2002, which is adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail were the order revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the Department's main building.
In addition, a complete version of the Decision Memorandum can be accessed directly on the internet at
We determine that revocation of the antidumping duty order would likely lead to continuation or recurrence of dumping at the following percentage weighted-average margins:
This notice serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation which is subject to sanction.
This five-year (“sunset”) review and notice are in accordance with sections 751(c), 752, and 777(i)(1) of the Act.
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
Notice of first request for panel review.
On November 29, 2002, Siderurgica Lazaro Cardenas Las Truchas S.A. de C.V. (“SICARTSA”) filed a first request for panel review with the United States Section of the NAFTA Secretariat pursuant to article 1904 of the North American Free Trade Agreement. Panel Review was requested of the Final Affirmative Injury Determination made by the United States International Trade Commission, respecting Carbon and Certain Alloy Steel Wire Rod from Canada. This determination was published in the
Caratina L. Alston, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230, (202) 482-5438.
Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a request for panel review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.
Under article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established
A first request for panel review was filed with the United States Section of the NAFTA Secretariat, pursuant to article 1904 of the Agreement, on November 27, 2002, requesting panel review of the final determination described above.
The rules provide that:
(a) A party or interested person may challenge the final determination in whole or in part by filing a complaint in accordance with rule 39 within 30 days after the filing of the first request for panel review (the deadline for filing a complaint is December 27, 2002);
(b) A party, investigating authority or interested person that does not file a complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a notice of appearance in accordance with rule 40 within 45 days after the filing of the first request for panel review (the deadline for filing a notice of appearance is January 13, 2003); and
(c) The panel review shall be limited to the allegations of error of fact or law, including the jurisdiction of the investigating authority, that are set out in the complaints filed in the panel review and the procedural and substantive defenses raised in the panel review.
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
Notice of First Request for Panel Review.
On November 27, 2002, Ivaco Inc and Ivaco Rolling Mills Inc. filed a First Request for Panel Review with the United States Section of the NAFTA Secretariat pursuant to Article 1904 of the North American Free Trade Agreement. Panel Review was requested of the Final Affirmative Injury Determination made by the United States International Trade Commission, respecting Carbon and Certain Alloy Steel Wire Rod from Canada. This determination was published in the
Caratina L. Alston, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230, (202) 482-5438.
Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.
Under article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United
A first Request for Panel Review was filed with the United States Section of the NAFTA Secretariat, pursuant to Article 1904 of the Agreement, on November 27, 2002, requesting panel review of the final determination described above.
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the First Request for Panel Review (the deadline for filing a Complaint is December 27, 2002);
(b) A Party, investigating authority or interested person that does not file a complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the First Request for Panel Review (the deadline for filing a Notice of Appearance is January 13, 2003); and
(c) The panel review shall be limited to the allegations of error of fact or law, including the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and the procedural and substantive defenses raised in the panel review.
Notice is hereby given that Pub. L. 99-190, as amended, authorizing the National Capital Arts and Cultural Affairs Program, has been funded for 2003 in the amount of $7,000,000.00. All requests for information and applications for grants should be received by 31 December 2002 and addressed to: Charles H. Atherton, Secretary, Commission of Fine Arts, National Building Museum, Suite 312, 441 F Street, NW., Washington, DC 20001-2728.
Deadline for receipt of grant applications is March 1, 2003.
This program provides grants for general operating support of organizations whose primary purpose is performing, exhibiting, and/or presenting the arts. To be eligible for a grant, organizations must be located in the District of Columbia, must be non-profit, non-academic institutions of demonstrated national repute, and must have annual incomes, exclusive of federal funds, in excess of one million dollars for each of the past three years.
Consumer Product Safety Commission.
Notice.
In the
Two comments were received in response to that notice. The Carpet and Rug Institute (“CRI”) commented that the washing requirement in § 1630.4(ii) is not an acceptable method for cleaning carpet materials and suggested that the staff consider the AATCC Test Method 171-2000, “Carpets: Cleaning of; Hot Water Extraction Method,” as a more appropriate method for consideration. CRI further commented that the testing and recordkeeping is not a significant burden for the industry when measured against the benefits of consumer protection and product liability.
Shaw Industries, Inc. suggested that § 1630.4(ii) be changed to reference the same AATCC test method and also commented on the Eli Lily Pharmaceuticals, Inc. (“Lily”) discontinuation of methenamine tablets specified as the source of ignition. The CPSC staff is aware that Lily no longer produces the methenamine tablet specified as the ignition source in the standards. The staff is in the process of evaluating methenamine pills from several different manufacturers and developing draft technical amendments to the standards that will provide performance requirements for the ignition source, rather than specifying a manufacturer. The staff will also consider other relevant issues, such as laundering procedures, as appropriate during the amendment process.
After considering these comments, the staff believes it should nevertheless seek approval of the collection of information. Therefore, by publication of this notice, the Commission announces that it has submitted to the Office of Management and Budget a request for extension of approval of those collections of information without change.
Copies of this request for extension of the information collection requirements and supporting documentation are available from Linda Glatz, management and program analyst, Office of Planning and Evaluation, Consumer Product Safety Commission, Washington, DC 20207; telephone: (301) 504-0416, ext. 2226.
U.S. Department of Energy.
Notice inviting grant applications.
The Office of Advanced Scientific Computing Research (ASCR) of the Office of Science (SC), U.S. Department of Energy (DOE), hereby announces its interest in receiving applications for grants in support of its Early Career Principal Investigator Program. The purpose of this program is to support research in applied mathematics, collaboratory research, computer science, and networks performed by exceptionally talented scientists and engineers early in their careers. The full text of Program Notice 03-11 is available via the Internet using the following Web site address:
To permit timely consideration for award in Fiscal Year 2003, completed applications in response to this notice must be received by February 20, 2003, to be accepted for merit review and funding in Fiscal Year 2003.
Formal applications in response to this solicitation are to be electronically submitted by an authorized institutional business official through DOE's Industry Interactive Procurement System (IIPS) at:
If you are unable to submit an application through IIPS, please contact the Office of the Director, Grants and Contracts Division, Office of Science, DOE at: (301) 903-5212 in order to gain assistance for submission through IIPS or to receive special approval and instructions on how to submit printed applications.
Dr. Samuel J. Barish, Office of Advanced Scientific Computing Research, SC-31/Germantown Building, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-1290, telephone: (301) 903-5800, e-mail:
The primary mission of the Office of Advanced Scientific Computing Research, which is carried out by the Mathematical, Information, and Computational Sciences (MICS) Division, is to discover, develop, and deploy the computational and networking tools that enable researchers in the scientific disciplines to analyze, model, simulate, and predict complex physical, chemical, and biological phenomena important to DOE. To accomplish this mission, the MICS Division fosters and supports fundamental research in advanced scientific computing applied mathematics, collaboratory research, computer science, and networking—and operates supercomputers, a high performance network, and related facilities. Further descriptions of the base research portion of the MICS portfolio, which is the scope of this Notice, is provided below.
The objective of the applied mathematics component of the MICS research portfolio is to support research on the underlying mathematical understanding as well as the numerical algorithms needed to enable effective description and prediction of physical, chemical, and biological systems such as fluids, materials, magnetized plasmas, or protein molecules. This includes, but is not limited to, methods for solving large systems of partial differential equations on parallel computers, techniques for choosing optimal values for parameters in large systems with hundreds to hundreds of thousands of parameters, improving our understanding of fluid turbulence, and developing techniques for reliably estimating the errors in simulations of complex physical phenomena.
In addition to the existing research topics described, MICS plans to invest in new areas of applied mathematics research to support DOE's mission. Such investments may include research in multiscale algorithms, the mathematics of feature identification in large datasets, asymptotically optimal algorithms for solving PDEs, fast multipole and related hybrid methods, and algorithms for handling complex systems with constraints. The MICS research portfolio in Applied Mathematics emphasizes investment in long-term research that will result in the next generation of computational tools for scientific discovery.
Collaboratories link geographically dispersed researchers, data, and tools via high performance networks to enable remote access to facilities, access to large datasets, shared environments, and ease of collaboration. The objective of the collaboratory component of the MICS portfolio is to support research for developing the software infrastructure that will enable universal, ubiquitous, easy access to remote resources or that will contribute to the ease with which distributed teams work together. Enabling high performance for distributed scientific applications is an important consideration. The middleware component for collaboratories encompasses activities in
• Building the application frameworks that allow discipline scientists to express and manage the simulation, analysis, and data management aspects of overall problem solving
• Supporting construction, management, and use of widely distributed application systems
• Facilitating human collaboration through common security services, and resource and data sharing
• Providing remote access to, and operation of, scientific and engineering instrumentation systems.
• Managing and securing the computing and data infrastructure as a persistent service.
This announcement also calls for grant applications to address the fundamental issues involved in providing uniform software services that manage and provide access to heterogeneous, distributed resources, that is, high-performance middleware services that support DOE's science mission. The emphasis is on investment in long-term research that will result in the next generation of high-performance software infrastructure for scientific discovery.
The objective of the computer science component of the MICS research portfolio is to support research that results in a comprehensive, scalable, and robust high performance software infrastructure that translates the promise and potential of high peak performance to real performance improvements in DOE scientific applications. This software infrastructure must address needs for: Portability and interoperability of complex high performance scientific software packages; operating systems tools and support for the effective management of terascale and beyond systems; and effective tools for feature identification, data management, and visualization of petabyte-scale scientific data sets. The Computer Science component encompasses a multi-discipline approach with activities in:
• Program development environments and tools—Component-based, fully integrated, terascale program development and runtime tools, which scale effectively and provide maximum performance, functionality, and ease-of-use to developers and scientific end users.
• Operating system software and tools—Systems software that scales to tens of thousands of processors, supports high performance application-level communication, and provides the highest levels of performance, fault tolerance, reliability, manageability, and ease of use for system administrators, tool developers, and end users.
• Visualization and data management systems—Scalable, intuitive systems fully supportive of DOE application requirements for moving, storing, analyzing, querying, manipulating, and visualizing multi-petabytes of scientific data and objects.
• Problem Solving Environments—Unified systems focused on the needs of specific scientific applications, which enable radically improved ease-of-use of complex systems software and tools by domain application scientists.
The MICS research portfolio in Computer Science emphasizes investment in long-term research that will result in the next generation of high performance tools for scientific discovery.
In the next few years, complex science experiments in DOE are expected to generate several petabytes of data that will be transferred to geographically distributed terascale computing facilities for analysis and visualization by thousands of scientists across the world. In addition, many emerging energy research problems require coordinated access to distributed resources—people, data, computers, and facilities. This emerging, distributed terascale-science environment calls for ultra-high-speed networks—networks that can deliver multi-gigabits/sec throughput to scientific applications securely. Grant applications in network research must therefore address the issues of ultra high-speed networks by focusing on:
• Ultra high-speed network protocols—radical new approaches to ultra high-speed transport protocols that will outperform existing Transmission Control Protocol (TCP) and User Designed Datagram (UDP) to efficiently harness the abundant bandwidth made possible by Dense Wave Division Multiplexing (DWDM) optical technologies. This may include transport mechanisms such as Remote Direct Memory Access (RDMA) over Lambda and OS-bypass over Lambda, that are capable of delivering and sustaining multi-Gigabits/sec (Gbs) throughput to high-end scientific applications.
• Intelligent high-speed network interfaces—to significantly improve the end-to-end performance by addressing host system congestion issues, such as dynamically programmed transport protocol off-loading, OS bypass, electro-optical middleware, and high-speed I/O.
• High-speed cyber security systems—that operate efficiently at ultra high-speed (2.5 Gbs and 10 Gbs). Such systems should be based on a sound theoretical foundation and formal techniques, and in addition could exploit Artificial Intelligence (AI) techniques, such as fuzzy logic, neural networks, and genetic algorithms to improve their effectiveness.
• Network modeling and traffic engineering—new techniques for modeling and characterization of chaotic behaviors in complex traffic patterns, dynamic behavior of protocols, cyber security systems, and congestion control mechanisms.
Grant applications addressing the above problems must go beyond the development of tools and emphasize mathematical analysis, formal specification, and rigorous techniques for validating the performance of their proposed solutions.
This is the second year of the Early Career Principal Investigator Program. A principal goal of this program is to identify exceptionally talented applied mathematicians, collaboratory researchers, computer scientists, and high-performance networks researchers early in their careers and assist and facilitate the development of their research programs. Eligibility for awards under this notice is restricted to applicants who meet all of the following criteria:
(1) Hold a tenure-track regular academic faculty position.
(2) Have earned a Ph.D. degree or equivalent after July 1, 1998.
(3) Are conducting research in applied mathematics, collaboratories, computer science, or high-performance networks.
Applications should be submitted through a U.S. academic institution. Applicants should request support under this notice for normal research project costs as required to conduct their proposed research activities, such as part of the PI's salary, graduate and/or undergraduate students, post-doctoral researchers, equipment and facilities, and travel. However, no salary support will be provided for other faculty members or senior personnel.
Applicants who have submitted or will be submitting similar grant applications to other programs are eligible for this notice, as long as the details of the other submission are contained in the grant application to DOE. Applicants who have an NSF CAREER award, or are applying for such an award, are eligible for this notice. Applicants do not have to be U.S. citizens, and may be non-permanent resident aliens or have an H1b visa.
It is anticipated that up to $2 million will be available for up to twenty (20)
Multiple-year funding of grant awards is expected, with funding provided on an annual basis subject to the availability of funds, progress of the research, and programmatic needs. The typical duration of these grants is three years, and they will not normally be renewed after the project period has been completed. It is anticipated that at the end of the grant period, grantees will submit new grant applications to continue their research to DOE or other Federal funding agencies. We expect that the awards will be announced and the projects will begin in early summer 2003.
Applications will be subjected to scientific merit review (peer review) and will be evaluated against the following evaluation criteria, which are listed in descending order of importance as codified at 10 CFR 605.10(d):
(1) Scientific and/or Technical Merit of the Project;
(2) Appropriateness of the Proposed Method or Approach;
(3) Competency of Applicant's Personnel and Adequacy of Proposed Resources;
(4) Reasonableness and Appropriateness of the Proposed Budget.
The evaluation of applications under item 1, Scientific and Technical Merit, will pay attention to the responsiveness of the proposed research to the challenges of the MICS base research programs in Applied Mathematics, Collaboratory Research, Computer Science, and Network Research.
It is expected that the application will include involvement of graduate and/or undergraduate students in the proposed work.
Applicants are encouraged to collaborate with DOE National Laboratory researchers. The collaborations may include one, or more, extended visits to the laboratory by the applicant each year. Such an arrangement, if proposed, must be clearly explained in the grant application. Furthermore, a letter of support from the DOE National Laboratory collaborator(s) should be included with the application. A list of the DOE National Laboratories can be found at:
Grantees under the Early Career Principal Investigator Program may apply for access to high-performance computing and network resources at several National Laboratories. Such resources include, but are not limited to, the National Energy Research Scientific Computing (NERSC) Center:
The evaluation under item 2, Appropriateness of the Proposed Method or Approach, will consider the quality of the proposed plan, if any, for interacting with a DOE National Laboratory.
Please note that external peer reviewers are selected with regard to both their scientific expertise in the subject area of the grant application and the absence of conflict-of-interest issues. Non-federal reviewers will often be used, and submission of an application constitutes agreement that this is acceptable to the investigator and the submitting institution.
Each grant application submitted should clearly indicate on which of the four following components of the MICS research portfolio the application is focused: Applied Mathematical Sciences Research, Collaboratory Research, Computer Science Research, or High-Performance Networks Research.
The Project Description should be 20 pages or less, exclusive of the bibliography and other attachments. It must contain an abstract or project summary on a separate page with the name of the applicant, mailing address, phone, FAX and E-mail listed, and a short curriculum vita for the applicant.
To provide a consistent format for the submission, review, and solicitation of grant applications under this notice, the preparation and submission of grant applications must follow the guidelines given in the Application Guide for the Office of Science Financial Assistance Program, 10 CFR part 605. Access to SC's Financial Assistance Application Guide is possible via the World Wide Web at:
Department of Energy (DOE), National Energy Technology Laboratory (NETL).
Notice of Availability of a Financial Assistance Solicitation.
Notice is hereby given of the intent to issue Financial Assistance Solicitation No. DE-PS26-03NT41719 entitled “Innovative Water Management Technologies and Concepts for Coal-Fired Electric Utility Boilers” to solicit applications for cost-shared research projects directed at innovative water management technologies and concepts for coal-fired electric utility boilers. Specifically, the solicitation will provide for the development of cost-effective solutions to emerging regulations and restrictions on water use and impacts on water quality associated with the generation of electricity by coal-fired power plants. Applications will be solicited in four (4) technical areas of interest: (1)
The solicitation supports the overall goal of the Department of Energy/Office of Fossil Energy's Innovations for Existing Plants (IEP) Program to develop advanced technology and knowledge products that enhance the environmental performance of the existing fleet of coal-fired power plants. The solicitation is part of the path forward of the Energy-Water Management component of the IEP roadmap (
The solicitation will be available on the “Industry Interactive Procurement System” (IIPS) webpage located at
Donna J. Jaskolka, MS 921-107, U.S. Department of Energy, National Energy Technology Laboratory, P.O. Box 10940, Pittsburgh, PA 15236-0940, E-mail Address:
Electric utility boilers are the second largest user of water in the United States, ranking only slightly behind irrigation in terms of total annual water use (USGS, Circular 1200, 1998). The majority of the water used by power plants is for cooling. The steam cycle requires a large amount of water to condense the low-pressure steam from the turbine. Recent regulations proposed under section 316(b) (
Water quality issues will also continue to receive attention in terms of coal power systems. Coal utilization byproducts (CUBs) such as scrubber solids and fly ash must be managed properly in order that all current and future surface and groundwater regulations are met. Concerns about the fate of mercury, arsenic, and other trace metals in CUB leachates could negatively impact the commercial use and disposal of these materials. More stringent control of air emissions under the Clean Air Act could result in cross-media transfer of pollutants from air to water. For example, pending mercury regulations could bring about the need for additional monitoring, processing, and treatment of scrubber liquors and other aqueous streams associated with air pollution control equipment. In addition, coal pile runoff and other plant-wide discharges may come under further scrutiny in response to future Clean Water Act and Safe Drinking Water Act requirements.
DOE-NETL held a workshop in July 2002 with key stakeholders from industry, government agencies, regional and state regulators, research organizations, and academia to obtain input on the need for a private-partner research effort to address these emerging issues. A summary of the workshop proceedings can be found at
The objective of this solicitation is to solicit applications for cost-shared research projects directed at innovative water management technologies and concepts for coal-fired electric utility boilers. Specifically, the solicitation will provide for the development of cost-effective solutions to emerging regulations and restrictions on water use and impacts on water quality associated with the generation of electricity by coal-fired power plants. All applicants should clearly describe how the technology, if successfully developed and applied, would impact the cost of operating a coal-fired power plant in terms of impacts on COE (cost of electricity) relative to existing technology. The applicant should also provide a projection of the market penetration of the proposed technology or concept in terms of both existing and new coal-fired electric utility boilers. Applications will be solicited to address four technical topic areas:
Applications are being sought to evaluate and develop cost-effective approaches to using non-traditional (
Applications are being sought to improve both wet and dry recirculating cooling tower systems. Innovative methods of plume abatement are desired to reduce water loss and minimize visual impacts from cooling towers. Improvements in the energy penalty associated with wet and dry cooling versus once-through cooling are also sought. Research to reduce the higher capital and operating costs associated with dry cooling versus wet cooling and the development of hybrid wet-dry systems that optimize the advantages of wet and dry cooling towers is also sought.
Future regulations to protect aquatic organisms under Section 316(b) of the Clean Water Act may impact the operation of cooling water intake structures on new and existing power plants. Applications are sought to meet performance standards for intake structures that would be required by section 316(b) regulation. Specifically, advanced intake structure technologies such as intake screen systems, passive intake systems, diversion or avoidance systems, and fish handling systems are sought. Innovative methods to control bio-fouling of intake structures, which will be more of a problem with the lower intake water velocities required to reduce fish impingement are also sought.
Future controls on the emission of mercury and possibly other hazardous air pollutants (
It is anticipated that there will be five to seven (5-7) Financial Assistance (Cooperative Agreement) awards with
Eligibility for participation in the Program Solicitation is considered to be full and open. All interested parties may apply, except as noted herein. Applications submitted by or on behalf of (1) Another Federal agency, (2) a Federally Funded Research and Development Center sponsored by another Federal agency; or (3) a Department of Energy (DOE) Management Operating (M&O) Contractor will not be eligible for award under this solicitation. However, an application that includes performance of a portion of the work by a DOE M&O contractor will be evaluated and may be considered for award subject to the provisions to be set forth in Program Solicitation DE-PS26-03NT41719
The limit on participation by an M&O contractor for an individual project under this solicitation cannot exceed 25% of the total project cost.).
Once released, the solicitation will be available for downloading from the IIPS webpage (
Prospective applicants who would like to be notified as soon as the solicitation is available should subscribe to the Business Alert Mailing List at
U.S. Department of Energy.
Notice inviting grant applications.
The Office of Biological and Environmental Research (OBER) of the Office of Science (SC), U.S. Department of Energy (DOE), hereby announces its interest in receiving applications for research grants in the Natural and Accelerated Bioremediation Research (NABIR) Program. The goal of the NABIR program is to provide the fundamental science that will serve as the basis for development of cost-effective bioremediation and long-term stewardship of radionuclides and metals in the subsurface at DOE sites. The focus of the program is on strategies leading to long-term immobilization of contaminants in place to reduce the risk to humans and the environment. Research should address bioremediation of uranium, technetium, plutonium, chromium or mercury. NABIR is focused on subsurface sediments below the zone of root influence and includes both the vadose (unsaturated) zone and the saturated zone (groundwater and sediments). Applications should describe research projects in one or more of the following program elements: Biogeochemistry, Biotransformation, Community Dynamics and Microbial Ecology, Biomolecular Science and Engineering, Assessment, and Bioremediation and its Societal Implications and Concerns. Studies that integrate research from more than one NABIR element are strongly encouraged.
Researchers are strongly encouraged (but not required) to submit a preapplication for programmatic review. Preapplications will be accepted on an ongoing basis, however, early submission of preapplications is encouraged, to allow time for review for programmatic relevance. A brief preapplication should consist of one or two pages of narrative describing the research objectives and methods.
The deadline for receipt of formal applications is 4:30 p.m., E.S.T., March 11, 2003, to be accepted for merit review and to permit timely consideration for awards late in Fiscal Year 2003 or in early Fiscal Year 2004.
Preapplications referencing Program Notice 03-13 should be sent by E-mail to
Formal applications in response to this solicitation are to be electronically submitted by an authorized institutional business official through DOE's Industry Interactive Procurement System (IIPS) at:
If you are unable to submit an application through IIPS please contact the Grants and Contracts Division, Office of Science at: (301) 903-5212 in order to gain assistance for submission through IIPS or to receive special approval and instructions on how to submit printed applications.
Dr. Anna Palmisano, Environmental Remediation Sciences Division, SC-75/Germantown Building, Office of Biological and Environmental Research, Office of Science, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585-1290, telephone: (301) 903-9963, E-mail:
For more than 50 years, the U.S. created a vast network of more than 113
While bioremediation of organic contaminants involves their biotransformation to benign products such as carbon dioxide, bioremediation of radionuclides and metals involves their removal from the aqueous phase to reduce risk to humans and the environment. Microorganisms can directly affect the solubility of radionuclides and metals by changing their oxidation state to a reduced form that leads to in situ immobilization. Or, microorganisms can indirectly immobilize radionuclides and metals through the reduction of inorganic ions that can, in turn, chemically reduce contaminants to less mobile forms. The long term stability of these reduced contaminants is as yet unknown.
Currently, the fundamental knowledge that would allow cost-effective deployment of in situ subsurface bioremediation of radionuclides and metals is lacking. The focus of the NABIR program is on radionuclides and metals that: (1) Pose the greatest potential risk to humans and the environment at DOE sites; and (2) are amenable to for immobilization by means of bioremediation. Thus, research is focused on the radionuclides uranium, technetium and plutonium and the metals chromium and mercury. Radioactive contaminants such as tritium and cobalt are not a focus because of their relatively short half lives, and strontium and cesium are not addressed because they are not readily amenable to biotransformation. Research is focused on subsurface sediments below the zone of root influence and includes both the vadose (unsaturated) zone and the saturated zone (both groundwater and sediments). NABIR research is oriented toward areas that have low levels of widespread contamination; it is too costly to clean up those situations with existing technologies. Uranium, technetium, and chromium can be especially mobile in the subsurface under certain conditions; they are risk-driving contaminants at some DOE sites. The effects of co-contaminants such as nitrate, complexing agents (such as EDTA) and chlorinated solvents (such as trichloroethylene and carbon tetrachloride) on the behavior of radionuclides and metals in the subsurface is also of interest to the NABIR program.
The goal of the NABIR program is to provide the fundamental science that will serve as the basis for development of cost-effective bioremediation and long-term stewardship of radionuclides and metals in the subsurface at DOE sites. The focus of the program is on strategies leading to long-term immobilization in place of contaminants to reduce the risk to humans and the environment. The NABIR program encompasses both intrinsic bioremediation by naturally occurring microbial communities, as well as accelerated bioremediation through the use of biostimulation (addition of inorganic or organic nutrients). The NABIR Program supports hypothesis-driven, basic research that is more fundamental in nature than demonstration projects. Research on phytoremediation will not be supported by this solicitation; a separate solicitation for a Joint Interagency Program on Phytoremediation Research can be found at:
Naturally occurring subsurface microbes may be involved in intrinsic bioremediation of radionuclides and metals by reduction and immobilization, either directly or indirectly. However, these natural processes typically occur at fairly slow rates, and there may be a need to use biostimulation to enhance the rates. The primary focus of the NABIR program is on biostimulation strategies, due to the ubiquity of metal-reducers in nature. Immobilized radionuclides and metals are not removed from the subsurface as may occur with excavation, pump and treat, or biodegradation of organic contaminants. Immobilization is focused on containment in vadose zone and groundwater plumes. As such, it may be a strategy applied to prevent the discharge of deep or widely distributed contaminants from the vadose zone to groundwater, or from groundwater to a receiving water body (
The NABIR program consists of four interrelated Science Elements (Biogeochemistry, Biotransformation, Community Dynamics and Microbial Ecology, and Biomolecular Science and Engineering). Innovative method development for the Science Elements is supported under the Assessment Element. The program also includes an element addressing ethical, legal and societal issues called Bioremediation and its Societal Implications and Concerns (BASIC). The NABIR program strongly encourages researchers to integrate laboratory and field research at DOE or DOE-relevant sites. More information on the NABIR program may be found at:
The NABIR FRC provides a site for investigators to conduct field-scale research and to obtain DOE-relevant subsurface samples for laboratory-based studies of bioremediation. The FRC is located on the U.S. Department of Energy Oak Ridge Reservation in Oak Ridge, Tennessee, and it is operated by the Environmental Sciences Division of the Oak Ridge National Laboratory. The contaminated and background (uncontaminated control) areas are located in Bear Creek Valley (BCV) within the Y-12 Plant area.
The contaminated research site at the FRC is a 98-hectare plot containing
The initial focus of NABIR field research is on in situ biostimulation experiments to promote immobilization of uranium. Understanding natural and stimulated uranium biotransformation in the presence of high nitrate and low pH in unconsolidated residuum and fractured rock is one of the biggest challenges at the FRC at Oak Ridge, and at other DOE sites. NABIR researchers conduct controlled, field-scale hypothesis testing at the FRC. In addition, the FRC is currently providing subsurface samples for 20 laboratory-based NABIR projects. These projects span all NABIR Science Elements as well as the cross-cutting Assessment and BASIC Elements. Site characterization activities are ongoing and will result in a rich database for use by NABIR researchers. The FRC is responsible for data management, systems integration, and fundamental hydrological and geochemical modeling of the contaminated and background sites. The FRC makes these data and models accessible to all NABIR researchers.
While the FRC provides a major focus for the NABIR program, it is recognized that other sites that represent the different hydrogeological regimes found at DOE sites will also be valuable to researchers. A large fraction of the national inventory of DOE wastes resides in unconsolidated, porous media in relatively thick, vadose zones and in groundwaters low in soluble organic carbon. For this reason, NABIR investigators are encouraged to take advantage of opportunities to collect and analyze samples from arid western environments that typify the Hanford Reservation and Uranium Mill Tailings Remedial Action (UMTRA) sites. For further information on NABIR Field Research, please contact Mr. Paul Bayer
NABIR investigators may want to take advantage of the capabilities of the Environmental Molecular Sciences Laboratory (EMSL) at the Pacific Northwest National Laboratory
Research projects that address the scientific aims of individual NABIR elements including Biogeochemistry, Biotransformation, Community Dynamics, Biomolecular Science and Engineering, as well as the cross cutting elements Assessment and BASIC are solicited in this announcement. Integrative, interdisciplinary studies that involve research from more than one element are especially encouraged. The focus is on field research, or laboratory studies that can be scaled to the field, to provide supporting information for current or future field research. The NABIR Field Research Center (FRC) provides an opportunity for researchers to work at a DOE site in collaboration with scientists from different research elements. Studies at the NABIR FRC show that microbial reduction of radionuclides and metals is affected by the presence of nitrate and low pH. Thus, research into microbial mechanisms involved in the reduction of radionuclides and metals in this type of subsurface environment is of special interest.
• To
• Under what conditions would the contaminants
• What influence do hydrological processes such as reactive transport, advective/dispersive transport and colloidal transport have on the biological availability, biotransformation, and movement of radionuclides and metals?
DOE subsurface sites encompass a range of redox environments where contaminants such as uranium are present. One challenge is to understand the impact of these environments on microbial physiological processes involved in the biotransformation of radionuclides and metals to an immobilized form. Knowledge of the metabolic pathways for biotransformation of these contaminants by naturally occurring microbial communities in vadose zones, saturated zones and the waste plume is needed. A second challenge is to accelerate the rates of these physiological processes
• What are the primary metabolic pathways for biotransformation of radionuclides and/or metals by subsurface microorganisms at DOE sites, such as the FRC? Physiological processes studied at the laboratory scale will need to demonstrate how results will be scaled to the field.
• How can metal reduction be harnessed or accelerated to immobilize radionuclides and/or metals in the subsurface? Can
• What environmental controls affect microbial physiological processes involved in radionuclide and metal biotransformations leading to immobilization in vadose and saturated zones? What factors inhibit these biotransformations
• How can we quantify
• Is there sufficient biological activity and diversity in subsurface environments to support natural and/or accelerated bioremediation of metals and radionuclides?
• What are the effects of metal and radionuclide contamination on microbial community structure and function, particularly on populations that transform radionuclides and metals? What are the effects of key physical, chemical and hydrological factors on community structure and function, as it relates to immobilization of metals and radionuclides?
• What is the role of consortial interactions in subsurface environments contaminated with radionuclides and metals? Such interactions might include competition for electron donors and acceptors, or consortial interactions in the biotransformation of metals and radionuclides.
• What is the potential importance of gene transfer in natural microbial communities at subsurface sites contaminated with radionuclides or metals?
Those studies that link structure to function of microbial communities that immobilize metals and/or radionuclides at DOE sites are especially encouraged.
DOE subsurface sites encompass a wide range of environments with a diversity of microbial communities and contaminants. One of the challenges of the Biomolecular Science and Engineering Element is to select microbes for studies that are active members of subsurface microbial communities. A second challenge is to extrapolate laboratory findings on pure cultures under laboratory conditions to complex in situ environmental conditions. This extrapolation is especially critical in studying gene expression, which may be modified by changes in local cellular environments in the subsurface. A third challenge is to take advantage of genomic and other data derived from the DOE Microbial Genome Program
• How are genes regulated in subsurface microorganisms that are responsible for biotransformation and immobilization of radionuclides and metals? How are genes regulated in these microorganisms to promote survival in the presence of potentially toxic levels of these contaminants?
• What are the effects of key environmental parameters on regulation and expression of genes involved in metal/radionuclide reduction? For example, how do pH and co-contaminants such as nitrate impact the biochemistry and gene expression and regulation of uranium and technetium reduction?
• What are the basic biomolecular mechanisms of uranium and technetium reduction and reoxidation in microorganisms, primarily those indigenous to the subsurface? How can biomolecular processes be manipulated to enhance the sustainability of immobilization of uranium, technetium or chromium? Are there novel biomolecular mechanisms that can be used to immobilize mercury or plutonium?
• What are the biomolecular mechanisms involved in lateral transfer
Applications should primarily focus on indigenous subsurface microorganisms that can precipitate and immobilize these radionuclides and metals. The ultimate goal of this element is to improve our ability to predict and manipulate the activities of microbes
• Biogeochemical or biotransformation processes and rates, and microbial community structure and function relative to bioremediation of metals and radionuclides.
• Bioremediation end points, in particular, the concentration, speciation and stability of radionuclide and metal contaminants.
Techniques must enable NABIR science and address specific science needs of the program. The applicant should explain the potential impact and contribution to the NABIR program, as well as the relevance and potential usefulness of the innovation.
Major focus areas for BASIC research include (1) Identifying and prioritizing societal and regulatory issues associated with bioremediation of metals and radionuclides in subsurface environments, particularly strategies that entail immobilization in place; (2) fostering collaboration between NABIR scientists and site stakeholders and (3) enhancing the understanding and communication of NABIR research to stakeholder communities and others. Quantitative approaches and integration with other NABIR program elements are strongly encouraged. BASIC grants will not extend beyond two years beyond the award date. All grant applications should provide a plan for evaluation of progress or outcomes. Where a product (guidelines, recommendations, documents,
The NABIR program also encourages smaller grant applications (up to $35,000 total costs) for innovative and exploratory activities within the BASIC area. Such exploratory grants could be used to carry out pilot investigative research on an issue consistent with any of the above areas of BASIC research, support a sabbatical leave to organize and hold a conference, or to initiate start-up studies that could generate preliminary data for a subsequent grant application. Such small grant applications must use the standard DOE application forms procedures outlined below, but should have a narrative section no more than five pages. These small grants, which will be peer reviewed, will not extend beyond one year from the award date.
This solicitation especially encourages those studies that integrate research from more than one NABIR research element through laboratory and/or field research. This interdisciplinary research should focus on achieving the primary goals of the NABIR program through collaborative studies in which the experimental design integrates two or more NABIR elements. Interdisciplinary teams may include participation from two or more research areas that might include: microbiology, geochemistry, hydrology, environmental engineering, numerical modeling or other disciplines. Partnering with specific field experiments may provide information for hypothesis testing. Such integrative studies might include, for example:
• Employing numerical modeling to integrate information from more than one element, such as Biogeochemistry, Biotransformation, and Community Dynamics and Microbial Ecology, to better predict
• Studies of the effects of key physical, geochemical and hydrological parameters on the structure and function of subsurface microbial communities engaged in metal/radionuclide biotransformation and immobilization.
• Integration of new methods in the Assessment element with actual application to studies of biotransformation or biogeochemistry of radionuclide/metal reduction and precipitation.
• Linking chemical speciation of radionuclides and metals in subsurface environments to the bioavailability of those contaminants to microorganisms.
• Studies on the changes of subsurface microbial community structure and function, and the effect on net rates of biotransformation during biostimulation experiments.
• Partnership between any of the Science Elements and research in BASIC.
It is anticipated that up to $3 million will be available for multiple awards to be made in late Fiscal Year 2003 and early Fiscal Year 2004 in the categories described above, contingent on availability of appropriated funds. An additional sum, up to $3 million, will be available for competition by DOE National Laboratories under a separate solicitation (LAB 03-13). Applications for all elements except for BASIC may request project support up to three years, with out-year support contingent on availability of funds, progress of the research and programmatic needs. Applications for BASIC may request support for two years, or one year for exploratory activities. Annual budgets for projects are expected to range from $100,000 to $300,000 total costs. Annual budgets for integrative studies involving participants representing more than one research element may range up to $450,000. All applications should include letters of agreement to collaborate from potential collaborators; these letters should specify the contributions the collaborators intend to make if the application is accepted and funded. DOE may encourage collaboration among prospective investigators to promote joint applications or joint research projects by using information obtained through the preliminary applications or through other forms of communication.
Applications will be subjected to formal merit review (peer review) and will be evaluated against the following evaluation criteria which are listed in descending order of importance codified at 10 CFR 605.10(d):
1. Scientific and/or Technical Merit of the Project;
2. Appropriateness of the Proposed Method or Approach;
3. Competency of Applicant's personnel and Adequacy of Proposed Resources;
4. Reasonableness and Appropriateness of the Proposed Budget.
For renewals, progress on previous NABIR funded research will be an important criterion for evaluation. As part of the evaluation, program policy factors also become a selection priority. Note, external peer reviewers are selected with regard to both their scientific expertise and the absence of conflict-of-interest issues. Federal and non-federal reviewers will be used, and submission of an application constitutes agreement that this is acceptable to the investigator(s) and the submitting institution.
Information about the development, submission of applications, eligibility, limitations, evaluation, the selection process, and other policies and procedures may be found in 10 CFR part 605, and in the Application Guide for the Office of Science Financial Assistance Program. Electronic access to SC's Financial Assistance Application Guide is possible via the World Wide Web at:
The Office of Science as part of its grant regulations requires at 10 CFR 605.11(b) that a recipient receiving a grant and performing research involving recombinant DNA molecules and/or organisms and viruses containing recombinant DNA molecules shall comply with the National Institutes of Health (NIH) “Guidelines for Research Involving Recombinant DNA Molecules,” which is available via the world wide web at:
Grantees must also comply with other federal and state laws and regulations as appropriate; for example, the Toxic Substances Control Act (TSCA) as it applies to genetically modified organisms. Although compliance with NEPA is the responsibility of DOE, grantees proposing to conduct field research are expected to provide information necessary for the DOE to complete the NEPA review and documentation.
Additional information on the NABIR Program is available at the following Web site:
U.S. Department of Energy.
Notice inviting grant applications.
The Office of Biological and Environmental Research (OBER) of the Office of Science (SC), U.S. Department of Energy (DOE), hereby announces its interest in receiving applications for research on Carbon Sequestration in the Oceans.
Applicants are strongly encouraged to submit a brief preapplication for programmatic review by January 31, 2003, although later preapplications will still be accepted. The deadline for receipt of formal applications is 4:30 p.m., E.S.T., March 20, 2003, to be accepted for merit review and to permit timely consideration for award in Fiscal Year 2003 and early Fiscal Year 2004.
Preapplications should be sent e-mail to Dr. Anna Palmisano at
Formal applications in response to this solicitation are to be electronically submitted by an authorized institutional business official through DOE's Industry Interactive Procurement System (IIPS) at:
If you are unable to submit an application through IIPS please contact the Grants and Contracts Division, Office of Science at: (301) 903-5212 in order to gain assistance for submission through IIPS or to receive special approval and instructions on how to submit printed applications.
Dr. Anna Palmisano, SC-74, Office of Biological and Environmental Research, Germantown Building, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585-1290, telephone: (301) 903-9963, E-mail:
Predictions of global energy use in the next century suggest a continued increase in carbon emissions and rising concentrations of carbon dioxide (CO
Any viable system for sequestering carbon must have several key characteristics. It must be effective and cost-competitive with alternative means, such as renewable energy. Unintended environmental consequences must be benign compared to alternative solutions, including no action. A carbon sequestration system must be able to be monitored quantitatively and verified, because contributions to carbon sequestration almost certainly need to be measured. Research sponsored by this program could contribute to any of these goals.
This solicitation invites applications for basic research projects on the purposeful enhancement of carbon sequestration in the oceans. Although many options exist to capture and sequester carbon dioxide, the focus of this solicitation is on fundamental research that would enable: (a) the enhancement of the absorption and retention of atmospheric carbon dioxide by ocean biota; and (b) scientifically-based analyses of the viability of using the deep ocean to store carbon dioxide that has been already separated, captured, and transported. The proposed research should be fundamental in nature, and address one or more of the technical areas of interest described below. Applications that test demonstrations of engineered technologies are not relevant to this solicitation.
The ocean represents a large current sink for the sequestration of anthropogenic CO
Much has been learned about the important role of iron in photosynthesis over the past 15 years through both laboratory and field experiments on iron enrichment. Iron deficiency has been shown to limit the efficiency of photosystem II in phytoplankton. Evidence from paleoceanographic samples also links iron supply with marine primary production and carbon flux. However, critical questions remain: How does iron enrichment accelerate carbon flux in high nutrient, low chlorophyll (HNLC), low nutrient, low chlorophyll (LNLC), sub-mixed layer and coastal ecosystems? What are the time scales of remineralization of the fixed carbon? What are the long term ecological and biogeochemical consequences of fertilization on surface and midwater processes? Basic research is needed on the coupling of iron and carbon cycles in the ocean. Our understanding of the biogeochemistry of iron (its concentrations, sources, sinks and ligands) in marine systems is also insufficient to assess the viability of using iron fertilization as a strategy for enhancing carbon sequestration.
The accurate measure of carbon flux following iron fertilization is critical to the objective evaluation of this strategy for carbon sequestration. We need to understand the regulation of carbon fluxes and the role of mineral ballast in export of organic carbon from the surface to the deep ocean. The potential impact of iron fertilization on the global carbon budget, as well as verification and duration of carbon sequestration are yet unknown. The complexity of marine ecosystems necessitates careful research on unintended environmental consequences of iron fertilization. These consequences may include the potential to impact key oceanic biogeochemical cycles as well as on populations of marine organisms and their trophodynamic interactions.
Research may focus on experimental/observational studies and/or predictive modeling. Integrative studies that couple experimental observations and numerical modeling approaches are encouraged. Such studies should develop, improve, and test models that can be used to simulate and predict quantities of carbon sequestered from iron fertilization. Relevant focus areas for enhancement of the biological pump through iron fertilization may include:
1. Improving the effectiveness of ocean fertilization as a strategy for long term (decades, centuries) carbon sequestration.
• Determining to what extent increased carbon fixation in surface waters would result in an increase in carbon sequestered in the deep ocean, and how long it would remain sequestered. This includes quantifying the export of particulate organic carbon and particulate inorganic carbon to the deep sea, and mineralization or dissolution of all forms at depth.
• Understanding the role of micronutrients (such as iron) and macronutrients (such as nitrogen and phosphorus) in regulation of the biological pump. Research on coupling of iron and carbon cycles might include studies of photo-oxidation, complexation adsorption/desorption, export and mineralization.
• Developing numerical models (regional or global) for carbon sequestration, especially those that provide a measurable output that allows for model testing. Models might be used to predict the efficiency of sequestration as a function of mid and deep water transport of carbon and remineralization.
2. Determining environmental consequences of long term ocean fertilization.
• Examining changes in structure and functioning of marine ecosystems (composition of phytoplankton and zooplankton communities, ocean food webs and trophodynamics), resulting from ocean fertilization.
• Examining changes in natural oceanic biogeochemical cycles (carbon,
• Developing numerical models at an ecosystem level that predict downstream effects of fertilization on productivity and nutrient removal.
Research proposed on iron fertilization should also support the USGCRP Carbon Cycle Science Initiative (
The overarching questions for this area of research are: Can direct CO
Research may focus on experimental/observational studies and/or predictive modeling. Integrative studies that couple both experimental and numerical modeling are encouraged, especially those incorporate feedback between experiments and models. Such projects should involve experimental studies to test and improve models, and modeling studies to help identify and design experiments needed to fill key gaps in our understanding. Examples of relevant research areas for direct injection of carbon dioxide into the deep ocean include:
1. Determining the environmental consequences of direct injection of CO
• Determining the effects of changes in pH and CO
• Understanding the effects of sustained release of concentrated CO
• Effects of secondary of contaminants on plume and/or hydrate physical/chemical properties, and related effects on indigenous fauna.
2. Improving the effectiveness of direct injection of CO
• Understanding the longer-term fate of carbon that is added to the ocean including the carbonate chemistry of mid- and deep-ocean water.
• Investigation of physico-chemical behavior of a dense phase hydrate stream. Research might focus on such characteristics as determination of hydrate dissolution rates for a concentrated swarm, and calculation of plume dispersion and perturbation to state variables at depth.
• Addressing weaknesses in aspects of the Ocean General Circulation Models (OGCMs), specifically their ability to simulate accurately western boundary currents, ocean bottom currents, plume to eddy circulation; and testing models using natural or experimental tracers.
• Coupling near-field with far-field effects of CO
Applicants are encouraged to collaborate with researchers in other institutions, such as: universities, industry, non-profit organizations, federal laboratories and Federally Funded Research and Development Centers (FFRDCs), including the DOE National Laboratories, where appropriate, and to include cost sharing and/or consortia wherever feasible. Additional information on collaboration is available in the Application Guide for the Office of Science Financial Assistance Program that is available via the Internet at:
It is anticipated that up to $1,500,000 (per year) will be available for awards in this area during Fiscal Year 2003, contingent upon availability of appropriated funds. An additional $1,000,000 will be available for competition by DOE National Laboratories under a separate solicitation (LAB 03-15). Projects involving single investigators or small groups of investigators may be funded at a level up to $300,000 per year for up to 3 years. Integrative studies, multi-investigator studies that combine experimental/observational approaches with numerical modeling may be funded at a level of up to $400,000 per year for 3 years. Applications for field experiments involving larger groups of investigators will be considered, but must be approved at a preapplication level. Multiple year funding of awards is expected, and is also contingent upon availability of funds, progress of the research, and continuing program need.
An informal preapplication may be submitted by E-mail. The preapplication should identify the institution, Principal Investigator name, address, telephone, fax and E-mail address, title of the project, and proposed collaborators. The preapplication should consist of a one to two page narrative describing the research project objectives and methods of accomplishment. These will be reviewed relative to the scope and research needs of the Ocean Carbon Sequestration Research Program. Preapplications are strongly encouraged prior to submission of a full application, especially for large, field-based collaborations. Notification of a successful preapplication is not an indication that an award will be made in response to the formal application.
Applications will be subjected to scientific merit review (peer review) and will be evaluated against the following evaluation criteria listed in descending order of importance as codified at 10 CFR 605.10(d):
For renewals, progress on previous DOE-funded research will be an important criterion for evaluation. The evaluation will include program policy
Information about the development and submission of applications, eligibility, limitations, evaluation, selection process, and other policies and procedures may be found in 10 CFR part 605, and in the Application Guide for the Office of Science Financial Assistance Program. Electronic access to the Guide and required forms is made available via the World Wide Web at:
The research project description must be 20 pages or less, exclusive of attachments and must contain an abstract or summary of the proposed research.
Take notice that on November 26, 2002, Canyon Creek Compression Company (Canyon) tendered for filing to become part of its FERC Gas Tariff, Third Revised Volume No. 1, certain tariff sheets, to be effective December 1, 2002.
Canyon states that the purpose of this filing is to comply with the Commission's Order dated November 22, 2002 which allows Canyon's rates and revised tariffs to go into effective December 1, 2002, subject to specified revisions.
Canyon states that copies of the filing are being mailed to each person designated on the official service list in Docket No. RP02-356-000.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, Centra Pipelines Minnesota Inc. (Centra Minnesota), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, a revised tariff sheet to reflect changes in its Index of Customers. Centra Minnesota requests an effective date of November 1, 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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, Colorado Interstate Gas Company (CIG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets to become effective January 1, 2003:
CIG states that these tariff sheets provide for the discontinuation of the Account No. 858 Stranded Costs Surcharge.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, El Paso Natural Gas Company (El Paso) tendered for filing as part of its FERC Gas Tariff, the tariff sheets listed on the Appendix attached to the filing, to become effective January 1, 2003.
El Paso states that these tariff sheets revise the Gas Research Institute surcharges.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 26, 2002, Equitrans, L.P. (Equitrans) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Seventh Revised Sheet No. 5, Tenth Revised Sheet No. 6, and Sixth Revised Sheet No. 10, proposed to be effective January 1, 2003.
Equitrans states that the tariff sheets described above reflect the revised funding surcharges for the Gas Research Institute (GRI) for the year 2003. These surcharges were approved by the Commission in its letter order issued September 19, 2002, in Docket No. RP02-354-000, in which it also approved GRI's funding for its year 2003 research, development, and demonstration (RD&D) program and its 2003-2007 five-year RD&D plan.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, Florida Gas Transmission Company (FGT) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Substitute Fifth Revised Sheet No. 174, to become effective November 11, 2002.
FGT states that on October 11, 2002 it filed a revised tariff sheet to modify its tariff to allow FGT to terminate service contracts with replacement shippers for temporary capacity releases if the releasing shipper is no longer creditworthy and certain other conditions are met. Subsequently, on November 8, 2002, the Commission issued an order accepting FGT's filing, subject to FGT's filing a revised tariff sheet within 15 days providing that FGT may terminate contracts with replacement shippers when it has terminated the contract with the releasing shipper. In the instant filing, FGT states that it is proposing the tariff modifications as required by the order. However, FGT requests that the Commission defer action on accepting and making the modifications effective until after ruling on the request for rehearing, which FGT is filing concurrent with the instant filing.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 26, 2002, Kern River Gas Transmission Company (Kern River) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Third Revised Sheet No. 495; Original Sheet No. 496; and Sheet Nos. 497-499 (Reserved), to be effective December 1, 2002.
Kern River states that the purpose of this filing is to implement negotiated rate transactions between Kern River and Coral Energy Resources; Kern River and Eagle Mountain City; Kern River and Questar Gas Company; and Kern River and Sempra Energy Trading Corporation, in accordance with the Commission's Policy Statement on alternatives to Traditional Cost of Service Ratemaking for Natural Gas Pipelines.
Kern River states that it has served a copy of this filing upon its customers and interested state regulatory 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 protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, Kern River Gas Transmission Company (Kern River) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Substitute Original Sheet No. 200 (Effective January 1, 2003); Pro Forma Sheet No. 8; Pro Forma Sheet Nos. 69-B through 69-F; Pro Forma Sheet No. 214; and Pro Forma Sheet Nos. 339 through 342, to be effective as indicated.
Kern River states that the purpose of this filing is to comply with the Commission's October 31, 2002 “Order on Compliance Accepting and Rejecting Tariff Sheets” by submitting tariff sheets (1) to revise Kern River's segmentation provisions to clarify that forward haul and backhaul nominations to the same delivery point may exceed a shipper's transportation rights when capacity at the delivery point is available; and (2) to propose a new park and loan (PAL) service.
Kern River states that it has served a copy of this filing upon each person designated on the official service list compiled by the Secretary in this proceeding.
Any person desiring to protest said filing should file a protest with the
Take notice that on November 22, 2002, Kinder Morgan Interstate Gas Transmission LLC (KMIGT) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1-A, Sixth Revised Sheet No. 4D, to be effective January 1, 2003.
Pursuant to the Commission's Order issued September 19, 2002 in Docket No. RP02-354, KMIGT submits the proposed tariff sheet reflecting the required changes to the Gas Research Institute (GRI) surcharges in its tariff.
KMIGT states that a copy of this filing has been served upon all of its customers and affected 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 protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, Mojave Pipeline Company (Mojave) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Eighth Revised Sheet No. 11 to become effective January 1, 2003.
Mojave states that this tariff sheet revises the Gas Research Institute surcharges.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 26, 2002, Natural Gas Pipeline Company of America (Natural) tendered for filing with to become part of its FERC Gas Tariff, Sixth Revised Volume No. 1, Fifth Revised Sheet No. 414 to be effective December 1, 2002.
Natural states that the purpose of this filing is to update its list of non-conforming agreements. Also, Natural tenders for filing copies of the Firm Transportation Rate Discount Agreement with Aquila, Inc. d/b/a Aquila Networks.
Natural states that copies of the filing are being mailed to 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
Take notice that on November 26, 2002 Niagara Mohawk Power Corporation (Niagara Mohawk), a subsidiary of National Grid USA, tendered for filing a complaint against Huntley Power LLC; NRG Huntley Operations, Inc.; Dunkirk Power, LLC; NRG Dunkirk Operations, Inc.; Oswego Harbor Power, LLC; and NRG Oswego Operations, Inc. (the Generators).
This complaint requests that the Commission make certain findings of fact and amplify its policies on self-supply and the scope of its jurisdiction vis-a
Copies of the filing were served upon each of the Generators.
Any person desiring to be heard 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. The answer to the complaint and all comments, interventions or protests must be filed on or before December 16, 2002. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that the following application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Ms. Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
m. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
n. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
o. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that on November 13, 2002, Overthrust Pipeline Company (Overthrust) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1 and First Revised Volume No. 1-A, the following tariff sheets, to be effective December 13, 2002:
Fifth Revised Sheet No. 2
Effective November 1, 2001, Questar Pipeline Company (Questar Pipeline) purchased NGPL-Overthrust Inc.'s (NGPL) 18 percent ownership interest in Overthrust and effective July 1, 2002, Questar Overthrust Pipeline Company (Questar Overthrust) purchased CIG Overthrust, Inc.'s (CIG) 10 percent ownership interest in Overthrust. The purchase of NGPL's interest by Questar Pipeline and the purchase of CIG's interest by Questar Overthrust, results in Questar Corporation affiliates owning 100 percent of the general partnership. Revised Sheet No. 3 to Original Volume No. 1 and revised Sheet No. 2 to First Revised Volume No. 1-A reflects a revised Preliminary Statement.
Overthrust states that a copy of this filing has been served upon its customers, the Public Service Commission of Utah and the Public Service Commission of Wyoming.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, Southern Natural Gas Company (Southern) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Fourth Revised Sheet No. 126A, with an effective date of October 1, 2002.
Southern states that the purpose of this filing is to implement certain modifications to its tariff sheet in compliance with the Commission's Order issued on November 14, 2002, in the captioned proceeding to provide that Title Transfer Tracking Service Providers are subject to the standard NAESB intraday nomination cycles.
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. This filing is available for review at the Commission in the
Take notice that on November 13, 2002, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, certain revised tariff sheets listed on Appendix A attached to the filing. The proposed effective date of such tariff sheets is November 1, 2002.
Transco states that the purpose of the instant filing is to track rate changes attributable to: (1) Transportation service purchased from Dominion Transmission, Inc. (Dominion) under its Rate Schedule GSS, the costs of which are included in the rates and charges payable under Transco's Rate Schedules GSS and LSS, and (2) transportation service purchased from Texas Gas Transmission Corporations (Texas Gas) under its Rate Schedule FT, the costs of which are included in the rates and charges payable under Transco's Rate Schedule FT-NT. This filing is being made pursuant to tracking provisions under Section 3 of Transco's Rate Schedule GSS, Section 4 of Transco's Rate Schedules LSS and FT-NT.
Transco states that included in Appendices B and C attached to the filing are the explanations of the rate changes and details regarding the computation of the revised GSS, LSS and FT-NT rates.
Transco states that copies of the filing are being mailed to affected 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 protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 25, 2002, Transwestern Pipeline Company (Transwestern) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Substitute Fourth Revised Sheet No. 95J, to become effective November 11, 2002.
Transwestern states that on October 11, 2002, Transwestern proposed tariff revisions setting forth the criteria that would permit Transwestern to terminate a temporary capacity release (October 11 Filing). Specifically, Transwestern added a new section 30.4 (g) to Transwestern's General Terms and Conditions, Transporter's Right to Terminate a Temporary Capacity Release. Under this new section Transwestern proposed two conditions by which Transwestern would terminate a temporary capacity release upon 30-days' written notice. Those conditions were that: (1) The Releasing Shipper had failed to maintain creditworthiness in accordance with Rate Schedule FTS-1 and Sections 13 and 30 of the General Terms and Conditions of Transwestern's Tariff, and (2) that the rate stated in the effective Replacement Shipper's Service Agreement is less than the Releasing Shipper's contract rate. Transwestern states that on November 8, 2002, the Federal Energy Regulatory Commission (“Commission”) issued an order (“Order”) accepting the proposed tariff revisions subject to Transwestern modifying the provisions to provide that Transwestern may terminate the contract with the Replacement Shipper only after it has terminated the contract with the Releasing Shipper. The instant filing reflects the modification directed by the Commission's Order. However, Transwestern requests that the Commission defer action on accepting and making the modification effective until after ruling on the request for rehearing, which Transwestern is filing concurrent with the instant filing.
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. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on November 22, 2002, Williams Gas Pipelines Central, Inc. (Central) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheet to become effective January 1, 2003:
Central states that pursuant to “Order Approving Settlement,” issued by the Commission on April 29, 1998, in Docket No. RP97-149-003, et al. (83 FERC ¶ 61,093 (1998)) and Central's FERC Gas Tariff, Original Volume No. 1, Article 25 of its General Terms and Conditions, Central is filing to reflect the new GRI surcharges to be collected on nondiscounted transportation services for the 2003 calendar year. These funding units were reaffirmed in the Commission's letter order dated September 19, 2002, in Docket No. RP02-354-000.
Central states that copies of this filing have been served on all of Central's jurisdictional 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 protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room 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 November 19, 2002, CMS Panhandle Lake Charles Generation Company LLC filed a Notice of Succession with regard to the market-based sales Rate Schedule FERC No. 1 of its predecessor, PanEnergy Lake Charles Generation Inc., to be effective October 19, 2001 and a Notice of Cancellation of that same Rate Schedule to be effective December 31, 2002.
Take notice that on November 19, 2002, Peaker LLC (Seller) petitioned the Commission for an order: (1) Accepting Seller's proposed FERC rate schedule for market-based rates; (2) granting waiver of certain requirements under Subparts B and C of part 35 of the regulations, and (3) granting the blanket approvals normally accorded sellers permitted to sell at market-based rates.
Take notice that on November 20, 2002, Southern California Edison Company (SCE) tendered for filing a Notice of Cancellation of FERC Tariff, First Revised Original Volume No. 6, Service Agreement No. 6, effective August 3, 2002. The Interconnection Facilities Agreement is between SCE and Mountainview Power Company L.L.C.
Notice of the proposed cancellation has been served upon the Public Utilities Commission of the State of California. SCE request effective date of December 8, 2002.
Take notice that on November 20, 2002, Southern California Edison Company (SCE) tendered for filing a Letter Agreement between SCE and Energy Unlimited, Inc. (EUI). The purpose of the Letter Agreement is to provide an interim arrangement pursuant to which SCE will perform the work necessary to develop the easement documents including, but not limited to, survey of the existing site and for legal description, mapping, title, and estimate of land acquisition costs for EUI to interconnect its generating facility to SCE's distribution system.
Copies of this filing were served upon the Public Utilities Commission of the State of California and EUI.
Take notice that on November 19, 2002 PJM Interconnection, L.L.C. (PJM), submitted for filing an executed interconnection service agreement between PJM and Duke Energy Fayette, LLC (Duke Energy).
PJM requests a waiver of the Commission's 60-day notice requirement to permit the effective date agreed to by Duke Energy and PJM. Copies of this filing were served upon Duke Energy and the state regulatory commissions within the PJM region.
Take notice that on November 19, 2002, pursuant to Section 35.15(a), 18 CFR 35.15(a) of the Commission's Regulations, Little Bay Power Corporation (Little Bay) filed with the Federal Energy Regulatory Commission a Notice of Termination of its market-based rate tariff. Little Bay requests waiver of the Commission's prior notice requirements so that the termination may be effective January 1, 2003.
Take notice that on November 19, 2002, pursuant to Section 35.15(a), 18 CFR 35.15(a) of the Commission's Regulations, Great Bay Power Corporation (Great Bay) filed with the
Take notice that on November 20, 2002, Southern California Edison Company (SCE) tendered for filing the Shiprock-Four Corners Project 345-kV Switchyard Interconnection Agreement (IA) among the Four Corners Participants (SCE, Arizona Public Service Company, El Paso Electric Company, Public Service Company of New Mexico, Salt River Project Agricultural Improvement and Power District, and Tucson Electric Power Company) and the Interconnection Participants (Public Service of Colorado, Tri-State Generation and Transmission Association, Inc., and the United States of America acting by and through the Administrator, Western Area Power Administration, Department of Energy).
The IA establishes the rates, terms and conditions for installation, operation and maintenance of interconnection facilities related to the interconnection of the Interconnection Participants' transmission line from Shiprock Substation, located in Shiprock, New Mexico, to a 345-kV switchyard at the Four Corners Project which is jointly owned by the Four Corners Participants. Copies of this filing were served upon the Public Utilities Commission of the State of California.
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.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before February 4, 2003.
Please send comments on the proposed ICR to Jack Faulk, USEPA, Office of Wastewater Management, Water Permits Division, 1200 Pennsylvania Avenue, NW, EPA East, Room 7329E, Mail Code 4203M, Washington, DC 20460.
Please direct questions or a request for a copy of the ICR to: Jack Faulk, Industrial Branch, Water Permits Division, Office of Wastewater Management; tel.: (202) 564-0768, fax: (202) 564-6431; or e-mail:
Respondents are required to obtain coverage under the NPDES General Permit for storm water discharges associated with construction activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
The EPA would like to solicit comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at (202) 564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 12, 2002 (67 FR 17992).
ERP No. D-FHW-J40157-MT Rating EC2, US 89 from Fairfield to Dupuyer Corridors Study, Reconstruction, Widening, Realignment and Route Connection between Yellowstone National Park to the South with Glacier National Park to the North, Teton and Pondera Counties, MT.
ERP No. D-FRC-L05227-00 Rating EO2, Box Canyon Hydroelectric Project, (FERC Project No. 2042-013), New License Application for an existing 72-Megawatt (Mw) Hydroelectric Project, Public Utility District (PUD) No. 1, Pend Oreille River, Pend Oreille County, WA and Bonner County, ID.
ERP No. D-IBR-K39075-CA Rating EC2, Red Bluff Diversion Dam (RBDD) Fish Passage Improvement Project, Anadromous Fish Passage Improvements both Upstream and Downstream, Tehama-Colusa Canal Authority (TCCA), Tehama, Glenn, Colusa and Yolo Counties, CA.
ERP No. DA-FHW-J40030-UT Rating EC2, US 189, Utah Valley to Heber Valley Widening and Realignment between the Junctions with UT-52 and US 40, Funding, Provo Canyon, Utah and Wasatch Counties, UT.
ERP No. F-AFS-J65013-MT Moose Post-Fire Project, Decrease in Potential Mortality from Bark Beetles to the remaining Live Douglas-fir and Spruce Trees, Merchantable Wood Fiber Recovery, Future Fire Risk Reduction and existing Road Access Modifications, Glacier View Ranger District, Flathead National Forest, Flathead County, MT.
ERP No. F-BLM-K65242-CA Coachella Valley California Desert Conservation Area Plan Amendment, Santa Rosa and San Jacinto Mountains Trails Management Plan, Implementation, Riverside and San Bernardino Counties, CA.
ERP No. F-COE-H39010-KS Tuttle Creek Dam Safety Assurance Program, Flood Control, Water Supply, Water Quality, Fish and Wildlife, Recreation and Navigation Support Enhancements, Big Blue River, Riley and Potawatomie Counties, KS.
ERP No. F-FHW-G40167-LA LA-1 Improvements Project, Golden Meadow to Port Fourchon Highway Construction, Funding, U.S. Army COE Section 10 and 404, NPDES and U.S. Coast Guard Bridge Permits Issuance, Lafoufche Parish, LA.
ERP No. F-IBR-K61154-AZ Reach 11 Recreation Master Plan, Central Arizona Project (CAP) Canal, Between Cave Creek and Scottsdale Roads for Recreational Purposes and a Flood Detention Basin, City of Phoenix, Maricopa County, AZ.
ERP No. FA-FRC-L05208-WA Rocky Creek Hydroelectric Project, (FERC No. 10311-002) Construction and Operation of a 8.3 Megawatt (Mw) Project, License Application, Rocky Creek, Skagit County, WA.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of applications to register pesticide products containing new active ingredients not included in any previously registered products pursuant to the provisions of section 3(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Written comments, identified by the docket ID number OPP-2002-0332, must be received on or before January 6, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Richard Keigwin, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-7618; e-mail address: keigwin.richard@epa.gov.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS 111)
• Animal production (NAICS 112)
• Food manufacturing (NAICS 311)
• Pesticide manufacturing (NAICS 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket ID number.
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the registration activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA received applications as follows to register pesticide products containing active ingredients not included in any previously registered products pursuant to the provision of section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of request for amendments by registrants to delete uses in certain pesticide registrations. Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any request on the
The deletions are effective on June 4, 2003, or on January 6, 2003 for product registration 019713-00263, unless the Agency receives a withdrawal request on or before dates given above. The 30-day comment period applies to product registration 019713-00263 only.
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant on or before dates given above.
Withdrawal requests may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
By mail: James A. Hollins, Office of Pesticide Programs (7502C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5761; e-mail address: hollins.james@epa.gov.
This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the information in this notice, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.
This notice announces receipt by the Agency of applications from registrants to delete uses in certain pesticide registrations. These registrations are listed in Table 1 by registration number, product name/active ingredient, and specific uses deleted:
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant before dates indicated in
Table 2 includes the names and addresses of record for all registrants of the products in Table 1, in sequence by EPA company number.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. The Act further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Registrants who choose to withdraw a request for use deletion must submit such withdrawal in writing to James A. Hollins, at the address under
The Agency has authorized the registrants to sell or distribute product under the previously approved labeling for a period of 18 months after approval of the revision, unless other restrictions have been imposed, as in special review actions.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket ID number OPP-2002-0319, must be received on or before January 6, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Bipin Gandhi, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8380; e-mail address: gandhi.bipin@epa.gov.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, pesticide manufacturer, or antimicrobial pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Industry (NAICS 111), e.g., Crop Production.
• Industry (NAICS 112), e.g., Animal Production.
• Industry (NAICS 311), e.g., Food manufacturing.
• Industry (NAICS 32532), e.g., Pesticide Manufacturing.
• Industry (NAICS 32561), e.g., Antimicrobial Pesticide.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petition is printed below as required by FFDCA section 408(d)(3). The summary of the petition was prepared by the petitioner and represents the view of the petitioner. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.
EPA has received a pesticide petition (PP 3E6523) from Akzo Nobel Industrial Specialties, Inc., 15200 Almeda Road, Houston, TX 77053 proposing, pursuant to section 408(d) of the FFDCA, 21 U.S.C. 346a(d), to amend 40 CFR 180.960 to establish an exemption from the requirement of a tolerance for α-Hydro-
As part of the EPA policy statement on inert ingredients, the Agency set forth a list of studies which would generally be used to evaluate the risks posed by the presence of an inert ingredient in a pesticide formulation. However, where it can be determined without the data that the inert ingredient will present minimal or no risk, the Agency generally does not require some or all of the required studies to rule on the proposed tolerance or exemption from the requirement of a tolerance for an inert ingredient. Akzo Nobel Industrial Specialties, Inc. believes that the data and the information described below are adequate to ascertain the toxicology and characterize the risk associated with the use of α-hydro-
In the case of certain chemical substances that are defined as “polymers” the EPA has established a set of criteria which identify categories of polymers that present low risk. These criteria (codified in 40 CFR 723.250) identify polymers that are relatively unreactive and stable compared to other chemical substances as well as polymers that are not readily absorbed. These properties generally limit a polymer's ability to cause adverse effects. In addition, these criteria exclude polymers about which little is known. The EPA believes that polymers meeting the criteria noted below will present minimal or no risk.
α-Hydro-
1. α-Hydro-
2. α-Hydro-
3. α-Hydro-
4. α-Hydro-
5. α-Hydro-
6. α-Hydro-
7. α-Hydro-
8. The minimum number-average molecular weights of polymers represented by α-hydro-
• C
• C
• C
Substances with molecular weights greater than 400 generally are not absorbed through the intact skin, and substances with molecular weights greater than 1,000 generally are not absorbed through the intact gastrointestinal (GI) tract. Chemicals not absorbed through the skin or GI tract generally are incapable of eliciting a toxic response.
9. The polymers represented by α-hydro-
In addition, the monomers/reactants that are used for the production of polymers represented by α-hydro-
1. Citric acid (CAS Registration Number: 77-92-9) was affirmed by FDA as generally recognized as safe (GRAS) under 21 CFR 184.1033 for use in food for human consumption.
2. Citric acid (CAS Registration Number: 77-92-9) is cleared under 40 CFR 180.1001(c) and (e) as an inert ingredient in pesticide formulations applied to RAC. It is included in Inerts - List 4A.
3. Fatty alcohols are widely present in oils, fats and waxes which are used in human food. Some waxes (bees wax, candelilla wax and carnauba wax) are GRAS substances (21 CFR Part 184). Bees wax and carnauba wax are in Inerts - List 4B.
4. C
Although exposure to three polymers represented by α-hydro-
The Agency has maintained that polymers meeting the polymer exemption criteria will present minimal risk to human health when used as inert ingredients in pesticide products applied to food crops. EPA has also established exemptions from tolerance for polymeric materials used as pesticide inert ingredients that it considers to be intrinsically safe based on the fact that they are listed on the TSCA Inventory or meet the requirements of the amended TSCA polymer exemption and are thereby not subject to the requirements of the pre-manufacturing notification.
Any exposure resulting from the approval of three polymers represented by α-hydro-
At this time there is no information to indicate that any toxic effects produced by three polymers represented by α-hydro-
1.
2.
Due to the low expected toxicity of these three polymers represented by α-hydro-
Akzo Nobel Industrial Specialties, Inc. is not aware of any country requiring a tolerance for the three polymers represented by α-hydro-
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of a certain pesticide chemical in or on various food commodities.
Comments, identified by docket ID number OPP-2002-0211, must be received on or before January 6, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Jim Tompkins, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305 5697; e-mail address: tompkins.jim@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
• Crop production (NAICS 111)
• Animal production (NAICS 112)
• Food manufacturing (NAICS 311
• Pesticide manufacturing (NAICS 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4 If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
EPA has received a pesticide petition as follows proposing the establishment and/or amendment of regulations for residues of a certain pesticide chemical in or on various food commodities under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. EPA has determined that this petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the petition. Additional data may be needed before EPA rules on the petition.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
The petitioner summary of the pesticide petition is printed below as required by FFDCA section 408(d)(3). The summary of the petition was prepared by the petitioner and represents the view of the petitioner. The petition summary announces the availability of a description of the analytical methods available to EPA for the detection and measurement of the pesticide chemical residues or an explanation of why no such method is needed.
EPA has received a pesticide petition (PP 6F4746) from BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, North Carolina 27709-3528, proposing pursuant to section 408(d) of the Federal Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180 by establishing tolerances for the sum of the residues of the herbicide imazethapyr, 2-[4,5-dihydro-4-methyl-4-(1-methylethyl)-5-oxo-1H-imidazol-2-yl]-5-ethyl-3-pyridine-carboxylic acid) as its free acid or its ammonium salt (calculated as the acid), and its metabolite 2-[4, 5-dihydro-4-methyl-4-(1-methylethyl-5-oxo-1H-imidazol-2-yl]-5-(1-hydroxyethyl)-3-pyridinecarboxylic acid both free and conjugated in or on nongrass animal feed crops, forage, hay and seed at 3.0 parts per million (ppm). EPA has determined that the petition contains data or information regarding the elements set forth in section 408(d)(2) of the FFDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.
1.
2.
3.
The proposed tolerance for nongrass animal feeds is 3.0 ppm for imazethapyr, CL 288511 and the glucose conjugate, CL 182704. Residue levels of imazethapyr and CL 288511 in clover are all below the proposed tolerance. When residues of CL 182704 are adjusted to CL 288511 equivalents residues, the total equivalent CL 288511 residues are below the proposed 3.0 tolerance level in all clover studies.
A complete, valid and reliable database of mammalian and genetic toxicology studies supports the proposed tolerance for imazethapyr on nongrass animal feeds. This database was previously reviewed by the EPA in support of the tolerance petitions and registration of imazethapyr on soybeans, legume vegetables, corn, alfalfa and peanuts.
1.
2.
3.
Results from a developmental toxicity study in New Zealand White rabbits with imazethapyr technical also indicated no evidence of developmental toxicity or teratogenicity. Thus, imazethapyr technical is neither a developmental toxicant nor a teratogen in the rabbit. The NOAEL for maternal toxicity was 300 mg/kg b.w./day, based on decreased food consumption and body weight gain, abortion, gastric ulceration and death at 1,000 mg/kg b.w./day, the next HDT. The NOAEL for developmental toxicity and teratogenic effects was determined to be
The results from the 2-generation reproduction toxicity study in rats with imazethapyr technical support a NOAEL for reproductive toxicity of 10,000 ppm (equivalent to 800 mg/kg b.w./day). The NOAEL for non-reproductive parameters (i.e. decreased weanling body weights) is 5,000 ppm.
4.
In a subchronic (13-week) dietary toxicity study in dogs with imazethapyr technical, no signs of systemic toxicity were noted, supporting a NOAEL of 10,000 ppm (equivalent to 250 mg/kg b.w./day), the (HCT).
5.
In a 2-year chronic dietary oncogenicity and toxicity study in rats conducted with imazethapyr technical, the NOAEL for oncogenicity and chronic systemic toxicity was 10,000 ppm (equivalent to 500 mg/kg b.w./day), the HCT. An 18-month chronic dietary oncogenicity and toxicity study in mice with imazethapyr technical supports a NOAEL for oncogenicity of 10,000 ppm, the HCT (equivalent to 1,500 mg/kg b.w./day), and a NOAEL for chronic systemic toxicity of 5,000 ppm (equivalent to 750 mg/kg b.w./day), based on decreased body weight gain in both sexes).
The EPA has classified imazethapyr as negative for carcinogenicity (evidence of non-carcinogenicity for humans) based on the absence of treatment-related tumors in acceptable carcinogenicity studies in both rats and mice.
6.
In three rat metabolism studies conducted with radiolabeled imazethapyr technical the major route of elimination of the herbicide was through rapid excretion in urine and to a much lesser extent in feces. In the first study, almost 100% of the administered material was recovered in excreta within 96 hours (89-95% in urine, 6-11% in feces). The major residue in urine and feces was parent compound. Approximately 2% of the dose was metabolized and excreted as the a-hydroxyethyl derivative of imazethapyr. In the second study, the test material was rapidly and completely eliminated unchanged in the urine within 72 hours of dosing. After 24 hours, 92.1% of radioactivity was excreted in the urine with 4.67% in the feces. There was no significant bioaccumulation of radioactivity in the tissues from this rat metabolism study (
Additional animal metabolism studies have been conducted with CL 288511 (main metabolite in treated crops fed to livestock) in both laying hens and lactating goats. These studies have been repeated to support subsequent use extensions on crops used as livestock feed items which would theoretically result in a higher dosing of imazethapyr derived residues to livestock ( i.e., corn, alfalfa). In these studies, lactating goats dosed at 42 ppm of
7.
8.
1.
2.
• 0.000419 mg/kg b.w./day for the general U.S. population.
• 0.001104 mg/kg b.w./day for all infants (
• 0.001298 mg/kg b.w./day for non-nursing infants.
• 0.000870 mg/kg b.w./day for children 1 to 6 years of age.
• 0.000610 mg/kg b.w./day for children 7 to 12 years of age.
The TMRC values indicate that non-nursing infants are the most highly exposed population subgroup.
3.
Chronic drinking water exposure analyses were calculated for imazethapyr using EPA screening concentration in ground water (SCI-GROW), and genetic expected environmental concentration (GENEEC) for surface water. The SCI-GROW value is 16.54 ppb and the calculated peak GENEEC value is 5.96 ppb by aerial application. For the U.S. adult population, the estimated exposures of imazethapyr residues in ground water and surface water are approximately 0.19% and 0.07%, respectively, of the DWLOC. The estimated exposures of children to imazethapyr residues in groundwater and surface water are approximately 0.66%, and 0.24%, respectively, of the DWLOC. Therefore, the exposures to drinking water from imazethapyr use are negligible.
4.
Imazethapyr is a member of the imidazolinone class of herbicides. Other compounds of this class are registered for use in the U.S. However, the herbicidal activity of the imidazolinones is due to the inhibition of acetohydroxyacid synthase (AHAS), an enzyme only found in plants. AHAS is part of the biosynthetic pathway leading to the formation of branched chain amino acids. Animals lack AHAS and this biosynthetic pathway. This lack of AHAS contributes to the low toxicity of the imidazolinone compounds in animals. We are aware of no information to indicate or suggest that imazethapyr has any toxic effects on mammals that would be cumulative with those of any other chemical. Therefore, for the purposes of this tolerance petition no assumption has been made with regard to cumulative exposure with other compounds having a common mode of action.
1.
2.
There are no Codex maximum residue levels established or proposed for residues of imazethapyr on nongrass animal feeds.
Environmental Protection Agency (EPA).
Notice of proposed administrative order on consent.
The United States Environmental Protection Agency is proposing to enter into an administrative order on consent, pursuant to section 122(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, regarding the Alaric, Inc. Superfund Site, located in Tampa, Hillsborough County, Florida, with the following parties: Lee W. Oglesby, Sr. and Carolyn M. Oglesby, as individuals; the Lee W. Oglesby, Sr. Living Trust, dated September 22, 1998, as amended; Lee W. Oglesby, Sr., as trustee and beneficiary of the Lee W. Oglesby, Sr. Living Trust, dated September 22, 1998, as amended; and successor trustees of the Lee W. Oglesby, Sr. Living Trust, dated September 22, 1998, as amended. The settlement is designed to resolve fully each settling party's liability at the Site through a covenant not to sue under sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a), and provide contribution protection. EPA will consider public comments on the proposed settlement within thirty (30) days of publication of this notice. EPA may withdraw from or modify the proposed settlement should such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate.
Copies of the proposed settlement are available from: Ms. Paula V. Batchelor, U.S. EPA, Region 4 (WMD-CPSB), Sam Nunn Atlanta Federal Center, Waste Management Division, CERCLA Program Services Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303, (404) 562-8887.
Written comments may be submitted to Ms. Batchelor within thirty (30) calendar days of the date of this publication.
Federal Communications Commission.
Notice.
This document announces the auction of 8,874 licenses in the lower paging bands (35-36 MHz, 43-44 MHz, 152-159 MHz, 454-460 MHz) and 1,328 licenses in the upper paging bands (929-931 MHz) scheduled to commence on May 13, 2003. This document also seeks comment on reserve prices or minimum opening bids and other auction procedures.
Comments are due on or before December 13, 2002, and reply comments are due on or before December 18, 2002.
Comments and reply comments must be sent by electronic mail to
This is a summary of the
1. By the
2. In the
3. The following tables contain the Block/Frequency Cross-Reference List for the paging bands:
For Auction No. 48, licenses are not available in every block listed in the tables. The complete list of licenses available for Auction No. 48 will be provided in electronic format only, available as “Attachment A” to the
4. The Balanced Budget Act of 1997 requires the Commission to “ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed * * * before issuance of bidding rules, to permit notice and comment on proposed auction procedures * * *.” Consistent with the provisions of the Balanced Budget Act and to ensure that potential bidders have adequate time to familiarize themselves with the specific rules that will govern the day-to-day conduct of an auction, the Commission directed the Bureau, under its existing delegated authority, to seek comment on a variety of auction-specific procedures prior to the start of each auction. The Bureau seeks comment on the following issues relating to Auction No. 48.
5. The Bureau proposes to award the licenses included in Auction No. 48 in a simultaneous multiple-round auction. As described further, this methodology offers every license for bid at the same time with successive bidding rounds in which bidders may place bids. The Bureau seeks comment on this proposal.
6. The Bureau has been delegated authority and discretion to determine an appropriate upfront payment for each license being auctioned, taking into account such factors as the population in each geographic license area, and the value of similar spectrum. As described further, the upfront payment is a refundable deposit made by each bidder to establish eligibility to bid on licenses. Upfront payments related to the specific spectrum subject to auction protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of the auction.
7. The Bureau proposes to make the upfront payments equal to the minimum opening bids, which are established based on similar facts as described in section II.B. The specific upfront payments for each license are set forth in the list of licenses available for Auction No. 48 (“Attachment A”), available with the
8. The Bureau further propose that the amount of the upfront payment submitted by a bidder will determine the number of bidding units on which a bidder may place bids. This limit is a bidder's “maximum initial eligibility.” Each license is assigned a specific number of bidding units equal to the upfront payment, listed in the license inventory available for Auction No. 48 (“Attachment A”), available with the
9. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively on a percentage of their maximum bidding eligibility during each round of the auction rather than wait until the end to participate. A bidder that does not satisfy the activity rule will either lose bidding eligibility in the next round or must use an activity rule waiver (if any remain).
10. The Bureau proposes to divide the auction into three stages, each characterized by an increased activity requirement. The auction will start in Stage One. The Bureau proposes that the auction generally will advance to the next stage (
11. For Auction No. 48, the Bureau proposes the following activity requirements:
12. The Bureau seeks comment on these proposals. Commenters that believe these activity rules should be modified should explain their reasoning and comment on the desirability of an alternative approach. Commenters are advised to support their claims with analyses and suggested alternative activity rules.
13. Use of an activity rule waiver preserves the bidder's current bidding eligibility despite the bidder's activity in the current round being below the required minimum level. An activity rule waiver applies to an entire round of bidding and not to a particular license. Activity waivers can be either proactive or automatic and are principally a mechanism for auction participants to avoid the loss of auction eligibility in the event that exigent circumstances prevent them from placing a bid in a particular round.
Once a proactive waiver is placed during a round, that waiver cannot be unsubmitted.
14. The FCC Automated Auction System assumes that bidders with insufficient activity would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver (known as an “automatic waiver”) at the end of any bidding period where a bidder's activity level is below the minimum required unless: (1) there are no activity rule waivers available; or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the minimum requirements.
If a bidder has no waivers remaining and does not satisfy the required activity level, its current eligibility will be permanently reduced, possibly eliminating the bidder from the auction.
15. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding period by using the reduce eligibility function in the bidding system. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described. Once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility.
16. A bidder may proactively use an activity rule waiver as a means to keep the auction open without placing a bid. If a bidder submits a proactive waiver (using the proactive waiver function in the bidding system) during a bidding period in which no bids or withdrawals are submitted, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver invoked in a round in which there are no new valid bids or withdrawals will not keep the auction open.
17. The Bureau proposes that each bidder in Auction No. 48 be provided with five activity rule waivers that may be used at the bidder's discretion during the course of the auction as set forth. The Bureau seeks comment on this proposal.
18. The Bureau proposes that, by public notice or by announcement during the auction, the Bureau may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, administrative or weather necessity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureau, in its sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureau to delay or suspend the auction. The Bureau emphasizes that exercise of this authority is solely within the discretion of the Bureau, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers. The Bureau seeks comment on this proposal.
19. In the
20. The Commission will conduct Auction No. 48 over the Internet. Telephonic Bidding will also be available. As a contingency, the FCC Wide Area Network, will be available as well. The telephone number through which the backup FCC Wide Area Network may be accessed will be announced in a later public notice. Full information regarding how to establish such a connection, and related charges, will be provided in the public notice announcing details of auction procedures.
21. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of the auction, and will be included in the registration mailings. The simultaneous multiple round format will consist of sequential bidding rounds, each followed by the release of round results. Details regarding the
22. The Bureau has discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The Bureau may increase or decrease the amount of time for the bidding rounds and review periods, or the number of rounds per day, depending upon the bidding activity level and other factors. The Bureau seeks comment on this proposal.
23. The Balanced Budget Act calls upon the Commission to prescribe methods for establishing a reasonable reserve price or a minimum opening bid when FCC licenses are subject to auction, unless the Commission determines that a reserve price or minimum opening bid is not in the public interest. Consistent with this mandate, the Commission has directed the Bureau to seek comment on the use of a minimum opening bid and/or reserve price prior to the start of each auction.
24. Normally, a reserve price is an absolute minimum price below which an item will not be sold in a given auction. Reserve prices can be either published or unpublished. A minimum opening bid, on the other hand, is the minimum bid price set at the beginning of the auction below which no bids are accepted. It is generally used to accelerate the competitive bidding process. Also, the auctioneer often has the discretion to lower the minimum opening bid amount later in the auction. It is also possible for the minimum opening bid and the reserve price to be the same amount.
25. In light of the Balanced Budget Act's requirements, the Bureau proposes to establish minimum opening bids for Auction No. 48. The Bureau believes a minimum opening bid, which has been utilized in other auctions, is an effective auction tool.
26. Because multiple licenses in the same geographic area are being auctioned at the same time, under the same general conditions, the Commission believes that it is appropriate to use a common baseline to establish the minimum opening bid formula for all the licenses in the auction. The gross high bids from the prior Lower and Upper Paging Bands Auction (Auction No. 40) provide the most comprehensive paging baseline. Therefore, the Bureau proposes to base the minimum opening bid for each license available in Auction No. 48 on the average of the corresponding gross high bids received in Auction No. 40, as follows:
• For a license being auctioned by MEA, the minimum opening bid will be 20% of the average gross high bid received in Auction No. 40 in the same MEA.
• For a license being auctioned by EA, the minimum opening bid will be 20% of the average gross high bid received in Auction No. 40 in the same EA.
The Commission will set a “floor” for minimum opening bids at $500 for licenses in both the upper paging bands (929-931 MHz) and the lower paging bands (35-36 MHz, 43-44 MHz, 152-159 MHz, and 454-460 MHz).
27. This formula is intended to apply to all geographic paging licenses in Auction No. 48, and takes into account considerations discussed. The specific proposed minimum opening bid for each license available in Auction No. 48 is set forth in the list of licenses provided in electronic format as “Attachment A” of the
28. If commenters believe that these minimum opening bids will result in substantial numbers of unsold licenses, or are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so, and comment on the desirability of an alternative approach. Commenters are advised to support their claims with valuation analyses and suggested reserve prices or minimum opening bid levels or formulas. In establishing the minimum opening bids, the Bureau particularly seeks comment on such factors as the amount of spectrum being auctioned, levels of incumbency, the availability of technology to provide service, the size of the geographic service areas, issues of interference with other spectrum bands and any other relevant factors that could reasonably have an impact on valuation of the paging bands. Alternatively, comment is sought on whether, consistent with the Balanced Budget Act, the public interest would be served by having no minimum opening bid or reserve price.
29. In each round, eligible bidders will be able to place bids on a given license in any of nine different amounts. The Automated Auction System interface will list the nine acceptable bid amounts for each license. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. In the rounds after an acceptable bid is placed on a license, the minimum acceptable bid for that license will be equal to the standing high bid plus the defined increment.
30. For Auction No. 48, the Bureau proposes to set the defined increment for each license based on a percentage of the standing high bid on the license or, if no bid has been placed on the license, a percentage of the minimum opening bid for the license. The defined increment will be calculated as follows. Presuming, for example, that the percentage being used is 20 percent, we will multiply the standing high bid (or, if no standing high bid exists for the particular license, the minimum opening bid) by 1.2. (If the percentage being used is 30 percent, we would multiply by 1.3, etc.) The product will be rounded as follows: amounts below $1,000 will be rounded to the nearest $10; amounts above $1,000 but below $10,000 will be rounded to the nearest $100; and amounts above $10,000 will be rounded to the nearest $1,000. The defined increment then will be determined by subtracting the standing high bid (or, if applicable, the minimum opening bid) from the rounded result. At the start of the auction, the Bureau proposes to use 20 percent to calculate the defined increment. The Bureau also proposes to retain discretion to change the percentage used to calculate the defined increment if we determine that circumstances so dictate. Further, the Bureau proposes to retain discretion to set a floor for the increment used to calculate the minimum acceptable bid at an absolute dollar amount.
31. In addition, the Bureau proposes that it have discretion to use a smaller defined increment to calculate acceptable bids higher than the minimum acceptable bid. The smaller defined increment would be calculated using a smaller percentage than the percentage used to calculate the defined increment that sets the minimum acceptable bid. For example, 20 percent might be used to calculate the defined increment for the minimum acceptable bid and 10 percent might be used to calculate the smaller defined increment used to calculate higher acceptable bids. In all other respects, the smaller defined increment would be calculated in exactly the manner described for the initial defined increment, including rounding.
32. For example, the Bureau could calculate bids using 20 percent to calculate the defined increment for the minimum acceptable bid and 10 percent to calculate the smaller defined increment. Assuming that the standing
33. This procedure would enable bidders unwilling to raise the standing high bid by twice the defined increment to place bids higher than the minimum acceptable bid. Thus, in the example, a bidder wanting to bid above the minimum acceptable bid but unwilling to raise the standing high bid of $50,000 by twice the defined increment of $10,000 ($20,000 or 40 percent) would have the flexibility to bid $65,000, raising the standing high bid by $15,000.
34. In the case of a license for which the standing high bid has been withdrawn, the minimum acceptable bid will equal the second highest bid received for the license. The additional bid amounts are calculated using the defined increment, as stated.
35. In summary, the Bureau proposes it have discretion at any time during the auction to change the initial 20 percent used to calculate the defined increment and/or to set an absolute dollar amount floor for the increment used to calculate the minimum acceptable bid. The Bureau also proposes that it have additional discretion to calculate the minimum acceptable bid using one percentage and to calculate higher acceptable bids using another percentage, as described. The Bureau's decision to exercise its discretion with regard to minimum acceptable bids and bid increments would be announced via the Automated Auction System. The Bureau seeks comment on these proposals.
36. At the end of a bidding round, the high bids will be determined based on the highest gross bid amount received for each license. In the event of identical high bids on a license in a given round (
37. A high bid will remain the high bid until there is a higher bid on the same license at the close of a subsequent round. A high bid from a previous round is sometimes referred to as a “standing high bid.” Bidders are reminded that standing high bids confer activity credit.
38. For Auction No. 48, the Bureau proposes the following bid removal and bid withdrawal procedures. Before the close of a bidding period, a bidder has the option of removing any bid placed in that round. By using the remove selected bids function in the bidding system, a bidder may effectively “unsubmit” any bid placed within that round. A bidder removing a bid placed in the same round is not subject to a withdrawal payment. Once a round closes, a bidder may no longer remove a bid.
39. A high bidder may withdraw its standing high bids from previous rounds using the withdrawal function in the bidding system. A high bidder that withdraws its standing high bid from a previous round is subject to the bid withdrawal payment provisions of the Commission rules. The Bureau seeks comment on these bid removal and bid withdrawal procedures.
40. In the
41. Applying this reasoning, the Bureau proposes to limit each bidder in Auction No. 48 to withdrawing standing high bids in no more than two rounds during the course of the auction. To permit a bidder to withdraw bids in more than two rounds would likely encourage insincere bidding or the use of withdrawals for anti-competitive purposes. The two rounds in which withdrawals are utilized will be at the bidder's discretion; withdrawals otherwise must be in accordance with the Commission's rules. There is no limit on the number of standing high bids that may be withdrawn in either of the rounds in which withdrawals are utilized. Withdrawals will remain subject to the bid withdrawal payment provisions specified in the Commission's rules. The Bureau seeks comment on this proposal.
42. The Bureau has discretion “to establish stopping rules before or during multiple round auctions in order to terminate the auction within a reasonable time.” For Auction No. 48, the Bureau proposes to employ a simultaneous stopping rule approach. A simultaneous stopping rule means that all licenses remain open until bidding closes simultaneously on all licenses.
43. Bidding will close simultaneously on all licenses after the first round in which no new acceptable bids, proactive waivers, or withdrawals are received. Thus, unless circumstances dictate otherwise, bidding will remain open on all licenses until bidding stops on every license.
44. However, the Bureau proposes to retain the discretion to exercise any of the following options during Auction No. 48:
i. Utilize a modified version of the simultaneous stopping rule. The modified stopping rule would close the auction for all licenses after the first round in which no bidder submits a proactive waiver, withdrawal, or a new bid on any license on which it is not the standing high bidder. Thus, absent any
ii. Keep the auction open even if no new acceptable bids or proactive waivers are submitted and no previous high bids are withdrawn. In this event, the effect will be the same as if a bidder had submitted a proactive waiver. The activity rule, therefore, will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a remaining activity rule waiver.
iii. Declare that the auction will end after a specified number of additional rounds (“special stopping rule”). If the Bureau invokes this special stopping rule, it will accept bids in the specified final round(s) only for licenses on which the high bid increased in at least one of a specified preceding number of rounds.
45. The Bureau proposes to exercise these options only in certain circumstances, such as, for example, where the auction is proceeding very slowly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time. Before exercising these options, the Bureau is likely to attempt to increase the pace of the auction by, for example, increasing the number of bidding rounds per day, and/or increasing the amount of the minimum bid increments for the limited number of licenses where there is still a high level of bidding activity. The Bureau seeks comment on these proposals.
46. Comments are due on or before December 13, 2002, and reply comments are due on or before December 18, 2002. Because of the disruption of regular mail and other deliveries in Washington, DC, the Bureau requires that all comments and reply comments be filed electronically. Comments and reply comments must be sent by electronic mail to the following address:
47. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's
Federal Communications Commission.
Federal Communications Commission.
Notice.
On December 3, 2002, the Commission released a public notice announcing the December 11, 2002 conference call meeting and agenda of the North American Numbering Council (NANC). The conference bridge number for domestic participants is (800) 377-4273 (toll free). The call in number for international participants is (816) 650-0771 (caller pays). The Chairperson to ask for is Robert Atkinson. Due to limited port space, NANC members and Commission staff will have first priority on the call. Members of the public may join the call as remaining port space permits or may attend in person at the Federal Communications Commission, Portals II, 445 Twelfth Street, SW., Room 6-B516, Washington, DC 20554. The intended effect of this action is to make the public aware of the NANC's conference call meeting and agenda scheduled for December 11, 2002. This notice of the December 11, 2002, NANC conference call meeting is being published in the
This statement complies with the General Services Administration Management regulations implementing the Federal Advisory Committee Act.
Deborah Blue, Special Assistant to the Designated Federal Officer (DFO) at (202) 418-1466 or
This meeting is open to members of the general public. The FCC will attempt to accommodate as many participants as possible. Participation on the conference call is limited. The public may submit written statements to the NANC, which must be received two business days before the meeting. In addition, oral statements at the meeting by parties or entities not represented on the NANC will be permitted to the extent time permits. Such statements will be limited to five minutes in length by any one party or entity, and requests to make an oral statement must be received two business days before the meeting. Requests to make an oral statement or provide written comments to the NANC should be sent to Deborah Blue at the address under
To discuss NANC recommendation to the Federal Communications Commission regarding the Petition of the California Public Utilities Commission and the People of the State of California for Waiver of the Federal Communications Commission's Contamination Threshold Rule.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:42 a.m. on Tuesday, December 3, 2002, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters relating to the Corporation's corporate activities.
In calling the meeting, the Board determined, on motion of Director James E. Gilleran (Director, Office of Thrift Supervision), seconded by Vice Chairman John M. Reich, concurred in by John D. Hawke, Jr. (Comptroller of the Currency), and Chairman Donald E. Powell, that Corporation business required its consideration of the matters on less than seven days notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsection (c)(2) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(2)).
The meeting was held in the Board Room of the FDIC Building located at 550 17th Street, NW., Washington, DC.
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
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 January 2, 2003.
Board of Governors of the Federal Reserve System, December 2, 2002.
General Services Administration (GSA).
Notice of a new one-time collection.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the General Services Administration, Office of Acquisition Policy will submit to the Office of Management and Budget (OMB) a request to review and approve a new information collection requirement concerning Market Research for the Office of Citizen Services and Communication.
This information collection will be used to determine the utility and ease of use of GSA's Web site
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of the functions of the agency including whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected, including through the use of automated collection techniques or other forms of information technology.
Dr. Sharon Holcombe, Office of Citizen Services and Communications, (202) 501-2719.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to Stephanie Morris, General Services Administration (MVA), Room 4035, 1800 F Street, NW., Washington, DC 20405.
The purpose of this information collection is to inform the General Services Administration (GSA) on how to best provide service and relevance to the American public via GSA's Web site,
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a document entitled “Guidance for Industry; Implementation of Section 403(t) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(t)) Regarding the Use of the Term `Catfish.'” Section 10806 of the Farm Security and Rural Investment Act of 2002 amends the Federal Food, Drug, and Cosmetic Act (the act) to provide that a food shall be deemed to be misbranded “[i]f it purports to be or is represented as catfish, unless it is fish classified within the family
Submit written or electronic comments at any time.
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.
Submit written requests for single copies of this guidance to the Office of Seafood (HFS-400), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740. Include a self-adhesive address label to assist that office in processing your request, or include a fax number to which the guidance may be sent. See the
Spring C. Randolph, Center for Food Safety and Applied Nutrition (HFS-415), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-2303, FAX 301-436-2599.
On May 13, 2002, Public Law 107-171, entitled the Farm Security and Rural Investment Act of 2002 (FSRIA), became law. Section 10806 of the FSRIA amends the food misbranding provision in section 403 of the act (21 U.S.C. 343) to provide that a food shall be deemed to be misbranded “[i]f it purports to be or is represented as catfish, unless it is fish classified within the family
The guidance document states that, consistent with the amendment to section 403 of the act, importers, domestic distributors, and sellers of fish in interstate commerce bearing the term “catfish,” that are not classified within the family
The document discusses how to apply FDA's common or usual name “general principles” regulation (21 CFR 102.5) in determining a name that can be used for the fish once known as “catfish,” but for which that name can no longer be used.
This guidance represents the agency's current thinking on acceptable common or usual names for fish bearing the name “catfish” that are not from the family
This guidance is a level 1 guidance issued consistent with FDA's good guidance practices (GGPs) regulation (§ 10.115 (21 CFR 10.115)). Consistent with GGPs, the agency is soliciting public comment, but is implementing the guidance document immediately in accordance with § 10.115(g)(2) because the agency has determined that prior public participation is not feasible or appropriate. Section 403(t) of the act is now in effect and must be implemented immediately. Thus, FDA is making the guidance effective immediately.
Interested persons may submit to the Dockets Management Branch (see
Persons with access to the Internet may obtain the document at http://www.cfsan.fda.gov/~dms/guidance.html.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 to provide opportunity for public comment on proposed data collection projects, the National Library of Medicine (NLM), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
The NLM provides significant services directly to the public including health providers, researchers, universities, other federal agencies, state and local governments, and to others through a range of mechanisms, including publications, technical assistance, and Web sites. These services are primarily focused on health and medical information dissemination activities. The purpose of this submission is to obtain OMB's generic approval to continue to conduct satisfaction surveys of NLM's customers. The NLM will use the information provided by individuals and institutions to identify strengths and weaknesses in current services and to make improvements where feasible. The ability to periodically survey NLM's customers is essential to continually update and upgrade methods of providing high quality service.
There are no capital costs to report. There are no operating or maintenance costs to report.
Written comments and/or suggestions from the public and affected agencies are invited on 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; (3) Ways to enhance 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 respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
To request additional information on the proposed collection of information contact Ronald F. Stewart, National Library of Medicine, Building 38, Room 2N13, 8600 Rockville Pike, Bethesda, MD 20894, or call 301-496-6491 (not a toll-free number). You also may e-mail your request to:
Comments regarding this information collection are best assured of having their full effect if received within 60 days of the date of this publication.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
December 6, 2002.
Mark Johnston, Department of Housing and Urban Development, Room 7262, 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with the December 12, 1998, court order in
Fish and Wildlife Service, Interior.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the Fish and Wildlife Service announces a meeting designed to foster partnerships to enhance public awareness of the importance of aquatic resources and the social and economic benefits of recreational fishing and boating in the United States. This meeting, sponsored by the Sport Fishing and Boating Partnership Council (Council), is open to the public, and interested persons may make oral statements to the Council or may file written statements for consideration.
The meeting will be held on Wednesday, December 11, 2002, from 8 a.m. to noon.
The meeting will be held at the Sheraton National Hotel, 900 S. Orme Street, Arlington, VA 22204; (703) 521-1900.
Summary minutes of the conference will be maintained by the Council Coordinator at 4501 N. Fairfax Drive, Room 4036, Arlington, VA 22203, and will be available for public inspection during regular business hours within 30 days following the meeting. Personal copies may be purchased for the cost of duplication.
Laury Parramore, Council Coordinator, at (703) 358-1711.
The Sport Fishing and Boating Partnership Council was formed in January 1993 to advise the Secretary of the Interior through the Director, U.S. Fish and Wildlife Service, about sport fishing and boating issues. The Council represents the interests of the public and private sectors of the sport fishing and boating communities and is organized to enhance partnerships among industry, constituency groups, and government. The 18-member Council includes the Director of the Service and the president of the International Association of Fish and Wildlife Agencies, who both serve in ex officio capacities. Other Council members are Directors from State agencies responsible for managing recreational fish and wildlife resources and individuals who represent the interests of saltwater and freshwater recreational fishing, recreational boating, the recreational fishing and boating industries, recreational fisheries resource conservation, aquatic resource outreach and education, and tourism. The Council will convene to discuss: (1) The Council's continuing role in providing input to the Fish and Wildlife Service on the Service's strategic vision for its Fisheries Program; (2) the Council's work in its role as a facilitator of discussions with Federal and State agencies and other sportfishing and boating interests concerning a variety of national boating and fisheries management issues; and (3) the Council's role in providing the Interior Secretary with information about the implementation of the Strategic Plan for the National Outreach and Communications Program. The Interior Secretary approved the Strategic Plan in February 1999, as well as the five-year, $36-million federally funded outreach campaign authorized by the 1998 Sportfishing and Boating Safety Act that is now being implemented by the Recreational Boating and Fishing Foundation, a private, nonprofit organization.
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0041).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns the paperwork requirements in the regulations under 30 CFR 250, subpart K “Oil and Gas Production Rates.”
Submit written comments by February 4, 2003.
Mail or hand carry comments to the Department of the Interior; Minerals Management Service; Attention: Rules Processing Team; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 20170-4817. If you wish to e-mail comments, the address is:
Arlene Bajusz, Rules Processing Team,
Section 1334(g)(2) states “* * * the lessee shall produce such oil or gas, or both, at rates * * * to assure the maximum rate of production which may be sustained without loss of ultimate recovery of oil or gas, or both, under sound engineering and economic principles, and which is safe for the duration of the activity covered by the approved plan.” This authority and responsibility are among those delegated to the Minerals Management Service (MMS). The regulations at 30 CFR part 250, subpart K, concern oil and gas production rates and implement these statutory requirements. The information collection requirements in subpart K and form MMS-140 are the subject of this notice.
We use the information collected to determine if produced gas can be economically put to beneficial use, to analyze the risks of transporting the liquid hydrocarbons against the value of the resource, and to account for volumes of flared gas and burned liquid hydrocarbons. The MMS uses the information in its efforts to conserve natural resources, prevent waste, and protect correlative rights including the Government's royalty interest. Specifically, MMS uses the information to review records of burning liquid hydrocarbons and venting and flaring actions to ensure that they are not excessive; to determine maximum production and maximum efficient rates; to compare the volume of hydrogen sulfide (H
We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2) and under regulations at 30 CFR 250.196, “Data and information to be made available to the public.” No items of a sensitive nature are collected. Responses are mandatory.
Estimated Reporting and Recordkeeping “Non-Hour Cost” Burden: We have identified no cost burdens for this collection.
Agencies must also estimate the “non-hour cost” burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased: (i) before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
National Park Service, Interior.
Notice of request for extension of a currently approved information collection
In accordance with the Paperwork Reduction Act of 1995, this notice announces the National Park Service's intention to request an extension for a currently approved information collection in support of its Concession Management Program.
Comments in this notice must be received no later than January 6, 2003.
Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for the Interior Department, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503. Please also send a copy of your comments to Cynthia L. Orlando, Concession Program Manager, National Park Service, Department of the Interior, 1849 C Street, NW (2410), Washington, DC 20240.
16 U.S.C. 5957 provides that no concessions contract or leasehold surrender interest may be transferred, assigned or sold, or otherwise conveyed or pledged by a concessioner without prior written notification to, and approval by, the Secretary. Regulations at 36 CFR part 51, subpart J, require that certain information be submitted for review by the NPS prior to the consummation of any sale, transfer, assignment or encumbrance.
The information requested is used to determine whether or not the proposed transaction will result in an adverse impact on the protection, conservation, or preservation of the resources of the unit of the National Park System, decreased services to the public, the lack of a reasonable opportunity for profit over the remaining term of the authorization, or rates in excess of existing approved rates to the public. In addition, pursuant to the regulations at 36 CFR part 51, the value of rights for intangible assets such as the concession contract, right of preference in renewal, user days, or low fees, belong to the Government.
If any portion of the purchase price is attributable either directly or indirectly to such assets, the transaction may not be approved. The amount and type of information to be submitted varies with the type and complexity of the proposed transaction. Without such information, the NPS would be unable to determine whether approval of the proposed transaction would be adequate.
A list of information required to be submitted with a request for sale, assignment, transfer or encumbrance of a concession authorization is set forth at 36 CFR part 51, subpart J.
Send comments regarding the accuracy of the burden estimate, ways to minimize the burden, including the use of automated collection techniques or other forms of information technology, or any other aspect of this collection to the Office of Management and Budget at
National Park Service, Interior.
Public notice.
Pursuant to 36 CFR 51.23, public notice is hereby given that the National Park Service proposes to extend the following expiring concession contracts for a period of up to one year, or until such time as a new contract is awarded, whichever occurs sooner.
All of the listed concession authorizations will expire by their terms on or before December 31, 2002. The National Park Service has determined that the proposed short-term extensions are necessary in order to avoid interruption of visitor services and has taken all reasonable and appropriate steps to consider alternatives to avoid such interruption. These extensions will allow the National Park Service to complete and issue prospectuses leading to the competitive selection of concessioners for new long-term concession contracts covering these operations.
January 2, 2003.
Cynthia Orlando, Concession Program Manager, National Park Service, Washington, DC, 20240, Telephone 202/513-7156.
National Park Service, Interior.
Public notice.
Pursuant to the terms of existing concession permits, with the exception of construction on National Park Service lands, public notice is hereby given that the National Park Service intends to provide visitor services under the authority of a temporary concession contract with a term of up to one year from the date of permit expirations.
The permit listed below has been extended to the maximum allowable under 36 CFR 51.23. Under the provisions of the current concessions permit, with one exception, and pending the development and public solicitation of a prospectus for a new concession permit, the National Park Service authorizes continuation of visitor services under a temporary concession contract for a period of up to one year from the expiration of the current concession permit. The exception precludes construction on National Park Service lands, regardless of whether the current permit authorizes such activity, the temporary contract does not affect any rights with respect to selection for award of a new concession contract.
January 2, 2003.
Cynthia Orlando, Concession Program Manager, National Park Service, Washington, DC 20240, Telephone, 202/513-7156.
National Park Service, Interior.
Public notice.
Pursuant to 36 CFR 51.23, public notice is hereby given that the National Park Service proposes to extend the following expiring concession contracts for a period of up to one year, or until such time as a new contract is executed, whichever occurs sooner.
All of the listed concession authorizations will expire by their terms on or before December 31, 2002. The National Park Service has determined that the proposed short-term extensions are necessary in order to avoid interruption of visitor services and has taken all reasonable and appropriate steps to consider alternatives to avoid such interruption. These extensions will allow the National Park Service to complete and issue prospectuses leading to the competitive selection of concessioners for new long-term concession contracts covering these operations.
January 2, 2003.
Cynthia Orlando, Concession Program Manager, National Park Service, Washington, DC 20240, Telephone 202/513-7156.
National Park Service, Interior.
Public notice.
Pursuant to the terms of existing concession contracts, public notice is hereby given that the National Park Service intends to request a continuation of visitor services for a period not-to-exceed one year from the date of contract expiration.
The contracts listed below have been extended to the maximum allowable under 36 CFR 51.23. Under the provisions of current concession contracts and pending the development and public solicitation of a prospectus for a new concession contract, the National Park Service authorizes continuation of visitor services for a period not-to-exceed one year under the terms and conditions of current contracts as amended. The continuation of operations does not affect any rights with respect to selection for award of a new concession contract.
January 2, 2003.
Cynthia Orlando, Concession Program Manager, National Park Service, Washington, DC, 20240, Telephone 202/565-1210.
United States International Trade Commission.
Institution and scheduling of an investigation under section 421(b) of the Trade Act of 1974 (19 U.S.C. 2451(b)) (the Act).
Following receipt of a petition properly filed on November 27, 2002, on behalf of CHC Industries, Inc., Palm Harbor, FL; M&B Hangers Co., Leeds, AL; and United Wire Hanger Corp., South Hackensack, NJ, the Commission instituted investigation No. TA-421-2, Certain Steel Wire Garment Hangers from China, under section 421(b) of the Act to determine whether certain steel wire garment hangers
For further information concerning the conduct of this investigation, hearing procedures, and rules of general application, consult the Commission's rules of practice and procedure, part 201, subparts A through E (19 CFR part 201), and part 206, subparts A and E (19 CFR part 206).
November 27, 2002.
Debra Baker (202-205-3180), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
In accordance with section 201.16(c) of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by the service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under the authority of section 421 of the Trade Act of 1974; this notice is published pursuant to section 206.3 of the Commission's rules.
By order of the Commission.
60-day notice of information collection under review; reinstatement, with change, of a previously approved collection for which approval has expired. National drug threat survey.
The United States Department of Justice, National Drug Intelligence Center 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. Comments are encouraged and will be accepted until February 4, 2003. This process is in accordance with 5 CFR 1320.10.
If you have any comments, especially on the estimated public burden or associated response time, or suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Manuel A. Rodriguez, General Counsel, National Drug Intelligence Center, Fifth Floor, 319 Washington Street, Johnstown, PA 15901.
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 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 agency's estimate of the burden of the collection of information, including the validity of the methodology and assumption 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 (
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
60-day notice of information collection under review: Extension of a currently approved collection. Application for individual manufacturing quota for a basic class of controlled substances.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA) 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. Comments are encouraged and will be accepted until February 4, 2003. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, (202) 307-7297.
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)
60-day notice of information collection under review: extension of a currently approved collection application for procurement quota for controlled substances.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA) 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. Comments are encouraged and will be accepted until February 4, 2003. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, (202) 307-7297.
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,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
General wage determination decisions of the Secretary of Labor are issued in accordance with applicable law and are based on the information obtained by the Department of Labor from its study of local wage conditions and data made available from other sources. They specify the basic hourly wage rates and fringe benefits which are determined to be prevailing for the described classes of laborers and mechanics employed on construction projects of a similar character and in the localities specified therein.
The determinations in these decisions of prevailing rates and fringe benefits have been made in accordance with 29 CFR part 1, by authority of the Secretary of Labor pursuant to the provisions of the Davis-Bacon Act of March 3, 1931, as amended (46 Stat. 1494, as amended, 40 U.S.C. 276a) and of other Federal statutes referred to in 29 CFR part 1, appendix, as well as such additional
Good cause is hereby found for not utilizing notice and public comment procedure thereon prior to the issuance of these determinations as prescribed in 5 U.S.C. 553 and not providing for delay in the effective date as prescribed in that section, because the necessity to issue current construction industry wage determinations frequently and in large volume causes procedures to be impractical and contrary to the public interest.
General wage determination decisions, and modifications and supersedeas decisions thereto, contain no expiration dates and are effective from their date of notice in the
Any person, organization, or governmental agency having an interest in the rates determined as prevailing is encouraged to submit wage rate and fringe benefit information for consideration by the Department.
Further information and self-explanatory forms for the purpose of submitting this data may be obtained by writing to the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Division of Wage Determinations, 200 Constitution Avenue, NW., Room S-3014, Washington, DC 20210.
The number of the decisions listed to the Government Printing Office document entitled “General Wage Determinations Issued Under the Davis-Bacon and Related Acts” being modified are listed by Volume and State. Dates of publication in the
MD020021 (Mar. 01, 2002)
MN020007 (Mar. 01, 2002)
MN020008 (Mar. 01, 2002)
MN020012 (Mar. 01, 2002)
MN020013 (Mar. 01, 2002)
MN020015 (Mar. 01, 2002)
MN020027 (Mar. 01, 2002)
MN020031 (Mar. 01, 2002)
MN020043 (Mar. 01, 2002)
MN020058 (Mar. 01, 2002)
MN020059 (Mar. 01, 2002)
MN020061 (Mar. 01, 2002)
MN020062 (Mar. 01, 2002)
OR20001 (Mar. 01, 2002)
CA020009 (Mar. 01, 2002)
CA020019 (Mar. 01, 2002)
CA020029 (Mar. 01, 2002)
CA020030 (Mar. 01, 2002)
General wage determination issued under the Davis-Bacon and related Acts, including those noted above, may be found in the Government Printing Office (GPO) document entitled “General Wage determinations Issued Under the Davis-Bacon And Related Acts”. This publication is available at each of the 50 Regional Government Depository Libraries and many of the 1,400 Government Depository Libraries across the country.
General wage determinations issued under the Davis-Bacon and related Acts are available electronically at no cost on the Government Printing Office site at
Hard-copy subscriptions may be purchased from: Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, (202) 512-1800.
When ordering hard-copy subscription(s), be sure to specify the State(s) of interest, since subscriptions may be ordered for any or all of the six separate volumes, arranged by State. Subscriptions include an annual edition (issued in January or February) which includes all current general wage determinations for the States covered by each volume. Throughout the remainder of the year, regular weekly updates will be distributed to subscribers.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a forthcoming meeting of the NASA Advisory Council (NAC), Space Science Advisory Committee (SScAC), Solar System Exploration Subcommittee (SSES).
Monday, December 16, 2002, 8:30 a.m. to 5 p.m., and Tuesday, December 17, 2002, 8:30 a.m. to 5:30 p.m.
NASA Headquarters, 300 E Street, SW., Washington, DC 20546, room 3H46.
Ms. Marian Norris, Code SB, National Aeronautics and Space Administration, Washington, DC 20546, (202) 358-4452.
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register. Due to the increased security at NASA facilities, any members of the public who wish to attend this meeting of the Solar System Exploration Subcommittee must provide their name, date and place of birth, citizenship, social security number, or passport and visa information (number, country of issuance and expiration), business address and phone number, if any. This information is to be provided at least 72 hours (5 p.m. EDT on December 10, 2002) prior to the date of the public meeting. Identification information is to be provided to Marian Norris, 202/358-4452, mnorris@hq.nasa.gov. Failure to timely provide such information may result in denial of attendance. Photo identification may be required for entry into the building. Persons with disabilities who require assistance should indicate this in their message. Due to limited availability of seating, members of the public will be admitted on a first-come, first-serve basis. NASA may provide for simulcast in an overflow facility. News media wishing to attend the meeting should follow standard accreditation procedures. Members of the press who have questions about these procedures should contact the NASA Headquarters newsroom (202/358-1600).
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before January 21, 2003. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
To request a copy of any records schedule identified in this notice, write to the Lifecycle Management Division (NWML), National Archives and Records Administration (NARA), 8601 Adelphi Road, College Park, MD 20740-6001. Requests also may be transmitted by FAX to 301-837-3698 or by e-mail to
Paul M. Wester, Jr., Director, Lifecycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Commerce, National Oceanic and Atmospheric Administration (N1-370-03-1, 10
2. Department of Defense, Defense Intelligence Agency (N1-373-03-1, 1 item, 1 temporary item). Backup tapes containing information used for accountability and control of access regarding agency information systems.
3. Department of Defense, Defense Commissary Agency (N1-506-02-6), 53 items, 53 temporary items). Records relating to inspections and investigations conducted by the Office of the Inspector General. Included are such records as congressional correspondence, process reviews, referrals, complaints, hotline case files, trends and analysis files, and staff assistance reports. Also included are electronic copies of documents created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
4. Department of Health and Human Services, Centers for Medicare and Medicaid Services (N1-440-02-1, 7 items, 5 temporary items). Media relations files relating to the clearance and dissemination of press materials as well as articles appearing in the press concerning health care issues. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of news releases, press conference transcripts, and related background materials.
5. Department of Justice, Civil Division (N1-60-02-7, 6 items, 1 temporary item). Electronic versions of comments relating to the “September 11th Victim Compensation Fund of 2001” received by the agency or created for posting on the agency Web site. Proposed for permanent retention are recordkeeping copies of comments as well as an electronic database used for tracking the comments.
6. Department of State, Bureau of Public Affairs (N1-59-03-2, 4 items, 3 temporary items). Bibliographic and biographic card files and source documents for special historical projects carried out by the Office of the Historian. Proposed for permanent retention are general files relating to a project on U.S.-Russian relations in the period 1816 to 1865.
7. National Aeronautics and Space Administration, Agency-wide (N1-255-01-1, 7 items, 6 temporary items). Problem reporting and corrective action reports, quality assurance surveillance records, including audits, studies, and inspection stamp issuance documents, and electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of safety, reliability and quality assurance records that relate to flight hardware.
8. National Aeronautics and Space Administration, Agency-wide (N1-255-01-2, 3 items, 2 temporary items). Project-level records that support the certification of flight readiness and flight readiness reviews. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of programmatic records for the certification of flight readiness and flight readiness reviews for manned space flight programs and projects.
9. National Aeronautics and Space Administration, Agency-wide (N1-255-01-3, 5 items, 5 temporary items). Forms that document the shipment of equipment to and from agency installations by commercial shippers or contractors. Also included are electronic copies of records created using electronic mail and word processing.
10. National Aeronautics and Space Administration, Office of Public Affairs (N1-255-03-01, 1 item, 1 temporary item). Water-damaged materials from the agency's headquarters still photograph reference collection that could not be recovered, including captions, transparencies, negatives, and hardcopy prints and slides.
11. National Commission on Library and Information Science, Library Statistics Program (N1-220-02-29, 3 items, 2 temporary items). Electronic copies of records created using electronic mail and word processing that relate to forums sponsored by the agency and the National Center for Education Statistics. Recordkeeping copies of these files are proposed for permanent retention.
12. Office of Navajo and Hopi Indian Relocation, Relocation Operations Division (N1-220-02-20, 1 item, 1 temporary item). A slide presentation stored in two projector cartridges for which there is no accompanying script nor are the slides annotated.
13. Office of Navajo and Hopi Indian Relocation, Executive Direction Division (N1-220-02-21, 2 items, 1 temporary item). Sound recordings of public hearings and meetings conducted by the agency during calendar years 1979 to 1983 from which no information is retrievable. Proposed for permanent retention are sound recordings of public hearings and meetings conducted by the agency during these years from which information is retrievable.
14. Overseas Private Investment Corporation, Human Resources Department (N1-420-03-1, 3 items, 3 temporary items). Forms and other records completed by separating employees. Included are electronic copies of records created using electronic mail and word processing.
15. Peace Corps, Office of the Inspector General (N1-490-02-4, 11 items, 8 temporary items). Records relating to inspections and evaluations, investigations, and audits. Also included are electronic copies of records created using word processing and electronic mail. Proposed for permanent retention are recordkeeping copies of selected audit files, reports to Congress, and country evaluation reports.
16. Tennessee Valley Authority, Education, Training and Diversity (N1-142-02-1, 10 items, 9 temporary items). Correspondence files, training manuals, and course materials. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are electronic versions of correspondence files created by the Senior Vice President for Education, Training, and Diversity.
Upon written request, copies available from: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549.
Extension: Rule 34b-1; File No. 270-305; OMB Control No. 3235-0346.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
•
Rule 34b-1 under the Investment Company Act (17 CFR 270.34b-1) governs sales material that accompanies or follows the delivery of a statutory prospectus (“sales literature”). Rule 34b-1 deems to be materially misleading any investment company sales literature, required to be filed with the Commission by section 24(b) of the Investment Company Act (15 U.S.C. 80a-24(b)),
Requiring the inclusion of such standardized performance data in sales literature is designed to prevent misleading performance claims by funds and to enable investors to make meaningful comparisons among fund performance claims.
The Commission estimates that respondents file approximately 37,000 responses with the Commission, which include the information required by rule 34b-1. The burden from rule 34b-1 requires slightly more than 2.4 hours per response resulting from creating the information required under rule 34b-1.
The collection of information under rule 34b-1 is mandatory. The information provided under rule 34b-1 is not kept confidential. The Commission 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.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proposed performance of the functions of the agency, including whether information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the quality, utility and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Direct your written comments to Kenneth A. Fogash, Acting Associate Executive Director/CIO, Office of Information Technology, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549.
Securities and Exchange Commission (“SEC” or “Commission”).
Notice of application under sections 6(c) and 17(b) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 17(a) of the Act and under section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions.
Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, Barclays Global Investors, N.A., 45 Fremont Street, San Francisco, CA 94105.
Bruce R. MacNeil, Senior Counsel, at (202) 942-0634, or Mary Kay Frech, Branch Chief, at (202) 942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application is available for a fee at the SEC's Public Reference Branch, 450 5th Street, NW., Washington, DC 20549 (telephone (202) 942-8090).
1. The Trusts are registered under the Act as open-end management investment companies and are either a Maryland corporation or a Delaware statutory trust. Each Trust consists of multiple series (the Trusts and their series, the “Funds”). BGFA, an investment adviser registered under the
2. Applicants request that the order also apply to any registered management investment company and series thereof that currently is or in the future may be advised or sub-advised by BGFA, or any successor in interest (included in the term “Funds”),
3. Each Fund is, or will be, authorized to lend its portfolio securities. The Funds seek to participate from time to time as lenders in a securities lending program administered by BGI (the “Program”).
4. Pursuant to the Loan Agreements, BGI will deliver portfolio securities to the Borrowers, who have been approved by a Fund, in exchange for cash collateral or other types of collateral, such as U.S. government securities. Cash collateral will be delivered in connection with most loans. BGI will invest the cash collateral on behalf of the Fund in accordance with specific parameters established by the Fund. These guidelines include the permissible investment of the cash collateral, as well as a list of eligible types of investments.
5. With respect to loans that are collateralized by cash, the Borrower will be entitled to receive a fee based on the amount of cash collateral. The Fund is compensated on the spread between the net amount earned on the investment of cash collateral and the Borrower's fee. In the case of collateral other than cash, the Fund will receive a loan fee paid by the Borrower equal to a percentage of the market value of the loaned securities as specified in the Loan Agreement. BGI may invest the cash collateral in certain short-term instruments through one or more joint accounts which will operate in reliance on the no-action letter issued to
6. Applicants request an order to permit (a) the Funds to pay BGI, and BGI as lending agent to accept, fees based on a share of the proceeds derived from the Program, and (b) the Funds to lend portfolio securities to Affiliated Broker-Dealers.
1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit any affiliated person of or principal underwriter for a registered investment company or any affiliated person of such person or principal underwriter, acting as principal, from effecting any transaction in connection with any joint enterprise or other joint arrangement or profit sharing plan, in which the investment company participates unless the Commission has approved the transaction. Section 2(a)(3) of the Act defines an affiliated person of another person to include any person directly or indirectly controlling, controlled by, or under common control with, the other person. Because BGI is the parent company of BGFA, an investment adviser for each Fund, BGI is an affiliated person of an affiliated person (or second-tier affiliate) of the Funds. Applicants state that a fee arrangement between a lending agent and a lending registered investment company, under which compensation is based on a percentage of the revenue generated by the securities lending transactions, may be a joint enterprise or other joint arrangement or profit sharing plan within the meaning of section 17(d) and rule 17d-1. Accordingly, applicants request an order under section 17(d) of the Act and rule 17d-1 under the Act to permit each Fund to pay, and BGI to accept, fees that are based on a share of the proceeds derived by the lending Funds in connection with the Program.
2. In determining whether to approve a joint transaction, the Commission is to consider whether the proposed transaction is consistent with the provisions, policies, and purposes of the Act, and the extent to which the participation of the investment companies is on a basis different from or less advantageous than that of the other participants.
3. Applicants propose that each Fund adopt the following procedures to ensure that the proposed fee arrangement and the other terms governing the relationship with BGI, as lending agent, will meet the standards of rule 17d-1:
a. In connection with the approval of BGI as lending agent for a Fund and implementation of the proposed fee arrangement, a majority of the board of directors or trustees (the “Board”), including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (the “Disinterested Members”), of the Fund will determine that (i) the contract with BGI is in the best interest of the Fund and its shareholders; (ii) the services performed by BGI are required for the Fund; (iii) the nature and quality of the services provided by BGI are at least equal to those provided by others offering the same or similar services; and (iv) the fees for BGI's services are fair and reasonable in light of the usual and customary charges imposed by others for services of the same nature and quality.
b. Each Fund's Lending Agreement with BGI will be reviewed at least annually and will be approved for continuation only if a majority of the Board (including a majority of the Disinterested Members) makes the findings referred to in paragraph (a) above.
c. In connection with the initial implementation of the proposed fee arrangement whereby BGI will be compensated as lending agent based on a percentage of the revenue generated by a Fund's participation in the Program, the Board will obtain competing quotes with respect to lending agent fees from at least three independent lending agents to assist the Board in making the findings referred to in paragraph (a) above.
d. The Board, including a majority of the Disinterested Members, will (i) determine at each regular quarterly
e. Each Fund will (i) maintain and preserve permanently in an easily accessible place a written copy of the procedures and conditions (and modifications thereto) described in the application and (ii) maintain and preserve for a period not less than six years from the end of the fiscal year in which any loan transaction pursuant to the Program occurred, the first two years in an easily accessible place, a written record of each loan transaction setting forth a description of the security loaned, the identity of the person on the other side of the loan transaction, the terms of the loan transaction, and the information or materials upon which it was determined that each loan was made in accordance with the procedures set forth above and the conditions to the application.
4. Applicants state that, under the terms of a Lending Agreement, BGI or an affiliate may indemnify a Fund against losses incurred by the Fund resulting from a default by one or more Borrowers that participate in the Program. Applicants request an order under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) and under section 17(d) of the Act and rule 17d-1 under the Act to permit the Funds to purchase the right to indemnification by BGI or an affiliate in instances of Borrower default, and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) to permit a Fund to accept an indemnification payment from BGI or an affiliate in exchange for the Fund's right to proceed against the defaulting Borrower (“Indemnification”).
5. Sections 17(a)(1) and (2) of the Act make it unlawful for an affiliated person of a registered investment company or an affiliated person of that person, acting as principal, to knowingly sell or purchase any security or other property to or from the company. As noted above, section 17(d) and rule 17d-1 generally prohibit joint transactions involving registered investment companies and certain of their affiliates unless the Commission has approved the transaction. Applicants state that Indemnification is an increasingly common term provided by non-affiliated securities lending agents to investment companies. Applicants state that Indemnification, if any, will be part of the Lending Agreement between BGI and a Fund and no separate fee will be charged for the Indemnification without obtaining further exemptive relief from the Commission. Applicants state that the Indemnification right will not be applied differently based on the identity of a Borrower. Furthermore, applicants state that a Fund's Board will be asked to review any Indemnification settlements made by the Fund at each quarterly Board meeting. A Fund will not accept any amount less than the full amount of the loss under an Indemnification settlement without obtaining an exemptive order from the Commission.
1. Section 17(a)(3) of the Act makes it unlawful for any affiliated person of or principal underwriter for a registered investment company or an affiliated person of such person, acting as principal, to borrow money or other property from the registered investment company. Applicants state that because the Affiliated Broker-Dealers may be deemed to be controlled by or under common control with BGI and under common control with BGFA, the Affiliated Broker-Dealers may be deemed to be affiliated persons of BGI and/or BGFA, and also second-tier affiliated persons of the Funds. Accordingly, section 17(a)(3) would prohibit the Affiliated Broker-Dealers from borrowing portfolio securities from the Funds.
2. As noted above, section 17(d) and rule 17d-1 generally prohibit joint transactions involving registered investment companies and certain of their affiliates unless the Commission has approved the transaction. Applicants request relief under sections 6(c) and 17(b) of the Act exempting them from section 17(a)(3) of the Act, and under section 17(d) of the Act and rule 17d-1 under the Act to permit the Funds to lend portfolio securities to Affiliated Broker-Dealers. Applicants state that the Funds seek to diversify the Borrowers to whom they lend in order to ensure the stability and efficiency of the Program. Applicants submit that because only a few Borrowers may seek to borrow a particular security at a given time, a prohibition on lending to Affiliated Broker-Dealers could disadvantage a Fund.
3. Applicants state that each loan to an Affiliated Broker-Dealer by a Fund will be made with a spread that is no lower than that applied to comparable loans to unaffiliated Borrowers.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. The Program will comply with all present and future applicable guidelines of the Commission and staff regarding securities lending arrangements.
2. The approval of a Fund's Board, including a majority of Board members who are Disinterested Members, shall be required for the initial and subsequent approvals of BGI's service as lending agent for the Fund pursuant to the Program, and for any periodic review of loan transactions for which BGI acted as lending agent pursuant to the Program.
1. The Funds on an aggregate basis (by each “group of investment companies,” as defined in section 12(d)(1)(G) of the Act) will make at least 50% of their portfolio securities loans to unaffiliated Borrowers.
2. The total value of securities loaned to any one Borrower on the approved list will be in accordance with a schedule to be approved by the Fund's Board, but in no event will the total value of securities lent to any one Affiliated Broker-Dealer exceed 10% of the net assets of the Fund, computed at market value.
3. A Fund will not make any loan to an Affiliated Broker-Dealer unless the income attributable to such loan fully covers the transaction costs incurred in making such loan.
4. a. All loans will be made with spreads no lower than those set forth in a schedule of spreads which will be established and may be modified from
b. The Schedule of Spreads will set forth rates of compensation to each Fund that are reasonable and fair and that are determined in light of those considerations set forth in the application.
c. The Schedule of Spreads will be uniformly applied to all Borrowers of a Fund's securities, and will specify the lowest allowable spread with respect to a loan of securities to any Borrower.
d. If a security is loaned to an unaffiliated Borrower with a spread higher than the minimum set forth in the Schedule of Spreads, all comparable loans to an Affiliated Broker-Dealer will be made at no less than the higher spread.
e. The Program will be monitored on a daily basis by an officer of the Fund who is subject to section 36(a) of the Act. This officer will review the terms of each loan to an Affiliated Broker-Dealer for comparability with loans to unaffiliated Borrowers and conformity with the Schedule of Spreads, and will periodically, and at least quarterly, report his or her findings to each Fund's Board, including a majority of the Disinterested Members.
5. Each Fund's Board, including a majority of the Disinterested Members, (a) will determine no less frequently than quarterly that all transactions with Affiliated Broker-Dealers effected during the preceding quarter were effected in compliance with the requirements of the procedures adopted by the Board and the conditions of the requested order and that such transactions were conducted on terms which were reasonable and fair; and (b) will review no less frequently than annually such procedures for their continuing appropriateness.
6. The Funds will maintain and preserve permanently in an easily accessible place a written copy of the procedures (and any modifications thereto) which are followed in lending securities and shall maintain and preserve for a period of not less than six years from the end of the fiscal year in which any loan occurs, the first two years in an easily accessible place, a written record of each loan setting forth the number of shares loaned, the face amount of the securities loaned, the fee received (or the rebate rate remitted), the identity of the Borrower, the terms of the loan and any other information or materials upon which the finding was made that each loan made to an Affiliated Broker-Dealer was fair and reasonable and that the procedures followed in making such loan were in accordance with the other undertakings set forth in the application.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 17(b) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 17(a) of the Act.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609; Applicants, c/o CIBC World Market Corp., 622 Third Avenue, 8th Floor, New York, NY 10017.
John L. Sullivan, Senior Counsel, at (202) 942-0681, or Annette Capretta, Branch Chief, at (202) 942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (telephone (202) 942-8090).
1. Stratigos, a Delaware limited liability company, is registered under the Act as a closed-end management investment company. Balius, a Delaware limited liability company, is not registered under the Act in reliance on section 3(c)(7) of the Act. Limited liability company interests (“Interests”) in Stratigos and Balius are not registered under the Securities Act of 1933, as amended (the “1933 Act”), and are sold to investors (“Members”) in a private placement in reliance upon section 4(2) of the 1933 Act and Regulation D under the 1933 Act.
2. The Adviser, a Delaware corporation, serves as (a) Stratigos' investment adviser and (b) the managing member of Balius and, in that capacity, has overall responsibility for the management, operation and administration of Balius, including Balius' investment activities. The Adviser is registered as an investment adviser under the Investment Advisers Act of 1940. As of July 31, 2002, the Adviser owned an Interest in Stratigos with a net asset value of $52,452.31 (which represented 0.74% of the value of the outstanding Interests in Stratigos as of such date). As of July 31, 2002, Canadian Imperial Holdings, Inc. (“CIHI”), an affiliated person of the Adviser, owned an Interest in Balius with a net asset value of $67,459.64 (which represented 0.81% of the value of the outstanding Interests in Balius as of such date).
3. Applicants propose that, pursuant to an agreement and plan of acquisition (“Acquisition Agreement”), Balius will transfer to Stratigos substantially all of its assets, which will consist of cash and the portfolio securities of Balius that (a) are permissible investments under the investment policies and restrictions of Stratigos, as set forth in its offering memorandum (“Offering Memorandum”) and its limited liability company agreement (“Company Agreement”), and (b) have readily available market quotations (the “Assets”), in exchange for Interests of Stratigos (the “Exchange”). All of
4. On August 1, 2002, the board of managers of Stratigos (the “Board”), including a majority of the members who are not “interested persons,” as defined in section 2(a)(19) of the Act (“Independent Managers”), approved the Acquisition Agreement. In approving the Acquisition Agreement, the Board concluded that: (a) The Exchange is consistent with the policies of Stratigos, as recited in its registration statement, (b) the terms of the Exchange, including the consideration to be received by Stratigos, are reasonable and fair and do not involve overreaching on the part of any concerned, (c) participation by Stratigos in the Exchange is in the best interests of Stratigos and its Members and the Interests of existing Members of Stratigos will not be diluted as a result of the Exchange, and (d) the Exchange is consistent with the general purposes of the Act. These findings, and the basis upon which they were made, are recorded in the minute books of Stratigos.
5. With respect to Balius, the Adviser (as Balius' managing member) believes that the Exchange is in the best interests of Balius and the Members of Balius. The Exchange is required to be approved by Members of Balius that represent more than 50% of the aggregate value of the outstanding Interests of Balius.
6. The Exchange will not be effected until: (a) The Commission has issued the requested order; and (b) Stratigos and Balius have received an opinion of counsel substantially to the effect that the Exchange will not result in taxable income to Balius, Stratigos or their respective Members.
1. Section 17(a)(1) of the Act prohibits any affiliated person of a registered investment company, or any affiliated person of that person, acting as principal, from selling to the registered investment company any security or other property. Section 2(a)(3) of the Act defines an “affiliated person” as, among other things, any person controlling, controlled by, or under common control with, the other person; and, if the other person is an investment company, its investment adviser. Section 2(a)(9) of the Act, in relevant part, defines “control” as “the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official positions with such company.”
2. Applicants state that Balius could be deemed to be an affiliated person of Stratigos because Balius and Stratigos might be deemed to be under the common control of the Adviser. Thus, applicants state that the proposed Exchange may be prohibited under section 17(a) of the Act.
3. Rule 17a-7 exempts certain purchase and sale transactions otherwise prohibited by section 17(a) of the Act if an affiliation exists solely by reason of having a common investment adviser, common directors, and/or common officers, provided, among other requirements, that the transaction is for no consideration other than cash. Applicants state that the relief provided by rule 17a-7 may not be available for the Exchange because the Exchange will involve consideration other than cash (
4. Rule 17a-8 exempts certain transactions (including mergers, consolidations or purchases or sales of substantially all of the assets of a company (collectively, “Asset Acquisitions”)) otherwise prohibited by section 17(a) of the Act, provided, among other requirements, that the Asset Acquisition is between registered investment companies or between a registered investment company and an eligible investment fund (as defined in the rule) (“Eligible Unregistered Fund”). Applicants state that the relief provided by rule 17a-8 may not be available for the Exchange because the Exchange will involve Balius, which is not a registered investment company nor an Eligible Unregistered Fund.
5. Section 17(b) of the Act authorizes the Commission to exempt a transaction from the provisions of section 17(a) of the Act if the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned and the proposed transaction is consistent with the policy of each registered investment company concerned and the general purposes of the Act.
6. Applicants submit that the terms of the Exchange meet the criteria contained in section 17(b) of the Act. Applicants state that the Interests issued by Stratigos will have an aggregate net asset value equal to the aggregate net asset value of the assets acquired from Balius. Because the Valuation Procedures will be those used by Stratigos to value its portfolio securities, the Interests of existing Members of Stratigos will not be diluted as a result of the Exchange. Applicants also state that the investment objective and policies of Balius are substantially similar to those of Stratigos. Applicants further state that the Board, including a majority of the Independent Managers, has approved the Acquisition
Applicants agree that any order granting the requested relief will be subject to the following condition: The Exchange will comply with the terms of paragraph (b) of Rule 17a-7, except as described in the application, paragraphs (c), (d), (e), (f) and (g) of Rule 17a-7 and the provisions of Rule 17a-8 (as these provisions apply to a merger of an Eligible Unregistered Fund with a registered investment company).
For the Commission, by the Division of Investment Management, under delegated authority.
67 FR 71599, December 2, 2002.
Closed Meeting.
450 Fifth Street, NW., Washington, DC.
Additional Meeting.
The Securities and Exchange Commission held an additional Closed Meeting on December 3, 2002 at 2:30 p.m. The subject matter of that meeting was a regulatory matter bearing enforcement implications.
Commissioner Glassman, as duty officer, determined that no earlier notice thereof was possible.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 942-7070.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meetings during the week of December 9, 2002:
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(5), (7), (9)(B) and (10) and 17 CFR 200.402(a)(5), (7), (9)(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
The subject matter of the Closed Meeting scheduled for Tuesday, December 10, 2002 will be:
The subject matter of the Open Meeting scheduled for Wednesday, December 11, 2002 will be:
1. The Commission will consider whether to adopt the repeal of Rule 11Ac1-7 under the Securities Exchange Act of 1934. Rule 11Ac1-7 requires a broker-dealer to disclose to its customer when the customer's order for listed options is executed at a price inferior to a better published quote, and to disclose the better published quote available at that time, unless the broker-dealer effects the transaction on an exchange that participates in an approved linkage plan.
2. The Commission will consider whether to propose amendments to Forms N-1A, N-2, N-3, proposed Form N-CSR, and Articles 6 and 12 of Regulation S-X as well as new rule 30b1-4 and new Form N-Q under the Investment Company Act. The proposals would (1) require a registered management investment company to file a schedule of its complete portfolio holdings with the Commission on a quarterly basis; (2) permit a registered management investment company to include a summary portfolio schedule in reports to shareholders and exempt money market funds from including a portfolio schedule in reports to shareholders, provided that the complete portfolio schedule is filed with the Commission and available to shareholders upon request; (3) require a registered management investment company to include a tabular or graphic presentation of a fund's portfolio holdings in its reports to shareholders; (4) require a mutual fund to disclose in its reports to shareholders fund expenses borne by shareholders during the reporting period; and (5) require a mutual fund to include Management's Discussion of Fund Performance in its annual report to shareholders.
3. The Commission will consider whether to adopt amendments to rule 203A-2(f) under the Investment Advisers Act of 1940 to exempt certain investment advisers that provide advisory services through the Internet from the prohibition on Commission registration.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 942-7070.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the termination date of the pilot that amends CSE rule 12.6, Customer Priority, by adding new Interpretation .02, which requires a CSE Designated Dealer (“Specialist”) to better the price of a customer limit order that is held by that Specialist if that Specialist determines to trade with an incoming market or marketable limit order.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange rule 12.6
The purpose of the new Interpretation is to prevent a Specialist from taking unfair advantage of customer limit orders held by that Specialist by trading ahead of such orders with incoming market or marketable limit orders. Notwithstanding the fact that a Specialist may price-improve incoming orders by providing prices superior to that of customer limit orders it holds, customers should have a reasonable expectation to have their orders filled at their limit order prices. This expectation should be reflected in reasonable access to incoming contra-side order flow, unless other customers place better-priced limit orders with the Specialist or the Specialist materially improves upon the customer limit order prices (not the customers' quoted prices) it holds.
The Exchange believes that the proposed rule change is consistent with the provisions of section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
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
The Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange,
The Commission finds good cause for approving the proposed rule change on a pilot basis prior to the thirtieth day after the date of publication of notice of filing thereof in the
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”),
DTC proposes to adopt procedures to enable its nominee, Cede & Co., to exercise certain rights as the recordholder of securities on deposit at DTC where Cede & Co. is permitted to act with respect to 100% of the securities on deposit or not act at all under applicable law. (This is known as a “Unitary Action” situation.) When involved in a situation that purports to require a Unitary Action under applicable law, DTC would still attempt to follow the procedures it applies when exercising rights that do not purport to require a Unitary Action.
In its filing with the Commission, DTC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. DTC has prepared summaries set forth in sections A, B, and C below of the most significant aspects of such statements.
Under DTC's current procedures in situations not involving Unitary Actions for solicitations when an issuer has announced an annual or special shareholders meeting or consent solicitation and where a record date has been established, DTC assigns applicable Cede & Co. voting rights or consenting rights to its participants that have securities credited to their accounts on the record date and issues an omnibus proxy and forwards it to the issuer or trustee. DTC also assists its participants in exercising other rights available to Cede & Co. as the recordholder of securities on deposit at DTC. Examples of the rights that participants may exercise through DTC are the right to dissent and seek an appraisal of stock, the right to inspect a stock ledger, and the right to accelerate a bond. Participants may seek DTC's assistance in exercising such rights on their own behalf or on behalf of their customers. DTC will act in these matters only upon written instructions from participants with securities credited in their DTC free accounts.
When involved in a situation that purports to require a Unitary Action under applicable law, DTC would nevertheless attempt to follow the procedures described in the preceding paragraph. If, for example, a foreign bankruptcy court stated that it would accept votes for approval of a plan of bankruptcy from bondholders holding through DTC from Cede & Co. but only in the form of a 100% yes or no vote or not at all, DTC would attempt to assign its voting rights to its participants or otherwise act in accordance with its participants' instructions.
DTC will not be liable for any losses arising from actions it takes or fails to take in connection with Unitary Actions other than those losses that are directly caused by DTC's gross negligence or willful misconduct.
In Unitary Action situations, DTC may incur unusual expenses (
DTC believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to DTC because the proposed rule change will clarify the procedures that DTC will follow in situations calling for Unitary Actions and thereby promote the prompt and accurate clearance and settlement of securities transactions.
DTC does not believe that the proposed rule change will impose any burden on competition.
Written comments from DTC participants have not been solicited or received on the proposed rule change.
Within thirty-five days of the date of publication of this notice in the
(a) By order approve such proposed rule change or
(b) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed 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, 450 Fifth Street, NW., Washington, DC. Copies of such filing will also be available for inspection and copying at DTC's principal office. All submissions should refer to File No. SR-DTC-2002-08 and should be submitted by December 27, 2002.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On October 3, 2002, the International Securities Exchange, Inc. (“ISE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On July 16, 2002, the National Securities Clearing Corporation filed with the Securities and Exchange Commission (“Commission”) and on July 25, 2002, and November 25, 2002, amended a proposed rule change File No. SR-NSCC-2002-05 pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
Under NSCC's current rules, each member, except for a Mutual Fund/Insurance Services Member, is required to maintain a minimum contribution to the clearing fund of $10,000. The first $10,000 of a member's contribution must be in cash, and if all or a part of the member's contribution is collateralized with letters of credit, the greater of $50,000 or ten percent of the member's contribution up to a maximum of $1,000,000 is required to be in cash.
To assure NSCC of more cash to meet any liquidity needs, NSCC is modifying rule 4 (Clearing Fund) and procedure XV (Clearing Fund Formula and Other Matters) of its rules and procedures to require that, except with respect to a Mutual Fund/Insurance Services Member: (1) The first 40%, but no less than $10,000, of a member's required deposit to the clearing fund must be in cash and (2) with respect to the remaining amount, no more than 25% of the required deposit may be collateralized with a letter of credit. Mutual Fund/Insurance Services Members' clearing fund requirements will remain unchanged.
Based on NSCC's current calculations, increasing the percentage of cash that must be deposited to the clearing fund will impact approximately 48 member firms. Reducing the permitted use of letters of credit will affect 21 of the approximately 33 member firms that post letters of credit. NSCC will implement these clearing fund changes no earlier than 30 days after the Commission approves the proposed rule change.
Section 17A(b)(3)(F) of the Act requires that the rules of a clearing agency be designed to assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of section 17A(b)(3)(F) of the Act and the rules and regulations thereunder.
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”),
Nasdaq is filing a proposed rule change to continue operating Nasdaq's application of the Primex Auction System® (“Primex” or “System”) as a Pilot Trading System, pursuant to rule 19b-5 of the Act,
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Primex Auction System is a facility of Nasdaq that has been operating as a Pilot Trading System (“PTS”), as defined in paragraph (c)(2) of rule 19b-5 of the Act.
Nasdaq believes the proposed rule change is consistent with the provisions of sections 15A(b)(6)
Nasdaq believes this proposed rule change is consistent with the NASD's obligations under the Act, as well as the finding of Congress, because it will allow Nasdaq to continue operating Primex while the Commission considers permanent approval. Among other things, the System provides members with an additional electronic, execution system, which is designed to provide members with flexibility in executing orders and the opportunity to obtain price improvement. To ensure the protection of investors, orders will not be executed at prices inferior to the National Best Bid or Offer.
Nasdaq 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, as amended.
Written comments were neither solicited nor received.
The foregoing rule change has become effective upon filing pursuant to section 19(b)(3)(A)(iii) of the Act,
At any time within 60 days of the filing of a rule change 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 NASD. All submissions should refer to File No. SR-NASD-2002-170 and should be submitted by December 27, 2002.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new, and/or currently approved information collection.
Submit comments on or before February 4, 2003.
Send all comments regarding whether these information collections are necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collections, to Cynthia Pitts, Program Analyst, Office of Disaster Assistance, Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington DC 20416
Cynthia Pitts, Program Analyst, (202) 205-7570 or Curtis B. Rich, Management Analyst, (202) 205-7030.
Notice of members of the FY 2002 Performance Review Board.
Section 4314(c)(4) of Title 5, U.S.C. requires each agency to publish notification of the appointment of individuals who may serve as members of that Agency's Performance Review Boards (PRB). The following have been designated to serve on the FY 2002 Performance Review Boards for the U.S. Small Business Administration:
1. John Whitmore, Chief of Staff;
2. Michael Barrera, National Ombudsman;
3. Lloyd Blanchard, Chief Operating Officer;
4. Richard Spence, Assistant Administrator for Congressional and Legislative Affairs;
5. Kaaren Street, Associate Deputy Administrator for Entrepreneurial Development;
6. Monika Edwards Harrison, Assistant Administrator for Human Resources;
7. James Rivera, Associate Administrator for Financial Assistance;
8. Francisco Marrero, District Director, South Florida;
9. Alberto Alvarado, District Director, Los Angeles;
10. Linda Williams, Associate Administrator for Government Contracting;
11. Eric Benderson, Associate General Counsel for Litigation.
Coast Guard, DOT.
Request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Coast Guard intends to seek the approval of OMB for the renewal of two Information Collection Requests (ICRs). The ICRs comprise (1) Application for Measurement of Vessels for Tonnage and (2) Vessel Reporting Requirements. Before submitting the ICRs to OMB, the Coast Guard is inviting comments on them as described below.
Comments must reach the Coast Guard on or before February 4, 2003.
To make sure that your comments and related material do not enter the docket [USCG 2002-13962] more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation (DOT), room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001. Caution: Because of recent delays in the delivery of mail, your comments may reach the Facility more quickly if you choose one of the other means described below.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Facility at 202-493-2251.
(4) Electronically through the Web site for the Docket Management System at
The Facility maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
Copies of the complete ICRs are available through this docket on the Internet at
Barbara Davis, Office of Information Management, 202-267-2326, for questions on this document; or Dorothy Beard, Chief, Documentary Services Division, U.S. Department of Transportation, 202-366-5149, for questions on the docket.
The Coast Guard encourages interested persons to submit comments. Persons submitting comments should include their names and addresses, identify this document [USCG 2002-13962], and give the reasons for the comments. Please submit all comments and attachments in an unbound format no larger than 8
1.
2.
The North County Transit District (NCTD), located in Oceanside, California, has sought a permanent waiver of compliance from certain parts of Title 49 of the Code of Federal Regulations, including Part 210 (Railroad Noise Emission Compliance Regulations), Part 217 (Railroad Operating Rules), Part 218 (Railroad Operating Practices), Part 219 (Control of Alcohol and Drug Use), Part 221 (Rear End Marking Devices), Part 223 (Safety Gazing Standards—Locomotives, Passenger Cars and Cabooses), Part 225 (Railroad Accidents/Incidents—Report Classification, and Investigations), Part 229 (Railroad Locomotive Safety Standards), Part 231 (Railroad Safety Appliance Standards), Part 238 (Passenger Equipment Safety Standards), Part 239 (Passenger Train Emergency Preparedness), and Part 240 (Qualification and Certification of Locomotive Engineers).
NCTD seeks approval of shared track usage and waiver of certain FRA regulations involving planned light rail passenger operations on the same track with freight trains between Oceanside and Escondido, California (Oceanside-Escondido Rail Project). FRA has jurisdiction over the 22-mile portion of the Oceanside-Escondido Rail Project that is also used for freight rail carrier service. The freight operator on the Oceanside-Escondido Rail Project is the Burlington Northern and Santa Fe Railway Company (BNSF), which currently conducts operations over this trackage. NCTD proposes to operate light rail vehicles on the same track as BNSF freight trains using temporal separation under which freight operations and passenger operations will not be conducted during the same part of the day. For further information about freight and passenger shared track usage, see “Statement of Agency Policy Concerning Jurisdiction Over the Safety of Railroad Passenger Operations and Waivers Related to Shared Use of the Tracks of the General Railroad System by Light Rail and Conventional Equipment,” 65 FR 42529 (July 10, 2000). See also “Joint Statement of Agency Policy Concerning Shared Use of the Tracks of the General Railroad System by Conventional Railroads and Light Rail Transit Systems,” 65 FR 42626 (July 10, 2000).
The Federal Railroad Administration (FRA) issued a public notice of the NCTD waiver petition and sought comments from interested parties (67 FR 14768, March 27, 2002). All documents pertaining to this petition are in the public docket, including NCTD's detailed waiver request, and are available for inspection and copying. The documents are also available on the Internet at the docket facility's Web site at
After examining the railroad's proposal and the available facts, FRA has determined that a public hearing is necessary before a final decision is made on this proposal. The purpose of this public hearing is to afford the Railroad Safety Board the opportunity to gather additional information from all interested parties and to explore all available options and concerns before making a final decision on the NCTD petition. FRA will deliberate all of its options, which may include denial, approval, conditional approval, or approval in part and denial in part.
The public hearing is set for 10 a.m. (PST), on Thursday, January 23, 2002, North County Transit District Office, 810 Mission Avenue, Oceanside, California, 92054-2825. Interested parties are invited to present oral statements at the hearing. The hearing will be an informal one and will be conducted in accordance with Rule 25 of the FRA Rules of Practice (49 CFR part 211.25) by a representative designated by the FRA.
The hearing will be a nonadversarial proceeding and will include no cross-examination of persons presenting statements. The FRA representative will make an opening statement outlining the scope of the hearing. After all initial statements have been completed, those persons wishing to make brief rebuttal statements will be given the opportunity to do so in the same order in which they made their initial statements. Additional procedures, if necessary for the conduct of the hearing, will be announced at the hearing.
Notice of availability of Draft Environmental Impact Statement and notice of public meetings.
On August 30, 2001, San Jacinto Rail Limited (SJRL) and the Burlington Northern and Santa Fe Railway (BNSF) (referred to collectively as the Applicants) filed a petition with the Surface Transportation Board (Board) pursuant to 49 U.S.C. 10502 for authority for construction by SJRL and operation by BNSF of a new rail line near Houston, Harris County, Texas. The project, known as the Bayport Loop Build-Out, would involve construction of approximately 12.8 miles of new rail line to serve the petro-chemical industries in the Bayport Industrial District (Bayport Loop). The Proposed Action includes rail operations to and from the new rail line near Ellington Field over trackage rights on Union Pacific Railroad Company's (UP's) GH&H line and UP's East Belt, Terminal, Lafayette, and Baytown Subdivisions to the storage yard operated by CMC Railroad at Dayton, approximately 30 miles east of Houston. The project would require actions by several Federal agencies, including the Board, the U.S. Coast Guard (USCG), and the National Aeronautics and Space Administration (NASA), and may require actions by the Federal Aviation Administration (FAA).
The Board, through its Section of Environmental Analysis (SEA) and in cooperation with USCG, FAA, and NASA, has published a Draft Environmental Impact Statement (Draft EIS) for the Bayport Loop Build-Out Project. This Draft EIS is an analysis of
SEA, working with the three cooperating agencies, will make its final recommendations on the project, including environmentally preferable alternative(s) and environmental mitigation, to the Board in the Final EIS, after considering all public comments on the Draft EIS. The Final EIS will be issued after public comments have been received, reviewed, and fully evaluated. Notice of availability of the Final EIS will be published in the
Following issuance of the Final EIS, the Board will make its final decision regarding this project and any environmental conditions it might impose. In reaching its final decision in this proceeding, the Board will take into account the full environmental record, including the Draft EIS, the Final EIS, and all public and agency comments received. The cooperating agencies will issue their decisions based on the same environmental record.
Ms. Dana White, SEA Project Manager, toll-free at 1-888-229-7857 (TDD for the hearing impaired 1-800-877-8339). The Web site for the Surface Transportation Board is
Mr. Phil Johnson, U.S. Coast Guard, (504) 589-2965.
Ms. Nan Terry, Federal Aviation Administration, (817) 222-5607.
Ms. Perri Fox, National Aeronautics and Space Administration, (281) 483-3157.
The Proposed Action would not cause an adverse effect or incompatible development in a floodplain because the facility would be designed, constructed, and maintained to accommodate flood flows and minimize impacts to floodplains. The proposed design would include properly sized, sited, constructed, and maintained bridges and culverts, and new drainage ditches on both sides of the rail bed along most of the alignment. The floodways along Horsepen Bayou, Armand Bayou, Big Island Slough, and Spring Gully and the main channel of Taylor Bayou would be spanned by bridges. In addition, the design and specifications for bridges, culverts, channels, and related structures would satisfy Harris County Flood Control District requirements. All bridge crossings would accommodate flood flows from the 24-hour, one-percent probability storm and would conform to all applicable design standards required by the National Flood Insurance Program. The design of crossings of flood control channels or connections to drainage channels would require approval from the Engineering Division and the Flood Control Division of the Harris County Public Infrastructure Department.
SEA has also distributed the Draft EIS to the repositories listed below and asked that the entire Draft EIS be made publicly available in their reference section. A Spanish translation of the Executive Summary of the Draft EIS will also be available at the repositories. Copies of the Draft EIS in hardcopy or on CD-ROM and the Executive Summary translation are also available by calling the toll-free number at 1-888-229-7857.
8060 Spencer Highway, Pasadena, TX 77505, (281) 476-1850.
5800 Uvalde Street, Houston, TX 77015, (281) 459-7116.
13735 Beamer Road, Houston, TX 77089, (281) 922-3416.
2700 Bay Area Boulevard, Houston, TX 77058, (281) 283-3930.
16602 Diana Lane, Houston, TX 77062, (281) 488-1906.
2400 N. Meyer Road, Seabrook, TX 77586, (281) 474-9142.
607 Avenue A, South Houston, TX 77587, (713) 941-2385.
4330 Fairmont Parkway, Pasadena, TX 77504, (713) 998-1095.
1201 Jeff Ginn Memorial, Pasadena, TX 77506, (713) 477-0276.
3009 Center Street, Deer Park, TX 77536-7099, (281) 478-7208.
500 McKinney Avenue, Houston, TX 77002, (713) 247-2222.Public Library
8145 Park Place Boulevard, Houston, TX 77017, (832) 393-1970.
110 North Milby Street, Houston, TX 77003, (832) 393-1780.
7200 Keller, Houston, Texas 77012, (832) 393-2480.
10115 Kleckley, Houston, Texas 77075, (832) 393-2580.
702 Kress, Houston, Texas 77020, (832) 393-2100.
611 S/Sgt. Macario Garcia, Houston, Texas 77011, (832) 393-2080.
Geraldine D. Humphreys Cultural Center, 1710 Sam Houston Avenue, Liberty, TX 77575, (936) 336-8091.
Archives & Information Services, FM 1011, Liberty, TX 77575, (936) 336-9921.
307 West Houston, Dayton, TX 77535, (936) 258-7060.
135 Hare Road, Crosby, TX 77532-8895, (281) 328-3535.
15010 FM 2100 Road, Crosby, TX 77532, (281) 328-1111.
220 South Bonham, Cleveland, TX 77327, (281) 592-3920.
4102 Rustic Woods Drive, Kingwood, TX 77345, (281) 360-6804.
20000 Kingwood Drive, Kingwood, TX 77339, (281) 312-1693.
To ensure proper handling of your comments, please mark your submission:
Due to delays in the delivery of mail currently being experienced by Federal agencies in Washington, DC, SEA encourages that comments be faxed to 1-866-293-4979. Faxed comments will be given the same weight as mailed comments; therefore, persons submitting comments by fax do not have to also send comments by mail.
Further information about the project can be obtained by calling SEA's toll-free number at 1-888-229-7857 (TDD for the hearing impaired 1-800-877-8339).
Both meetings will follow the same format and agenda; it is not necessary to attend both meetings.
Persons will be called to speak at each meeting in the order in which they pre-registered. Those wishing to speak who did not pre-register will be accommodated at each meeting as time allows. Those wishing to speak at more than one meeting will also be accommodated as time allows and after all others have had an opportunity to participate. As SEA would like as many persons as possible to participate and given that there will be a limited amount of time at each meeting, all speakers are strongly encouraged to prepare summary oral comments, and submit detailed comments in writing. SEA also encourages groups of individuals with similar comments to designate a representative to speak for them. A translator will be available at both meetings for Spanish-speakers wishing to speak.
The Web site for the Surface Transportation Board is
By the Board, Victoria Rutson, Chief, Section of Environmental Analysis.
Transportation Security Administration (TSA), DOT.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be received on or before February 4, 2003.
Comments may be mailed or delivered to the TSA at the following address: Office of Security, TSA-14, Transportation Security Administration, 400 7th Street, SW., Washington, DC 20590.
Richard Ferris, Office of Security, TSA-14, Transportation Security
In accordance with the Paperwork Reduction Act of 1995, 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. Therefore, the TSA solicits comments on this current collection of information to evaluate the necessity of the collection; the accuracy of the agency's estimate of the burden; the quality, utility, and clarity of the information to be collected; and possible ways to minimize the burden of the collection. These comments are solicited in preparation for submission to renew the clearance of the following information collection:
1.2110-0007, Employment Standards-Parts 107 and 108 of the Federal Aviation Regulations. Section 105 of Public Law 101-604, the Aviation Security Improvement Act of 1990, directed the FAA to prescribe standards for the hiring, continued employment and contracting of air carrier and appropriate airport security personnel. These standards were developed and implemented at 14 CFR parts 107 and 108. The Aviation and Transportation Security Act of 2001, Public Law 107-71, transferred to TSA the responsibility for civil aviation security, including the prescribing of employment standards for the hiring, continued employment and contracting of air carrier and appropriate airport security personnel. In February 2002, TSA implemented regulations at 49 CFR parts 1542 and 1544 prescribing employment standards and the FAA regulations in 14 CFR parts 107 and 108 were repealed. Airport operators will maintain at their principal business office at least one copy of evidence of compliance with training requirement for all employees having unescorted access privileges to security areas. This is a record-keeping burden and the affected public is estimated at 1,300 airport operators and air carrier checkpoints. The estimated annual record-keeping burden is 16,300 hours.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before January 6, 2003 to be assured of consideration.
Department of Veterans Affairs.
Notice of amendment of system of records.
As required by the Privacy Act of 1974, 5 U.S.C. 552a(e), Notice is hereby given that the Department of Veterans Affairs (VA) is adding a new routine use to a VA system of records entitled “Loan Guaranty Home, Condominium and Manufactured Home Loan Applicant Records, Specially Adapted Housing Applicant Records and Vendee Loan Applicant Records-VA” (55VA26). The routine use will clarify the circumstances under which VA will provide individually identified information on veterans having active VA-guaranteed loans. VA will provide this information upon request, to individuals and entities that issue Interest Rate Reduction Refinancing Loans (IRRRL) where the requester has a pending IRRRL application from an individual who has an active VA-guaranteed loan. VA is also updating the Policies and Practices for Storing, Retrieving, Accessing, Retaining and Disposing of Records because VA is initiating a new, web-based application that will allow IRRRL lenders to obtain this information directly from the VA system.
Comments must be received on or before January 6, 2003. If no public comment is received during the 30 day review period allowed for public comment, or unless otherwise published in the
You may mail or hand deliver written comments concerning the proposed new routine use to the
Mr. Robert D. Finneran, Assistant Director for Policy and Valuation (262), Loan Guaranty Service, Veterans Benefits Administration, Department of Veterans Affairs, Washington, DC 20420, (202) 273-7368.
In the course of administering the VA loan guaranty program, VA must provide information to the lenders who make loans to veterans which VA guarantees. In the case of an IRRRL, a lender who is considering making such a loan to a loan applicant would need to know whether the veteran currently has an active VA loan on the books. Data concerning a veteran's use of the loan guaranty benefit is contained in the VA system of records entitled “Loan Guaranty Home, Condominium and Manufactured Home Loan Applicant Records, Specially Adapted Housing Applicant Records and Vendee Loan Applicant Records-VA” (55VA26).
VA has developed a new routine use for 55VA26 to permit VA to disclose individually identified veteran loan guaranty information from that system of records to an active VA lender, lender's agent, mortgage broker, or other program participant, as necessary to originate a VA IRRRL to that veteran.
The proposed routine use will provide Privacy Act authority for VA to disclose this identified information to lenders only for the purpose of originating IRRRLs. Lenders must still comply with any applicable confidentiality requirements before disclosing any information to VA in order to learn whether the loan applicant has a current VA loan. Examples of confidentiality requirements are the rules providing for the protection of non-public personal information published by various Federal entities under 15 U.S.C. 6801-6809. See,
Currently lenders needing information to originate IRRRLs contact a VA facility either by telephone or e-mail. VA personnel then access internal VA records and obtain the requested information. VA personnel then communicate the necessary information to the requesting lenders by telephone or e-mail. Under the new procedure, recognized program participants will be able to use a VA-developed, Internet-based application to retrieve the data directly from VA records without the need of VA personnel. This will allow the lender almost instant access to the information required and eliminate the need for VA personnel to research and reply to the lender. This change is being made for reasons of improved efficiency. Of the approximately 15,000 VA-approved lenders, about 5,000 make VA-guaranteed home loans in a given year and could potentially need to request information from VA to originate a refinancing loan.
VA takes very seriously its responsibility to securely maintain the privacy data maintained on veterans in VA systems of records and does not intend to release any information under this routine use that is not necessary to the processing of a particular transaction. Releases of information pursuant to this use will be limited to the case of a veteran applying for an IRRRL. The information provided will be limited to the VA loan number, veteran's name, entitlement code, original loan amount, guaranty amount, and status of the loan (
In order to obtain information from the VA system, the party requesting the information must establish the fact that it is a participant in the VA home loan program, through the use of the VA lender identification number assigned by VA Loan Guaranty Service to that party. The requester will log on to the application through the Internet using the requester's 10-digit VA lender ID and a password unique to the requester. Lending entities are required to keep the assigned passwords confidential in accordance with established VBA procedures, and to promptly report any compromise of their assigned passwords. The requester must also provide the veteran's name and social security number and such other information as may be necessary to identify the record or records in question.
As a precaution, to ensure that the information is in fact being requested on behalf of the veteran to whom the record pertains, and in order to process a pending transaction with, or application of, a VA beneficiary, rather than for commercial solicitation purposes, the lender will have to supply either the 12-digit VA loan number or the month and year of the loan being refinanced. IRRRL lenders currently provide this information either orally or by e-mail when requesting information under the current system described above.
VA is amending the Safeguards portion of the Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of the Records in the System by adding a paragraph at the end of that portion to reflect the safeguards applicable to lender IRRRL access to the VA system.
VA has determined that release of information under the circumstances described above is a necessary and proper use of information in this system of records and that the specific routine use proposed for the transfer of this information is appropriate.
An altered system of records report and a copy of the revised system notice have been sent to the House of Representatives Committee on Government Reform and Oversight, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) as required by 5 U.S.C. 552a(r) and guidelines issued by OMB (59 FR 37906, 37916-18, July 25, 1994.)
The proposed routine use will be added to the system of records entitled “Loan Guaranty Home, Condominium and Manufactured Home Loan Applicant Records, Specially Adapted Housing Applicant Records, and Vendee Loan Applicant Records—VA” (55VA26) as published at 40 FR 38095, August 26, 1975, and amended at 48 FR 49961, October 28, 1983; 51 FR 24781, July 8, 1986; 51 FR 28289, August 6, 1986; 52 FR 721, January 8, 1987; 53 FR 49818, December 9, 1988; 56 FR 2064, January 18, 1991; 56 FR 15666, April 17, 1991; 58 FR 50629, September 28, 1993 and 62 FR 35545 (July 1, 1997).
The system of records identified as “Loan Guaranty Home, Condominium and Manufactured Home Loan Applicant Records, Specially Adapted Housing Applicant Records and Vendee Loan Applicant Records—VA” (55VA26), published at 40 FR 38095, August 26, 1975 and amended at 48 FR 49961, October 28, 1983; 51 FR 24781, July 8, 1986; 51 FR 28289, August 6, 1986; 52 FR 721, January 8, 1987; 53 FR 49818, December 9, 1988; 56 FR 2064, January 18, 1991; 56 FR 15666, April 17, 1991; 58 FR 50629, September 28, 1993; and 62 FR 35545 (July 1, 1997), is
Loan Guaranty Home, Condominium and Manufactured Home Loan Applicant Records, Specially Adapted Housing Applicant Records, and Vendee Loan Applicant Records—VA.
34. Any information in this system may be disclosed to an active VA lender, lender's agent, mortgage broker, or other program participant in response to a request from that individual or entity if that information is necessary in connection with the origination of a VA-guaranteed Interest Rate Reduction Refinancing Loan (IRRRL). In order to obtain information under this routine use, the party requesting the information must establish the fact that it is a participant in the VA home loan program through the use of a VA lender identification number. The requester must also provide the veteran's name and social security number and the month and year of the loan being refinanced or the 12-digit VA loan number.
A VA-approved, active VA lender, lender's agent, mortgage broker, or other program participant may obtain access to the computerized VA system maintaining this system of records for the purpose of learning whether an applicant for a VA-guaranteed IRRRL has a current VA-guaranteed loan under the following circumstances. The lender must log on to the system using the unique 10-digit lender identification number assigned by VA and a unique password. The lender also must enter information identifying the specific veteran for whom the IRRRL lender seeks information, including the veteran's name, social security number and other identifying information, such as the 12-digit loan number for the veteran's current VA-guaranteed loan or the month and year of the loan.
In notice document 02-29915 beginning on page 70578 in the issue of Monday, November 25, 2002, make the following correction:
On page 70578, in the third column, under the
In notice document 02-30569 appearing on page 71942 in the issue of Tuesday, December 3, 2002, make the following correction:
On page 71942, in the third column, under the heading
In rule document 02-23801 beginning on page 68242 in the issue of Friday, November 8, 2002, make the following correction:
1. On page 68415, in § 1065.210, in Table 1, in the third column, the heading “Value
2. On page 68416, in § 1065.210, in Table 1, in the third column, the heading “Value
3. On the same page, in the same section, in Table 2, in the third column, the heading “Value
Federal Aviation Administration (FAA), DOT.
Interim final rule; request for comments.
This final rule requires airplanes operated under title 14, Code of Federal Regulations (14 CFR) part 121, U.S.-registered multiengine airplanes operated under 14 CFR part 129, and multiengine airplanes used in scheduled operations under 14 CFR part 135 to undergo inspections and records reviews by the Administrator or a designated representative after their 14th year in service and at specified intervals thereafter. These inspections and records reviews will ensure that the maintenance of these airplanes' age-sensitive parts and components has been adequate and timely.
The final rule also prohibits operation of these airplanes after specified deadlines unless damage-tolerance-based inspections and procedures are included in their maintenance or inspection programs. Operators of airplanes initially certificated with nine or fewer passenger seats, however, may incorporate service-history-based inspections instead of damage-tolerance-based inspections and procedures in those airplanes' maintenance or inspection programs. This final rule does not apply to airplanes operated between any point within the State of Alaska and any other point within the State of Alaska.
This rule represents a critical step toward compliance with the Aging Aircraft Safety Act of 1991 and helps to ensure the continuing airworthiness of aging airplanes operating in scheduled service.
This interim final rule is effective December 8, 2003. Comments must be received on or before February 4, 2003.
Address your comments to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-1999-5401 at the beginning of your comments, and you should submit two copies of your comments. If you wish to receive confirmation that FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to
Comments that you may consider to be of a sensitive security nature should not be sent to the docket management system. Send those comments to the FAA, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591.
Frederick Sobeck, Airplane Maintenance Division, AFS-304, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7355; facsimile (202) 267-5115.
This interim final rule is based on comments received on notice no. 99-02 entitled “Aging Airplane Safety. “ The final rule is significantly different from the proposed action due largely in response to the comments received. In some instances, the FAA agreed in total or in part with many comments. In other instances, we did not agree with the commenters' suggestions citing the need and providing further justification and rationale for certain requirements, as proposed.
The FAA believes it has developed a rule that fulfills its regulatory responsibility to meet the requirements of the Aging Aircraft Safety Act, and considers the impact on those affected and the recommendations and alternatives received in response to comments received. However, the FAA continually seeks to find ways to implement its rules at lower cost without compromising safety. To this end, we solicit comments from interested parties on how implementation costs for this rule could be further reduced. Substantive comments should be accompanied by cost estimates to the extent possible. Any recommendations for alternatives to the final rule adopted here should demonstrate that the alternative would provide a level of safety equivalent to this rule.
In particular, the FAA invites commenters to focus on alternatives posed by the Air Transport Association. For example, the ATA suggested that the proposal be framed as an Airworthiness Directive. As explained herein, the FAA does not agree that ADs should be used to implement the new requirements. Airworthiness Directives are used to address unsafe conditions that have already been identified. This rule is to ensure the continuing structural airworthiness of aircraft as they continue in service.
Further, the ATA believes the requirements of this rule exceed the requirements of the Aging Aircraft Safety Act (AASA) by requiring an unsegmented simultaneous review of each affected airplane and its records. The FAA has revised the inspection requirements to enable operators who have segmented maintenance programs, for example, to work with their principal maintenance inspector to agree on which inspection examines the largest portion of the airplane. The operator can make the airplane available to the FAA during that inspection to ensure the inspection and records review is complied with in a comprehensive, efficient, and cost effective manner.
However, an operator who uses segmented maintenance programs may still be required under the rule adopted here to open and make available for inspection additional areas of the airplane to fulfill the requirements of the AASA. As explained in this preamble, we believe that opening additional areas may be necessary to ensure adequate inspections. However, we are sensitive to the additional cost that operators may incur when opening the aircraft more than originally planned. Therefore, commenters are invited to revisit this issue. If an inspection regime can be developed that would provide an equivalent level of safety by limiting the amount of the aircraft opened at any one time, the FAA will consider revising the rule.
The FAA appreciates the significant contributions industry and the public has played in developing this significant and controversial rulemaking action. The comments have helped considerably to ensure the continuing airworthiness of aging airplanes.
The FAA has summarized in the preamble the comments received on the notice of proposed rulemaking along with the FAA's decision on each comment. Individual comments can be viewed in the docket (FAA-1999-5401)
You can get an electronic copy using the Internet by taking the following steps:
(1) Go to the search function of the Department of Transportation (DOT)'s electronic Docket Management System (DMS) Web page
(2) On the search page, type in the last four digits of the docket number shown at the beginning of this notice. Click on “search.”
(3) On the next page, which contains the docket summary information for the docket you selected, click on the document number for the item you wish to view.
You can also get an electronic copy using the Internet through the FAA's Web page at
You can also get a copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under
In October 1991, Congress enacted title IV of Public Law 102-143, the “Aging Aircraft Safety Act of 1991” (AASA), (subsequently codified as section 44717 of title 49, United States Code (49 U.S.C.)) to address aging aircraft concerns that arose from an accident involving a Boeing 737 in April 1988. That airplane experienced explosive decompression as a result of structural failure, after being subjected to a high number of pressurization cycles. Section 402 of the AASA instructed the Administrator to “initiate a rulemaking proceeding for the purpose of issuing a rule to assure the continuing airworthiness of aging aircraft.” Section 402 also required “the Administrator to make such inspections and conduct such reviews of maintenance and other records of each aircraft used by an air carrier to provide air transportation as may be necessary to determine that such is in a safe condition and is properly maintained for operation in air transportation.”
The AASA specified that these inspections and records reviews should be carried out “as part of each heavy maintenance check (HMC) of the aircraft conducted on or after the 14th year in which the aircraft has been in service.” The statute also specified that an air carrier must be able to demonstrate as part of the inspection “that maintenance of the aircraft's structure, skin, and other age-sensitive parts and components have been adequate and timely enough to ensure the highest degree of safety.”
The AASA further instructed the Administrator to issue a rule requiring that an air carrier make its aircraft available for inspection as may be necessary to comply with the rule.
The FAA's efforts to address the safety of older airplanes is known collectively as the “Aging Airplane Program.” That program addresses transport category airplanes, commuter category airplanes, engines, maintenance, and research. Through the program, the FAA determined that the Airbus A300; Boeing 707, 720, 727, 737, and 747; British Aerospace (BAe) BAC 1-11; Fokker F-28; Lockheed L-1011; and McDonnell Douglas DC-8, DC-9/MD-80, and DC-10 airplanes were approaching design-life goals established by each airplane's type certificate holder. To permit the continued safe operation of these airplanes the FAA adopted a policy of mandated structural modifications and inspections through a series of airworthiness directives (ADs) that address specific design deficiencies that could lead to airplane structural damage.
Type certificate holders also established recommended Corrosion Prevention and Control Programs (CPCPs) for a number of aging transport category airplanes. Corrosion can progressively degrade an airplane's strength until its structure can no longer sustain its designed load. These CPCPs serve as a supplement to existing maintenance requirements.
Additionally, the FAA (1) evaluated methodologies to assess airplane structural repairs, (2) revised Supplemental Structural Inspection Documents (SSIDs), and (3) evaluated the revised Structural Maintenance Program General Guidelines Document, for older airplanes.
On April 2, 1999, the FAA issued a notice of proposed rulemaking (NPRM) entitled “Aging Airplane Safety” (64 FR 16298, notice No. 99-02). The comment period for notice No. 99-02 closed on August 2, 1999; however, the FAA reopened the comment period (64 FR 45090) and that comment period closed on October 18, 1999. The FAA issued this NPRM primarily to expand the use of damage-tolerance-based supplemental structural inspection programs (SSIPs) to a larger proportion of the airplanes used in air transportation and mandate the inspections and records reviews required by the AASA.
Based on the comments received to that NPRM and the related proposed advisory circulars simultaneously made available for comment, the FAA decided not to publish Advisory Circular (AC) 91-MA, “Continued Airworthiness of Older Small Transport and Commuter Airplanes; Establishment of Damage-Tolerance-Based Inspections and Procedures. However, draft AC 120-XX “Aging Airplanes Records Reviews and Inspections,” now retitled “Aging Airplane Inspections and Records Reviews” and revised to reflect the final rule, is being made available for additional comment. This revised draft AC will provide guidance pertaining to aging airplane inspections and records reviews to be accomplished to satisfy the requirements of the final rule “Aging Airplane Safety”. The FAA has issued concurrently with this final rule a notice of availability for draft AC 120-XX seeking substantive comments.
Additionally, the FAA considers that draft AC 91-56B, “Continuing Structural Integrity Program for Airplanes,” and draft AC 91-60A, “The Continued Airworthiness of Older Airplanes,” are appropriate to the requirements of this final rule. The FAA therefore also has issued concurrently with this final rule notices of availability for proposed AC 91-56B and AC 91-60A. The public will be
The FAA revised AC 91-56A, “Continuing Structural Integrity Program for Large Transport Category Airplanes,” to AC 91-56B, “Continuing Structural Integrity Program for Airplanes.” This revised AC will provide guidance for operators of the airplanes affected by this final rule on how to incorporate an FAA-approved Aging Aircraft Program into their FAA-approved maintenance or inspection program.
Traditionally, AC 91-56 and AC 91-56A have provided guidance to operators of large transport category airplanes on how to develop a damage-tolerance-based SSIP, which was contained in appendix 1 to the AC. The FAA determined that the guidance provided in appendix 1 to AC 91-56A is applicable to small transport category airplanes as well as to large transport category airplanes.
Advisory Circular 91-56 and AC 91-56A only considered the effects of repairs and modifications approved by the type certificate holder, and the effects of repairs and modifications performed by operators on individual airplanes. Appendix 1 to AC 91-56B has been expanded to take into consideration the effect of all major repairs, major alterations, and modifications approved by the type certificate holder.
In addition, proposed appendix 1 to AC 91-56B includes an expanded discussion on repairs, alterations, and modifications to take into consideration all major repairs and operator-approved alterations and modifications on individual airplanes.
AC 91-56B also gives a brief description of the current Mandatory Modifications Program, CPCP, and Repair Assessment Program. The AC also states that the “Evaluation for Widespread Fatigue Damage” will be the subject of a future rulemaking activity.
Like AC 91-56A, AC 91-60 provides guidance for operators of the airplanes affected by this final rule on how to develop a service-history-based maintenance or inspection program. AC 91-60 has been updated in AC 91-60A to reflect current maintenance and inspection practices and to be consistent with the acceptable methods of compliance for this final rule.
The FAA also will develop additional guidance and training material for FAA Aviation Safety Inspectors (ASIs), and representatives of the Administrator authorized to conduct the inspections and records reviews specified in this rule prior to the conduct of those inspections and reviews.
Based on the comments received the FAA made several significant changes to the proposed rule language in notice No. 99-02. The revised rule language is part of this final rule.
The FAA extended the repeat inspection and records review interval from 5 years to 7 years to allow operators to align inspection and records review intervals more closely with scheduled HMC intervals.
Also, while notice No. 99-02 specified that inspections should be established for affected airplanes using damage tolerance techniques, this final rule adds an exception for multiengine airplanes initially certificated with nine or fewer passenger seats and operated under part 129 and part 135 scheduled operations. The requirement to keep flight cycles has been removed. Those airplanes can have a service-history-based SSIP instead of a damage-tolerance-based SSIP.
In addition, the FAA extended the 3-year requirement for initial inspections on airplanes over 24 years old to 4 years. This will provide the FAA with additional time to develop guidance and training material for designees and FAA inspectors.
Finally, the FAA has decided not to apply this final rule to airplanes operated by a certificate holder between any point within the State of Alaska and any other point within the State of Alaska.
A total of 63 commenters submitted 247 comments to Docket No. FAA-1999-5401. Commenters generally opposed the proposal; they submitted 131 comments against the proposed rule and 16 comments in support of the changes. In addition, 100 comments either included supplementary information or did not clearly argue for or against the proposed rule. A discussion of comments submitted, organized by issue, follows.
Section 44717 of 49 U.S.C. requires the following actions:
• The Administrator must “prescribe regulations that ensure the continuing airworthiness of aging aircraft.”
• The Administrator must “make inspections, and review the maintenance and other records, of each aircraft an air carrier uses to provide air transportation.” These inspections and reviews “shall be carried out as part of each HMC of the aircraft conducted after the 14th year in which the aircraft has been in service.”
• Each air carrier must “demonstrate to the Administrator, as part of the inspection, that maintenance of the aircraft's age-sensitive parts and components has been adequate and timely enough to ensure the highest degree of safety.”
• Each air carrier must make its aircraft, as well as any records about the aircraft that the Administrator may require to carry out the review, available for inspection as necessary to comply with the rule issued by the Administrator.
• The regulations must establish procedures to be followed for carrying out such an inspection.
The AACA notes the FAA has implemented numerous significant regulatory changes during the past 15 years (for example, the “Commuter Rule”), but the aviation safety record in Alaska has not changed significantly, despite the high costs.
According to the AACA, some additional safety measures are necessary. However, the AACA states measures in Alaska should include (1) restoring the previous high levels of service from Flight Service Stations; (2) improving aviation weather reporting, forecasting, information distribution, and air-to-ground communications facilities; and (3) developing additional navigational aids and approach procedures to allow instrument flight rules flight and airport runway, ramp, and apron improvements.
As an alternative to the proposal, the AACA states it would develop an FAA-approved program to accommodate the additional safety intent of the rule, addressing safety as well as the operational limitations unique to Alaska. The program would provide guidance, through development of a customized and comprehensive training program for regularly scheduled maintenance and inspection procedures. To ensure compliance with this initiative, the program would include an independent audit element and be made available to all members of the AACA, as a function of the AACA Safety and Resource Center.
The State of Alaska Department of Transportation and Public Facilities (ADOT&PF) noted that “this NPRM, over the next ten years has the potential to effectively economically shut down multiple aircraft operators in Alaska.” The ADOT&PF further stated that the number of aircraft impacted is nearly 100 percent of the twin-engine aircraft fleet servicing Alaska aviation needs. These comments were echoed by a number of Alaska operators that stated that implementation of the NPRM would result in the “termination” of their operations and that “the nature of the rural transportation infrastructure in Alaska requires relief from these requirements.”
According to the NATA, the proposal would substantially affect interstate commerce in many areas, including Nevada, Arizona, New England, and the southeastern United States. Also, the NATA asserts this proposal may cripple the majority of the State of Alaska's transportation network.
The FAA also recognizes that the AASA does not specifically mandate the supplemental inspections proposed in notice 99-02 and set forth in this rule. However, the FAA clearly is within its authority to require such inspection programs under its broad mandate to promote safety as set forth in 49 U.S.C. 44701.
The FAA also notes that Congress, both in the Federal Aviation Reauthorization Act of 1996 (Public Law 104-264) and in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (Public Law 106-181), required the Administrator “in amending title 14, Code of Federal Regulations, in a manner affecting intrastate aviation in Alaska * * * to consider the extent to which Alaska is not served by transportation modes other than aviation and * * * establish such regulatory distinctions the Administrator considers appropriate.”
In view of the clear Congressional mandate for the FAA to consider the unique role of aviation in providing transportation within the State of Alaska and the possible loss of critical air services to rural communities within the State, the FAA has revised the proposal. The final rule will not apply to aircraft operated by certificate holders between any point within the State of Alaska and any other point within the State of Alaska.
As mentioned previously, the FAA has changed the inspection and records review interval from 5 years to 7 years to allow operators to align their aircraft inspection and records review intervals more closely with scheduled HMC intervals.
The FAA recognizes that there was a collaborative effort based on the use of structural fatigue analysis, fatigue tests, and field experience correlation to develop appropriate inspections and procedures to ensure the continuing airworthiness of aging aircraft. The FAA, however, has determined that except for those multiengine airplanes initially certificated with nine or fewer passenger seats operated under part 129 or used in scheduled operations under part 135, these inspections and procedures should be established using damage-tolerance-based techniques. Those multiengine airplanes initially certificated with nine or fewer passenger seats can use inspection programs that include service-history-based inspections and procedures instead of damage-tolerance-based inspections and procedures.
Yet, as stated in the preamble to the NPRM and in keeping with the AASA's mandate to ensure the continuing airworthiness of aging aircraft, the FAA considered options for setting repeat inspection intervals. The FAA reviewed the variables used in establishing the parameters used by operators to carry out scheduled maintenance requirements such as flight hours, calendar time, or a combination of both. The FAA also considered the phasing and segmenting of HMCs and found that the intervals varied from 1 to 27 years. Therefore, the FAA chose to establish a fixed repeat inspection interval.
The FAA realizes that the repeat inspections established in this final rule may not be consistent with current operator maintenance schedules. However, the FAA notes that the ATA itself, in memorandum 96-AE-014, dated March 11, 1996, recommended that “a ‘C’ check compliance period (18 months) or ‘D’ check period (5 years) be adopted for all rules unless it can be shown that a shorter time interval is required for safety reasons.” The FAA, in keeping with the AASA's mandate, established a repeat inspection interval as part of this final rule.
The FAA does not agree that ADs should be used to implement the new requirements. The FAA is not issuing
Furthermore, applying the AASA requirements to all airplanes, regardless of operation, would go significantly beyond the mandate of the act, which requires the Administrator to issue a rule requiring an inspection and records review of each aircraft used in air transportation for compliance with aging aircraft requirements.
Using operational rules (parts 121, 129, and 135) to mandate inspections, supplemental inspections, and records reviews is compatible with what the FAA has done with other maintenance and inspection programs, such as those specified in the final rule entitled, “Repair Assessments for Pressurized Fuselages,” which was published in the
The NPRM also requires operators to notify the FAA within a specific time period before an airplane is available for an inspection and records review.
One commenter states that the FAA should revise the proposal to compensate for existing maintenance programs that address aging airplane concerns. For example, the 14-year in-service threshold should be increased to 20 years to coincide with the Aging System Task Force definition, which established “20 years since an airplane's certification” as the nominal age threshold. Another commenter states that the FAA should provide special consideration for low-utilization airplanes that may have more than 14 years of total service. A third commenter states the proposed inspections should be associated with the renewal or continued effectiveness of “an airline's standard airworthiness certificate” and should include all phases of continued airworthiness in addition to aging airplane considerations. However, that commenter questions the reason for a 14-year time period. The Air Line Pilots Association (ALPA), however, supports proposed inspections for airplanes after 14 years in service.
In addition, the AASA specifies that inspections and records reviews “shall be carried out as part of each heavy maintenance check of the aircraft conducted after the 14th year in which the aircraft has been in service.”
Another commenter recommends that the FAA allow an air carrier's quality assurance department to conduct the proposed inspections and records reviews when an FAA representative is unavailable. ALPA supports the proposal, which would permit certain representatives of the Administrator to conduct inspections.
(a) The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft in air commerce by prescribing * * *
(2) Regulations and minimum standards in the interest of safety for * * *
(B) Equipment and facilities for, and the timing and manner of, the inspecting, servicing, and overhauling (of aircraft, aircraft engines, propellers, and appliances); and
(C) A qualified private person, instead of an officer or employee of the Administrator, to examine and report on the inspecting, servicing and overhauling.
Section 44717(b)(2) was added in 1994 as part of the recodification of the FAA's enabling legislation. The AASA and the recodified § 44717(a)(1) require the Administrator to make the aging airplane inspections.
The rules prescribed by the Administrator under § 44701(a)(2)(B) establish regulations and minimum standards for many different activities by nongovernment persons, including air carrier maintenance organizations and repair stations. Section 44701(a)(2)(C) requires the
Congress clearly intended that the Administrator would determine “whether an aircraft is in safe condition and maintained properly for operation in air transportation.” This is evident in § 44717(a)(1), which requires the Administrator to perform the inspections and records reviews. It also is consistent with the legislative history of the AASA. The FAA notes, however, the AASA was never intended to relieve the operator from the responsibility for the airworthiness of the aircraft as described in current § 121.363, § 129.14 (ICAO Annex 6, chapter 8), or § 135.413. there is no language in § 44717 that implies that operators are to be relieved of compliance with regulations issued under § 44701.
Furthermore, the FAA notes that the text of the AASA, and the recodification thereof, instructs the Administrator to establish a program to provide FAA inspectors and engineers with the necessary training to conduct auditing inspections of airplanes operated by air carriers for corrosion and metal fatigue (see § 44717(c)(2)(A)). If it had been the intent of Congress to have private persons make those inspections instead of FAA employees (or perhaps designees), that text would have been changed.
The above interpretation is also consistent with the general position that the recodification of the FAA's enabling act was not intended to change the substantive law.
Given the extensiveness of the scope and quantity of airplane inspections required by § 44717(a)(1), the Administrator could still elect to use “a qualified private person” to conduct those inspections and records reviews under a delegation of authority. Hence, the FAA intends to use DARs to help in conducting the inspections and records reviews required by § 44717(a)(1). Such action is consistent with the act and gives meaning to the provisions of 49 U.S.C. 44717(b)(2) in its context. This interpretation also gives meaning to “qualified private person” in the context of implementing the Aging Airplane Program.
The statute further specifies that these regulations shall—
The ATA asserts that the inspection interval requirement would subject carriers to disruptions if the FAA fails to provide the air carrier with timely notice that the aging airplane inspections and records reviews have been completed. The proposal states that the FAA may take an airplane out of service before analyzing the results of an aging airplane inspection and records review.
Even though the AASA requires an initial inspection as part of each HMC after the beginning of an airplane's 14th year in service, and thereafter at each HMC, the FAA believes that an inspection interval based on calendar time is consistent with the AASA. A fixed repeat interval is consistent with the intent of the AASA that requires the Administrator to “assure the continuing airworthiness of aging aircraft.” The repeat intervals established in the rule will allow the Administrator to ensure that “each aircraft used by an air carrier to provide air transportation is in a safe condition and properly maintained for operation in air transportation.”
As previously noted, the ATA recommended, in memorandum 96-AE-014, dated March 11, 1996, that “a ‘C’ check compliance period (18 months) or ‘D’ check period (5 years) be adopted for all rules unless it can be shown that a shorter time interval is required for safety reasons.” The FAA, in keeping with the AASA's mandate, established a repeat inspection interval as part of this final rule that is consistent with this recommendation.
The FAA realizes that the repeat inspection intervals established in this final rule may not be consistent with current operator maintenance schedules. Therefore, based on the comments received, the FAA has changed the proposed 5-year repeat interval to a 7-year interval to be more compatible with air carriers' HMCs.
In addition, the FAA extended the 3-year requirement for initial inspections on airplanes over 24 years old to 4 years to provide the FAA with additional time to develop guidance and training
One ATA member suggests that an operator submit a summary report, for like airplanes in the air carrier's fleet, of findings and conclusions related to aging airplane effects from the HMC and the maintenance activities in the interval since that HMC within 60 days of each 90-day period. According to this ATA member, quarterly summary reports can depict trends more easily than individual airplane check reports.
Also, operators should be aware that while this final rule imposes restrictions on airplanes operating under parts 121, 129, and 135 until the required inspections and records reviews have been accomplished, it does not affect any part 91 operations conducted by part 121, 129, and 135 air carriers, such as training or positioning flights.
Regarding the comment on the effects of the rule and the FAA's workload, the FAA is committed to train a group of inspectors and DARs to perform the inspections and records reviews required by this final rule. The FAA will also monitor the performance of those inspectors and DARs.
Each operator should plan each inspection and records review and schedule it with the appropriate ASI or DAR. The ASI/DAR inspection and records review should normally follow the inspection by maintenance personnel. However, if an unforeseen scheduling conflict occurs, the final rule permits a 90-day extension to accomplish the inspection and records review. An unforeseen scheduling conflict may arise, for example, if an operator finds that the hangar space dedicated for the incoming aircraft is not available because of additional work required on the aircraft currently in the hangar. The Administrator may approve an extension of up to 90 days, provided the operator presents to the PMI written justification for the scheduling conflict. Also, the FAA will accept electronic, facsimile, or other forms of notification. The request for an extension should provide the PMI ample opportunity to respond to the operator's request.
The FAA again notes that the proposed 5-year interval has been changed to a 7-year interval to be more compatible with the air carriers' HMCs. However, with respect to air carriers completing inspections and records reviews, the AASA states specifically that the Administrator must accomplish the required inspections and records reviews.
The FAA recognizes that operators will incur additional expenses as a result of this rule. The FAA has therefore worked to minimize the cost. Affected airplanes initially certificated with nine or fewer passenger seats have been allowed to have incorporated into their inspection program service-history-based SSIPs instead of damage-tolerance-based SSIPs. Additionally, provisions that allow for delayed compliance until 2010 of certain airplanes with damage-tolerance-based and service-history-based inspection programs have also been included in the rule.
Although it is the FAA's intent to carry out records reviews and inspections to the extent that the aircraft structure is accessible during the HMC maintenance visit, the FAA may require additional access to determine that the maintenance of the airplane's age-sensitive parts and components has been adequate and timely.
The intent of the final rule is that aging airplane inspection and records reviews should be concurrent with the HMC maintenance being accomplished on each airplane and the FAA has revised the rule to facilitate this action.
Although it is the FAA's intent to carry out the inspections and records reviews to the extent that the airplane structure is accessible during the maintenance visit, at the discretion of the ASI or DAR, the FAA may require additional access to confirm that the maintenance of the airplane's age-sensitive parts and components has been adequate and timely as required by the AASA.
In addition, commenters suggest that the FAA should define more clearly the difference between a “minor” and a “major” repair or structural alteration, for reporting purposes.
Minor and major repairs, and structural alterations, are already defined in 14 CFR. Additional definitions would be beyond the scope of the AASA and are not addressed in this final rule.
• Total years in service of the airplane;
• Total flight hours of the airframe;
• Total flight cycles of the airframe (not required by § 135.422a(d));
• Date of the last inspection and records review;
• Current status of the life-limited parts of the airframe;
• Time since the last overhaul of all structural components required to be overhauled on a specific time basis;
• Current inspection status of the airplane, including the time since the last inspection required by the inspection program under which the airplane is maintained;
• Current status (including the method of compliance) of ADs, the CPCP, and other inspections and procedures required;
• A list of major structural alternations; and
• A report of major structural repairs and the current inspection status of those repairs.
The AIAA states proposed § 121.368(d) duplicates the requirements of current § 121.380. The AIAA further asserts that § 121.380 is more comprehensive than proposed § 121.368(d), particularly regarding ADs. Because most operators of large transport airplanes have developed elaborate maintenance recordkeeping requirements based on § 121.380, the AIAA recommends the FAA revise proposed § 121.368(d) to allow compliance with § 121.380 as an alternative.
Annex 6, part I, Standard 8.8, Records, contains recordkeeping requirements, as follows:
(1) 8.8.1. An operator shall ensure that the following records are kept:
(a) In respect of the entire aeroplane: the total time in service;
(b) In respect of the major components of the aeroplane:
(1) The total time in service;
(2) The date of the last overhaul;
(3) The date of the last inspection;
(c) In respect of those instruments and equipment, the serviceability and operating life of which are determined by their time in service;
(1) Such records of the time in service as are necessary to determine their serviceability or to compute their operating life;
(2) The date of the last inspection.
(2) 8.8.1.1. These records shall be kept for a period of 90 days after the end of the operating life of the unit to which they refer.
In addition, commenters suggest that the FAA publish guidelines to be used in cases where a true determination of total years of service for an airplane is not possible.
In addition, several commenters contend a PMI assigned to an operator or an operator's own quality control inspectors may be more qualified to conduct the proposed inspections and records reviews than either an ASI or a DAR not familiar with the operator. The RAA asserts requiring an ASI or DAR to conduct the inspections and records reviews is unprecedented and impractical, and would confuse the FAA's oversight responsibilities with that of an air carrier's responsibility for the airworthiness of its airplanes. Another commenter states the FAA should specifically and individually test and establish the capabilities of all DARs who are authorized to perform the inspections and reviews as stated in the proposal. Additionally, one commenter recommends that the FAA permit operator designees or Designated Engineering Representatives (DERs), in addition to DARs, to conduct the inspections and records reviews. Finally, one commenter states that under such a system, air carriers should make available to the FAA any and all records and findings necessary for the FAA to evaluate an airplane.
Regarding the commenter's reference to air carrier quality control inspectors, they are not representatives of the FAA and, therefore, would not be eligible to conduct the required inspections and records reviews under the AASA.
However, an operator could facilitate the application of a member of its staff to become a DAR. There is an established procedure on how DARs are appointed, and the FAA does not foresee using a test to make this assessment. The FAA is unsure what the commenter means by the term “operator designees.” However, DARs are the only designees allowed to conduct records reviews. Performing such reviews is not within the scope of a DER's delegation.
In response to the commenter's assertion that there has never been a requirement for a “DAR certificate,” the FAA notes that a DAR is issued a Certificate of Authority and a Certificate of Designation in accordance with 14 CFR 183.13.
• Damage-tolerance-based inspections and procedures that comply with the damage tolerance provisions for metallic structure listed in 14 CFR 23.573, amendment 23-45, or subsequent amendments;
• Damage-tolerance-based inspections and procedures that comply with 14 CFR 25.571, amendment 25-45, or subsequent amendments;
• Advisory Circular (AC) 91-56, “Supplemental Structural Inspection Program for Large Transport Category Airplanes,” or AC 91-56A, “Continuing Structural Integrity Program for Large Transport Category Airplanes”; or
• Any other method the Administrator finds complies with the principles of damage tolerance.
Damage-tolerance-based inspections and procedures may be approved through an amended type certificate or STC process for airplanes certificated under a type certificate and associated amendments dated before those that require damage tolerance as part of airplane type design. Damage-tolerance-based inspections and procedures for certain older airplanes also may be approved by a Letter of Approval issued by the FAA Aircraft Certification Office (ACO) or office of the Small Airplane Directorate or Transport Airplane Directorate having cognizance over the type certificate for the affected airplane.
Also, for some airplanes, the FAA has approved major structural modifications under an STC. The original type certificate holder may not have sufficient technical data pertinent to these modifications to assist the airplane operator in conducting a damage tolerance assessment of the modification. In these situations, the FAA expects the operator to work with the STC holder to develop damage-tolerance-based inspections and procedures for that modification. If necessary, as an alternative, an operator may conduct its own damage tolerance assessments using competent engineering personnel, inspection findings from the current maintenance program, the airplane's design database, and model fleet experience.
The RAA notes the FAA fails to reference in the NPRM any technical basis for rejecting the alternative inspection program for smaller airplanes (submitted by the ARAC Small Transport/Commuter Airplane Airworthiness Assurance Working Group (SAAWG)). According to the RAA, damage tolerance analysis may be the most realistic analysis for certain principal structural elements but not necessarily all principal structural elements.
The RAA further asserts most airplanes with SSIPs are considerably older than the regional airplane types cited in the NPRM as having damage-tolerance-based “maintenance inspection programs.” Although the RAA appreciates the value of SSIPs, the RAA notes that the service experience for demonstrating structural integrity of the affected regional/commuter airplane types without SSIPs has been excellent.
Regarding the comment on FAA workload, the FAA has considered the effects of the rule on the FAA workload and has concluded that the workload will be within acceptable levels during the implementation period.
Modifications to the baseline structure can be accomplished by an STC or by the type certificate holder who has certificated a major type design change. The preamble to the NPRM states that the operators should work with STC holders and type certificate holders to accomplish a damage tolerance assessment of the modified structure, but in the event that the STC holder or type certificate holder is not able or willing to help the operator, then the operator will be responsible for accomplishing the damage tolerance assessment. As stated in the preamble to the NPRM, the operator may (1) accomplish the assessment if it has the capability or (2) contract the appropriate persons to accomplish the assessment. The FAA recognizes that this may be a burden on the operator, but the AASA requires the Administrator to ensure the continuing airworthiness of aging airplanes. The FAA has determined that damage-tolerance-based and service-history-based SSIPs are the best way to achieve that goal.
The FAA also has revised AC 91-56A, which provides detailed guidance to type certificate holders and operators regarding the accomplishment of damage tolerance assessments of repaired, altered, or modified structures.
The “Repair Assessment for Pressurized Fuselages” final rule (65 FR 24108, April 25, 2000) established new §§ 121.370 and 129.32. These sections require a repair assessment program for many of the airplanes also affected by this final rule. These include the Airbus A300, excluding the -600 series; Boeing 707, 720, 727, 737, and 747; BAe BAC 1-11; Fokker F28; and Lockheed L-1011; and McDonnell Douglas DC-8, DC-9/MD-80, and DC-10. However, §§ 121.370 and 129.32 address only fuselage pressure boundary repairs (fuselage skin, door skin, and bulkhead webs).
Meeting the requirements of §§ 121.370 and 129.32 is an acceptable means of compliance with this final rule to the extent that these requirements address repairs to the fuselage pressure boundary for the above-noted airplanes. Operators will have to accomplish additional work to fully comply with this rule. They must establish damage-tolerance-based SSIPs or service-history-based SSIPs, as applicable, for major repairs, major alterations, and modifications to structures not affected by the repair assessment program, such as fuselage frames and longerons, and wing and empennage structures.
The GAMA asserts that a regime of replacing components and parts when they reach their design service lives is one way to ensure structural integrity. Other commenters support the GAMA position, noting a damage-tolerance-based SSIP alone is too restrictive. According to the GAMA, these regimes should be appropriate for particular structural configurations and should employ a schedule of supplemental inspections, as necessary. The GAMA states reliance on frequent, repetitive inspection under a damage-tolerance-based approach would allow for greater human error. Additionally, the GAMA disagrees with the FAA's implied requirement that “manufacturers” must be responsible for developing or assisting operators in the development of damage-tolerance-based inspections and procedures. Also, the GAMA notes several “manufacturers” already have developed and made available appropriate structural integrity inspection programs.
Transport Canada agrees with the GAMA position and states a structural integrity inspection program must include mandatory component replacement (safe life), as well as a mandatory inspection program with a CPCP to ensure the fatigue inspections and part replacement remains valid. According to Transport Canada, including a component replacement (safe life) program is important for the following reasons:
• A safe life program may be required to avoid the risks associated with structural degradation caused by a form of widespread fatigue damage known as multiple site damage (MSD). According to Transport Canada, failure to detect MSD exposes an airframe to a risk of sudden crack coalescence, possibly leading to total structural failure without adequate warning. To ensure structural integrity, Transport Canada asserts a structure that is at risk for MSD must be replaced or repaired at the appropriate interval. According to Transport Canada, an inspection program may not alleviate the risk that there may be cracks too small to be detected reliably. Transport Canada lists several methodologies, including fracture mechanics (crack-growth) techniques and tear-down techniques, that could be used to determine the appropriate component/part replacement (safe life) interval.
• For aging airplanes, particularly in the small commuter class (for example, CAR 3 aircraft, 14 CFR part 23 aircraft, and SFAR 41 aircraft), component design was not influenced by damage tolerance inspection principles. As such, it may be impractical, in an airworthiness sense, to apply the damage tolerance requirements in a retroactive manner. Transport Canada notes the designers of these airplanes may not have considered the inspectability of their designs and may have designed components to be replaced to ensure structural integrity.
The Civil Aviation Safety Authority of Australia (CASA) supports damage-tolerance-based inspections and procedures and recommends changing the phrase “ * * * unless the maintenance program for that airplane includes damage-tolerance-based inspections and procedures” to “ * * * unless the maintenance program for that airplane includes inspections or other procedures developed in accordance with §§ 23.571 to 23.574, or § 25.571, as applicable” for the following reasons:
•
•
•
•
•
Operators are ultimately responsible for ensuring a damage-tolerance-based SSIP is developed for airplanes initially certificated with 10 or more passenger seats. The FAA encourages airplane type certificate holders to participate in this development. Even if certain airplanes were not initially certificated to a damage tolerance requirement, completing a damage-tolerance-based SSIP is still possible on the airplanes' structures.
In response to the CASA comments, the FAA has deliberately made changes to parts 121, 129, and 135 to address the continuing airworthiness of aging airplanes. This method of compliance is consistent with the AASA. The CASA's comment with reference to the certification requirements of part 23 are appropriately noted, but any changes to part 23 would only affect new designs. Procedures on how to develop a damage-tolerance-based SSIP are described in AC 91-56A.
As discussed earlier in this final rule, the FAA requires a service-history-based SSIP for airplanes initially certificated with 9 or fewer passenger seats, but retains the proposed requirement of damage-tolerance-based SSIPs for airplanes initially certificated with 10 or more passenger seats.
Also, the ADOT&PF notes that developing a damage-tolerance-based “inspection program” requires engineering data for the affected components. These data are not available for most airframes and components; therefore, each user of each type of airframe would be required to reverse engineer the components at great expense. According to the commenter, the only cost-effective way to establish a damage-tolerance-based “inspection program” is for the FAA or the “manufacturer” to develop such a program for only those airframe components compatible with such a retrofit program and to make the data available to users.
The commenter further states retrofitting damage-tolerance-based “programs” may introduce risks to continued airworthiness caused by inspection access issues; that is, inspecting can result in maintenance problems. Additionally, the commenter notes that operators of aging airplanes eventually phase out older airplanes because the maintenance costs for these airplanes increase as the airplane ages; therefore, focusing on aging airplane inspection may not be necessary.
Except as otherwise provided in this section, no certificate holder may operate an airplane listed in appendix [N] under this part after [insert date 4 years after the effective date of the rule] unless the maintenance program for that airplane includes damage-tolerance-based inspections and procedures.
The GAMA recommends the FAA revise § 121.370a(a), (b), and (c) by allowing the use of an FAA-approved structural integrity inspection program based on fatigue analysis and fatigue tests, in addition to the proposed damage-tolerance-based SSIP.
Transport Canada recommends the FAA revise § 121.370a to include and explicitly state that component replacement (safe life) programs are acceptable as a means of ensuring continued structural integrity as an airframe ages.
The GAMA recommends that the FAA revise § 129.16(a), (b), (c), and (d) by allowing the use of an FAA-approved structural integrity inspection program based on fatigue analysis and fatigue tests, in addition to a proposed damage-tolerance-based “inspection program.” Additionally, the GAMA notes that the preamble to the NPRM refers to requiring damage-tolerance-based “inspections and procedures” earlier than December 20, 2010, for airplanes with nine or fewer passenger seats operated under part 129. The GAMA states that the preamble does not properly reflect the proposed requirement in § 129.16(b).
Transport Canada recommends the FAA revise § 129.16 to include and explicitly state that component replacement (safe life) programs are acceptable as a means of ensuring continued structural integrity as an airframe ages.
A large number of airplanes operating in part 129 were designed with multiple load path fail-safe or multiple load path crack-arrest design features; therefore, the inspection thresholds can be based on a conventional fatigue analysis and tests with an appropriate scatter factor based on AC 25.571-1C.
Airplanes initially certificated with nine or fewer passenger seats will not require a service-history-based SSIP until December 20, 2010, unless the airplane is listed in appendix B to part 129. For those airplanes, a schedule based on the design-life goal is shown in § 129.16(d).
The FAA proposed to revise § 129.1(b) to specify the applicability of the aging airplane requirements to some operations conducted under part 129. In this regard, the FAA inadvertently failed to cite § 129.32 and proposed § 129.33 in proposed § 129.1(b). This final rule corrects that omission.
In addition, the FAA has revised the rest of § 129.1 to make it easier to read. The paragraph (a) reference to the “exception” in paragraph (b) was not accurate, because the requirements referenced in paragraph (b) add to those in paragraph (a), as opposed to conflicting with them. Thus, the FAA has deleted from paragraph (a) “except as provided in paragraph (b) of this section.” The FAA has added headings to paragraphs (a) and (b), and has placed the definition of “foreign person” and “years in service” in a new paragraph (c). Paragraph (b) now specifically includes the applicability of §§ 129.14, 129.16, 129.20, 129.32, and 129.33 to operations of U.S.-registered aircraft operated solely outside the United States in common carriage by a foreign person or foreign air carrier.
The FAA has not made any substantive changes to part 129, other than adding the aging airplane requirements and specifying that the requirements would only apply to U.S. multiengine airplanes operated under the part.
The GAMA recommends the FAA revise § 135.168(a), (b), (c), and (d) by allowing for use of an FAA-approved structural integrity inspection program based on fatigue analysis and fatigue tests, in addition to a proposed damage-tolerance-based “inspection program.” Additionally, the GAMA notes the preamble to the NPRM refers to requiring damage-tolerance-based “inspections and procedures” sooner than December 20, 2010, for airplanes with nine or fewer passenger seats operated under part 135. The GAMA states the preamble does not properly reflect the proposed requirement in § 135.168(b).
Transport Canada recommends the FAA revise § 135.168 to include and explicitly state that component replacement (safe life) programs are acceptable as a means of ensuring continued structural integrity as an airframe ages.
Although generally supportive of the proposal, the CASA is concerned about the practicalities and details of the proposed rule, particularly for light airplanes operating under part 135.
The U.K. CAA notes that the NPRM states that it “does not propose requirements for on-demand passenger or cargo carrying operations under part 135.” However, the NPRM does introduce a new § 135.168. The CAA questions how the distinction would be made so that on-demand operations are exempt from the rule.
In this final rule, the FAA requires a service-history-based SSIP for airplanes initially certificated with 9 or fewer passenger seats, but retains the proposed damage-tolerance-based SSIPs for airplanes initially certificated with 10 or more passenger seats.
For airplanes initially certificated with nine or fewer passenger seats, the FAA originally proposed an inspection program that includes damage-tolerance-based SSIPs. In response to the comments received, this final rule adds an exception for multiengine airplanes initially certificated with nine or fewer passenger seats and conducting scheduled operations under part 129 or part 135. Those airplanes can have a service-history-based SSIP instead of a damage-tolerance-based SSIP.
Airplanes operating under part 121 must have damage-tolerance-based SSIPs 4 years after the effective date of the rule. For those airplanes listed in the appendix, from 4 years after the effective date of the rule, the certificate holder may operate that airplane until the date the airplane's time in service reaches the design-life goal or until December 20, 2010, whichever occurs sooner. As noted in the preamble to the proposal, the design-life goals listed are a result of information from the type certificate holder, the airworthiness authorities of other countries, or the FAA.
The FAA did not want to provide another appendix to part 121 because a list of SSIPs mandated through specific ADs may have to be revised. If these ADs were listed in such an appendix, the FAA would have to revise the appendix through rulemaking action each time a SSIP was changed.
Another commenter operating in Alaska states there is no technical basis for including some airplanes in appendix G and not others. The commenter cites the example of the Piper Seneca, which could operate until 2010 without a “SIP” even though it may be older and have “higher time” than a Piper PA31-350 that would have to comply 6 years earlier. This results in arbitrary and capricious rules. Operators who are fortunate, whose airplanes were the subject of “non-damage-tolerance-based ADs” before the rule change, also could operate until 2010.
According to the commenter, the FAA should consider allowing all nonpressurized airplanes of nine or fewer passenger seats to operate without a “SIP” until 2010 and reevaluate these airplanes based on the experience with larger pressurized airplanes. The NPRM is not clear about whether compliance would be delayed for airplanes with nine or fewer passenger seats. Such a change would dramatically reduce the burden to small businesses and would be a negligible change to the rule.
In response to the commenter's suggestion that the FAA delay compliance with this final rule for airplanes initially certificated with nine or fewer passenger seats, the FAA agrees and has amended proposed § 135.168 to reflect this change.
The FAA finds that an inspection program based solely on test data is not consistent with the requirements of the final rule. A damage-tolerance-based SSIP still needs to be developed for the Beech 1900 within the timeframes listed in this rulemaking.
The fuselage uses a fail-safe approach based on test data to define an inspection program. Also, the empennage currently is a safe life item based on analysis only. Raytheon recommends the FAA include this information in the final rule.
The FAA finds that a SSIP based solely on test data is not consistent with the requirements of the final rule. A damage-tolerance-based SSIP still needs to be developed for the Beech 300 within the timeframes listed in this rulemaking.
The FAA finds that an inspection program based solely on test data is not consistent with the requirements of the final rule. A damage-tolerance-based SSIP still needs to be developed for all Beech 99 models within the timeframes listed in this rulemaking.
An Alaskan operator states that AD 79-10-15, “Cracks in Wing Structure,” on the Cessna 402 has been very successful in addressing aging airplane concerns. However, while the NPRM proposes inspections every 5,000 hours, the AD requires inspections every 400 hours. This demonstrates that the “one-size-fits-all” approach does not address the safety needs of aging airplanes. According to the commenter, inspection of such a critical primary structure can and should be undertaken much more frequently than every 5,000 hours, especially for airplanes with fewer than 10 seats. For example, the commenter's fleet of Chieftains operates under an approved airworthiness inspection program that ensures all critical structures are inspected every 360 hours.
The Cessna-developed damage-tolerance-based SSIP provides sufficient continuing airworthiness information to meet the intent of a service-history-based SSIP and can be used to comply with that requirement.
The FAA has corrected the design-life goal for the Cessna 402 in appendix B to part 129 to 7,700 hours, which is based on the design-life goals established by U.K. and Australian airworthiness authorities. With respect to the commenter's reference to a 5,000-hour repetitive inspection interval number, it is unclear where the commenter obtained this number, which is not applicable to the Cessna 402 SID program.
This final rule includes the requirement for service-history-based SSIPs for airplanes initially certificated with nine or fewer passenger seats. Guidance for complying with a service-history-based SSIP will be provided in an AC. The FAA is requesting comments on draft AC 91-56B and AC 91-60A. Once these ACs become final, they too will be considered an acceptable means of compliance with this rule. Based on service experience, different inspection thresholds and intervals may be required for different aircraft models.
One FAA-approved repair station specializing in the major repair, alteration, and heavy maintenance of DHC-6 airplanes notes DHC-6 component life limits are provided in deHavilland PSM 1-6-11, “Structural Components Service Life Limits.” The structural components addressed in this document include the wing box, strut, and FS 219 fuselage lower frame. According to the commenter, these “manufacturers” limits have been validated successfully through decades of field experience. The use of damage tolerance analysis to further assess airplane structure is redundant. According to the commenter, although certain remaining components might be subject to further structural fatigue evaluation, several of these components are either replaceable, already inspected at continuous intervals, or not considered fatigue-critical. The commenter states a more appropriate fatigue analysis approach would be to establish safe-life criteria for these additional components.
Transport Canada states that the NPRM statement “This Canadian AD, issued in September of 1996, mandates the retirement of the airplane at 66,000 hours” is incomplete. Airplane retirement at 66,000 hours is dependent on the completion of the mandatory supplemental integrity requirements in Canadian AD CF-96-15. To achieve the 66,000-hour design-life goal, a program of inspections and parts replacements is required. Transport Canada recommends that the statement be amended to say, “ * * * the retirement of the airplane at 66,000 hours is required as a result of AD CF-96-15, providing all the requirements of the AD are accomplished.”
Transport Canada also states that the DHC-6 meets the requirements of § 511.34 of the Canadian Aviation Regulations, Supplemental Integrity Instructions, per Transport Canada AD CF-96-15, which requires additional actions to ensure continued structural integrity as an airframe ages. Transport Canada was unaware of a similar FAA-mandated AD.
Twin Otter International, Ltd. (TOIL), states that the DHC-6 should not have to comply with damage-tolerance-based inspection techniques for the following reasons:
• deHavilland designed the Twin Otter (DHC-6-300) with the intention that fatigue-critical components (that is, fuselage mainframe, wing struts, and wing boxes) must be replaced upon reaching either a flight hour or a cycle limit, whichever occurs first. Although the life limit of the wing struts and fuselage mainframe originally were established at 30,000 hours/60,000 cycles, Transport Canada, in revision 4 to the life limits manual (Structural Components Service Life Limits Manual, PSM-1-6-11), raised the wing strut life to 36,000 hours/72,000 cycles and the mainframe life to 39,000 hours/78,000 cycles. These components are inspected frequently using strict damage criteria. The commenter notes that the life of wing boxes (30,000 hours/60,000 cycles) can be raised to 33,000 hours/66,000 cycles with incorporation of a service bulletin that adds structural reinforcement. The commenter adds that each of these components is inspected frequently in accordance with strict damage criteria. Also, upon reaching their life limits, the components must be replaced completely or, in the case of wing boxes, re-lifed (which may be done only once). Because of re-lifing, Transport Canada established a safe life for DHC-6 wing boxes of 66,000 hours/132,000 cycles. TOIL also notes that two STCs have been approved to extend the life of DHC-6-300 wing boxes.
• TOIL maintains its DHC-6 airplanes in accordance with the factory inspection and maintenance program Equalized Maintenance for Maximum Availability (EMMA), which requires certain scheduled inspections every 100 hours. If EMMA is followed, TOIL states that there is no additional benefit to implementing damage-tolerance-based inspection procedures.
• TOIL believes corrosion, not structural fatigue, is the cause of structural damage in the DHC-6. TOIL reminds the FAA that on August 24, 1994, Transport Canada issued an AD requiring all DHC-6 airplanes to be subject to exhaustive and repetitive corrosion inspections.
• In 1994, the Aviation Rulemaking Advisory Committee (ARAC) Technical Oversight of Aging Airplanes working group generally accepted the “manufacturer's” method of ensuring continued structural integrity based on structural fatigue analysis, fatigue tests, and field experience correlation. Additionally, TOIL notes that the AASA does not mandate damage-tolerance-based analysis and inspection techniques. However, the AASA recognizes that the continued airworthiness of airplanes could be ensured through other means, particularly those airplane designs not based on damage tolerance guidelines.
In November 1996, the Commuter Assessment Review Team (CART), which included members from the TOGAA, visited deHavilland to determine what difficulties were associated with conducting a damage tolerance assessment of the DHC-6. The CART found that deHavilland had the capability to perform a damage tolerance assessment of the DHC-6 if they chose to do so. At that meeting, the members of the TOGAA on the CART recommended that deHavilland perform a damage tolerance assessment of the DHC-6.
Congress, through the AASA, instructed the Administrator to “prescribe regulations that ensure the continuing airworthiness of aging aircraft.” The AASA also stated that air carriers must “demonstrate to the Administrator, as part of the inspection, that the maintenance of the aircraft's age-sensitive parts and components has been adequate and timely enough to ensure the highest degree of safety.”
The FAA has determined that to ensure the continuing airworthiness of these aging aircraft, each airplane operated under part 121, each U.S.-registered multiengine airplane that was initially certificated with 10 or more passenger seats operated under part 129, and each multiengine airplane that was initially certificated with 10 or more passenger seats operated in scheduled operations under part 135 should be required to have a damage-tolerance-based SSIP included in its maintenance or inspection program.
For the DHC-6, if the aircraft is used in any of the affected operations, then the operator must have a damage-tolerance-based SSIP included in each aircraft's maintenance or inspection program, in accordance with the schedule in this rulemaking.
Regarding the commenter's discussion of component life limits, the FAA used these limits to establish the design-life goal for many of the airplanes identified in the appendixes. The design-life goal for the DHC-6 was chosen based on the wing life-limit of 33,000 hours. Also, the FAA has determined that a damage-tolerance-based SSIP must be accomplished for all airplanes initially certificated with 10 or more passenger seats. In addition, for DHC-6 airplanes
Embraer understands that the particular characteristics of each airplane's design would be taken into consideration to allow alternative courses of action. In the case of the EMB-110, two facts must be taken into account: (1) Contrary to the proposal, the EMB-110 is not a pressurized airplane, and (2) a service bulletin permitting the extension of the “design service goal” from 30,000 to 45,000 flight hours is available.
One Alaskan operator states that the design lives set for the PA-31-350 airplanes (excluding the pressurized version) appear to have no basis and are unrealistically low. The average fleet service life already exceeds the design life set by the proposal. The commenter knows of no failures of primary structure on these airplanes that would justify attributing such a limit to aging. According to the operator, neither the FAA nor the “manufacturer” has set a design-life goal on the airplanes, and it is unreasonable to rely on a design life set by a foreign country that did not certificate the airplanes. The commenter also states that there is no evidence that the foreign country conducted any analysis to develop the design life for the airplanes. The commenter's company has operated several PA-31-350 airplanes in excess of 20,000 hours total time without any indication that the airplanes have reached their design life.
Because documentation from the U.K. CAA is not available at the time this final rule is being published, the economic analysis portion of this rule reflects costs associated with development of damage-tolerance-based SSIPs of the Short Brothers 3-30 and 3-60 airplanes assuming none currently exist.
The EAAWG states that the SD3-60 meets the requirements of AC 91-56 and the FAA should consult the “manufacturer” to clarify this issue.
Because documentation from the U.K. CAA is not available at the time this final rule is being published, the economic analysis portion of this rule reflects costs associated with development of damage-tolerance-based SSIPs of the Short Brothers 3-30 and 3-60 airplanes assuming none currently exist.
The Short Brothers SD3-60 Sherpa is a 32-seat airplane configured for 30 passenger seats and 2 pilot seats. The SD3-60 Sherpa was certificated in the United States in 1996 under U.K. certification basis and to the additional validation requirements of part 25, Amendment No. 35. The “manufacturer” has limited the maintenance program to 12,000 flights as defined in the airplane maintenance manual.
• Individually or as a group, develop an Electra aging airplane program;
• Fund a third party to develop an Electra aging airplanes program, which Lockheed would be willing to do if funded by operators; or
• Petition the FAA for relief using the AC 90-60 non-damage-tolerance-based “SIP” issue to defer action until 2010.
• Implementation of damage-tolerance-based inspections and procedures for those scheduled operators of multiengine airplanes not currently subject to these inspections and procedures.
• Operator development of these procedures for the affected airplane models.
• Additional FAA inspections and records reviews mandated by Congress.
The FAA noted in its analysis that the attributed costs of this proposal do not include the expense of making repairs that may be found necessary during either an operator's damage-tolerance-based inspections or the FAA's oversight inspections. The FAA does not attribute these repair costs in the proposal because current regulations require that repairs be made as necessary to ensure the airworthiness of an airplane. Also, the FAA noted that its analysis did not address directly the costs the proposal eventually would impose on airplanes produced after the effective date of the rule.
The FAA identified two benefits in the proposed rule: (1) Age-related accidents would be prevented and (2) the FAA and the industry would be able to monitor the airworthiness of the affected airplanes as they age and either take timely corrective action to maintain their continued airworthiness or retire them from service before they become unairworthy; consequently, the airplanes would be able to stay in service longer because their continued airworthiness would be monitored, rather than the airplanes being retired at an arbitrary age.
With regard to cost estimation, a time estimate of 2 days per airplane inspection, as suggested by the commenter, was used in the final regulatory evaluation for the oversight inspection of an airplane by an ASI or DAR. This time estimate was used for the large transport airplanes that have damage-tolerance-based SSIPs (the great majority of the affected airplanes).
With regard to downtime costs, the FAA maintains that a reasonable approximation of the cost for the oversight inspection of an airplane by ASIs/DARs is the rate of return applied to the value of the productive capital asset used by the business enterprise (rather than revenue lost per day). Seven percent is the rate of interest that OMB directs agencies to use in present-value calculations. Moreover, such an approach has the advantage of being applied uniformly over the entire air carrier industry. By comparison, “revenue lost per day” varies considerably across companies in the industry and is affected by different accounting procedures. In addition, utilization rates vary across equipment. The FAA estimates the total cost to the industry where revenue lost by one firm is gained by another.
Calculations were made that resulted in estimates of intervals between C-checks and D-checks, in terms of years, for some large transport airplanes (including Boeing models). These calculations showed that the C-checks take place, on the average, every 1 to 2 years depending on the airplane model type. D-checks are estimated to take place, on the average, every 5 to 12 years depending on the airplane model type. Thus, the initial inspection and records review (4 or 5 years after the effective date of the rule) could likely take place at a C-check; while the repeat inspection and records review, at 7-year intervals, could take place at a D-check or a C-check. In addition, those operators that use a segmented D-check schedule will have more opportunity to accommodate the initial and repeat inspections and records reviews. The increasing use of non-destructive inspection techniques should facilitate inspections at C- or D-checks.
Therefore, in the absence of substantiation to support the contention of the comment, the economic analysis keeps the 50 percent as a reasonable estimate.
Another commenter states the FAA failed to consider adequately the costs of reviewing each repair on each airplane, updating airplane structural repair manuals for damage tolerance repairs, and training professional engineering personnel in damage tolerance repair design.
The FAA estimated the cost of damage-tolerance-based SSIPs per affected airplane, including repairs.
With regard to updating airplane structural repair manuals (SRMs), that cost should be minimal and it is included in the development and review cost. Several type certificate holders of large transport category airplanes have already updated their SRMs to include the results of damage tolerance assessments of repairs.
With regard to training professional engineering personnel, the commenter does not provide information as to the purpose of the training for professional engineers in damage tolerance repair
• The FAA expects operators to work with STC holders and the original airplane “manufacturer” to develop damage-tolerance-based supplemental inspection programs, which would require that each unique combination of type design and STC require a separate inspection program. The commenter therefore asserts the cost analysis is off by a factor equal to the number of unique type design and STC combinations for each type design.
• The FAA's estimate that 209 part 135 multiengine airplanes would be affected by this rule seems low. (ADOT&PF agrees, estimating that approximately 727 of the 3,198 airplanes in commercial service in Alaska would be affected (the airplanes not counted are single-engine airplanes). According to the ADOT&PF, almost all of these airplanes are more than 14 years old and none have a current damage-tolerance-based inspection program.)
• The commenter does not disagree with the FAA's reasons for excluding the costs of repairs that may result from an operator's damage-tolerance-based inspections or the FAA's oversight inspections; however, because air carriers should maintain their airplanes in an airworthy condition, the new regulations are redundant.
• The enormous costs associated with the proposal would deplete the pool of funds available to maintain airplanes and limit the use and development of other more efficient initiatives that could improve aging airplane safety at a lower cost. The commenter cites two examples: (1) Requiring replacement of all avionics and autopilot wiring after 25 years of service, and (2) requiring all commuter carriers to operate only under instrument flight rules.
• The proposed rule places the economic burden on operators, not “manufacturers” as stated in the NPRM. The operator notes the redundant expenses operators would incur in developing “SIPs.”
• The operator questions the FAA's assumption that developing “SIPs” for related models would produce efficiencies. The commenter indicates operators would be unwilling to develop “SIPs” for models related to their own models. Furthermore, if an operator did develop a “SIP” that might be useful to other operators, the developing operator would be hesitant to transfer development information without charging a fee.
• The proposal underestimates the costs associated with developing damage-tolerance-based inspection techniques. According to the operator developing such techniques may (1) take more than 80 hours and (2) require extensive training for mechanics responsible for implementing the programs.
• The FAA's estimated 20-year annualized cost stream figure is misleading and inaccurate because operators would face costs sooner than 20 years. Furthermore, the economic analysis fails to consider costs beyond 2018.
• The economic analysis fails to consider that financing costs are particularly high for commuter operators.
The final rule covers part 135 multiengine airplanes in scheduled service and the NPRM used a count of these airplanes. The commenter refers to a count of 727 airplanes as being in “commercial” service rather than in “scheduled” service. A count of airplanes in “commercial” service includes scheduled and unscheduled operations.
The rule places the responsibility for developing the SSIP on the operators. However, the FAA anticipates that a number of type certificate holders will choose to support the development of the SSIP because it affects the future marketability of their airplanes. For those cases where a type certificate holder does not develop a damage-tolerance-based SSIP, the FAA anticipates that operators of a particular model will recognize the advantages of cooperating and jointly financing the development of a SSIP for that model. This can be done through the airplane type certificate holder or through an aviation engineering/consulting firm. Moreover, the final rule excepts part 135 multiengine airplanes initially certificated with nine or fewer passenger seats from implementing damage-tolerance-based SSIPs.
With regard to efficiencies in developing SSIPs, that factor was removed from the cost-estimating methodology in the final regulatory evaluation. With regard to charging a fee, such a fee can be charged. Then, the cost of developing a damage-tolerance-based SSIP can be shared by all the affected operators.
The development of a damage-tolerance-based SSIP was estimated in the NPRM to take between 10,000 to 25,000 hours. The 80 hours was an estimate of the time needed for an operator to incorporate the damage-tolerance-based SSIP into its maintenance program.
With respect to training mechanics, it is not expected that airline mechanics will need additional training to do damage-tolerance-based inspections. Airline mechanics, through their training and work experience, already have the necessary skills to do such inspections. Most airlines have nondestructive testing capability already and it is only a matter of including those inspections in their maintenance or inspections programs.
The 20-year annualized cost does not mean that operators would not face costs sooner than 20 years. They will face costs sooner, and those costs have been incorporated in the economic assessment.
The period used to analyze the costs of the rule is a 20-year period. In the NPRM, the time period was 1999-2018. In the final regulatory evaluation, it is 2001-2020. If the period becomes longer than this (
The final rule contains relieving actions. Airplanes initially certificated with nine or fewer passenger seats have been excepted from damage-tolerance-based SSIPs and, instead, need to implement service-history-based SSIPs in 2010. The repeat inspections interval has been increased from 5 to 7 years. Finally, the FAA will make available advisory material through AC 91-56B and AC 91-60A. This material will be useful to small and commuter operators.
The FAA economic analysis provides a reasoned determination that the benefits of the rule justify the costs. The FAA and Congress believe that the risk of accidents does exist. This rule is expected to prevent aging aircraft accidents. The FAA and industry will be better able to monitor the aircraft airworthiness and thus comply with the AASA. This rule is expected to prevent potential aging-related accidents and to extend the airworthy life of affected aircraft.
Because of these liability concerns, the commenter would not sell its damage-tolerance-based “inspection program” to other DHC-6 operators as a means of defraying the initial investment of at least $750,000. In addition, because more of its customers cannot afford to maintain personnel trained and certified in ultrasonic inspection techniques, the commenter would have to add additional personnel and keep them qualified to support its customers. According to the commenter, its “lease rents” would decline in proportion to increased maintenance costs. The commenter states it cannot place a cost on a reduction in rents or in how that income loss could reduce DHC-6 hull values. However, the commenter estimates it would cost at least $100,000 per year in additional personnel costs for the commenter and potentially reduce the DHC-6 hull values by between $400,000 and $500,000 (a total of $15.6 to $19.5 million for the commenter's fleet of 39 DHC-6s).
Fairchild has developed a damage-tolerance-based SSIP for its Metro aircraft. However, the FAA realizes that other type certificate holders may choose not to support the development of SSIPs and that this may lead to the retirement of certain airplanes. The FAA notes that each operator, not the type certificate holder, is responsible for ensuring the continuing airworthiness of its aging aircraft.
One international operator submitted a comment on the International Trade Impact Analysis completed by the FAA. The operator states—
• In encouraging foreign governments to adopt this proposal, the FAA must accept the inspection and review findings of those governments without further FAA-approved review or inspection. The operator indicates the CASA probably will adopt this NPRM; therefore, incurring costs for non-U.S.-registered fleets.
• The international trade impact analysis is underestimated. The NPRM could affect international trade if restrictions apply to the importation of second-hand airplanes into the United States.
Another international operator noted that the proposal will have an effect on foreign trade by increasing operating costs for foreign operators of U.S.-registered aircraft due to the additional costs associated with compliance with this rule.
The rule applies to all affected U.S.-registered airplanes. It does not apply to non-U.S.-registered airplanes. The FAA notes, however, that any U.S.-registered airplane will be subject to the requirements of this rule whether it is purchased from a seller in a U.S location or from a seller in a foreign location. Owners of foreign-registered airplanes seeking U.S. registration and prospective owners of such airplanes are aware of the need to comply with applicable U.S. regulations and should take these requirements into account before attempting to transfer a foreign-registered aircraft to the U.S. registry. It is their responsibility to ensure that an aircraft imported into the United States complies with current U.S. regulatory requirements.
• Correct the appendix references in § 135.168 to read “appendix G.”
• Correct the appendix references in § 121.370a to read “appendix N.”
• Better define what is meant by the term “age-related fatigue damage.” The EAAWG asks whether the term means corrosion fatigue or refers to the more conventional understanding of damage resulting from repeated cyclic loading.
• Better describe what is meant by “fatigue.” According to the EAAWG, the description of this term in the Description of Benefits section of the preamble to the proposal implies fatigue may be something other than cracking, although cracking is the specific concern of the proposal.
• Reconsider the use of the term “supplemental” to refer to inspections in §§ 121.370a, 129.16, and 135.168. According to the CASA, whether inspections are supplemental or integral to the basic maintenance program is irrelevant. Also, the CASA states these inspections increasingly would become integral rather than supplemental.
The FAA also has corrected the appendix references in §§ 121.370a and 135.16.
The NATA proposes a different method of addressing aging concerns for part 23 airplanes initially certificated with nine or fewer passenger seats certificated before 1993:
• The FAA should identify airplanes for which damage-tolerance-based inspections have been developed and approved by the FAA.
• The FAA should identify airplanes for which the “manufacturer” has developed a SSIP or a supplemental corrosion inspection program.
• For any airplane not covered by the above provisions, the FAA should develop a special inspection to enhance the scheduled periodic/annual inspection currently required. The inspections should be developed through the use of structural difficulty reports and other such reports available to the FAA.
• The owner/operator of any affected airplanes in air carrier service should be required to implement, no later than 14 years after the date of manufacture, a SSIP designated by the “manufacturer.” If the “manufacturer” has not designated such a program, the operator should be required to implement the FAA's SSIP.
Another commenter indicates he has been a DAR since 1983 and generally charges $125 per hour for services performed (based on appendix A to part 187, Methodology for Computation of Fees for Certification Services Performed Outside the United States, and AC 187-1, Flight Standards Service Schedule of Charges Outside the United States). The ATA estimates the costs of hiring a DAR would be no less than $100 per hour, compared with the FAA's estimate of $55 per hour.
Other commenters worry that the operator would have to bear the costs of the DAR inspections and records reviews. One operator states that some FAA offices routinely direct operators to
In the NPRM cost calculations, the FAA used $95 per hour for the burdened hourly wage of DARs. The FAA used $55 per hour for other types of skills. In the cost calculations of the final regulatory evaluation, the FAA used $100 per hour for the burdened wage rate of DARs. With regard to the availability of FAA inspectors, the cost-estimation methodology recognizes the possible obstacles with the supply and availability of FAA inspectors, and has consequently assumed that 60 percent of this cost will be for the use of DAR services and 40 percent will be for the use of FAA inspector services. The total cost of the rule remains the same.
Changes to federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreement (19 U.S.C. section 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by state, local or tribal government, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted for inflation).
In conducting these analyses, the FAA has determined that this rule: (1) Has benefits which do justify its costs, is a “significant regulatory action” as defined in the Executive Order, and is “significant” as defined in DOT's Regulatory Policies and Procedures; (2) will have a significant impact on a substantial number of small entities; (3) will have a neutral impact on international trade; and (4) does not impose an unfunded mandate on State, local, or tribal governments, or on the private sector. These analyses, available in the docket, are summarized below.
This rule represents a critical step toward compliance with the Aging Aircraft Safety Act of 1991. Section 44717 of title 49 instructs the Administrator to “prescribe regulations that ensure the continuing airworthiness of aging aircraft” and to “make inspections, and review the maintenance and other records, of each aircraft an air carrier uses to provide air transportation.”
Consistent with section 44717 of title 49, the purpose of the rule is to ensure the continuing airworthiness of aging airplanes operating in commercial air transportation. The implementation of this rule ensures that: (1) Modern damage-tolerance analysis and inspection techniques will be applied to older airplane structures that were certificated before such techniques were available, and (2) the FAA will conduct mandatory aging-aircraft inspections and records reviews.
Since the publication of the NPRM, the FAA made changes to the final rule consistent with the enabling legislation to ensure the airworthiness of aging aircraft, while factoring in public comments about the economic consequences. The net effect is that all operators have more time to be in compliance with this rule and that operators of smaller aircraft implement less rigorous inspections. Despite these cost-reduction factors, the estimated total cost of the rule is higher than that initial regulatory evaluation, due to cost adjustments resulting from information provided by the industry.
There is strong evidence that the current system of maintenance inspections is not working effectively in the detection, and repairing, cracks on airplanes during regular maintenance inspections, while these cracks are still small. This section discusses the differences between the current rules and the aging rule in order to show the focused emphasis of the aging rule toward the early detection of cracks.
There are significant differences between the requirements under
Currently, the inspection programs of small transport airplanes (such as DeHavilland/DHC-6) are not damage-tolerance based. Parts of these airplanes were certificated to either
In contrast to the
The damage-tolerance-based program uses both
Also, DT-based SSIPs implement inspections for fatigue “
With regard to
The comprehensive status of the U.S. airplane fleet with regard to cracking is fairly unknown. It is known that the fleet is aging and the metal of airplanes' structures is accumulating more flight cycles, resulting in an increasing risk of fatigue cracks and a catastrophic airplane accident. The
The purpose of this rule is to play a key-role in assuring the continued structural airworthiness of air carrier airplanes as they continue in service. The rule puts into place one integral part of the FAA's “Aging Aircraft Program”, initiated in 1988, to address the unique problems associated with older airplanes. This initiative was undertaken because significant numbers of air-carrier airplanes were, and are, continuing to operate beyond their original design service goals. The Aging Airplane Program was launched with participation by airplane operators and manufacturers, and with the specific goal of identifying maintenance procedures that are necessary beyond current requirements to deal with the phenomena of aging materials.
After an extended period of working with industry's Airworthiness Assurance Task Force and the Airworthiness Assurance Working Group within the Aviation Regulatory Advisory Committee (ARAC), the FAA has concluded that four distinct areas of airplane aging need to be individually addressed. These areas are (1) fatigue cracking, (2) corrosion, (3) damage tolerance of structural repairs, and (4) widespread fatigue damage. Protection from fatigue cracking is the most generalized of these four areas, and was the first area of focus by the FAA. The agency issued a notice of proposed rulemaking on fatigue cracking on April 2, 1999, entitled “Aging Airplane Safety”.
Structural properties of materials change as a result of prolonged and/or repeated application of stress cycles on those materials. After some duration of cyclic stress, the material will fail under the applied load because of fatigue. One manifestation of fatigue in materials is cracking. In principal-structural elements of the airplane, cracking due to fatigue can result in a catastrophic failure of the aircraft. Left unchecked, it is not a question of whether the repeated loadings on aircraft will produce a major structural failure but, rather, when that failure will occur. At the time when the NPRM for this final rule was published, more than 29 percent of the airplanes affected by that proposal were already 20 years old or older; 14 percent were over 30 years old; and 7 percent of the airplanes were over 40 years old. The average age of the U.S. airplane fleet has increased, in recent times, from 13.3 years in 1995 to 14.2 years in 1999 (even with retirement of older airplanes).
There is growing evidence of significant occurrence of fatigue cracks on airplanes and the potentially dire consequences of such cracks. This evidence includes: (1) The accident of the Aloha Boeing 737-200, on April 28, 1988, when 18 feet of upper fuselage separated from the airplane in flight; and (2) the substantial, accumulated data showing the development of significant numbers of cracks on airplanes. In the Aloha accident, the National Transportation Safety Board determined the probable cause of the accident to be metal fatigue and corrosion. In addition, many cracks have been found over time on airplanes, including some that are quite long—thus, increasing the risk of accidents. These cracks are typically the result of fatigue from aging. The evidence of significant risk of airplane accidents as a result of cracks is described below, and includes: (1) A relative risk assessment, followed by (2) the record of Service Difficulty Reports, and ending with (3) a discussion of the Airworthiness Directives issued on fatigue and cracking for the U.S. commercial fleet.
This benefit analysis provides an estimate of the increasing
To date, the airplane fleets affected by this rule have not experienced a fatigue-related accident, resulting in loss of life or serious injury, although the Aloha accident (mentioned previously) was partly attributed to the age of the airplane involved. The Aloha accident was followed by a series of ADs, on operators, whose successful implementation depended on the voluntary development of DT-SSIPs by manufacturers. The development of these DT-SSIPs has been taking a relatively long time, and is still not completed. Moreover, numerous instances of serious cracking have been discovered among the fleet even during currently-required inspections that do not systematically investigate for fatigue cracking, as is required by this rule. This suggests that a fatigue problem does exist. An attempt is made here to provide an estimate of the magnitude of that problem—now and in the future.
Based upon extensive testing, it is common engineering practice to assume that materials fail from fatigue according to a normal probability curve. The “mean” or highest point of the bell-shaped normal curve denotes the point at which half of the test samples have failed; or, stated another way, that is the point where the probability that any one
An airplane is made up of a great many different and independent elements, each with its own failure characteristics. Consideration of the probabilities of time-to-failure resulting from fatigue for an entire airplane can be analyzed in terms of a normal distribution. The Central Limit Theorem allows the useful assumption that a plot of the means, of the various times-to-failure of a sufficient number of samples of individual parts of an airplane, will approximate a normal distribution, without regard to the actual underlying distribution of various times-to-failure of the parts. Using this approach, it can reasonably be assumed that in the absence of some preventive action, the fleet of aircraft affected by this rule would experience fatigue failure according to an approximately normal distribution curve. This analysis makes such as assumption. A normal curve is defined by its mean and standard deviation, and unfortunately neither of those numbers is known for the fleet of affected airplanes. As a result, a reasonably accurate failure curve cannot be constructed.
However, by making some conservative assumptions, a curve of relative failure risk may be developed that could yield some useful indications. The
For the purpose of discussing relative failure risk—not actual failure risk—it is assumed that the point of three standard deviations on the risk curve (to the left of the mean) occurs at the age of 14 years. This matches the statutory requirement and the requirements of this rule that additional preventive actions be initiated at that time. Three standard deviations matches the often-used engineering convention that a component is “safe” outside that point (to the left of the mean).
The curve is defined with a mean of 50 years and a standard deviation of 12 years ((50-14)/3). Interpolating from a standard normal probability table, the probabilities associated with such a curve by aircraft age are shown in Table 1. As previously stated, available data are not sufficient to claim that this table shows the fraction of the fleet that would experience fatigue failure with age, in the absence of this rule, but it may be a reasonable indicator of relative risks of failure for individual aircraft.
A very small risk of failure occurs by age 14 years (0.001), as shown in Table 1. By age 22, however, the relative risk is ten times greater—one order of magnitude (at 0.01). By age 35, the risk of failure is one-hundred times greater, than that at age 14—two orders of magnitude (at 0.1). If the maximum, acceptable “safe life” risk occurs when an airplane reaches the point of three standard deviation from the mean, at 14 years of age, then this analysis indicates that this maximum acceptable risk is exceeded by one order of magnitude by age 22, and two orders of magnitude by age 35.
A similar tabulation was done for relative probabilities of fatigue failure if the mean is assumed to be 62 years, instead of 50 years. (62 years, instead of 60 or 65 years, was selected simply for ease of interpolation from the standard normal curve table.) In this case, the relative risk increases by one order of magnitude when an airplane reaches age 25 and two orders of magnitude by age 42.
Although the above brief risk analysis is not precise and depends upon assumptions that could be varied, it does provide an idea of how the risk to aging aircraft increases over time. From this analysis, there is no question that over the years, the risk of fatigue failure for an airplane's structural parts increases. When the above analysis is applied to the fleet of airplanes affected by the rule, there is a strong indication that the level of safety from fatigue crack accidents has significantly declined. The analysis suggests that in the absence of the action proposed by this rule, the accident risk has increased beyond “safe life” by one order of magnitude when an aircraft reaches around 22 to 25 years of age. Over 25 percent of the fleet has reached or exceeded that age range. Further, the analysis suggests that the accident risk has increased to two orders of magnitude, beyond “safe life”, in the 35 to 40 years of age range. Over 10 percent of the fleet has reached or exceeded that range.
A review of Service Difficulty Reports (SDRs) shows that a significant problem exists with cracks on airplanes in the U.S. commercial fleet. SDRs are reports that provide information on the incidents (as opposed to accidents) of airplanes related to maintenance problems. The reports are typically completed by airline (or repair station) mechanics, and are then sent to, and collected by, the FAA. An objective of the submission and collection of SDRs is to track problems with aircraft parts and components. The findings of SDRs can lead to the issuing of airworthiness directives (ADs), when conditions observed are deemed to create a significant, adverse effect on air-transport safety.
The FAA searched the National Aviation Safety Data Analysis Center (NASDAC) for service difficulty reports since 1990—for part 121 airplanes—using three keywords: “crack”, “aging”, or “fatigue”. The search resulted in over 94,000 records or SDRs. Of these, about 93 percent, or 88,000 SDRs, were on “cracks” (while the remaining were on “corrosion”).
Airworthiness Directives (ADs) are issued when serious problems with airplanes are discovered that—if not repaired—have a high likelihood of resulting in an accident. So, ADs are issued quickly in order to maintain the airworthiness of the affected airplanes and thus prevent accidents. Given the threat of an accident, when an AD is issued, operators have a limited time to resolve the problem and often require unscheduled maintenance.
A tabulation was made of ADs issued by the FAA for problems with airframe “fatigue” and “cracking”—for a recent period of less than one year: January 1 through September 2000. The results show that 56 such ADs were issued by the FAA over that time period. These ADs apply to various parts of the airplane structure and these parts include: Fuselage, wings, door frames, deck floor beams, etc. A count of the affected parts indicates that:
(1) Ten ADs were issued for cracks found on the fuselage skin;
(2) Nine ADs were issued for cracks on wings;
(3) Eight ADs were issued for cracks found on, and around, doors.
(4) Eight ADs were issued for cracks found on (and around) bulkheads.
(5) Two ADs were issued for cracks found on the tail assembly (which includes the horizontal and vertical stabilizers, and rudder).
These Airworthiness Directives on cracks, also, affect
If cracks are left undetected—and, thus, untreated—they grow. Subsequently, they can result in accidents. With regard to crack
The text in the same AD goes on to emphasize the serious, potential consequences of cracks. It states that “Such conditions, if not corrected, could result in reduced structural integrity of the fuselage, and consequent rapid depressurization of the airplane.” Depressurization means that the fuselage of the aircraft is breached and that can result in an accident. When a fuselage is under pressure, if a crack gets long enough, it will fast fracture.
Therefore, cracks are a serious airworthiness problem, as evidenced by the necessity to issue numerous ADs. These cracks have affected critical parts of the entire airplane structure across all the airplane types used in commercial aviation. The use of ADs is meant to address a
In sum, it is accepted that after some duration of cyclic stress, metal will fail under applied load because of fatigue. From the relative risk assessment discussed above, it is clear that risk of metal fatigue increases by orders of magnitude as the airplanes age. Since 1990, there are over 88,000 airplane service difficulty reports that identify cracks found on all the main parts of airplane structure. There is not only abundant evidence of pervasive cracking in airplanes, but also many of these cracks have led to airworthiness problems. These risks are not acceptable. The FAA concludes that action must be taken to avoid this unacceptable risk. The inspections and records reviews required by this rule are expected to achieve the goal of maintaining an acceptable risk from fatigue cracking accidents.
There are several differences between preliminary regulatory evaluation of the NPRM and the final regulatory evaluation of the rule. Some of these differences reduce the costs of the rule, while others increase these costs. The net effect is for the estimated costs in the final regulatory evaluation to exceed substantially the costs estimated in the NPRM. These changes are explained in more detail below.
The following changes from the NPRM to the final rule, based on information from public comments, reduced the cost of some requirements of the rule:
(1) The time between repeat intervals was increased from 5 years to 7 years—in order for the required inspections to be better accommodated by the schedule for heavy maintenance checks.
(2) For airplanes that will be 25 years or more on the rule effective date, the time interval for the initial inspection was increased from 3 to 4 years.
(3) In the final rule, operators of part 135 airplanes are exempt from damage-
(4) In the final rule, operations within Alaska are exempt from the rule's requirements.
Despite the above factors that reduced costs, the estimated total cost of the rule in the final regulatory evaluation is significantly greater than the total cost of the rule estimated in the NPRM. This increased cost was affected by the following factors:
(1) The number of affected airplanes was higher in the final regulatory evaluation. The number of part 121 airplanes that need DT SSIPs increased from 925 in the NPRM to 1,596 in the final regulatory evaluation.
(2) For part 121 airplanes that have DT SSIPs, the cost estimation in the final rule increased the downtime for FAA/DAR inspections and records review to 2 days.
(3) In the final regulatory evaluation, efficiency factors were not applied in the writing/development of damage-tolerance-based SSIPs.
(4) The average airplane values used in the final regulatory evaluation were higher than those used in the preliminary regulatory evaluation. This results in increased downtime costs.
As a result of the above changes, the total estimated cost of the rule increased from $99.6 million in the NPRM to $173.5 million in the final rule—in present value. The cost of the part 135 operators declined from $8.5 million to $1.7 million, in present value.
Also, with respect to the distribution of the cost for inspections/records review by FAA inspectors/DARs, in the final regulatory evaluation it was assumed that 60% of this activity will be conducted by DARs, while 40% will be conducted by FAA inspectors. In the NPRM, the cost methodology assumed that the cost of this activity would be shared 50%-50% between FAA inspectors and DARs. Consequently, the methodology of the final regulatory evaluation increased the cost of this activity for the operators.
The rule will affect the operators of airplanes under part 121 that currently have (or are expected to have by 2004) damage-tolerance-based SSIPs incorporated into their maintenance program. In addition, those operators of airplanes under part 121 that are not currently required to incorporate a damage-tolerance-based SSIP into their maintenance program will need to develop such a program. The rule will also generate costs for operators of multi-engine airplanes that are operated in scheduled service under part 135 and initially certificated with 10 or more passenger seats. These operators are required to develop and implement damage-tolerance-based SSIPs by the year 2010. Many of the airplanes in this group have moved over time into part 121; consequently, their costs are measured through the part 121 airplane list.
The rule will also generate costs for operators of multi-engine airplanes that are operated in scheduled service under part 135 and initially certificated with nine or fewer passenger seats. These operators are required, by the final rule, to develop and implement service-history-based SSIPs by the year 2010. Service-history-based SSIPs have considerably lower costs than damage-tolerance-based SSIPs. In the NPRM, the proposed rule required that the operators of these airplanes also implement damage-tolerance-based SSIPs. However, as a result of public comments and additional consideration, this final rule exempts those airplanes from damage-tolerance-based SSIPs and, instead, requires the lower-cost service-history-based SSIPs.
The estimated costs of this rule do not include the expenses of making repairs to airplanes that may be found necessary during either the SSIP-directed inspections, conducted by the airplane mechanics, or the oversight inspections conducted by the FAA inspectors or DARs. While the FAA recognizes that such repairs can sometimes constitute a considerable expense, the costs of these repairs are not attributable to this rule because existing FAA regulations require that repairs be made to assure the continued airworthiness of the airplane.
Also, the economic evaluation focuses on existing airplanes and does not address the costs that the rule will eventually impose on newly-produced airplanes. The requirements of this rule on newly-produced airplanes are beyond (or nearly so) the 20-year time period of this study. Consequently, these costs, particularly their present value, are expected to constitute a relatively small proportion of the costs calculated in this study.
For those part 121 operators that have (or will have by 2004) a damage-tolerance-based SSIP, the rule will not impose costs for damage-tolerance-based inspections conducted by their mechanics or for downtime of airplanes caused by these inspections. The rule will require that these airplanes implement inspections and records reviews by FAA inspectors or Designated Airworthiness Representatives (DARs), at designated time intervals. This requirement will result in additional costs for the affected operators. These inspections/records review are expected to result in additional time that an airplane is out-of-service. While this downtime cost estimates in the NPRM were based on loss-of-service estimates that ranged from 0.7 to 1.6 days per airplane inspection, in these cost calculations, the downtime has been increased to 2.0 days. This increase in downtime reflects the input of public comments.
The estimated cost of airplane downtime is based on a rate of return to capital approach, in which the operational airplane is the productive capital and there is a return associated with its use. Consequently, out-of-service cost can be estimated through the loss of capital services of the aircraft. The value of this loss is measured by the rate of return to capital (aircraft). This analysis uses 7 percent per annum as the average rate of return to capital; this rate is also preferred by the Office of Management and Budget for present-value calculations. Consequently, downtime costs were calculated as the product of the 2 downtime days, divided by 365 days (per year), multiplied by the rate-of-return to capital, at 7 percent. The resulting estimate is a downtime cost per airplane (in a model group), per inspection. To obtain the cost of downtime for a model group, the downtime cost per airplane is multiplied by the number of airplanes in that model group. The total downtime cost of the rule is the summation across model groups and over time. Thus, the estimate for downtime costs, for part 121 airplanes with damage-tolerance-based SSIPs over the period of analysis, is $98.4 million, undiscounted. Assuming an average of two inspections per airplane over the 20-year period of analysis, and using 7,620 airplanes and 2 days per inspection, one estimates downtime costs at $3,228 per day per airplane (undiscounted).
This figure (of $3,228 per day) is significantly different/lower than figures provided by some public comments of $80,000 in lost revenue per inspection which—given a two-day downtime period—would result in $40,000 lost revenue per day. On should note that the relevant variable to measure for downtime cost is lost net income—that is, “revenue minus costs” of operating the airplane. And lost net income would be substantially lower than lost revenue per day for an airplane. When an airplane is out-of-service, there is loss of revenue but costs of operation are also
There were also adjustments to these cost estimates. The estimated total cost of the rule, for this group of airplanes, was computed under the hypothesis that all of the affected airplanes that exist today will continue to be operating through the end of the study period—year 2020. In actuality, however, over time there will be normal replacement and retirement, by operators of these airplanes. Consequently, a substantial portion of these costs will not be incurred. The evaluation assumes that at least one-third of the potential $245.0 million costs will not be incurred due to normal replacement and retirement of aircraft. This assumption is the same as that used in the initial regulatory evaluation.
The relevant tasks and associated costs of the rule for these airplanes include:
(1) Development of the damage-tolerance-based SSIP.
(2) Incorporation of damage-tolerance-based SSIPs into operators' maintenance programs.
(3) Review/approval by FAA of operators' damage-tolerance-based SSIP and of their incorporation into the operators' maintenance programs.
(4) Modification costs.
(5) Inspections—conducted by airline mechanics.
(6) Downtime costs for airplanes for inspections—by airline mechanics.
(7) Cost for operator personnel to prepare the airplane and its records for the FAA inspector or DAR, to conduct their inspection and records review.
(8) Direct costs for FAA inspectors/DARs, to conduct inspections and records reviews of the affected airplanes.
(9) Downtime cost of airplane for the above inspection and records review by FAA/DARs.
With regard to the downtime costs of airplanes for inspections by mechanics, the evaluation assumes that each 40 hours of inspection work, caused by this rule, will require one additional day of airplane downtime. The methodology again uses the rate of return to capital approach, with 7 per cent per year. Consequently, the cost of aircraft downtime, for mechanic inspections, for the affected airplanes over the period of analysis is estimated at $3.1 million, undiscounted.
With regard to the downtime costs of these airplanes for inspection/records review by FAA/DARs, the additional downtime is estimated to range between 0.7 and 1.6 days per airplane inspection —depending on airplane value. Subsequently, the cost of downtime is calculated by the rate of return to capital approach (using 7 percent). The result is an estimate of $702,000 undiscounted, for downtime costs of the affected airplanes.
For some models, the potential cost of complying with the requirements of the rule could constitute a significant proportion of (or may actually exceed) the economic values of the airplanes involved. Consequently, for each airplane model group, the estimated potential cost of compliance was compared with the estimated economic value of the airplanes in that model group. In cases where the potential compliance cost exceeds 50 percent of the group value, the methodology assumes that an SSIP will not be developed and implemented. Consequently, the related compliance costs for the rule will not be incurred. Instead, it is expected that the affected models will be retired or transferred out of scheduled service. The estimated forced out-of-service costs for these models are estimated to be 50 percent reduction in their economic value.
However, this (apparent) reduction in the cost of the rule is accompanied by an increase in another type of cost. This includes the hardship and economic dislocation that will result from the reduction in operations, or by possibly going out of business, by some operators. This hardship can include the loss of jobs by employees of the affected operators, and the subsequent negative effects of this on themselves (their households) and their communities. These costs are recognized although not quantified.
The estimated cost of the rule for this group of airplanes was computed under the scenario whereby all of the affected airplanes that exist today will continue to fly through the end of the study period (year 2020). In actuality, however, there will be normal replacement and retirement of these airplanes (by operators) and, consequently, a substantial portion of these costs will not be incurred. The replacement cycle for this group of airplanes can vary widely. For some mainstream scheduled commuter carriers, it is common practice for airplanes to be routinely replaced. In a number of cases, few if any of the costs of this rule will be incurred. Conversely, the economics of some smaller, or niche carriers, are such that airplanes may continue to fly for 40 years or more. Given available information, the evaluation assumes that at least one-third of the potential $163.8 million costs will not be incurred, as a result of normal replacement/retirement of airplanes—leaving an estimated cost of $104.4 million.
This final rule exempts certain part 135 airplanes from implementing DT-based SSIPs. These are multi-engine airplanes, operated in scheduled service, initially certificated with nine or fewer passengers. Instead of a DT SSIP, the operators of these airplanes will have to implement a service-history-based SSIP—by the year 2010. A service-history-based SSIP is estimated to cost significantly less than a damage-tolerance-based SSIP—in general, 0.20 of the cost of a DT-based SSIP. The cost of the rule for this group of airplanes is estimated at $1.7 million, discounted ($2.9 million, undiscounted).
The rule is also estimated to have costs of $91.0 million undiscounted to the FAA. Virtually, the entire amount of these costs is for FAA inspectors to conduct inspections and records review. This cost estimate is based on the assumption that 40 percent of the inspections/records review will be conducted by the FAA inspectors while 60 percent will be conducted by DARs.
Table 2 presents the total costs of the rule, over the period of analysis—for the operators (and manufacturers) of the affected airplanes and the FAA. Total costs are estimated at $362.9 million, undiscounted, with a present value of $173.5 million.
The changes required by the rule are necessary to ensure the continuing airworthiness of aging airplanes. The FAA finds that the expected benefits of the rule justify its costs. The total estimated costs of the rule are $173.5 million, discounted ($362.9 million, undiscounted). The benefits have been assessed through several perspectives as explained below.
There is growing evidence of significant occurrence of fatigue cracks on airplanes and the potentially dire consequences of such cracks. The evidence of significant risk of airplane accidents, as a result of cracks, include: (1) The Aloha accident; (2) the results of the relative risk assessment; (3) the number of Service Difficult Reports on cracks; and (4) the Airworthiness Directives issued for fatigue and cracking on the U.S. commercial aviation fleet.
The relative risk assessment showed that while a small risk of failure—due to fatigue cracks—exists by year 14 of an airplane's service life, by age 22, that risk is 10 times greater (one order of magnitude). Furthermore, by age 35, the risk is 100 times greater than at age 14 (two orders of magnitude). Over 25 percent of the fleet has reached or exceeded the range of 22 to 25 years of age. Over 10 percent of the fleet has reached or exceeded 35 years of age.
In addition, a search resulted in 88,000 Service Difficulty Reports on cracks, since 1990. This number of records indicates a prevalent and significant problem with cracks in the aircraft fleet. Furthermore, the significant number of ADs on cracks on airplanes—issued during a recent period (of less than a year) also indicates the existence of a serious problem with cracks on the U.S. commercial fleet. ADs are issued quickly to remedy problems that have a high likelihood of resulting in accidents. Each AD, by itself, is proof that a significant accident risk exists.
Therefore, based on the above evidence, the FAA finds that the expected benefits of this rule justify its expected costs.
The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the Act requires agencies to solicit and consider flexible regulatory proposals, and to consider the rationale for their actions. The Act covers a wide range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will have such an impact, the agency must prepare a regulatory flexibility analysis as described in the Act. However, if an agency determines that a proposed, or final, rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 act provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
For the NPRM, the FAA conducted a complete initial regulatory flexibility analysis to assess the impact on small entities. This rule will affect commercial operators of airplanes, in the specified part of the CFR. For these operators, a small entity is defined as one with 1,500 or fewer employees. As there are operators that met that criteria for a small business, calculations were carried out to assess whether the rule will have a significant impact on a substantial number of these operators.
The central focus of the FRFA, like the Initial Regulatory Flexibility Analysis (IRFA), is the requirement that agencies evaluate the impact of a rule on small entities and analyze regulatory alternatives that minimize the impact when there will be a significant economic impact on a substantial number of small entities.
The requirements, outlined in section 604(a)(1-5), are listed and discussed below:
(1)
(2)
In response to public comments, the FAA made several changes to the final rule:
(i) The primary change is that part 135 airplanes operating in scheduled operations, initially certificated with nine passenger seats or less, are exempted from implementing damage-tolerance-based SSIPs. Instead, they are
(ii) The interval between repeat inspections was extended in the final rule to seven years, from five years in the NPRM.
(iii) For the initial inspection, the interval from the effective date of the rule was extended from 3 to 4 years for airplanes greater than 25 years old.
(3)
Next, the net present value of the cost of the rule was calculated for each operator. As these cost calculations are based on airplane model groups, the resulting net present value (NPV) for one airplane is obtained by dividing the cost of the group by the total number of airplanes in that group. The result is an “average” net present value per airplane. The NPV per airplane is then multiplied by the number of airplanes of that operator, in that model group. If there is more than one model group, per operator, the NPVs of the model groups are summed to derive the net present value of the cost of this rule for the affected operators. Subsequently, these discounted costs are used to derive annualized costs, for each affected small operator.
With respect to part 135 operators, a search was made in the GRA database that listed part 135 operators, along with the number of employees and annual revenues per firm. The identified small operators were then checked against a database of the FAA which listed the names of part 135 operators and their airplanes. This search identified 26 small entities operating under part 135, including two operators that operate under parts 135 and 121. For part 135 operators, the net present value of the rule's cost and annualized cost were derived in the same manner as for part 121 operators.
Annualized costs for the affected operators were then divided by annual revenues of the operators. The results show that for all—except two—of the listed 58 small operators, under part 121, the ratio of annualized cost to revenues is substantially less than one percent. For one operator, the ratio is 5.9 percent, while for another operator, it is 1.1 percent. With regard to part 135 operators, of the 24 identified operators, all but two show a ratio of annualized cost to annual revenue that is less than one percent. Thus, of the 82 identified small operators—under part 121 and/or part 135—all except four have a ratio of annualized cost to annual revenue that is substantially less than one percent.
(4)
(5)
Furthermore, in its efforts to assist small entities and other affected parties operating part 135 airplanes, the FAA will publish (with the final rule) an advisory circular, AC 91-60A “The Continued Airworthiness of Older Airplanes”.
The FAA has considered several alternative approaches to this rulemaking and has attempted to minimize the potential economic impact of the rule, especially the impact on the operation of aircraft most likely to be used by small entities. At the same time, the agency needs to meet its primary responsibility for aviation safety and its particular obligation under 49 U.S.C. 44717 to ensure the continuing airworthiness of aging aircraft.
The FAA made two changes to the requirements of the final rule that significantly lower compliance costs of operators. First, the FAA chose to lengthen the time period between inspections from 5 to 7 years. This longer period lowers the compliance cost of the affected operators as the inspections can occur at a heavy maintenance check. Second, the FAA exempted part 135 operators from the most expensive requirement of the rule. Part 135 operators are nearly all small entities.
In its efforts to assist small entities and other affected parties in complying with the rule, the FAA will be publishing two advisory circulars (for comment) with the final rule. One is AC 91-56B “Continuing Structural Integrity Program for Airplanes” and it will provide guidance for complying with a DT SSIP. The other document is AC 91-60A “The Continued Airworthiness of Older Airplanes”, which will provide guidance for complying with a service-history based SSIP. These circulars will be published concurrently with this rule, with a request for comments.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards.
In accordance with the above statute, the FAA has assessed the potential affect of this final rule and has determined that it will impose the same costs on domestic and international
Title II of the Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate, in a proposed or final agency rule, that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal agency to develop an effective process to permit timely input by elected officers (or their designees) of State, local, and tribal governments on a proposed “significant intergovernmental mandate.” A “significant intergovernmental mandate” under the Act is any provision in a Federal agency regulation that will impose an enforceable duty upon State, local, and tribal governments, in the aggregate, of $100 million (adjusted annually for inflation) in any one year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section 204(a), provides that before establishing any regulatory requirements that might significantly or uniquely affect small governments, the agency shall have developed a plan that, among other things, provides for notice to potentially affected small governments, if any, and for a meaningful and timely opportunity to provide input in the development of regulatory proposals.
This rule does not contain a Federal intergovernmental or private sector mandate that exceeds $100 million in any one year.
Information collection requirements in the final rule have been previously approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and have been assigned OMB Control Numbers: 2120-0020-, 2120-0008, and 2120-0039. Part 129 record requirements can be found in International Civil Aviation Organization Annexes.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. In addition, consistent with the Administration's belief in the general superiority and desirability of free trade, it is the policy of the Administration to remove or diminish, to the extent feasible, barriers to international trade. This includes both barriers affecting the export of American goods and services to foreign countries, and barriers affecting the import of foreign goods and services into the United States.
In accordance with the above statute and policy, the FAA has assessed the potential effect of this final rule and has determined that it will impose the same costs on domestic and international entities, and thus will have a neutral trade impact.
Title II of the Unfunded Mandates Reform Act of 1995 (the Act), enacted as Public Law 104-4 on March 22, 1995, requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate, in a proposed or final agency rule, that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal agency to develop an effective process to permit timely input by elected officers (or their designees) of State, local, and tribal governments on a proposed “significant intergovernmental mandate.” A “significant intergovernmental mandate” under the Act is any provision in a Federal agency regulation that will impose an enforceable duty upon State, local, and tribal governments, in the aggregate, of $100 million (adjusted annually for inflation) in any one year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section 204(a), provides that before establishing any regulatory requirements that might significantly or uniquely affect small governments, the agency shall have developed a plan that, among other things, provides for notice to potentially affected small governments, if any, and for a meaningful and timely opportunity to provide input in the development of regulatory proposals.
This rule does not contain a Federal intergovernmental or private sector mandate that exceeds $100 million in any one year.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we determined that this final rule does not have federalism implications.
FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation of a National Environmental Policy Act (NEPA) environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j), this rulemaking action qualifies for a categorical exclusion.
The energy impact of the notice has been assessed in accordance with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, as amended (42 U.S.C. 6362), and FAA Order 1053.1. It has been determined that the final rule is not a major regulatory action under the provisions of the EPCA.
Air carriers, Air transportation, Aircraft, Aviation safety, Commuter operations, Reporting and recordkeeping requirements.
Air carriers, Aircraft, Aviation safety, Reporting and recordkeeping requirements, Safety, Transportation.
Air carriers, Aircraft, Aviation safety, Reporting and recordkeeping requirements.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
Aircraft, Authority delegations (Government agencies), Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 40113, 44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906, 44912, 44914, 44936, 44938, 46103, 46105.
49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 44912, 46105.
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(1) Total years in service of the airplane;
(2) Total flight hours of the airframe;
(3) Total flight cycles of the airframe;
(4) Date of the last inspection and records review required by this section;
(5) Current status of life-limited parts of the airframe;
(6) Time since the last overhaul of all structural components required to be overhauled on a specific time basis;
(7) Current inspection status of the airplane, including the time since the last inspection required by the inspection program under which the airplane is maintained;
(8) Current status of the following, including the method of compliance:
(i) Airworthiness directives;
(ii) Corrosion Prevention and Control Programs; and
(iii) Inspections and procedures required by § 121.370a of this part;
(9) A list of major structural alterations; and
(10) A report of major structural repairs and the current inspection status for those repairs.
(a)
(b)
(c)
(d)
(e)
49 U.S.C. 106(g), 40104-40105, 40113, 40119, 44701-44702, 44712, 44716-44717, 44722, 44901-44904, 44906.
8. Revise § 129.1 to read as follows:
(a)
(1) A permit issued by the Civil Aeronautics Board or the U.S. Department of Transportation under 49 U.S.C. 41301 through 41306 (formerly section 402 of the Federal Aviation Act of 1958, as amended), or
(2) Other appropriate economic or exemption authority issued by the Civil Aeronautics Board or the U.S. Department of Transportation.
(b)
(c)
(1)
(2)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(1)
(2)
(3)
(b)
(c)
(1) Total years in service of the airplane;
(2) Total flight hours of the airframe;
(3) Total flight cycles of the airframe;
(4) Date of the last inspection and records review required by this section;
(5) Current status of life-limited parts of the airframe;
(6) Time since the last overhaul of all structural components required to be overhauled on a specific time basis;
(7) Current inspection status of the airplane, including the time since the last inspection required by the inspection program under which the airplane is maintained;
(8) Current status of the following, including the method of compliance:
(i) Airworthiness directives;
(ii) Corrosion Prevention and Control Programs; and
(iii) Inspections and procedures required by § 129.16 of this part;
(9) A list of major structural alterations; and
(10) A report of major structural repairs and the current inspection status for those repairs.
(d)
49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709, 44711-44713, 44715-44717, 44722.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(1) Total years in service of the airplane;
(2) Total flight hours of the airframe;
(3) Total flight cycles of the airframe;
(4) Date of the last inspection and records review required by this section;
(5) Current status of life-limited parts of the airframe;
(6) Time since the last overhaul of all structural components required to be overhauled on a specific time basis;
(7) Current inspection status of the airplane, including the time since the last inspection required by the inspection program under which the airplane is maintained;
(8) Current status of the following, including the method of compliance:
(i) Airworthiness directives;
(ii) Corrosion Prevention and Control Programs; and
(iii) Inspections and procedures required by § 135.168 of this part;
(9) A list of major structural alterations; and
(10) A report of major structural repairs and the current inspection status for those repairs.
(e)
16. Add new § 135.423 to read as follows:
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(1) Total years in service of the airplane;
(2) Total flight hours of the airframe;
(3) Date of the last inspection and records review required by this section;
(4) Current status of life-limited parts of the airframe;
(5) Time since the last overhaul of all structural components required to be overhauled on a specific time basis;
(6) Current inspection status of the airplane, including the time since the last inspection required by the inspection program under which the airplane is maintained;
(7) Current status of the following, including the method of compliance:
(i) Airworthiness directives;
(ii) Corrosion Prevention and Control Programs; and
(iii) Inspections and procedures required by § 135.168 of this part;
(8) A list of major structural alterations; and
(9) A report of major structural repairs and the current inspection status for these repairs.
(e)
31 U.S.C. 9701; 49 U.S.C. 106(g), 40113, 44702, 45303.
(a) Perform examination, inspection, and testing services necessary to issue, and to determine the continuing effectiveness of, certificates, including issuing certificates, as authorized by the Director of Flight Standards Service in the area of maintenance or as authorized by the Director of Aircraft Certification Service in the areas of manufacturing and engineering.
Federal Aviation Administration (FAA), DOT.
Notice of availability and request for comments.
This notice announces the availability of and request for comments on proposed advisory circular (AC) 91-60A, which provides guidance on the development and use of a service-history-based Structural Supplemental Inspection Program (SSIP) to ensure the continued airworthiness throughout their operational life of all U.S.-registered multiengine airplanes operated under 14 CFR part 129 or part 135 and initially certificated with 9 or fewer passenger seats. This guidance material addresses the requirement of the “Aging Airplane Safety Rule” for the development and use of a service-history-based SSIP. This proposed AC outlines an acceptable method, but not the only method, of compliance with this rule. A previous notice of availability was published in the
Comments must be received on or before February 4, 2003.
Send all comments on the proposed AC to: Frederick Sobeck, AFS-304, Aging Airplane Program Manager, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone number: (202) 267-7355.
Frederick Sobeck, AFS-304, Aging Airplane Program Manager, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone number: (202) 267-7355.
A copy of the draft AC may be obtained by accessing the FAA's Web page at
This proposed AC provides guidance on how to develop a service-history-based maintenance or inspection program to design approval holders, owners, and operators of all U.S.-registered multiengine airplanes operated under 14 CFR part 129 or part 135 and initially certificated with 9 or fewer passenger seats. This proposed AC reflects current maintenance and inspection practices and includes acceptable methods of compliance with the “Aging Airplane Safety Rule.” The proposed AC lists structural points that require more frequent maintenance as an airplane ages and discusses the development of a continuous airworthiness program, including participation by design approval holders and implementation by airplane owner/operators.
Federal Aviation Administration (FAA), DOT.
Notice of availability and request for comments.
This notice announces the availability of and request for comments on proposed AC 120-XX, which provides guidance pertaining to aging airplane records reviews and inspections that are accomplished to satisfy the requirements of the final rule entitled Aging Aircraft Safety which was enacted in response to a statutory requirement, the Aging Aircraft Safety Act of 1991. A previous notice of availability was published in the
Comments must be received on or before February 4, 2003.
Send all comments on the proposed AC to: Frederick Sobeck, AFS-304, Aging Airplane Program Manager, Flight Standards Service, Federal Aviation Administration, 800 Independence Ave. SW., Washington, DC 20591; telephone number: (202) 267-7355.
Frederick Sobeck, AFS-304, Aging Airplane Program Manager, Flight Standards Service, Federal Aviation Administration, 800 Independence Ave. SW., Washington, DC 20591; telephone number: (202) 267-7355.
A copy of the draft AC may be obtained by accessing the FAA's Web page at
To address aging aircraft concerns, in October 1991, Congress enacted Title IV of Public Law 102-143, known as the Aging Aircraft Safety Act of 1991, which was subsequently codified as 49 U.S.C. 44717. The law instructed the Administrator to prescribe regulations that would ensure the continued airworthiness of aging aircraft. The law also instructed the Administrator to conduct inspections and review the maintenance and other records of each aircraft an air carrier uses to provide air transportation. These inspections and records reviews were intended to enable the Administrator to decide whether aging aircraft are in a safe condition and maintained properly for operation in air transportation. The law also required the Administrator to establish procedures to be followed for performing such inspections.
In addition to imposing obligations on the Administrator, the law stated that air carriers must demonstrate that the maintenance of their aircraft's age-sensitive parts and components has been adequate and timely, and operators must make their aircraft and aircraft records available for inspection.
Federal Aviation Administration (FAA), DOT.
Notice of availability and request for comments.
This notice announces the availability of and request for comments on proposed Advisory Circular (AC) 91-56B, which provides guidance on developing a continuing structural integrity program to ensure safe operation of older airplanes throughout their operational life. This proposed AC addresses airplanes affected by the “Aging Airplane Safety Rule” and provides guidance on the development and use of a damage-tolerance-based Supplemental Structural Inspection Program (SSIP) for all airplanes operated under Title 14, Code of Federal Regulations (14 CFR) part 121; all U.S.-registered multiengine airplanes operated under 14 CFR part 129 certificated with 10 or more passenger seats; and all multiengine airplanes used in scheduled operations under 14 CFR part 135 certificated with 10 or more passenger seats. This AC outlines an acceptable method, but not the only method, of compliance with the Aging Airplane Safety Rule. A previous notice of availability was published in the
Comments must be received on or before February 4, 2003.
Send all comments on the proposed AC to: Brent Bandley, Transport Airplane Directorate, Los Angeles Aircraft Certification Office, ANM-120L, Federal Aviation Administration; 3960 Paramount Boulevard, Lakewood, CA 90712-4137; telephone number: (562) 627-5237, facsimile: (562) 627-5210.
Brent Bandley, Transport Airplane Directorate, Los Angeles Aircraft Certification Office, ANM-120L, Federal Aviation Administration; 3960 Paramount Boulevard, Lakewood, CA 90712-4137; telephone number: (562) 627-5237, facsimile: (562) 627-5210.
A copy of the draft AC may be obtained by accessing the FAA's Web page at
This proposed AC provides guidance to type certificate holders and airplane operators on how to incorporate an FAA-approved Aging Aircraft Program into FAA-approved maintenance or inspection programs. Previous versions of this AC (AC 91-56 and AC 91-56A) provided guidance to operators of large transport category airplanes on how to develop a damage-tolerance-based SSIP. In this proposed AC, the FAA expands this guidance to small transport category airplanes. In addition, AC 91-56 and AC 91-56A considered only the effects of repair and modifications approved by the type certificate holder and the effects of repairs and operator-approved modifications on individual airplanes. This proposed AC considers the effect of all major repairs, major alterations, and modifications approved by the type certificate holder. In addition, the AC includes an expanded discussion of repairs, alterations, and modifications to take into consideration all major repairs and operator-approved alterations and modifications on individual airplanes. The proposed AC also describes the current Mandatory Modifications Program, Corrosion Prevention and Control Program, the Repair Assessment Program, and Evaluation for Widespread Fatigue Damage.
Forest Service, USDA.
Proposed rule.
The Forest Service is proposing changes to the National Forest System Land and Resource Management Planning Rule adopted November 9, 2000. These proposed changes are a result of a review conducted by Forest Service personnel at the direction of the Office of the Secretary. The review affirmed much of the 2000 rule and the underlying concepts of sustainability, monitoring, evaluation, collaboration, and use of science. Although the 2000 rule was intended to simplify and streamline the development and amendment of land and resource management plans, the review concluded that the 2000 rule is neither straightforward nor easy to implement. The review also found that the 2000 rule did not clarify the programmatic nature of land and resource management planning. This proposed rule is intended to improve upon the 2000 rule by providing a planning process which is more readily understood, is within the agency's capability to implement, is within anticipated budgets and staffing levels, and recognizes the programmatic nature of planning.
Comments must be received in writing by March 6, 2003. Comments received after this date will be considered and placed in the record only if practicable.
Send written comments to: USDA FS Planning Rule, Content Analysis Team, PO Box 8359, Missoula, MT 59807; via email to
Jody Sutton, Content Analysis Team Program Coordinator, Forest Service, (801) 517-1023.
The Forest Service (the agency), an agency within the United States Department of Agriculture (the Department), is responsible for managing the lands and resources of the National Forest System, which include 192 million acres in 44 states, Puerto Rico, and the Virgin Islands. The System is composed of 155 national forests, 20 national grasslands, 1 national prairie, and other miscellaneous lands under the jurisdiction of the Secretary of Agriculture (the Secretary).
The Forest and Rangeland Renewable Resources Planning Act of 1974 (88 Stat. 476
The Forest Service has undertaken several reviews of the planning process implemented under the 1982 rule. The first review took place in 1989, when the Forest Service, with the assistance of the Conservation Foundation, conducted a comprehensive review of
Subsequently, the Forest Service published an Advance Notice of Proposed Rulemaking (56 FR 6508; Feb. 15, 1991) regarding possible revisions to the 1982 rule. A proposed rule was published in 1995 (60 FR 18886); however, the Secretary elected not to proceed with that proposal.
In response to suggestions from persons who commented on the 1995 proposed rule, the Secretary convened a 13-member Committee of Scientists (Committee or COS) in late 1997 to evaluate the Forest Service's planning process and recommend changes. In 1998, the COS held meetings across the country to invite public participation in their discussions. The Committee's findings were issued in a final report, “Sustaining the People's Lands” (March 1999). A proposed rule based on the COS report was published on October 5, 1999 (64 FR 54074), and a final rule was adopted on November 9, 2000 (65 FR 67514).
In response to many of the findings in the 1990 Critique of Land Management Planning and the 1999 COS report, the Forest Service attempted to prepare a planning rule that would provide a more efficient planning process. The 2000 planning rule (also referred to as the 2000 rule) changed the Forest Service planning process by: (1) Establishing ecological, social, and economic sustainability as the overall stewardship goal for managing the National Forest System; (2) identifying maintenance and restoration of ecological sustainability as the first priority for management of National Forest System lands; (3) requiring collaboration with the general public, interested organizations, Tribal, State and local governments, and Federal agencies in all phases of the planning process; (4) expanding monitoring and evaluation requirements; (5) specifying the use of scientists and establishing detailed requirements for the application of science in the planning process; and (6) providing a dynamic planning framework for solving problems and addressing issues at the appropriate scale. The 2000 rule applies not only to plan amendments and revisions, but also to project-level planning and decisionmaking.
The general goals of the 2000 rule are laudable. A major improvement achieved in that rule is the emphasis on sustainability, which assists the Forest Service in providing for multiple uses over time. The 2000 rule also promotes efficiency in that it eliminates zero-based plan revisions as recommended in the 1990 critique, and it removes some analytical requirements of the 1982 rule, such as the requirements for developing benchmarks, which are no longer considered helpful. The 2000 rule also emphasizes public involvement more than the 1982 rule. The 2000 rule gives explicit direction on the use of science in the planning process, while the 1982 rule relied on knowledge shared through an interdisciplinary team approach without procedural requirements for the use of science. The 2000 rule replaces the post-decisional administrative appeal process for challenging plans with a pre-decisional objection process. The 2000 rule also delegates the authority for plan decisions to the Forest, Grassland, or Prairie Supervisor, rather than to the Regional Forester. The 2000 rule also recognizes the plan as a dynamic document.
Despite the positive aspects of the 2000 rule, however, the number of very detailed analytical requirements, the lack of clarity regarding many of the requirements, the lack of flexibility, and the lack of recognition of the limits of agency budgets and personnel led to a reconsideration of this rule.
After adoption of the 2000 rule, the Secretary received a number of comments from individuals, groups, and organizations expressing concerns regarding the implementation of the 2000 rule. In addition, lawsuits challenging promulgation of the rule were brought by a coalition of 12 environmental groups from 7 states and by a coalition of industry groups (
In addition, the Forest Service developed a business analysis model of the 2000 rule and conducted a workshop with field-level planners to determine the implementability of the 2000 rule based on this business model. The business model reflected business activities directly applied from the 2000 rule and provided the basis for a systematic evaluation of the rule for implementability.
The business model identified the following nine major categories of planning activities and associated sections of the 2000 rule:
(1) Collaboration (primarily §§ 219.12 through 219.18);
(2) Best Science/Science Consistency (primarily §§ 219.22 through 219.25 with consideration of relative text in §§ 219.11 and 219.20);
(3) Recommendations (primarily §§ 219.3 through 219.9 with consideration of relative text in §§ 219.19, 219.20, 219.21, 219.26, and 219.27);
(4) Sustainability (primarily §§ 219.19 through 219.21 with consideration of relative text in § 219.11);
(5) Developing/Revising Plan Decisions (primarily §§ 219.6 through 219.9 and 219.11 with consideration of relative text in §§ 219.20, 219.26, 219.28, and 219.29);
(6) Write Plan Documentation (primarily §§ 219.11 and 219.30);
(7) Maintain the Plan (primarily § 219.31);
(8) Objections and Appeals (primarily § 219.32); and
(9) Miscellaneous (public notifications and selected NEPA activities).
Within the context of the nine categories defined, the facilitated workshop centered on answering two questions: (1) Are the business requirements clearly understood? (2) What is the agency's perceived ability to execute the requirements?
An important consideration in this business model analysis was that it was conducted by planning practitioners who have current field-level experience. They are the agency experts in a variety of resource areas, including assessing what can reasonably be accomplished, considering existing knowledge and information, the issues relevant to planning areas, and local staffing and funding situations.
This review and analysis found the following:
(1) The 2000 rule has both definitions and analytical requirements that are very complex, unclear, and, therefore, subject to inconsistent implementation
(2) Compliance with the regulatory direction on such matters as ecological sustainability and science consistency checks would be difficult, if not impossible, to accomplish; and
(3) The complexity of the 2000 rule makes it difficult and expensive to implement.
(1) Field-level planners believed the 2000 rule includes unnecessarily detailed procedural requirements for scientific peer reviews, broad-scale assessments, monitoring, and science advisory boards.
(2) Moreover, these requirements do not recognize the limits of budgets for use of science, nor does the 2000 rule clearly relate use of science to the scope of issues in the planning process.
(3) The 2000 rule also does not recognize limitations on the availability of scientists. The reviewers believed it to be unwise to place such detailed requirements on the use of scientists in the rule given the ambiguities of the rule text and the limited availability of scientists. Although science is needed to inform the Responsible Official, the reviewers concluded that the 2000 rule anticipates a level of involvement by scientists that may or may not be needed considering the planning issues or the anticipated amount of project activities during on-the-ground implementation of the plan.
Also, during development of this revised proposed planning rule, it became apparent that monitoring should be focused on whether on-the-ground management is achieving desired conditions identified in the plan. This focus was not clear in the 2000 rule, as its monitoring direction primarily required a broad array of techniques intended to measure indicators of sustainability. This conceptual change reflects a fundamental difference in philosophy between the 2000 rule and this proposed rule. The 2000 rule tends to be highly prescriptive regarding a variety of aspects of planning. This proposed rule tends to focus more on results, rather than on techniques for achieving results. The Responsible Official is guided by a very large body of law, regulation, and policy that helps ensure responsible management on the ground. The much lower amount of procedural detail in this new proposed rule reflects the agency's assumption that the Responsible Officials will discharge planning duties responsibly and will conduct planning within the bounds of authority.
Having considered the reports of the review teams, the Acting Deputy Under Secretary for Natural Resources and Environment requested that the Chief of the Forest Service develop a proposed rule to revise the 2000 rule.
The Forest Service is now proposing changes to the planning rule at 36 CFR part 219, adopted November 2000, to address issues and concerns raised in the various reviews. The proposed rule retains many of the basic concepts in the 2000 rule, namely sustainability, public involvement and collaboration, use of science, and monitoring and evaluation. The agency has attempted to substantially improve these aspects of the 2000 rule by eliminating unnecessary procedural detail, clarifying intended results, and streamlining procedural requirements consistent with agency staffing, funding, and skill levels.
Because of the concerns identified regarding the 2000 rule and because this proposed rule changes the 2000 rule, it is necessary to explain exactly how and why the 2000 rule has been adjusted in this proposal. However, the agency believes it is productive to begin this overview with a vision of the planning process and the contents of resource management plans. The Forest Service believes the direction of many aspects of current planning activities and the basic concepts of the 2000 rule are very valuable and reflect the expectations of the American people for planning on their public lands.
The agency expects programmatic planning to be accomplished in the following ways:
• The extent of a plan analysis will be proportional to the kinds of decisions being made.
• Plans will be kept up to date, because planning will be simpler and thus, plans will be more efficiently amended.
• Plan revision will be based on a “need for change.”
• Plan monitoring and evaluation will be emphasized more and will measure the success of adaptive management efforts, and the attainment of, or progress toward, desired conditions. This monitoring and evaluation will provide key information to help keep plans current and will help inform project-level decisionmaking. States, other Federal agencies, local governments, Tribes, and the public will be more closely involved in monitoring efforts.
• Public involvement is expected to be collaborative, vigorous, and focused
• Planning will continue to actively involve our Federal, State, county, and Tribal partners.
• Science will be integrated throughout the planning process, from initial data collection and interpretation, through issue identification, to the analysis process, to development and design of monitoring, and later to evaluation of monitoring results.
• The agency's strategic plan, national assessments, and monitoring results will provide useful information for the development of land and resource management plans and a national context for planning.
• Planning analysis will be more focused on desired conditions rather than speculative and detailed examination of future project effects.
• Planning will continue to focus on addressing baseline conditions and trends applicable to the planning issues. Baseline condition and trend analysis will clearly display anticipated progress toward desired conditions if active management occurs and also what may happen if active management is restricted.
• Planning analysis will focus on reasonable choices for zoning the landscape.
• Planning will recognize budget limitations in order to help the Responsible Official prioritize and balance competing planning activities, such as choosing the appropriate approach for monitoring watersheds.
The agency's vision of planning expects a land and resource management plan to contain:
• Broad, programmatic direction for a forest, grassland, or prairie. Plans will make such key strategic decisions as identification of priority areas for wildfire hazard reduction; designating major utility corridors; identification of areas of especially high diversity, or areas containing rare or unique species, ecosystems, or biotic communities that need certain protections; identification of lands at the broad-scale (not an acre-by-acre determination) suitable for timber harvest or grazing, or other consumptive uses; identification of areas suitable for motorized use; and identification of areas where certain types of recreation use may be emphasized.
• More specific statements of desired conditions for such resources as vegetation, recreation, cultural and heritage resources, and watersheds, developed within the context of ecological, economic, and social systems.
• More specific outcome-based objectives (
• A set of standards that set appropriate limitations on activities to help achieve desired conditions. Standards will be fewer, simpler, and better allow for adaptive management than existing plans.
• Identified special areas, such as areas recommended for wilderness or wild and scenic river status. Plans will continue to include specific direction for these areas.
• As needed, associated materials such as maps or other documents necessary to make plan decisions.
• Plans will be brief and will refer to, rather than repeat, what is already in the Forest Service Directive System, existing law, regulation, or policy.
• Collaborative work with the public and emphasis on consensus building should lead to fewer unresolved issues and, therefore, fewer plan alternatives.
The goal of the agency is to have a planning rule that is simpler and easier to implement than the 2000 rule and that allows the agency to more easily adapt to changing issues and opportunities. Available agency budgets, personnel availability, and other resource limitations are recognized as important because they help provide a framework for the Responsible Official to make decisions such as the following: What issues can the Responsible Official reasonably address? What method will be used to solicit meaningful public involvement? What are the pressing resource needs? What data needs to be collected? Does the unit need to hire specialists to support the planning action? Are contracts needed to obtain various kinds of information? Recognition of budget availability and limitations helps the Responsible Official make choices about how to weigh and balance competing needs and to consider the costs and benefits of various actions for optimal results.
The proposed rule retains the important improvements of the 2000 rule. These include:
• Emphasis on sustainability;
• Strong public involvement and collaboration;
• Use of science throughout the planning process;
• An emphasis on monitoring and evaluation as fundamental to adaptive management;
• Need-for-change planning;
• Use of the objection process;
• The identification of the Forest, Grassland, or Prairie Supervisor as the Responsible Official; and
• The concept of planning as a dynamic process.
The Forest Service believes the proposed rule will apply these important improvements more efficiently than does the 2000 rule. The Forest Service believes that the proposed rule provides as efficient a planning process as possible within the scope of the National Forest Management Act (NFMA) requirements. In addition to retention of the key improvements, the agency also looked to earlier versions of published and unpublished proposed planning rules as sources of ideas in revising specific sections. Finally, the Forest Service has applied over 20 years of planning experience to craft this proposed rule.
It is also useful at this point to discuss in more detail one important component of the body of direction that governs the Responsible Official's actions. The Forest Service Directive System consists of the Forest Service Manual (FSM) and Handbook (FSH), which codify the agency's policy, practice, and procedure. The system serves as the primary basis for the internal management and control of all programs and the primary source of administrative direction to Forest Service employees.
The FSM contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service line officers and primary staff in more than one unit to plan and execute assigned programs and activities. The FSH is the principal source of specialized guidance and instruction for carrying out the direction issued in the FSM. Examples include Handbooks on land management planning and environmental analysis.
As discussed throughout this proposed rule, the Directive System plays and will continue to play an important role in directing field employees on how to conduct planning.
Section 219.5 of the 2000 rule is a specific example of direction better included in the agency's Directive System. The agency believes that much of the process direction, such as potential uses of an assessment (
The agency must improve its planning processes so that direction and resources will be in place to manage the National Forest System (NFS) lands more effectively. The trend in planning over the past 20 years has been towards more complexity with the result that limited funds and personnel available to the agency are being disproportionately spent on planning and analysis. With this proposal, the agency seeks to produce a planning rule that sets the stage for planning to be done in a reasonable manner, at reasonable costs, in a reasonable amount of time, and thus provide a sound and rational framework for managing National Forest System lands.
The agency has evaluated the entire cost of planning for both the 2000 rule and proposed rule. The evaluation shows that there will be efficiencies and reduced costs associated with implementation of the proposed rule.
Increasing efficiency and reducing costs are important. The Forest Service believes that the public's primary expectation is that the agency do a good job of land management. The agency needs to balance its planning efforts with its efforts to actually manage the land through the application of plan direction to subsequent actions. There is urgency to make planning more efficient, as there are issues, activities, and resource concerns that are not halted during the planning process and which may pose increased concerns when planning occurs over excessively long timeframes. There is a growing population that will recreate on National Forest System lands whether the agency is prepared to deal with these uses or not. There are growing needs for watershed restoration for such purposes as prevention of flooding and the attendant adverse effects on people, property, and resource health. There are increasing demands for energy resources. Many NFS lands have a critical wildfire problem. Spending disproportionate agency time and money on planning and analysis that is not commensurate with the scope and effect of the decision to be made reduces the agency's ability to address serious land management issues.
Additionally, the Forest Service has seldom been able to revise its plans prior to NFMA's 15-year deadline. There have been several reasons for this delay, but one consistent cause has been the excessive length of time needed to plan under existing procedures. Please refer to the November 30, 2001,
The Forest Service believes this proposed rule, if adopted, would improve and streamline the planning process. In accordance NFMA, plans are to be revised from time to time when the Secretary finds conditions on a unit have significantly changed, but at least every 15 years. Plan revisions that take four, five, or six or more years to complete are not responsive to the vision of NFMA, are not responsive to changing issues, and are in danger of exhausting public interest and involvement. When plans cannot be easily amended, many people feel that they need to have all their concerns resolved in a plan revision, because that will be the direction in place for many years. This viewpoint not only can increase contentiousness in planning, but also result in unreasonably high expectations of what a plan does. Several aspects of this proposed rule will improve the ability to not only revise plans more easily, but also to amend them more easily.
As stated, the proposed rule is intended to reflect the programmatic nature of planning and provide a process that is within the agency's ability to implement. Fundamental to programmatic planning is the premise that plans are permissive; that is, they allow, but do not mandate, certain activities to take place within the plan area. Consequently, the proposed rule emphasizes that plans themselves generally are not actions that significantly affect the quality of the human environment, nor do they dictate site-specific actions.
The agency must align its planning processes and performance responsibly. This means targeting dollars spent on planning to those activities that will yield clear benefits. Programmatic land and resource management planning cannot do more than establish a framework for management in an ever-changing environment. The Forest Service believes that the proposed rule provides as efficient a planning process as possible within the framework of NFMA direction.
A detailed explanation of the proposed rule that would amend the rules at 36 CFR Part 219 follows.
Table I at the end of this document provides a section-by-section comparison of the 2000 rule and the proposed rule.
The Forest Service has embraced the concept of sustainability to guide the agency in meeting requirements of MUSYA. Sustainability addresses the “sustained yield” aspect of MUSYA because it requires balancing resource management with the needs of current and future generations “in perpetuity.” The concept of sustainability will assist the Responsible Official in assuring that Forest Service management of the various renewable resources will be administered without impairment of the productivity of the land, as required by MUSYA. Sustaining the productivity of the land and its renewable resources means meeting present needs without compromising the ability to meet the needs of future generations. Meeting present and future needs does not imply all individual needs can be met at one time, either now or in the future.
The concepts of multiple use and sustainability are addressed in § 219.1 of the 2000 rule. Because these concepts are so fundamental to planning, they are retained in § 219.1 of this proposed rule. As does the 2000 rule, this proposed rule affirms the health of the land and sustaining its resources within the
This section of the rule sets forth a clear process for establishing, amending, and revising plans and for monitoring plan implementation. As provided in § 219.1 of the 2000 rule, this proposed rule also recognizes that planning may consider many time frames and geographic areas and that it is an ongoing process. However, the proposed rule would not determine the selection or implementation of site-specific actions. Rather, the proposed rule requires documentation that a future project decision is consistent with the plan. The agency believes that a rule which focuses solely on programmatic-level planning will be better understood and more consistently applied than a rule that includes direction on both programmatic and project-level decisionmaking. Agency guidelines on project-level planning are specified in FSM 1950 and FSH 1909.15.
The USDA Office of General Counsel, Natural Resources Division working paper entitled “Overview of Forest Planning and Project Level Decisionmaking,” describes the nature of the agency's two-staged decisionmaking process. The paper is available on the World Wide Web at
Proposed paragraph (a) of this section establishes that the fundamental purpose of a plan is (1) to establish the desired conditions to be achieved through the management of the lands and various renewable resources of the National Forest System and (2) to guide the Forest Service in fulfilling its responsibilities for stewardship of the National Forest System to best meet the present and future needs of the American people. This concept is central to the planning vision. In contrast to the lengthy and non-regulatory exposition of §§ 219.1-219.5 of the 2000 rule, § 219.2 of this proposed rule concisely describes the nature of a land and resource management plan.
Proposed paragraph (b) is somewhat similar to § 219.2 of the 2000 rule in that it sets out principles on which that rule is based. Rather than dwelling on principles modifying the rules, however, paragraph (b) imposes core requirements for which the Responsible Official will be held accountable in plan development, amendment, or revision. While brief and concise, these requirements touch all the major principles covered in § 219.2 of the 2000 rule—-sustainability, use of science, consultation with government agencies and Tribes, public participation, interdisciplinary planning, and monitoring and evaluation.
Proposed paragraph (c) recognizes the role of plans in integrating the various statutory authorities applicable to National Forest System management. It also recognizes the Forest Service Directive System as the primary source of agency-wide management direction relevant to planning and management of National Forest System lands and resources. Planning is conducted in the context of the body of environmental laws, regulations, Executive orders, and policy. The plan itself does not generally repeat existing law, regulation, Executive order, or policy but rather interprets their requirements as they apply to the plan area.
Although the proposed rule does not explicitly address integrating statutory authorities, it does at § 219.1(a) identify the principal authorities applicable to National Forest System lands.
Paragraph (d) of proposed § 219.2 describes the force and effect of land and resource management plans, making clear that:
• These plans do not grant, withhold, or modify any contract, permit, authorization, or other legal instrument;
• These plans do not subject anyone to civil or criminal liability; and
• These plans create no legal rights.
This proposed paragraph better recognizes the programmatic nature of plans than the 2000 rule, and therefore, more accurately describes the nature of a land and resource management plan. Since a plan provides only the framework for management, a plan normally does not specifically authorize any ground-disturbing activities nor does it specifically commit funding or resources. Therefore, the analysis associated with a plan should be proportional to the level of decisions made in a plan. Also, a plan focuses on desired conditions. It zones the forest, grassland, or prairie into defined areas where activities could occur to help meet those desired conditions and sets out a program for monitoring progress toward desired conditions. This kind of plan can be supported by an analysis that evaluates, on a broad level, the areas' suitability for future potential activities.
The type of plan level analysis that the Forest Service has found most useful for developing a plan, and for project analysis thereafter, is baseline and general trend analysis, which gives as complete a picture of the forest or grassland as possible at one time and provides the best information of trends of natural processes and of uses in the plan area and surrounding lands. The Forest Service will continue such analyses in the planning process. The Forest Service believes that environmental analyses are most useful when done in the development of site-specific decisions that will execute on-the-ground management. More specifically, while a plan guides project implementation, extensive up-front effects disclosure is generally too speculative to be useful for project analysis. Thus, the opportunity to “tier” a project's NEPA analysis to a plan EIS, as provided in NEPA regulations (40 CFR 1502.20), is useful only for certain aspects of analysis and in practice has proven more theoretical than real. The Forest Service therefore intends to conduct most detailed analysis on the site-specific project level.
Plan management direction should be flexible and allow for adaptive management. Monitoring should not only measure progress toward desired conditions but also help measure the success of adaptive management strategies and actions.
A plan is generally a zoning document. It may allow for later, site-specific authorization of activities and may restrict activities in specific areas. There are different ways this zoning is applied depending on the type of existing or potential future activities. For example, a plan may allow transportation development or motorized use on some portions of the National Forest System unit, but not on others. Such a plan decision does not immediately authorize road construction, but rather identifies zones where road construction may occur in the future, based on an appropriate project-specific NEPA analysis, public involvement, and a future decision.
Another example of zoning-type direction in a plan is direction that would restrict motorized access in areas where it has been allowed in the past or that would restrict other recreation uses that are currently allowed. The plan itself does not normally execute the restriction. Rather, the restriction would have to be implemented with a subsequent process, such as a closure order or other instrument.
It must be recognized that a plan is not the final word deciding forever the fate of an area of land, determining that some actions will certainly occur and others never will occur, over all or part of the plan area. According to the Forest Service's vision of planning, plans can and should be dynamic documents, which can and should be reconsidered throughout their existence and readily amended when circumstances call for change.
In summary, the plan is a framework for future on-the-ground management decisions. Site-specific projects are proposed and developed within the constraints of the plan, and are subject to the National Environmental Policy Act and other applicable laws and regulations.
The key planning elements listed in § 219.3(d) of the 2000 rule are omitted from the proposed rule because they are unnecessary. Proposed § 219.5 provides direction on indicators or a need to amend or revise a plan. §§ 219.7-219.9 discuss the steps to develop a new plan or amend or revise a plan. § 219.10 discusses application of plan direction and § 219.11 provides for plan monitoring or evaluating plans. It is not necessary to summarize these planning elements in a single section. The 2000 rule § 219.3 key element number 7 is not needed because the proposed rule does not provide direction for site-specific decisions. Additionally, in contrast to the 2000 rule, § 219.3 in this proposed rule does not contain direction for site-specific actions. As noted previously, the focus of this proposed rule is the development, amendment, and revision of plans, not site-specific project planning. The Forest Service uses a staged decisionmaking process in which land and resource management plans establish the guidance that governs site-specific project planning and decisionmaking.
One new provision of § 219.3 is the recognition of the need to ensure that management direction for designated areas of experimental forests is consistent with the research being conducted and concurred in by the appropriate Station Director. The need for this direction emerged from review by Forest Service Research and Development employees.
In proposed paragraph (a)(3) of section 219.4, the rule states “Standards generally should be adaptable and assess performance measures.” The following is an example of an adaptable standard that assesses performance measures: “No pre-commercial thinning is allowed in lynx habitat unless at least three years of monitoring of snowshoe hares shows that hares are present and are not a limiting factor for lynx. In these cases, pre-commercial thinning may occur on no more than 20 percent of the hare habitat.”
Proposed paragraph (a)(3)(ii) of section 219.4 addresses maximum size openings. The 2000 rule does not provide for maximum size openings. As in the 1982 rule, the proposed rule reinstates this statutory requirement and uses the same maximum size limits, by forest cover type.
An additional required standard is added at § 219.4(a)(3)(vii) on the use and application of culmination of mean annual increment (CMAI). The addition of CMAI direction was added to the proposed rule in order to clarify how this NFMA requirement is to be applied because there has been some confusion in this area. This new requirement specifies that CMAI considerations apply only to regeneration harvest of even-aged tree stands on suitable lands that are harvested for timber production purposes. This section allows for exceptions to the application of CMAI to be made in the plan; for example, a plan could provide exceptions for wildlife openings or for fuel reduction or fuel breaks.
The 2000 rule provides that lands are not suited for a particular use if law, regulation, or Executive order would prohibit the use, if the use is incompatible with the mission or policies of the National Forest System, or if the use would involve substantial and permanent impairment of the productivity of the land. The proposed rule retains the 2000 rule's criteria concerning laws, regulations or Executive orders and the criteria concerning productivity of the land. However, the proposed rule changes the provision of § 219.7(d) of the 2000 rule in two ways. First, the proposed rule no longer uses the criteria of incompatibility with the mission or policies of the National Forest System, because this is so broad that it would not be a useful criterion for the Responsible Official to consider. Instead, the proposed rule adopts a much more explicit criterion to consider; that is, “If agency resource management directives prohibit the use.” Second, the proposed rule adds a criterion for determining if lands are not suited for a particular use: “If the use is incompatible with the desired conditions as established for the plan.” This criterion was added to clearly recognize that the decisions made in adopting a plan may result in prohibiting some uses on all or parts of a plan area. In addition, this proposed section adds a clarification in paragraph (b) that assessments, surveys, and similar efforts are not plan decisions nor do they constitute a proposed action. This regulatory finding is essential to avoid public and employee confusion about what is a plan decision and what is not.
The 1982 rule used the term “issues” many times, and issue identification was a cornerstone of how planning was done, but the 1982 rule was not specific concerning the sources from which an issue could arise, except that public participation was a key element of issue identification. In contrast, the 2000 rule specifies how issues originate and gives detailed description of the Responsible Official's consideration of issues.
Proposed paragraph (b)(1) lists factors the Responsible Official may use to determine if an issue or opportunity is timely. Like the 2000 rule, this section makes clear that the Responsible Official has full discretion to make this determination. The requirements in § 219.4(b)(2)(ii), (iii), (iv), (vi), and (vii) of the 2000 rule address the extent to which “consideration” of the issues relate to opportunities of the planning unit to contribute to various elements of resource protection and sustainability. The proposed rule does not include these specific criteria, because it may not be practicable to consider these criteria at the initial stage of planning. There is often a lack of information when issues arise, and it is not always known how the issues relate to the National Forest System unit's contribution to sustainability. For example, there may not be complete information early in the issue identification stage related to opportunities to contribute to recovery of threatened or endangered species. This consideration may not be appropriate or efficient to consider until later in the planning process when the best available science may be assembled, when better inventory data may become available, or when public involvement may help discover opportunities that were not earlier known.
This proposed section does not retain the provision at § 219.4(b)(2)(v) that the Responsible Official should consider the extent to which addressing an issue relates to the potential for negative environmental effects on minorities. Potential negative effects are most meaningfully identified and addressed in the analysis phase of planning. Executive Order 12898 and Departmental Regulation 43004-4 (1978) require the Forest Service to determine if proposed actions would create disproportionate adverse effects on minority populations and, if so, to mitigate those effects to the extent practicable. The Forest Service complies with these requirements through its NEPA procedures. Scoping, the process of accepting public comments on a proposed action, should indicate whether environmental justice issues exist and the social and economic effects analysis would display the depth and range of those impacts and possible mitigation. The agency affirms that any action it can affect that would cause a disproportionate adverse effect on minority populations would be addressed through a NEPA procedure, thus there would be no controllable effects that the agency would not disclose, analyze, and mitigate to the extent practicable.
Proposed paragraph (b)(2) of this section incorporates the intent of § 219.5 of the 2000 rule with regard to addressing information needs and requires the Responsible Official to keep information gathering within reasonable costs and timeframes. However, this proposed paragraph does not carry forward the detailed provisions of § 219.5 of the 2000 rule for conducting broad-scale assessments and local analysis. These provisions are considered unduly detailed and too inflexible to apply to all National Forest System units, which have a wide variety of issues and information needs as well as differences in budgets and staffing levels. Needed direction on what constitutes broad-scale assessments and local analyses and how the Responsible Official should develop and use this information is more appropriately described in the agency's Directive System.
Proposed paragraph (b)(2) makes clear that a decision to consider or not consider an issue or opportunity is not subject to administrative objection.
The proposed rule maintains the planning process requirements already familiar to the public. These include public notice, public involvement, analysis, public comment on the draft plan, and an objection process for contesting planning decisions. The proposed planning process is intended to be open to all stakeholders and well-informed regarding the environmental effects of the proposed plan and appropriate alternatives.
Plans that only establish goals, objectives, standards, land allocations, monitoring requirements, and desired resource conditions do not authorize site-specific implementing actions and would not be expected to have significant effects on the environment or effects that have not been previously addressed in prior NEPA documents. As noted above, the question with respect to NFMA planning is when and how—not whether—to follow NEPA where it applies. NFMA specifically authorizes the Secretary of Agriculture to decide how and when to do NEPA environmental analysis for National Forest System plans. The agency may, based on the implementation of the proposed rule, identify a category of
• A plan decision revising or amending a plan's desired conditions, objectives, and standards for rangeland conditions would not ordinarily be an action with significant environmental effects. However, plan direction substantially increasing or reducing livestock grazing on a part or all of the plan area would be an action requiring further NEPA documentation of the effects of such a decision prior to plan approval.
• Plan direction revising or amending a plan's desired vegetative conditions, objectives, and standards to achieve such conditions would not ordinarily be an action with significant environmental effects. However, if plan direction imposes a substantial change in vegetative conditions, such as conversion of vegetation type, or if the plan decision includes a specific project or set of projects to reach those desired conditions, then further NEPA documentation for those actions must occur prior to plan approval.
• A plan decision revising or amending a plan's objectives for travel management within the plan area would not ordinarily constitute an action with significant environmental effects. However, when such a plan decision would substantially modify ongoing uses within the plan area, then NEPA documentation would be required for that proposed action prior to plan approval.
• Plan direction that revises or amends goals and objectives for consumptive and non-consumptive National Forest water uses and for special use authorizations would not ordinarily be an action with significant environmental effects. However, if a plan would impose substantial new or changed by-pass flows on current special use authorizations for the diversion of water, then NEPA documentation of the effects of that proposed action would be required prior to plan approval.
• Plan direction that revises or amends goals and objectives for oil and gas leasing would not ordinarily be an action with significant environmental effects. However, when a plan specifies stipulations for oil and gas leasing which have not been previously analyzed, NEPA disclosure would be required prior to plan approval.
The proposed rule requires plans to be based on substantial analysis of pertinent issues regardless of the level of NEPA analysis and documentation. These plan analyses would: (1) Serve to help the Responsible Official, the public, and others develop land allocations, standards, desired conditions, and other plan decisions; (2) help limit the effects of future projects by application of the plan allocations, standards, desired conditions, and other plan decisions; and (3) provide information useful for analyzing project effects.
For example, both options in proposed section 219.13, developed to ensure that the NFMA diversity requirements are met, require ecological analyses. Option 2 in this proposed rule contains very specific analytical requirements. It focuses ecological analyses at both ecosystem and species levels of ecological organization, requires analyses of diversity across multiple geographic areas and timeframes, and stresses the importance of analyses conducted over large geographic areas or long timeframes. Option 2 requires description of the influence of the ecological condition, structure, and land use history of the surrounding landscape, as well as of natural and human-induced disturbance regimes, and a discussion on how these factors influence a forest's or grassland's ability to achieve biological diversity objectives. These analyses are a key part of both the proposed planning rule and the analysis of the ecological effects of proposals for plan decisions. This analysis will also provide essential baseline and trend data that will inform the analysis of the direct and indirect effects of plan implementation at the project level.
Analysis for site-specific projects will provide additional information that, when combined with the plan-level analysis and monitoring information collected and maintained on the plan's monitoring requirements, would serve as a basis for evaluating the cumulative effects of projects carried out under the plan. For example, where plan analysis documents the quantity and quality of habitat that is available for a wide-ranging species, that plan-level analysis, combined with applicable monitoring data and other inventory information, can provide much of the information needed to describe the cumulative effects of project and other past, current, and reasonably foreseeable projects upon the habitat available for that species.
Likewise, if plan analysis indicates that a particular recreation use is high and increasing the risk of loss of a rare plant, then plan direction may require particular measures for rare plant protection near trails in the recreation use area and a closer and more detailed examination for cumulative effects analysis associated with recreation management decisions. If plan-level analysis indicates that uses of existing roads are contributing to the spread of noxious weeds, and monitoring indicates that open roads from nearby projects are contributing to the spread, the project-level cumulative effects analysis may be required to assess mitigation measures that may be needed to restrict travel for the area.
For those projects that the agency believes there may be significant effects, an EIS will be prepared to display those effects. Pursuant to the FSH requirements, EIS's are required for actions in certain circumstances, for example, herbicide application, or road construction in an inventoried roadless area. In addition, the Forest Service typically documents other types of projects in an EIS. For example, large timber sale projects are normally documented in an EIS. Another example of a type of project that may be documented in an EIS would be an approval of a plan of operation for a large hard-rock mining operation.
The reason to do an EA is to determine whether or not an EIS is necessary and to document agency NEPA compliance when an EIS is not necessary. The EA will briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or to reach a finding of no significant impact for the proposed action.
Projects typically documented in an EA are those projects that, at the time of the proposal, the Forest Service believes will not have significant environmental effects. Examples of types of projects typically documented in an EA include smaller timber sale projects, road construction, campground construction, special use authorizations, and fuels reduction.
The FSH also lists categories of actions that are excluded from NEPA documentation because they do not individually or cumulatively have a significant effect on the human environment and have been found to have no such effect in procedures adopted by the agency in implementation of the regulations. Existing categories include road maintenance, administrative site maintenance, or trail construction.
Whether a project is documented in an EIS or an EA or whether it is categorically excluded from NEPA documentation, land and resource management plan analyses will provide critical baseline and trend data that will inform the site-specific analysis for the project. Project level NEPA documentation will analyze project effects as needed, depending on the nature of the project and the applicable issues, and known information. Project analyses will supplement and use monitoring data, pertinent assessments, inventories, research, and the plan analysis information. This plan analysis information will be available regardless of whether the plan is documented in an EA, EIS, or categorically excluded from NEPA documentation.
It is useful to summarize the differences between elements of NEPA application in the 2000 rule and in this proposed rule. This summary consolidates discussion present in other parts of this preamble.
The Forest Service will ensure that categorically excluding land and resource management plans from documentation in an EA or EIS does not result in an adverse or disproportionate effect on groups of people identified under Title VI of the Civil Rights Act, the Executive Order 12898—Environmental Justice or other civil rights laws, regulations, and orders. These identified groups include minorities, seniors, women, subsistence lifestyle populations, Tribes, and low income populations. By definition in NEPA, a categorical exclusion address only those actions which do not individually or cumulatively have a significant effect on the human environment and for which, therefore, neither an EA nor an EIS is required (40 CFR 1508.4). Pursuant to agency policy set out in Forest Service Handbook 1909.15, Chapter 10, the Responsible Official would still be required to identify potentially affected and interested agencies, organizations, and individuals during the planning process, regardless of which type of documentation is used. Additionally, specific Forest Service guidance on scoping under NEPA will still apply to categorical exclusions.
Neither the 2000 rule nor this proposed rule set out specific NEPA requirements in the planning regulation, in accordance with the desire not to repeat direction contained in law, regulation or Executive order.
Proposed paragraph (d) defines a significant amendment and requires a 90-day comment period for a draft proposed significant amendment, as referenced in § 219.6 and as required by NFMA, (16 U.S.C. 1604 (f) (4)).
Under the 1982 planning rule, when amending the plan, the Forest Service has to cope with two processes to determine significance for two different statutes. First, under NFMA, the Forest Service had to determine whether an amendment is a significant change to a plan. Even if an amendment was determined not to be a significant change to the plan, the amendment still required an EIS if it was determined under NEPA to be a major Federal action significantly affecting the quality of the human environment. This direction has proven confusing to agency personnel and to the public. The 2000 rule uses only the NEPA definition for significance. This proposed rule defines a “significant amendment,” as one that would have a significant affect on the quality of the human environment. The proposed rule also provides for a new category of interim amendments in § 219.7(f) to enable the agency to make more rapid adjustments to management direction when necessary, such as when a threatened or endangered species is newly listed or initially discovered to exist in a particular area. In fact, a rapid response to the needs of threatened or endangered species is the prime reason this category of amendment is included. In 1995, for example, the Southern Region of the Forest Service amended their plans to provide interim standards and guidelines for the federally listed red-cockaded woodpecker. This interim direction was to remain in effect up to three years until individual plans could be amended or revised with longer term direction.
An interim amendment would expedite needed amendments to a plan, while the agency initiates further analysis and decisionmaking for a permanent amendment. The proposed rule would establish a maximum duration of four years for an interim amendment; however, there are a number of alternative views on the duration and process for these interim amendments, and the agency would especially welcome public comment concerning their use.
The 2000 rule and the proposed rule are fundamentally different with regard to the amount of information and analysis required to initiate a revision. At § 219.20 of the 2000 rule, the Responsible Official must develop or supplement extensive information to address ecosystem sustainability and must provide comparable information at § 219.21 to address social and economic sustainability.
To initiate a revision of a plan, § 219.9 of the 2000 rule established requirements related to collaboration; identification of issues; analyses and information; identification of special areas; identification of specific watersheds in need of protective or restoration measures; identification of lands classified as not suitable for timber production; identification of and evaluation of inventoried roadless and unroaded areas; and development of an estimate of anticipated outcomes for the next 15 years. Each of these requirements refers in turn to additional requirements elsewhere in the planning regulations. For example, paragraph (b)(4)of § 219.9 of the 200 rule states in order to begin the revision process, the Responsible Official must, “Evaluate the effectiveness of the current plan in contributing to sustainability (§§ 219.20-219.21) based on the information, analyses, and requirements described in § 219.20 (a) and (b) and § 219.21 (a) and (b), and provide for an independent scientific peer review (§ 219.22) of the evaluation.”
As the agency launched the November 2000 rule, field-level planners and resource professionals expressed uncertainty about the degree and scope of analysis and information gathering required to initiate a plan revision. They also were concerned about the potential controversy that might be associated with a plan developed under these untested and unclear requirements. Also questioned was the appropriateness of and the agency's ability to conduct pre-revision analysis and presenting some of this information at the revision initiation stage. For example, identification of new proposals for special areas or wilderness recommendations benefit from public involvement and input, which is more fully developed later in the planning process, not at the pre-revision stage.
The agency supports sharing as much known information as possible with the public at the early stage of revision initiation, but it does not believe the
Both the proposed rule and the 2000 rule address the statutory requirements for plan initiation; however, the 2000 rule includes more extensive direction on the revision process than does the proposed rule. Both also include public notice requirements. The 2000 rule includes a 45-day public comment period. The proposed rule does not include a specified comment period, although notice is required to invite comment. This proposed change would allow the Responsible Official to tailor the comment period for initiation of plan revision to the scope and complexity of planning issues and opportunities for the unit.
The proposed rule and 2000 rule have the same substantive requirement for a 90-day public comment period of a draft proposed revision.
However, unlike the 2000 rule, this proposed paragraph adds a specific requirement that project decisions disclose the relationship of the project to the plan desired conditions. While all project decisions must be consistent with the plan, it is not practical to require each project decision to be in strict compliance with all aspects of a plan's desired conditions. Sometimes a project may have positive effects on one aspect of desired conditions and negative effects on another. It is also possible that a project may have short-term negative effects that relate to a specific desired condition, with predicted long-term positive effects. At other times a project may have neutral effects related to desired conditions. These examples illustrate the complexity of the relationship of a particular project to the desired conditions in a plan. The agency therefore, has chosen not to include a specific requirement that projects comply with the plan's desired conditions, but rather a requirement that the project decision disclose how the decision relates to the applicable plan desired conditions.
Also in contrast to the 2000 rule, this proposed paragraph specifically requires that a new plan, amendment, or revision decision document consider the effects of the plan on occupancy and use already authorized. This change is proposed to ensure that there will be an orderly transition when a new plan, amendment, or revision is authorized. This proposed section also acknowledges that modifications of instruments authorizing ongoing occupancy and use of the plan area necessary to make them consistent with the changes in the plan are subject to any valid existing rights.
Paragraph (b) of this proposed section provides that direction in plans undergoing amendment or revision would remain in effect until the Responsible Official signs a decision document for a new amendment or revision. This provision is the same as in § 219.10 of the 2000 rule.
Paragraph (c) of this proposed section makes clear that nothing in the rule itself requires a change of approved projects while new information is being assessed. This provision is proposed to clarify the effect of considering new information and fills a gap in both the 1982 rule and the 2000 rule.
Paragraph (d) of this proposed section retains the provisions of § 219.10 of the 2000 rule that lists options available to a Responsible Official when a proposal for a project or activity would not be consistent with plan direction.
Paragraph (e) of this proposed section recognizes the need for testing and research projects to gain information and knowledge that will assist the land manager. This paragraph makes clear that testing and research projects are subject to all applicable laws, regulations, and Executive orders and must be consistent with the plan. This is a new paragraph developed to acknowledge the important role of research in National Forest System land management and the role of NFS lands as sites for research. This provision also further strengthens the emphasis of this proposed rule on monitoring and evaluation.
Paragraph (b) lists situations where evaluation may be used to determine, among other things: trend identification; information and analysis validation; use of performance measures to assess the effects of programs, projects, and activities; and the effectiveness of plan standards. Paragraph (c) of this proposed section would require information to be collected from any of a variety of sources to meet the monitoring requirements. Paragraph (d) requires findings and conclusions to be published annually in reports that are made available to the public.
At § 219.11(b), the 2000 rule requires that if there is a need for monitoring and evaluation of site-specific actions, decision documents must include a description of the monitoring and evaluation and the Responsible Official must determine that funding is adequate to conduct monitoring and evaluation before authorizing the site-specific project. This provision is not retained in the proposed rule which is limited to programmatic planning.
The monitoring and evaluation provisions of the proposed rule differ from the monitoring provisions of the 2000 rule, which impose far more detailed and specific requirements for monitoring characteristics of sustainability, ecological conditions, and populations of focal species/species-at-risk and for site-specific activities. Monitoring is very important, but given the testing and experimentation inherent in monitoring and evaluation, Responsible Officials need considerable flexibility to design monitoring strategies to fit local
For example, the detailed provisions in § 219.11(a)(1)(ii)(B) and (C) of the 2000 rule are being evaluated for issuance in the Forest Service Manual or Handbook. Some of these current regulatory requirements will be made optional in order to be responsive to variations in funding, staffing, and information needs among individual National Forest System units.
Other monitoring and evaluation provisions of the 2000 rule that are proposed to be removed from the rule are those for which there is no corresponding provision elsewhere in the proposed rule. Also, at § 219.23(c), the 2000 rule requires that scientists play a significant role in developing and evaluating monitoring strategies. The agency certainly believes use of science is important in monitoring and in evaluating results; however, the agency has determined upon review that the degree of required participation of Forest Service research scientists specified in the 2000 rule would overburden the Research and Development mission area of the Forest Service. Moreover, not every plan amendment or revision will require the same degree and intensity of scientific review.
Monitoring may take many forms and include different requirements for the understanding of science and involvement by scientists. Different types of monitoring require different levels of scientific rigor in their development and application. For example, if a plan has a standard to keep fences repaired and gates closed to aid with the restoration of certain degraded riparian systems, then monitoring to assess the ability of the managers to keep the fences standing and the gates closed requires little, if any, involvement of science. However, to assess if keeping the fences closed and gates repaired was an effective approach to reach the desired condition of a restored riparian system may well require development and application of particularly rigorous, scientifically valid monitoring protocols. The consistency evaluation process described in Section 219.14 would evaluate the likelihood that the designed monitoring plan would be able to determine the effectiveness of the action (keeping the gates closed and fences repaired) in achieving the objective of ecosystem restoration.
As this proposed rule was being developed, a great deal of internal discussion occurred regarding direction for, and decisions on, adaptive management and on whether the proposed rule needed to specifically address this concept. The term “adaptive management” has been used formally and informally within the agency to describe the process of continually adjusting management techniques in response to new information, knowledge, or technologies. The Forest Service recognizes that uncertainty and unknowns exist in the course of achieving any natural resource management goal. The adaptive management process relies on focused monitoring to measure success in achieving desired conditions and to determine if there is the need to make further changes in strategies and implementation. Whether such monitoring would be scientifically rigorous would depend on the resource, the use, and the specific situation.
The 2000 rule uses the term “adaptive management,” and explains adaptive management concepts and purposes, but it has no specific requirements for how the concept and purposes were to be carried out. Although the agency believes that adaptive management concepts are valid, the agency maintains that it is not necessary for the planning rule to specifically address these concepts beyond stating that measurement of adaptive management results is one of the purposes of monitoring and stating in § 219.4 that the need to provide adaptive management is one reason why plan standards should not be overly rigid.
A plan can allow for and address adaptive management without specific direction to do so in the planning rule. Essentially, there is no real difference between the 2000 rule and the proposed rule in the area of adaptive management. Under both rules, plans can include adaptive management strategies and methods in their direction.
In fact, both conceptually and operationally, adaptive management is integral to the planning process laid out in this proposed rule, and monitoring and evaluation represent a fundamental component of the adaptive management process, as was the case in the 2000 rule. In this context, an essential linkage exists between plan requirements for monitoring and evaluation, discussed previously, and those for the ecological component of sustainability, discussed later in this preamble under proposed section 219.13. The ecological information and analyses focused on assessing ecosystem and species diversity, as specified in proposed § 219.13(b)(1), contribute directly to adoption of plan decisions that provide for ecosystem and species diversity in the plan area within the multiple use objectives of the plan. Results of monitoring and evaluation are among the information and analyses that may contribute to the development of future plan decisions affecting diversity. Moreover, monitoring and evaluation provide an essential feedback loop to assess whether implementation of plan direction is producing progress toward attainment of desired conditions and plan objectives, as well as the basis for deciding whether plan direction should be modified or changed through plan amendments or revision.
As specified in § 219.11(a), data and other information pertinent to characteristics of ecosystem and species diversity, as determined relevant by the Responsible Official, should be included in the monitoring information to be collected. Evaluation of this information should reveal whether progress toward achievement of diversity objectives is being achieved, or whether plan direction or plan implementation must be changed. In this sense, and with specific reference to the ecological component of sustainability, monitoring and evaluation complete the essential feedback loop of adaptive management to assess whether plan direction is achieving the NFMA requirement that plans provide for diversity in a multiple use context. Monitoring and evaluation focused on the characteristics of diversity thus inform both the development of plan decisions and the decision to undertake plan amendments or revisions, thereby ensuring that adaptive management is an integral part of this revised planning rule.
The 2000 rule at § 219.12(b) requires Forest Service participation with others in efforts to cooperatively develop landscape goals. Although the cooperative development of landscape goals may be of value in some planning efforts, this specific activity should not be a requirement because it will not always be useful and may often be unachievable with participating groups. The proposed rule does not refer to collaboratively developed landscape goals; rather, at § 219.12(b), the proposed rule clarifies that the Responsible Official should consider participating in existing groups to address resource management issues within the community. The agency also feels that the list of objectives for collaboration in the 2000 rule are not necessary as they are more appropriately defined under existing law or through the collaboration process itself.
In contrast to the 2000 Rule at § 219.18, this proposed section on collaboration, cooperation, and consultation does not include a provision for requiring advisory committees. That provision requires that each national forest or grassland have access to an advisory committee. Having considered employee concerns over this provision, the agency now considers this provision to be inadvisable. There are many valid methods for effectively engaging the public. An advisory committee may be the most effective method in some circumstances, the least effective in others.
Each Forest, Grassland, or Prairie Supervisor currently has the option of requesting establishment of an advisory committee under the Federal Advisory Committee Act (FACA) and implementing regulations issued by the General Service Administration (GSA). The 2000 rule requires that each Forest or Grassland Supervisor have access to an advisory committee with knowledge of local conditions and issues. While the rule does not require each planning unit to have its own committee, many believe that the local conditions and issues requirement effectively require a separate committee for most planning units.
The costs of establishing and administering FACA committees is high in terms of Federal employee time and salaries to charter the committees, manage the nomination and selection process, and to set up meetings. There are also meeting facility costs as well as costs for reimbursement of committee members for their transportation, meals, and lodging. While these costs may well be justified to address issues for some planning units, they might be an unwise use of funds on other units. Also, the process for establishing committees can be a long one. The Act and implementing GSA regulations require substantial administrative work including drafting charters, nominating members, checking nominees' backgrounds, giving
Requiring most units to undertake the expenditure of time and funds for establishing and re-establishing FACA committees imposes a significant continuing administrative responsibility. Instead of mandating a “one-size-fits-all” national approach to public input, the agency believes that it is better to provide Responsible Officials flexibility to design public involvement strategies to best meet the local needs the most cost effective way.
In summary, the proposed rule reduces the amount of process-related descriptions of the public involvement processes. The agency's intention is to continue and support vigorous and active public interaction and involvement without mandating which process would most effectively support this interaction. Consequently, this proposed rule drops the non-substantive portions of the 2000 rule, such as detailed examples of how people, groups, and organizations can contribute to the planning effort.
However, the proposed rule departs from the 2000 rule on several important points. Sustainability under this proposed rule is viewed as a single objective with interdependent social, economic, and ecological components. In contrast to the 2000 rule, this concept of sustainability is linked more closely to the MUSYA in that economic and social components are treated as interdependent with ecological aspects of sustainability, rather than as secondary considerations. This change in emphasis is not intended to downplay the importance of ecological sustainability or of maintaining the health and productivity of the land.
The proposed rule also affirms the commitment of the Forest Service to meet the NFMA requirement that plans provide for the diversity of plant and animal communities and tree species and retains the joint focus of the 2000 rule by considering and evaluating both ecosystem diversity and species diversity, in order to reach plan decisions that provide for diversity within the multiple use objectives of the plan.
The proposed rule addresses social and economic sustainability at § 219.13(a). Even though social and economic issues are different they are discussed together because both social and economic components of sustainability address the well-being of communities that are dependent on the National Forests. There are elements of analysis that have implications for both economic and social sustainability. For example, demographics (such as population, age, income, employment, home ownership, school, growth) have implications for both economic and social sustainability. Conversely, there are other elements of social and economic analysis that are clearly distinct. For example, a social analysis might help identify Native American use of medicinal plants to ensure the agency considers how these plants may be protected. A social analysis might also help identify what local people particularly value about National Forest System lands. An economic analysis might identify the interconnectedness between goods and services produced from NFS lands and the economy in surrounding communities in terms of employment and income; for example, the recreation use of NFS lands and service industries. To assess social and economic sustainability, the Forest Service proposes to require the Responsible Official to: (1) Identify values that interested and affected persons want to see sustained; (2) consider how human activities and social and economic conditions and trends affect NFS lands; (3) identify the benefits NFS lands provide; and (4) examine how land management decisions affect social and economic conditions.
The Forest Service understands that sustainable social and economic systems are very complex and that programmatic planning decisions form only a part of the environment in which these systems operate. The agency acknowledges that it cannot assure
Paragraph (a) of § 219.13 of the proposed rule incorporates the social and economic components of sustainability in § 219.21 of the 2000 rule, but removes the many highly detailed, discretionary elements from the rule. This simplification is proposed in response to concerns that many of the detailed requirements of § 219.21 do not reflect the variety of social and economic issues that arise across the range of National Forest System lands; that available information may not be sufficient to meet these requirements; and that the required level of detail may not meet the needs of an agency whose administrative units vary in funding and staffing levels. Processes for conducting social and economic analysis are already in the agency's Directive System, are most appropriately located there, and are currently being revised and updated.
Two options for the ecological component of sustainability are included in paragraph (b) of § 219.13 of the proposed rule, which incorporates the intent of § 219.20 of the 2000 rule for the ecological component of sustainability. The National Forest Management Act (NFMA) (16 U.S.C. 1604 (g)(3)(b)) requires that plans provide for the diversity of plant and animal communities based on the suitability and capability of the land area, and where appropriate and to the extent practicable, provide for steps to preserve the diversity of tree species similar to that existing in the region controlled by the plan, within the multiple use objectives of the plan (referred to hereafter as the NFMA diversity requirement). There has been extensive, ongoing debate concerning how to meet the NFMA diversity requirement ever since the Act was passed. The proposed rule includes two distinct options for meeting the diversity requirement in § 219.13(b).
The first option in this proposed rule was developed by modifying the 2000 rule and establishes the viability of vertebrates and vascular plants well distributed within their ranges in the plan area as the primary basis for judging achievement of the NFMA diversity requirement. This first option significantly streamlines the 2000 rule by removing many of the prescriptive operational details and making other changes described in this preamble.
Drawing heavily on the expertise of its research scientists, the agency developed a second option on ecological sustainability that provides a clear alternative to Option 1. In Option 2, the primary basis for judging achievement of the NFMA diversity requirement is the requirement that plan decisions foster the maintenance and restoration of biological diversity in the plan area, at ecosystem and species levels, within the range of diversity characteristic of native ecosystems in the larger landscape within which the plan area is embedded.
In preparing two distinct options to meet the NFMA diversity requirement, the agency seeks to stimulate meaningful public discussion and input on this important topic so that the Secretary can make an informed choice at the final rule stage. To ensure that the agency has access to knowledgeable and diverse views on this topic, the Forest Service also plans to host a workshop of subject matter specialists in a variety of policy, management, and resource fields to discuss the strengths and shortcomings of the two proposed options, or variations of these options, for achieving the NFMA diversity requirement. Information regarding this workshop will be provided in a separate
Both options in the proposed rule are considerably streamlined and shorter as compared to § 219.20 of the 2000 rule. As discussed earlier in this preamble, the agency's review of the 2000 planning rule judged the section on the ecological component of sustainability to be needlessly complex and overly prescriptive and to lack the flexibility needed to tailor or adapt the required ecological information and analyses to the issues identified by the Responsible Official, the risks to ecological sustainability, and the availability of information relevant to the particular plan area. To respond to this criticism, most of the operational details of the analyses of ecosystem and species diversity in § 219.20(a)(1)(i)(A)-(E), § 219.20(a)(2)(i)(A)-(H), and § 219.20(a)(2)(ii)(A)-(D), as well as the qualifications regarding how plan decisions should be applied in § 219.20(b)(1)(i)-(v) and § 219.20(b)(2)(ii)-(iv), will be transferred, perhaps in modified form, to the Forest Service Directive System or to other technical guidance documents (
Several concepts that were essential features of the required ecological information and analyses in the 2000 rule are now treated as optional elements of the analyses and will be covered in the Directive System or other guidance documents. For example, neither of the diversity options specifically requires broad-scale assessments as did the 2000 rule, but each will make use of information from such assessments, where they represent the best science available, and as stepped down from the assessment area to the plan area. Similarly, neither option specifically requires that focal species be identified for the plan area and evaluated to provide insights concerning the ecological integrity of the larger ecological system with which they are associated. Again, however, both options permit such a use of focal species on an optional basis. Option 2, in particular, states that individual species may be identified for analysis in order to develop a more complete understanding of the condition and trends of ecosystems, which is conceptually equivalent to the manner in which focal species were a required element of the diversity analyses in the 2000 rule. As a final example, neither option specifically requires use of the concept of the range of variability under the natural disturbance regime of the current climatic period, but Option 1 identifies range of variability as being among the approaches that may be used to evaluate ecosystem diversity.
Both options also eliminate language concerning how plan decisions must address federally listed threatened and endangered species because consideration of federally listed species is integral to the consideration of diversity under either option and because the planning rule need not repeat existing requirements of law. The 2000 rule at § 219.20(b)(3) included requirements that plan decisions
Following adoption of a final new planning rule, and contingent on which diversity option is selected, the agency fully intends to develop detailed operational guidance on the means to implement the procedural requirements of the new planning rule, particularly with reference to procedures for meeting the NFMA diversity requirement. This will include detailed guidance in the agency Directive System, as well as “white papers” and other documents.
Option 1 of the proposed rule is most similar to corresponding sections on ecological sustainability in the 2000 rule. In fact, Option 1 was developed from the 2000 rule by significantly streamlining the rule and eliminating significant amounts of procedural detail, as discussed earlier in this preamble. In this option, plan decisions would be developed to provide a high likelihood of supporting, over time, the viability of native and desired non-native vertebrates and vascular plants well distributed within their ranges in the plan area. This viability standard serves as the primary basis for judging achievement of the NFMA diversity requirement in Option 1. This option also contains an ecosystem diversity standard, so that plan decisions would be developed to provide measurable progress toward maintenance or restoration of ecological conditions that support the desired characteristics of ecosystem diversity. However, it is the species viability standard that will provide the clearest measure of achievement of the NFMA diversity requirement under Option 1.
Under this option of the proposed rule, analysis of the ecological component of sustainability follows a hierarchical, sequential approach. This option requires ecosystem diversity to be evaluated first, with the goal of ensuring that plan decisions provide measurable progress toward maintaining or restoring ecological conditions that support the diversity of plant and animal communities and tree species, and other characteristics of ecosystem diversity. Species diversity would be evaluated only after consideration of ecosystem diversity. This hierarchical, sequential approach is based on the assumption that conditions capable of supporting viability for most species are likely to be met through provisions for ecosystem diversity. Where this is not the case, species at risk would be identified and separate analyses of species diversity performed. This approach provides the Responsible Official flexible options for meeting the analytical requirements of Option 1 as the Responsible Official determines the scope and scale of the analysis. There are some required characteristics of ecosystem and species diversity and accompanying evaluation factors, although far fewer than in the 2000 rule. The Responsible Official is not limited to only those characteristics or analytical processes if other information or techniques are available or appropriate.
The desired conditions, objectives, standards, identification of suitable and unsuitable land uses, and any special designations and other management areas of a plan should provide the framework for management that would maintain or restore ecological conditions that the Responsible Official determines will provide a high likelihood of supporting, over time, the viability of native and desired non-native vertebrates and vascular plants well distributed within their ranges in the plan area. Note that “high likelihood” is not necessarily a statistical or mathematical determination. Rather, it is an application of expert agency judgment based on a reasonable review and consideration of available information.
The second option for addressing the ecological component of sustainability was developed initially by agency research scientists to provide a clear and distinct alternative to Option 1. Several specific objectives or perspectives influenced development of Option 2, including: (1) Focus required ecological analyses, as well as the final management standard against which plan decisions are to be judged, at both ecosystem and species levels of ecological organization; (2) require analyses of diversity across multiple geographic areas and timeframes, and especially stress the importance of analyses conducted over large geographic areas or long timeframes; (3) emphasize the influence of the ecological condition, structure, and land use history of the surrounding landscape, as well as of natural and human-induced disturbance regimes, on the ability to manage NFS lands to achieve biological diversity objectives; and (4) require a more rigorous and structured set of analyses of diversity than contained in Option 1.
Option 2 focuses attention on the general objective of maintaining and restoring ecological conditions that provide for biological diversity in the plan area and on the more specific objective of maintaining and restoring ecosystem diversity within landscapes, and within the framework of larger-scale ecosystem analyses, of maintaining and restoring species diversity within ecosystems. In this sense, Option 2 adopts an explicitly hierarchical approach to analyses of biological diversity, as does Option 1.
Option 2 focuses attention directly on evaluating and maintaining biological diversity in the planning or assessment area. Biological diversity is an inclusive concept employed in the scientific and conservation literature to refer to the variety of living things together with their interactions and processes. It is defined at various levels of ecological organization, but especially three—genes, species, and ecosystems. The general concept of biological diversity incorporates the concept of the diversity of plant and animal communities and tree species as originally used in the language of the NFMA diversity requirement. However, the term “biological diversity” also reflects significant progress in the sciences of ecology and conservation biology over the past 20-25 years. Scientific progress in these fields has revealed substantial new information such as factors that regulate biological diversity and the relationship between biological diversity and ecosystem function and resilience. As a consequence, and consistent with progress in scientific knowledge and conservation practice, the overriding objective of the approach in Option 2 is to focus planning analyses on factors that foster the maintenance and restoration of biological diversity in the planning or assessment area, at both ecosystem and species levels of ecological organization.
Option 2 directs the Responsible Official, in the planning process, to follow and fully disclose results of a structured approach to considering and assessing biological diversity at two levels of ecological organization: ecosystem and species. Analyses of
Consideration and evaluation of ecosystem diversity within the framework of biological diversity constitutes the core approach of Option 2 and is the primary focus of ecological information and analyses. Option 2 focuses attention on similar characteristics of ecosystem diversity as Option 1, but adds additional spatial attributes to the list of characteristics to be considered. Similarly, in addition to analyses specified in Option 1, Option 2 focuses evaluations on identification of unique or rare ecosystems and ecosystems at risk, specific threats to these systems, and measures required for their conservation or restoration.
In Option 2, consideration and evaluation of species diversity is a complementary approach that extends ecosystem analyses to provide a more complete understanding of the effects of past, current, and anticipated future management direction on biological diversity, including the status of species and the ecosystems in which they occur. This second option requires that species should be selected for evaluation to develop a more complete understanding of the condition and trends of ecosystems, or where substantive concerns exist regarding the continued persistence of the particular species within the planning or assessment area. In such cases, evaluations under Option 2 should identify specific threats to these species and specific measures required for their conservation or restoration.
In addition to the primary evaluations of biological diversity specified at ecosystem and species levels, Option 2 also requires three additional types of analyses of biological diversity at ecosystem and species levels. First, this option requires that biological diversity be evaluated across multiple geographic areas and time frames, especially over large areas and long time frames, to assess the dynamics of wide-ranging species and cumulative impacts of management actions on, among other factors, biological diversity. Second, Option 2 requires that impacts of natural and human disturbance regimes on biological diversity be evaluated, including consequences of altered disturbance regimes for diversity. Third, this second option requires evaluations of the effects of landscape context on biological diversity, where landscape context refers to the ecological condition, structure, and land use history of the planning or assessment area and effects on biological diversity. Of special interest in these evaluations are differences in ecological structure and condition between NFS lands and surrounding or interspersed ownerships and the consequence of such differences for options and opportunities to manage NFS lands to achieve biological diversity objectives at ecosystem and species levels.
In contrast to Option 1, Option 2 formulates a substantially different and more general biological diversity standard for judging achievement of the NFMA diversity requirement. Specifically, this option requires that plan decisions foster the maintenance and restoration of biological diversity in the plan area at both ecosystem and species levels within the range of biological diversity characteristic of native ecosystems in the surrounding landscape within which the plan area is embedded. When reaching plan decisions regarding biological diversity, Option 2 requires the Responsible Official to consider disturbance regimes and landscape context and the effects of these factors on options and opportunities to manage NFS lands in order to achieve biological diversity objectives.
The biological diversity standard embedded in Option 2 provides a degree of flexibility in managing NFS lands to achieve biological diversity objectives in a multiple use framework. However, this flexibility is clearly bounded. Some amount of change in the abundance, extent, and distribution of components of biological diversity at ecosystem and species levels is acceptable within the intent of fostering the maintenance and restoration of biological diversity in the plan area at ecosystem and species levels within the range of diversity characteristic of native ecosystems in the planning or assessment area. The loss of an ecosystem type or species from all or a significant portion of the plan area or a substantial reduction in abundance, extent, or distribution within all or a substantial portion of the plan area as a result of actions under the direct control of Forest Service land managers, however, is not consistent with, and thus outside the bounds of, the standard established for Option 2.
If Option 2 is selected for inclusion in a final rule, the agency will need to develop detailed guidance in the Directive System and other appropriate outlets (
In reaching plan decisions related to biological diversity, Option 2 requires the Responsible Official to consider the landscape context in which NFS lands exist and to use that information as a basis for identifying the special role and unique contributions of NFS lands for conserving and restoring biological diversity within the larger landscape in which the plan area exists.
For both options, the consideration and evaluation of diversity is important not only in order to meet the NFMA diversity requirement, but also because diversity is viewed in each option as an important indicator or surrogate for other important characteristics of ecosystems. In addition to diversity (diversity of plant and animal communities and tree species in Option 1, biological diversity in Option 2), both options define the ecological component of sustainability as including the productivity, health, and function of ecosystems and the quality of soil, water, and air resources. In relation to these characteristics of ecosystems, maintaining key ecological processes that are responsible for sustaining the functioning and resilience of ecosystems is of fundamental concern. However, it is difficult to observe or measure
Both options maintain the agency's fundamental commitment to the conservation and restoration of ecosystems and species through implementation of the NFMA diversity requirement, but adopt different approaches to doing so. Option 1 establishes a clear viability standard as the primary basis for judging achievement of the NFMA diversity requirement, and as the basis against which to evaluate plan decisions. However, it also specifies a less detailed set of analyses, with much of the detail that was found in the 2000 rule to be moved to the Directive System as optional elements of the analysis. Option 2, in contrast, requires a more complete and robust set of analyses, but replaces the very specific viability standard of Option 1 with a more general biological diversity standard, at both ecosystem and species levels. This biological diversity standard, which is the basis in Option 2 for judging achievement of the NFMA diversity requirement requires that plan decisions foster biological diversity in the plan area within the range of diversity that is characteristic of native ecosystems within the landscape in which the plan area is embedded. In this sense, Option 2 is more like the 2000 rule in terms of specifying more detailed and complete analyses of diversity, whereas Option 1 is more like the 2000 rule in terms of establishing species viability as a primary standard for judging achievement of the NFMA diversity requirement.
Both options establish a hierarchical approach to analyses of ecosystem and species diversity, although Option 2 does so more explicitly in the rule language. Some of the comparable details of the relationship between analyses of ecosystem and species diversity in Option 1 have been moved to the Directive System. Both options focus first on analyses and achievement of ecosystem diversity, with attention to analyses of species diversity added to address the needs of species not met by attention to ecosystem diversity. Details of analyses of ecosystem diversity under the two options are similar. Option 2 adds several spatial attributes to the list of characteristics of ecosystem diversity to be considered, and it also gives greater explicit attention to analyses of rare and unique ecosystems and ecosystems at risk, but the differences between the two options in terms of ecosystem analyses are not large.
The two options differ more substantially in their approach to analyses at the species level than at the ecosystem level. Option 1 focuses analyses on species at risk, their habitat requirements, and threats placing them at risk. Option 2 places similar emphasis on requiring detailed analyses for particular species for which continued persistence within the planning or assessment area is a substantive concern. However, such analyses do not emphasize species of vertebrates and vascular plants as they do under Option 1. Option 2 specifies that species may be selected for analysis to address specific planning issues and to develop more complete understanding of the condition and trends of ecosystems. Unlike Option 1, it also includes community analyses to determine whether maintenance of ecosystem diversity is sufficient to maintain the existing pool of species within the planning or assessment area.
The above comments notwithstanding, the primary focus of analyses under Option 2 is at landscape and ecosystem levels of ecological organization. The primary intent of Option 2 is to complete analyses that lead to provisions for maintaining the broad-scale structure and condition of the landscape in the plan area and the identity, spatial arrangement, and characteristics of ecosystems within that landscape. Most analyses under Option 2 will concentrate on these outcomes. Option 2 does call for detailed analyses of individual species where significant concerns have been raised relative to continued persistence of particular species. Other types of species analyses specified in Option 2, however, are focused on ecosystems rather than on individual species. Community analyses seek to assure that provisions for maintaining ecosystem diversity will maintain the existing pool of species, and some individual species analyses seek to provide more detailed information regarding the condition and trends of ecosystems, similar to the focal species concept of the 2000 rule. Option 1 also requires a variety of ecosystem analyses, but it is less specific regarding a need for landscape scale analyses. Because Option 1 retains a clear species viability standard for vertebrates and vascular plants, it is likely that greater emphasis will be placed on analyses focused on species persistence or viability under this option than under Option 2. While both diversity options are explicitly hierarchical and call for species analyses following and within the framework provided by ecosystem analyses, it is likely that Option 2 would place greater emphasis on ecosystem and landscape level analyses than Option 1, while Option 1 would place greater emphasis on species level analyses than Option 2. However, the exact balance between ecosystem and landscape focused analyses and species focused analyses under either option will vary depending on the nature and condition of the plan area and the identified planning issues.
Option 2 specifies several additional types of ecological information and analyses that should be included in the approach to considering and evaluating biological diversity at ecosystem and species levels. Specifically, Option 2 requires that biological diversity be evaluated with respect to spatial and temporal scales and patterns, natural and human disturbance regimes, and landscape context. Similar details in Option 1 are optional and have been moved to the Directive System.
Option 2 emphasizes more strongly than Option 1 the critical role that landscape context plays in shaping planning decisions and evaluations of biological diversity. Landscape context refers to the ecological condition and structure of ecosystems and landscapes on National Forest System lands as compared with other surrounding and interspersed lands, as well as the land use history of the planning or assessment area (National Forest System and surrounding lands). Landscape context can play a very significant role in limiting or facilitating a land manager's options and opportunities to manage NFS lands to achieve biological diversity objectives. Option 2 requires explicit consideration of landscape context in reaching plan decisions affecting biological diversity.
Option 2 also focuses more explicit attention on addressing spatial scale and patterns, requires evaluations of biological diversity at multiple spatial scales as appropriate, and emphasizes the importance of analyses at large spatial scales, which may require coordination in planning across multiple National Forest System administrative units or Regions. In a similar manner, Option 2 routinely calls for analyses and evaluations of biological diversity at the spatial scale of the planning or assessment area, which is typically larger than the plan area and which includes other
As noted above, Option 2 does not establish species viability as the primary basis for judging achievement of the NFMA diversity requirement. However, viability analyses may be appropriate under Option 2 for select species for which substantive concerns have been identified regarding continued persistence within the planning or assessment area; such analyses represent a legitimate analytical approach for species at risk of extinction globally or extirpation from the planning or assessment area. Where such concerns exist for particular species, these concerns must be addressed in analyses of biological diversity. Thus, Option 2 recognizes that viability analyses or similar analyses are potentially useful tools. Recognizing limitations of such analyses, however, Option 2 does not prescribe a specific approach for viability analyses. It permits a flexible approach shaped by issues identified in the planning process and by the present state of conservation biology theory and practice. It also does not limit the species for which viability analyses might be appropriate. Species other than vertebrates and vascular plants might be selected for analysis based on specific concerns raised in the planning process.
One final attribute common to both diversity options is the fundamental importance of linking ecological information and analyses completed in the planning process to monitoring and adaptive management. Under the 1982 planning rule, planning has become a costly process that limits resources available for on-the-ground management and monitoring. Reviews of the 2000 rule concluded it would have resulted in even higher planning costs. Moreover, it has become increasingly clear that the agency's ability to forecast future ecological conditions is limited and characterized by considerable uncertainty. As a consequence, both diversity options envision transferring the investment in upfront ecological analyses as part of planning to on-the-ground management, rigorous and scientifically based monitoring of resource conditions with reference to progress in achieving desired conditions, careful evaluation of monitoring results, and adjustment of management direction in an adaptive management context. Thus, inherent in each option is the fundamental premise that planning must be placed more directly into the framework of plan implementation through adaptive management if it is to contribute to progress toward achievement of desired conditions and to sustaining the health and productivity of the land and its resources.
The following questions help define and frame the issues that must be resolved in developing any workable approach to providing for biological diversity in the planning process. The agency encourages those who wish to comment on the diversity options in the proposed rule to consider these questions in formulating their comments:
(1) What elements of biological diversity (
(2) Over what geographic areas and timeframes should diversity be evaluated?
(3) What is an appropriate management standard against which achievement of the NFMA diversity requirement should be judged (
(4) In reaching decisions regarding achievement of the NFMA diversity requirement, how should the planning process consider and evaluate differences in current conditions between NFS lands (the plan area) and the surrounding landscape?
(5) How does a plan provide for diversity of plant and animal communities and tree species within the context of the multiple use objectives of the plan?
(6) What is the capability of the Forest Service to implement Option 1, Option 2, or variations of these options in order to provide for biological diversity in a multiple use context, given limitations of available information, personnel and financial resources?
Table II at the end of this document compares the key features contained in the ecological sustainability section of the 2000 rule with the two options for ecological sustainability in the proposed rule.
Section 219.14 of the proposed rule requires the use of independent peer reviews, science advisory boards, or other appropriate means to evaluate the consistency and application of science used in the planning process. Procedures for these methods will be provided in the agency's Directive System. Section 219.14 provides for a science consistency review process to determine whether scientific information of appropriate content, rigor, and applicability has been considered, evaluated, and synthesized in the documents that underlie the land management plan in a manner that keeps it consistent with that science. In its basic form, a science consistency review is used to evaluate whether a plan has:
• Considered and used the best available scientific information;
• Evaluated and disclosed the uncertainties of that scientific information;
• Evaluated and disclosed the consequences, substantial risks, and uncertainties from applying that scientific information to the proposed management alternatives; and
• Interpreted and applied that information reasonably and accurately.
The goal of the science consistency review is to produce a plan that meets these review criteria and to thus allow the Responsible Official to make a finding that a plan is consistent with available scientific information. The criteria apply to all aspects of the planning process, including the Responsible Official's delineation of the appropriate time frame and geographic extent of the analyses to be conducted, the analyses themselves, and the monitoring plan set up to evaluate the effectiveness of the on-the-ground management to meet the desired conditions in a plan. This science consistency review process encompasses relevant standards of the Data Quality Act concerning quality, objectivity, utility, and integrity of information used in science-related decisionmaking (Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554, Sec. 515)).
Both the 2000 rule and the proposed rule require that the Responsible Official ensure that science is considered, correctly interpreted, and applied in planning, and that incomplete or unavailable information,
The 2000 rule at § 219.23 requires specific involvement by the Research and Development (R&D) mission area of the Forest Service in broad-scale assessments. As stated in the explanation of § 219.5, the proposed rule does not require that level of assessment, so it does not address who should be involved.
The 2000 rule at § 219.23(c) requires use of scientists to design and evaluate monitoring strategies and requires an independent, scientific peer review of plan monitoring on at least a biennial basis.
The agency often needs scientific expertise in monitoring; however, there are certain types of monitoring where the need for direct scientific expertise is quite limited. For example, monitoring may include surveys of road condition to determine if drainage structures are working properly, or it may involve continuation of use of long-standing inventories such as the Christmas bird count. Thus, monitoring does not always need scientific expertise applied to its design, evaluation, and review. The agency believes that the Responsible Official should be able to determine the appropriate level of involvement of scientists in designing and evaluating monitoring as well as in reviewing monitoring plans. The science review process will clarify if this involvement is at the appropriate level, given the issues involved.
The proposed rule retains the requirement that the Responsible Official document that the new plan, plan amendment, or revision was developed using the best available science in a manner that keeps the plan consistent with that science. In contrast to the 2000 rule, this proposed rule is explicit that the determination of best available science must be made in the context of the issues being considered in a plan development, amendment or revision. These proposed changes will ensure that the Responsible Official uses the best available science pertinent to the resource uses and conditions being addressed in a plan. Again, the science review process will provide an important cross-check on the Responsible Official's appropriate use of science.
There are terms related to science that are used in the 2000 rule and the proposed rule that require additional explanation and context. One term is “uncertainty” as used in the context of scientific uncertainty. If there are uncertainties associated with plan decisions that utilize scientific information, then those uncertainties must be described.
Another term requiring additional explanation is “risk” as used in the context of scientific risk. If there are known risks associated with plan decisions, then those risks must be described. Risk arises from uncertainty in science, from assumptions made in analysis, from occurrences such as catastrophic events, and from trade-offs made in development of the plan. Trade-offs occur when a Responsible Official decides to accept negative impacts to one resource in order to achieve benefits for another resource.
For example, a plan may have a desired condition for streams that includes components of shading, nutrient loading, reduction of sedimentation, and the recruitment of large organic debris to the stream. Science may show that a 100-foot buffer strip prohibiting harvest of trees is optimum to reduce sedimentation in streams. However, science may also show that the trees in that 100-foot buffer should be of a certain size to optimize shading, nutrient loading, and large organic debris to the stream. Allowing thinning within buffer strips may be desirable, depending upon specific stand characteristics, to achieve a stand structure that better meets the desired condition for streams. The Responsible Official may trade off the short term risk of higher sedimentation rates associated with thinning trees for achieving the desired outcomes of shading, nutrient loading, and recruitment of large organic debris in the long term. This risk should be evaluated and disclosed by the Responsible Official.
Substantial risk also occurs when the aggregate sources of risk result in the likelihood that the desired resource or output condition cannot be achieved. For example, in the situation described previously, a large catastrophic fire may cause additional sedimentation, resulting in an inability to achieve the desired condition. This aggregate risk of allowing thinning and potential impacts from catastrophic fire must be evaluated and disclosed.
Appropriate interpretation of science depends upon the applicability of scientific information to the relevant planning issue. For example, if one assumes that there is an issue regarding the growth of Douglas-fir at high elevations on a forest and there is a study on the growth of Douglas-fir at low elevation, that study may be available and relevant to the extent that it relates to the same species of tree, but it could not be correctly interpreted to say that the results of the low elevation study were indicative of high elevation growth. Appropriate interpretation also involves using all of the relevant information, not just selecting part of that information. When the results of two studies relevant to an issue suggest somewhat different outcomes, uncertainty associated with science arises and the risk associated with decisions based on that science may increase. In such cases, the uncertainty in that science needs to be evaluated and disclosed.
The reviews of the 2000 rule indicate that the Forest Service is not likely to have the resources necessary to involve scientists to the degree required by the 2000 rule. Also, there is not necessarily a need for rigorous scientific reviews when levels of anticipated actions are expected to be low with fewer environmental consequences within the control of the agency. Changing the focus from the role of scientists to the appropriate use of science makes the proposed rule more practical and realistic.
The 2000 rule at § 219.23 requires the establishment of science advisory boards and provides that the Responsible Official may use a science advisory board. Again, the agency believes that there is no need in the planning rule to require one specific method to ensure that the best available science is used appropriately. Some may claim that the agency is reducing its emphasis on the use of good science because of the reduction of the many specific detailed requirements on how best to obtain and use the best available science in the proposed rule. The
This proposed section retains the same three categories as § 219.28 of the 2000 rule and retains the requirement that plans identify lands where timber may not be harvested, lands where timber may be harvested with an objective of timber production, and lands where timber may be harvested or cut for the purpose of meeting other multiple use resource management objectives. This section also provides some examples of these other multiple use objectives.
Proposed section 219.16 addresses only the suitability of lands for timber production. Suitability for other purposes is addressed at § 219.4(a)(4) of the proposed rule.
In addition, the 1982 rule established at § 219.27—Management direction, allowable sale quantity (ASQ) as the quantity of timber that may be sold from the area of suitable land covered by the forest plan for a period specified by the plan. Neither the 2000 rule, nor this proposed rule provides for allowable sale quantity, and in contrast, uses long-term sustained yield as the upper limit of timber that may be harvested during the planning period. This change was made in the 2000 rule and is continued in the proposed rule, primarily because the sustained yield requirement is adequate, and dropping the requirement that planning establish an ASQ reduces the risk of misperception that ASQ is a target to be achieved, rather than a limit to harvest.
In the 2000 rule at § 219.29(a), if a unit has less than 200,000 acres of forested lands, two or more forests may be combined for the purpose of estimating the amount of timber that could be sold annually on a sustained-yield basis. This provision is covered in § 219.17(a) of this proposed rule. It is similar to the provision in the 2000 rule, except that the 200,000-acre unit size is not cited because it is already included in NFMA. The proposed rule also clarifies that the limitation on timber harvest in § 219.17(b) is to be applied on a decadal basis.
The proposed rule differs from the 2000 rule in the following specific ways. The proposed rule does not require publication of objections received. Unlike the 2000 rule, the proposed rule includes specific requirements that the content of the public notice announcing a new plan, amendment, or revision be made for public review and subject to pre-decisional objection process. The 2000 rule does not limit who can file an objection. The proposed rule does not allow other Federal entities to file an objection, because there are other avenues for Federal agencies to work together to resolve concerns. This exclusion of Federal agencies is a long-standing procedure of Forest Service administrative appeal provisions at 36 CFR parts 215 and 251, Subpart C. The Forest Service is required to involve other Federal agencies, at Section 219.12. The proposed objection process, like that in the 2000 rule, is intended primarily other governments, such as federally recognized Indian Tribes, States, and counties, and for the public. Neither the appeal process in the 1982 rule nor the proposed objection process is suitable to resolve concerns between sister agencies in the executive branch. The Forest Service anticipates that other agencies will be able to resolve most planning concerns informally. Where it is anticipated that there may be concerns that are not easily resolved by planners and other agency personnel, various techniques such as establishments of Memorandums of Understanding or local working agreements may be used. Some agencies also have regulatory authority; for example, EPA has review authority pursuant to section 309 of the Clean Air Act. These techniques and authorities are successfully being used now and will continue to be used in the future.
The two rules are similar in what must be in an objection, but the proposed rule, unlike the 2000 rule, specifically requires that an objector provide an explanation of why the objector believes that the environmental disclosure documents and proposed final documents are inconsistent with law, regulation, Executive order, or policy and any recommendations for change. The proposed rule drops the requirement of the 2000 rule that objectors describe their participation in the planning process and provide relevant documents submitted during the process. The 2000 rule allows objectors to request meetings with a Reviewing Officer. The proposed rule does not address meetings, because although nothing prevents an objector from requesting meetings, the agency does not want to set up expectations that meetings should be requested, or that those requests would be granted in every case. The agency has learned that meetings are helpful in many cases, but not in all, and the Forest Service would like to provide flexibility to the Reviewing Officer to work through the review process in an effective manner. The proposed rule also drops the provisions for inclusion of “interested persons” in the meetings between the Forest Service and the objectors. This change occurred in the proposed rule because meetings are not specifically addressed and also so that the objection process would more closely mirror the BLM process, which does not provide for involvement of interested persons.
The proposed rule would remove the provisions for site-specific decisions at § 219.35(d) of the 2000 rule because these decisions are explicitly excluded from the proposed rule. The provisions in the 2000 rule for removal of regional guides (§ 219.35(e)) and establishment of a revision schedule (§ 219.35(g)) are not included in this proposal because the regional guides have already been removed.
The transition requirements for monitoring reports at § 219.35(f) of the 2000 rule are dropped from the proposed rule, because it is acceptable for the monitoring done under the 1982 rule to continue until the plans are completed under the proposed rule. The proposed transition includes the option to continue any amendments or revisions that were initiated under the 1982 rule or to adjust the process to follow this proposed regulation or parts thereof. The Department issued an interim final rule on May 20, 2002, to extend until a new revised planning rule is adopted, the date by which all plan amendments or revisions must be in compliance with the 2000 rule (67 FR 35431).
Some terms found in § 219.36 of the 2000 rule are not included because they are not used in the proposed rule or their meanings are self-evident. These are: “Candidate species,” “conservation agreement,” “current climatic period,” “desired condition,” “ecological sustainability,” “ecosystem composition,” “ecosystem processes,” “focal species,” “inherently rare species,” “productive capacity of ecological systems,” “reference landscapes,” “undeveloped areas,” and “unroaded areas.”
The terms included in this proposed rule that were not used in the 2000 rule are: “Biological diversity,” “culmination of mean annual increment,” “cultural/heritage resources,” “disturbance regime,” “ecosystem diversity,” “energy resources,” “environmental disclosure document,” “federally recognized Indian Tribe,” “forest land,” “health,” “high likelihood of viability,” “mean annual increment,” “newspaper(s) of record,” “plan,” “planning area,” “productivity,” “science consistency,” “species diversity,” “species persistence,” “timber harvest,” “visitor opportunities,” and “wilderness.”
The following explains changes to definitions that are used in this proposed rule and in the 2000 rule.
1. The definition of “adaptive management” is slightly changed for clarity. Also, the 2000 rule discusses the role of adaptive management in sustainability, while the proposed rule discusses the role of adaptive management in terms of efficiency and responsiveness of management.
2. The definition of “assessment or analysis area” is changed in the proposed rule by dropping analysis area and defining assessment areas. Assessment areas are larger than planning areas and typically involve multiple ownerships.
3. The definition of “desired non-native species” is changed in the proposed rule to improve clarity and to make sure the definition is consistent with each of the diversity options and also with the new definition of species.
4. The definition of “ecosystem structure” is changed in the proposed rule to refer to the arrangements and relationships among ecosystem components. This broadened the definition to encompass all of the aspects of structure that are of importance in both of the proposed rule's options for ecological sustainability.
5. The definition in the 2000 rule for “Forest Service NEPA procedures” is shorter and is now identified as “NEPA procedures” in the proposed rule, but contains no substantive changes.
6. The definition for “inventoried roadless areas” is substantially changed. The 2000 rule includes specific criteria for consideration of roadless areas identified as those in the November 2000 Roadless Area Conservation Final Environmental Impact Statement, Volume 2. The proposed rule does address criteria for roadless area consideration and does not limit areas to be considered from the November 2000 Roadless Area Conservation maps. The proposed rule allows information from a variety of sources.
7. The definition of “native species” is changed in the proposed rule to improve clarity and to make sure the definition is consistent with each of the diversity options and also with the new definition of species.
8. The definition for “plan area” is not substantially changed, but is broadened in the proposed rule to make clear that a plan area may have more than one Responsible Official.
9. The definition for “range of natural variability” is retained except that the term “current climatic period” is dropped because of considerable disagreement and confusion regarding the identification and use of this time period.
10. The definition of “Responsible Official” is changed in the proposed rule to conform it with changes made to other sections of the rule and to reflect that the proposed rule addresses only forest planning and not project level decisions.
11. The definition of “species” is changed in the proposed rule to make clear the distinction between the two diversity options in terms of which species may be considered in forest planning.
12. The definition for “species-at-risk” in the proposed rule removes references to species that may, but are not required to, be on the list and removes references to “focal species,” a term not used in the proposed rule.
13. The definition of “timber production” is changed in the proposed rule by dropping the reasons for harvest.
This proposed planning rule has been prepared by the Forest Service at the direction of the Office of the Secretary of Agriculture to address problems identified through a Departmental review of the 2000 planning rule. That review focused on the agency's ability to implement the 2000 rule. The concerns identified in the review centered on confusing text contained the 2000 rule as well as on the extensive resources, primarily funding and skilled personnel, that would be required to adequately implement the various new planning concepts and requirements of the 2000 rule.
The intended effects of the proposed rule are to simplify, clarify, and otherwise improve the planning process and to enable the Forest Service to more efficiently implement an improved planning process while retaining the key concepts of the 2000 rule for sustainability, collaboration, monitoring and evaluation, and the use of science. The proposed rule is substantially shorter than the 2000 rule as it removes highly procedural and technical instructions more appropriate for the agency's Directive System. Grounded in both law and practical experience, the proposed rule affirms forest health and sustainability as the overall goal for management of National Forest System lands.
Written comments are requested and will be considered in adoption of a final rule. Reviewers should note that greater weight will be given to original, substantive comments than to form letters, check-off lists, pre-printed post cards, petitions, or similar duplicative materials.
This proposed rule has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. It has been determined that this is not an economically significant rule. This rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This rule will not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. However, because of the extensive interest in National Forest System planning and decisionmaking, this proposed rule has been designated as significant and, therefore is subject to Office of Management and Budget review under Executive Order 12866.
Two studies investigating the costs of land and resource management planning are associated with the proposed rule: (1) A cost-benefit analysis addressing the comparative costs and benefits of the 1982, 2000, and proposed rules, and (2) a comprehensive assessment of the estimated costs of the 2000 and proposed rules.
For the cost-benefit analysis, the cost estimates were developed for planning activities under the 1982 rule with the assistance of Headquarters, Regional, and Forest level planning specialists, using cost data for plan revisions recently completed based on planning as currently practiced under the 1982 rule. These costs were included in a report to the House and Senate Committees on Appropriations entitled, “Forest Service Land and Resource Management Planning: The Status of
The results of the 2002 NFMA Costing study were used to estimate the costs associated with planning activities under the 2000 regulation and this proposed 2002 rule. The costing study used a business modeling process and is the most comprehensive study on Forest Service planning costs ever conducted. It identifies and directly compares major cost centers for both the 2000 regulation and this proposed 2002 rule and includes field validation of the estimates by agency planners and interdisciplinary specialists who participate in planning.
The cost-benefit analysis prepared on this proposal focuses on key activities in land and resource management planning for which costs can be estimated under the 1982 rule, the existing 2000 rule, and the proposed rule. The key activities include regional guides, collaboration, science support, effects analysis for the 2000 and proposed rule, and “revise plan” for the 1982 rule, evaluation of sustainability and diversity, and the resolution of disputes over plan decisions. The cost-benefit analysis compares the costs and benefits for these activities with practices under the 1982 planning rule. This proposed rule would reduce costs by eliminating regional guides, shortening the length of the planning process, and providing the Responsible Official with more discretion to decide how to conduct the planning process.
Based on costs that can be quantified, this proposed rule is estimated to save an average $1.1 million annually compared to the expected costs under the 1982 rule. Cost savings under the proposed rule are estimated to be about $27.7 million per year compared to the 2000 rule. The discounted value of the cost savings over the 15-year planning horizon is estimated to be $8.6 million for the proposed rule when compared to the 1982 regulation and approximately $240 million when compared to the 2000 regulation.
As noted in the cost-benefit analysis for the proposed rule, the NFMA costing study assumed traditional application of plan analysis. It also did not take into consideration possible savings if a plan revision analysis was categorically excluded or documented in an Environmental Assessment, rather than an Environmental Impact Statement. Both these areas of potential savings could be substantial. In addition to the analysis of the costs and benefits of this proposed rule, this rule has also been considered in light of the Regulatory Flexibility Act, as amended (5 U.S.C. 601
An environmental assessment was prepared for the 2000 rule. This assessment was not required by law, regulation, or agency policy; however, the agency elected to prepare the extra documentation at that time to ensure that no procedural defects might occur. In the case of this proposed rule, the agency proposes to categorically exclude this action, because it is clearly within an established category, there are no extraordinary circumstances related to the action, and this approach will further the agency's efforts to streamline process. The agency invites public comments on environmental effects of the proposed rule.
This proposed rule would establish the administrative procedures and requirements to guide developing, amending, and revising National Forest System land and resource management plans. As such, the proposed rule has no direct and immediate effects regarding the occupancy and actual use of National Forest System land. Rather, the environmental effects of this proposed rule will not be known until specific plans are created, amended, or revised under the rule. Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43168; September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instruction.” The action of “establishing procedures for amending or revising Forest Land and Resource Management Plans' is specifically listed as one of the examples of this category. There are no extraordinary circumstances related to this action. Although an environmental assessment will not be prepared, the agency has prepared a cost-benefit analysis and a Civil Rights Impact Analysis (CRIA), because as discussed previously in this section, the Office of Management and Budget has determined that this rule is otherwise significant. Both the cost-benefit analysis and the CRIA may be found on the World Wide Web/Internet at the address listed earlier in this document.
This proposed rule has been reviewed under Executive Order 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this rule does not constitute a significant energy action as defined in the Executive order. Procedural in nature, this proposed rule would guide the development, amendment, and revision of National Forest System land and resource management plans. These plans are programmatic documents that set the standards and other parameters for making future project-level resource management decisions. As such, these plans will address access requirements associated with energy exploration and development within the framework of multiple use, sustained-yield management of the surface resources of the NFS lands. These plans may designate major rights-of-way corridors for utility transmission lines, pipelines, and water canals. The effects of these plans on energy supply, distribution, or use are, of necessity, considered on a case-by-case basis as plan amendments or revisions are proposed and adopted. Consistent with the Executive order, direction to incorporate consideration of energy supply, distribution, and use in the planning process will be included in the agency's administrative directives for implementing the proposed rule, notice of which will be given at the time of adoption of a final rule.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This proposed rule retains the objection process established in the 2000 rule but simplifies it. The proposed rule removes the requirements for interested parties, publication of objections, and formal requests for meetings (36 CFR 219.32). These changes would result in a minor reduction in the burden hours from the collection of information that would be insignificant to the total 12,100 annual hours requested by the agency.
The agency has considered this proposed rule under the requirements of Executive Order 12875, Government Partnerships, and Executive Order 13132, Federalism. The agency has made a preliminary assessment that the rule conforms with the Federalism principles set out in these Executive orders; would not impose any compliance costs on the States; and would 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.
In addition, the agency has reviewed the consultation requirements under Executive Order 13132, which calls for enhanced consultation with State and local governmental officials and emphasizes increased sensitivity to their concerns. Section 219.8 of this proposed rule shows sensitivity to federalism concerns by requiring the Responsible Official to provide opportunities for involvement of State and local governments in the planning process. In the spirit of these requirements, the agency has consulted with the Western Governors' Association and the National Association of Counties to obtain their views on a preliminary draft of this proposed rule. The Western Governors' Association supported the general approach to create a rule that works and placed importance on the quality of collaboration for implementation. Agency representatives also contacted the International City and County Managers Association, National Conference of State Legislators, The Council of State Governments, Natural Resources Committee of the National Governors Association, U.S. Conference of Mayors, and the National League of Cities to share information about the proposed planning rule prior to the publication of this proposed rule. Based on comments received on this proposed rule in response to this notice, the agency will determine if any additional consultation will be needed with State and local governments prior to adopting a final rule.
Pursuant to Executive Order 13084, Consultation and Coordination with Indian Tribal governments, the agency has assessed the impact of this action on Indian Tribal governments and has determined that the proposed rule does not significantly or uniquely affect communities of Indian Tribal governments. The proposed rule deals with the administrative procedures to guide the development, amendment, and revision of National Forest System land and resource management plans and, as such, has no direct effect regarding the occupancy and actual use of National Forest System land. At § 219.8, the proposed rule requires consultation with federally recognized Tribes when planning.
The agency has also determined that this action does not impose substantial direct compliance cost on Indian Tribal governments. This proposed rule does not mandate Tribal participation in National Forest System planning. Rather, the rules impose an obligation on Forest Service officials to consult early with Tribal governments and to work cooperatively with them where planning issues affect Tribal interests.
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the rule does not pose the risk of a taking of Constitutionally-protected private property. This proposed rule only modifies the administrative process for amending and revising land and resource management plans for National Forests, Grasslands, and Prairies.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. The agency has not identified any State or local laws or regulations that are in conflict with this regulation or that would impede full implementation of this rule. Nevertheless, in the event that such a conflict were to be identified, the proposed rule, if implemented, would preempt the State or local laws or regulations found to be in conflict. However, in that case, (1) no retroactive effect would be given to this proposed rule; and (2) the Department would not require the parties to use administrative proceedings before parties may file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this proposed rule on State, local, and Tribal governments and the private sector. This rule does not compel the expenditure of $100 million or more by any State, local, or Tribal governments or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
Administrative practice and procedure, Environmental impact statements, Indians, Intergovernmental relations, Forest and forest products, National forests, Natural resources, Reporting and recordkeeping requirements, Science and technology.
Therefore, for the reasons set forth in the preamble, it is proposed to revise Part 219 of Title 36 of the Code of Federal Regulations to read as follows:
5 U.S.C. 301; and Secs. 6 and 15, 90 Stat. 2949, 2952, 2958 (16 U.S.C. 1604, 1613).
(a) The rules of this subpart set forth a process for establishing, amending, and revising land and resource management plans for the National Forest System as required by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act (16 U.S.C. 1600
(b) Consistent with the Multiple-Use Sustained-Yield Act of 1960, the overall goal of managing the National Forest System is to sustain in perpetuity the productivity of the land and the multiple use of its renewable resources. Management of renewable resources is to be in the combination that will best meet the needs of the American people. Achieving sustainability is essential to providing multiple uses over time. Thus, National Forest System management focuses on maintaining or restoring the health of the land in order to provide a sustainable flow of uses, values, benefits, products, services, and visitor opportunities.
(a)
(b)
(1) Planning must address issues at the appropriate time frames and geographic scales using the best available science and other knowledge and information. Analysis shall be proportional to the decisions to be made in a plan and shall focus broadly on the environmental baseline and trends in order to provide information to help develop a plan.
(2) Planning must be conducted using an interdisciplinary, collaborative approach.
(3) Consultation with States and local governments, Federal agencies, and federally recognized Indian Tribes must occur early and often in the development of an initial plan or subsequent amendment or revision.
(4) The planning process must provide opportunities for the interested public, both organizations and individuals, to participate in planning to guide the stewardship of their national forests, grasslands, and prairies, and other units of the National Forest System.
(5) A plan must provide for uses, benefits, products, services, and visitor opportunities that are appropriate to and consistent with the multiple use objectives outlined in the plan.
(6) A plan must address the social, economic, and ecological components of sustainability for the land and resources within the plan area, consistent with the Multiple-Use Sustained-Yield Act of 1960 and with the NFMA diversity requirement that plans provide for the diversity of plant and animal communities and tree species consistent with the multiple-use objectives of the plan.
(7) A plan must identify the monitoring and evaluation necessary to assess the achievement of desired conditions and to indicate whether direction in the plan should be modified, as necessary, to address new issues, new information, and changed conditions.
(8) The management direction in a plan should reflect the limits and likely variability of agency budgets.
(c)
(1) Statutory authorities related to planning and management of the National Forest System include the Organic Administration Act of 1897, as amended (16 U.S.C. 473
(2) Agency-wide management policy and procedure relevant to planning and resource management are issued through the Forest Service Directive System (36 CFR 200.4).
(d)
(a) The Chief of the Forest Service is responsible for national planning, such as preparation of the Forest Service Strategic Plan required under the Government Performance and Results Act of 1993 (5 U.S.C. 306; 31 U.S.C. 1115-1119; 31 U.S.C. 9703-9704) which is integrated with the requirements of the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976 (16 U.S.C. 1600
(b) The National Forest, Grassland, or Prairie Supervisor is the Responsible Official for development and adoption of a new land and resource management plan for lands under the responsibility of the Supervisor, as well as for amendment or revision of a plan, unless a Regional Forester, the Chief, or the Secretary chooses to act as the Responsible Official for a specific plan, amendment, or revision.
(c) A Regional Forester, the Chief, or the Secretary may amend or revise multiple plans, where social, economic, or ecological issues or opportunities occur on more than one national forest,
(d) Management direction in plans for areas designated as experimental forests must be consistent with the research activity being conducted on these areas and concurred with by the associated Station Director.
(a) A plan constitutes the programmatic management direction for all or part of a plan area (§ 219.23) and embodies the following decisions:
(1)
(2)
(3)
(i) Limitations on even-aged timber harvest methods including provisions to require harvest in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources and the regeneration of the timber resource, including requirements that even-aged harvest may occur only upon a finding that it is appropriate and that clearcutting may occur only upon a finding that it is the optimum method to meet the objectives and requirements of the plan;
(ii) Maximum size openings created by timber harvest according to geographic areas, forest types, or other suitable classifications for areas to be cut in one regeneration harvest operation. This limit may be less than, but will not exceed, 60 acres for the Douglas-fir forest type of California, Oregon, and Washington; 80 acres for the southern yellow pine types of Alabama, Arkansas, Georgia, Florida, Louisiana, Mississippi, North Carolina, South Carolina, Oklahoma, and Texas; 100 acres for the hemlock-sitka spruce forest type of coastal Alaska; and 40 acres for all other forest types. These size opening limits shall include provisions to exceed the established limits after appropriate public notice and review by the officer one level above the Responsible Official provided that such limits shall not apply to the size of areas harvested as a result of natural catastrophic conditions such as fire, insect and disease attack, or windstorm;
(iii) Requirements for achieving aesthetic objectives, including requirements that cut blocks, patches, or strips that are shaped and blended to the extent practicable with the natural terrain;
(iv) Requirements for maintaining or restoring ecological conditions that support desired characteristics of ecosystem and species diversity in order to, within the multiple use objectives of the plan, provide for the diversity of plant and animal communities based on the suitability and capability of the plan area and, where appropriate and to the degree practicable, provide for steps to preserve the diversity of tree species similar to that existing in the plan area;
(v) Requirements for maintaining or restoring soil and water resources, including protection for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, when management activities are likely to seriously and adversely affect water conditions on fish habitat;
(vi) Requirements that timber harvest projects be considered through interdisciplinary review, assessing the potential environmental, biological, aesthetic, engineering, and economic impacts on the sale area, as well as the consistency of the sale with the multiple use of the general area, and that the harvesting system used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber; and
(vii) Requirements for assuring that even-aged stands of trees scheduled for harvest during the planning period have generally reached culmination of mean annual increment of growth. This requirement applies only to regeneration harvest of even-aged stands on lands identified as suitable for timber production and where timber production is a management objective.
(A) The culmination of mean annual increment of growth requirement does not apply to cutting for experimental or research purposes; to non-regeneration harvests, such as thinning or other stand improvement measures; to management of uneven-aged stands or to stands under uneven-aged silvicultural systems; and to salvage or sanitation harvesting of timber stands which are substantially damaged by fire, windthrow, or other catastrophe, or which are in imminent danger from insect or disease attack.
(B) A plan must identify categories of activities that are exceptions to the culmination of mean annual increment if necessary to meet resource objectives, such as wildlife habitat enhancement, visual enhancement, or riparian area improvement. Exceptions to the culmination of mean annual increment requirement and the reasons for these exceptions must be specifically disclosed during the public participation process for a plan.
(4)
(i) If law, regulation, or Executive order prohibits that use;
(ii) If agency resource management directives prohibit the use;
(iii) If the use would result in substantial and permanent impairment of the productivity of the land or renewable resources; or
(iv) If the use is incompatible with the desired conditions established for all or part of the plan area.
(5)
(6)
(b) Assessments, surveys, analyses, monitoring results, and other studies are not plan decisions nor do they constitute agency proposed or final actions.
The Responsible Official may propose to amend or revise a plan based on the consideration of issues or opportunities.
(a)
(b)
(i) The scientific basis and merit of available information and analyses, including the results of monitoring and evaluation;
(ii) The scope, complexity, intensity, and geographic scale of the issue or opportunity;
(iii) Statutory requirements or valid existing rights; and
(iv) Organizational and available resources, including current and likely Forest Service budgets.
(2) If the Responsible Official determines that an issue or opportunity should be addressed in an amendment or revision, the Responsible Official should review the best available science and other relevant knowledge and information as part of the planning process. Whenever possible, the Responsible Official should use existing information to address issues or opportunities. However, new information or a supplemental or new inventory, assessment, or analysis may be developed as appropriate to the scope, timeframe, and geographic extent of an issue or opportunity, provided that additional information can be obtained at a reasonable cost and in a timely manner. A decision whether or not to consider an issue or opportunity is not subject to objection under this subpart.
(a) The Responsible Official must comply with NEPA procedures (§ 219.23) and incorporate them as necessary and appropriate throughout the planning process. The Responsible Official must determine how NEPA applies in the development of a new plan, plan amendment, or plan revision. The Responsible Official shall ensure that the level of NEPA analysis for planning is proportional to the decisions being made.
(b) If the Responsible Official determines that a new plan, plan amendment, or plan revision, or a component thereof, would be an action significantly affecting the quality of the human environment, or authorizes an action that commits funding or resources that could have a significant effect on the quality of the human environment, then an environmental impact statement would be required. A new plan, plan amendment, or plan revision may be categorically excluded from documentation in an Environmental Assessment or Environmental Impact Statement as provided in agency NEPA procedures.
(a) A plan may be amended to add, modify, or rescind one or more of the plan decisions described in § 219.4. As provided for in § 219.18, administrative corrections and additions are not amendments.
(b) An amendment arises from consideration of issues or opportunities and a determination of a need to change a plan as described in § 219.5.
(c) During the amendment process, the Responsible Official must provide opportunities for consultation and collaboration as required by § 219.12 of this subpart.
(d) A plan amendment for which an EIS is prepared is a significant amendment. The Responsible Official must publish a Notice of Intent to prepare an EIS in the
(e) The Responsible Official must give prior notice of the opportunity to object to any proposed amendment and any associated final environmental disclosure documents that are subject to the objection process established at § 219.19 of this subpart.
(f) An interim amendment may be used to establish plan direction of limited duration as follows:
(1) Only a Regional Forester or a higher level official may be the Responsible Official for an interim amendment;
(2) An interim amendment must specify the duration of the amendment, which is not to exceed four years. An amendment may be renewed in accordance with procedures in § 219.7(f)(3);
(3) The Responsible Official shall notify the public in newspaper(s) of record, and allow public comment, before an interim amendment is renewed beyond the four year period; and
(4) An interim amendment is not subject to the objection process of § 219.19.
(a)
(1) To initiate the plan revision process, the Responsible Official must prepare the following:
(i) A description of the current management situation for the plan area and an analysis of existing plan direction;
(ii) A summary of issues or opportunities that the Responsible Official determines to be appropriate and timely for consideration (§ 219.5); and
(iii) A summary of any current and new information relevant to the issues or opportunities determined appropriate for consideration.
(2) Using the description prepared under paragraph (a)(1)(i) of this section and the summaries prepared under paragraphs (a)(1)(ii) and (iii) of this section, the Responsible Official must consult with Federally recognized Indian Tribes, State and local governments, and other Federal agencies in conformance with § 219.12 of this subpart.
(b)
(c)
(1) For any revision for which the Chief or the Secretary is the Responsible Official or for which an environmental impact statement is prepared, notice of the proposed draft revision and availability of the DEIS must be published in the
(2) For all other revisions, notice of the availability of the proposed draft revision, specifics regarding the time available, and process for comments must be published in newspaper(s) of record (§ 219.23).
(d)
(a) If Congress establishes a new National Forest, Grassland, Prairie, or other comparable unit of the National Forest System, the Regional Forester must determine if the unit requires a separate plan or if an existing plan can be amended or revised to apply to the lands within the new unit.
(b) If the Regional Forester determines that a separate plan is required for a new unit of the National Forest System, the Responsible Official for the new unit must develop and approve a plan that establishes the desired conditions, objectives, standards, any special management areas, and monitoring and evaluation requirements and that identifies any suitable or unsuitable land uses within the plan area as provided in § 219.4 of this subpart. The Responsible Official shall initiate and conduct planning and conduct government-to-government consultation and public involvement as provided in §§ 219.8, 219.12, and all other applicable sections of this subpart.
(a)
(b)
(c)
(d)
(1) Modify the proposed site-specific project or action to make it consistent with the plan;
(2) Reject the proposal; or
(3) As part of the project decision, amend the plan to modify one or more standards or to exempt application of one or more standards to the project or action to allow for its implementation.
(e)
Monitoring and evaluation should assess, over appropriate timeframes and geographic areas and at a reasonable cost, the effects of activities on achievement of desired conditions and objectives of a plan, the results of adaptive management, and, as provided in § 219.4, contribute to determining whether a plan needs to be changed or whether plan implementation needs to be adjusted.
(a)
(1)
(2)
(b)
(1) Identifying trends and conditions;
(2) Validating information and analyses used to adopt, amend, or revise a plan;
(3) Assessing, through the use of identified performance measures and other methods, the effects of programs, projects, and activities in achieving the desired conditions and objectives for the plan; and
(4) Determining the effectiveness of plan standards.
(c)
(d)
The Responsible Official must use an interdisciplinary, collaborative approach to planning by engaging the skills and interests of appropriate combinations of Forest Service staff, consultants, contractors, other Federal agencies, federally recognized Indian Tribes, State or local governments, or other interested or affected communities, groups, or persons, consistent with applicable laws.
(a)
(1)
(2)
(3)
(b)
Consistent with the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), the Responsible Official must ensure that the plan provides for desired conditions, objectives, standards, special area recommendations, and monitoring based upon consideration of the three interdependent components of sustainability: Social, economic, and ecological. A plan by itself cannot ensure sustainability but provides an overall framework to guide on-the-ground management. Sustaining the productivity of the land and its renewable resources is achievable only by the continuous and dynamic process of planning, implementing projects under the plan, monitoring, adapting management as a result of monitoring, and where necessary and appropriate, amending or revising the plan or modifying proposed site-specific projects to meet the desired conditions.
(a)
(1) Engage and participate with interested and affected parties to identify the values they want to see sustained and the benefits they accrue from National Forest System lands;
(2) Consider how human activities and social and economic conditions and trends affect the ecological component of sustainability on and around National Forest System lands, and how people can contribute to maintaining and restoring the health of National Forest System lands; and
(3) Gather and analyze social and economic information to assess, at the appropriate timeframes and geographic scales, how land management has affected and may affect the contribution of National Forest System lands to social and economic systems. This includes identifying the benefits National Forest System lands provide; analyzing conditions and trends of social and economic systems; and analyzing the relationships between
(b)
(1)
(i)
(A)
(B)
(ii)
(A)
(B)
(2)
(i)
(ii)
(b)
(1)
(i)
(A)
(B)
(
(
(
(ii)
(A)
(B)
(
(
(
(iii)
(A)
(B)
(C)
(2)
(i)
(ii)
(a) Decisions embodied in a plan must be consistent with the best available science. As part of the planning record, the Responsible Official must:
(1) Demonstrate how the planning process considered and made use of the best available science within the context of the issues being considered;
(2) Evaluate and disclose any substantial uncertainties in that science;
(3) Evaluate and disclose substantial risks associated with plan decisions based on that science; and
(4) Validate that the science was appropriately interpreted and applied.
(b) To meet the requirements of paragraph (a) of this section, the Responsible Official must use independent peer review, a science advisory board, or other appropriate means to evaluate the consistency and application of science used in the planning process.
(a) A plan is the mechanism by which the Responsible Official may allocate specific areas to special designations and recommend areas for special designation by higher-level authorities. The plan also provides management direction for specially designated areas and areas recommended for special designation within the plan area.
(b) Special designations are areas within the National Forest System that are identified for their unique or special characteristics and include the following:
(1)
(2)
(3)
(a)
(1) Land that is not forest land (as defined at § 219.23);
(2) Land where technology is not available for conducting timber harvest without causing irreversible damage to soil, slope, or other watershed conditions or substantial and permanent impairment of the productivity of the land;
(3) Lands where there is no reasonable assurance that such lands can be adequately restocked within 5 years after final regeneration harvest;
(4) Lands where timber production would violate statute, Executive order, regulation, or agency directives;
(5) Those lands that have been withdrawn from timber production by the Secretary of Agriculture or the Chief of the Forest Service; and
(6) Lands where timber production would not be justified after considering physical, ecological, social, economic, and other pertinent factors. However, lands not suited for timber production may be available for timber harvest pursuant to paragraph (c) of this section.
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(1) Corrections and updates of data and maps;
(2) Corrections of typographical errors or other non-substantive changes; and
(3) Changes in monitoring methods (§ 219.11).
(c)
(a)
(1) When an amendment is made in conjunction with a site-specific project decision as provided in § 219.20;
(2) When the amendment is an interim amendment as provided in § 219.7;
(3) When the entity is a Federal agency; or
(4) When the Responsible Official for the decision is the Secretary of Agriculture.
(b)
(1) For any proposed plan, amendment, or revision for which the Chief or the Secretary is the Responsible Official, the notice must be published in the
(2) For all other proposed plans, amendments, or revisions, legal notice must be published in newspaper(s) of record as defined in § 219.23 of this subpart.
(c)
(1) A concise identification of the proposed plan, amendment, or revision;
(2) The name, title, and address of the Responsible Official;
(3) Information on the availability of the proposed plan, amendment, or revision and the final environmental disclosure document, if any;
(4) Identification of when the objection period begins (the day following the notice's publication) and the date the objection period ends; and
(5) The name of the Reviewing Officer and the addresses where an objection must be sent.
(d)
(2) An objection must contain the following:
(i) The name, mailing address, and if possible, telephone number of the objector. Where an objection is filed by an organization or other entity on behalf of multiple objectors, the objection must indicate the representative contact, who will notify the other objectors of the objection response and any other written correspondence related to the objection that may occur;
(ii) An identification of the specific proposed plan, amendment, or revision that is the subject of the objection; and
(iii) A concise statement explaining how the environmental disclosure documents, if any, and proposed plan, amendment, or revision are inconsistent with law, regulation, Executive order, or policy and any recommendations for change.
(e)
(2) If the Reviewing Officer concludes that the proposed plan, amendment, or revision and accompanying environmental disclosure documents, if any, are consistent with law, regulation, Executive order, and policy, the Responsible Official may proceed to make a decision.
(3) If the Reviewing Officer concludes that the proposed plan, amendment, or revision, and accompanying environmental disclosure documents, if any, are not consistent with law, regulation, Executive order, and policy, in whole or in part, the Reviewing Officer must describe what further action is required by the Responsible Official prior to approving the new plan, amendment, or revision. Upon approval of the plan, amendment, or revision, no further objection is available.
(f)
(g)
If a plan amendment is made in conjunction with a site-specific decision, a person may appeal the plan amendment and the site-specific decision only as described in 36 CFR 215.7(a).
(a)
(b)
(a) For the purposes of this paragraph, the reference to a new plan, amendment, or revision initiated before the effective date of this rule, means that the agency has issued a Notice of Intent or other public notice announcing the commencement of a plan amendment or revision as provided for in the Council on Environmental Quality regulations at 40 CFR 1501.7 or in Forest Service Handbook 1909.15, Environmental Policy and Procedures Handbook, section 11.
(b) Until 90 days after the effective date of this rule, a Responsible Official may elect to initiate an amendment, continue an amendment or a revision under the planning regulations in effect prior to November 9, 2000, or the Responsible Official may conform the amendment or revision process to the provisions of this subpart.
(c) For new plans, amendments, or revisions initiated under the November 2000 rule, the Responsible Official must adjust the planning process to conform to this subpart.
(d) In conforming a previously initiated planning process to the requirements of this subpart, the Responsible Official is not required to halt the process and start over. Rather, the Responsible Official should integrate the requirements of this subpart into the future steps and procedures of plan development, amendment, or revision process.
(e) The Responsible Official shall give notice of how the planning process will be adjusted to conform to the requirements of this subpart in the newspaper(s) of record.
Definitions of the special terms used in this subpart are set out in alphabetical order in this section:
The following tables will not appear in the Code of Federal Regulations.
Forest Service, USDA.
Proposed rule; notice of workshop.
Elsewhere in this part of today's
The workshop is scheduled for February 18-20, 2003, in the general Washington, DC area. The workshop begins the evening of February 18, 2003, and an evening session may also be held on February 19, 2003. The workshop is scheduled to adjourn at 3:30 p.m. on February 20, 2003. Nominations for the workshop must be received no later than January 6, 2003.
The agency has contracted with the Meridian Institute to plan, organize, and facilitate the workshop. It is strongly suggested that nominations be submitted electronically via the Internet at
Questions regarding the workshop should be directed to Shawn Walker, Meridian Institute, (202) 354-6450 or at
The workshop will address scientifically sound and practical forest planning approaches to implementing the statutory requirements of the National Forest Management Act (NFMA) with respect to diversity as well as the advantages and disadvantages of the two proposed diversity options or variations of these options. The two proposed diversity options are presented in the proposed land and resource management planning rule published elsewhere in this part of today's
Workshop participants will be selected and invited through an open nomination process. Both self-nominations and nominations of others will be accepted from anyone wishing to submit a nomination based on the criteria described below.
• Balanced representation of interests among the selected participants to include highly qualified individuals from the variety of scientific disciplines relevant to a discussion of the diversity options; and
• Balanced representation of individuals from a diversity of geographic regions and circumstances who have practical experience in the land and resource management planning process and plan implementation.
To assist in evaluating the nomination process the following information on nominees would be helpful:
The agency invites nomination of qualified persons to attend the Diversity Options Workshop described in this notice. Both self-nominations and nominations of others for the workshop will be accepted and will be reviewed using the preceding participant selection criteria.
Environmental Protection Agency (EPA).
Notice of proposed rulemaking.
EPA is proposing to clarify and revise certain provisions of the Tier 2/Gasoline Sulfur regulations (65 FR 6698, February 10, 2000, hereinafter referred to as the Tier 2 rule). Today's action proposes minor revisions to clarify the regulations governing compliance with the Tier 2 rule, and it proposes to modify the Tier 2 program to provide for cleaner diesel engines than were anticipated during the interim Tier 2 program (through the 2006 model year).
In the “Rules and Regulations” section of this
We have explained our reasons for these technical amendments in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the portions of the direct final rule receiving such comment and those portions will not take effect. We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.
If we do not receive a request for a public hearing, written comments are due January 6, 2003. Requests for a public hearing must be received by December 23, 2002. If we do receive a request for a public hearing, it will be held on January 9, 2003, starting at 10 a.m. In that case, the public comment period will close on February 10, 2003.
Roberts French, U.S. EPA, National Vehicle and Fuel Emissions Laboratory, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone (734) 214-4380, fax (734) 214-4050, e-mail
EPA is proposing to clarify and revise certain provisions of the Tier 2/Gasoline Sulfur regulations (65 FR 6698, February 10, 2000, hereinafter referred to as the Tier 2 rule). Today's action proposes minor revisions to clarify the regulations governing compliance with the Tier 2 rule, and it proposes to modify the Tier 2 program to provide for the certification of cleaner diesel engines than were anticipated during the interim Tier 2 program (through the 2006 model year).
However, in the “Rules and Regulations” section of today's
Entities potentially affected by this action are those that manufacture and sell motor vehicles in the United States. The table below gives some examples of entities that may have to comply with the regulations. However, since these are only examples, you should carefully examine these and other existing regulations in 40 CFR part 80. If you have any questions, please call the person listed in the
Today's action is available electronically on the date of publication from EPA's
EPA
Please note that due to differences between the software used to develop the documents and the software into which the documents may be downloaded, changes in format, page length, etc., may occur.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency is required to determine whether this regulatory action would be “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The order defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that may:
• 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;
• Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
• Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or,
• 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 proposed rule is not a “significant regulatory action.”
The Paperwork Reduction Act of 1980, 44 U.S.C. 3501
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any proposed rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's direct final rule on small entities, small entity is defined as: (1) A motor vehicle manufacturer with fewer than 1000 employees; (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. After considering the economic impacts of today's proposed rule on small entities, I certify that this proposed action would not have a significant economic impact on a substantial number of small entities. This proposed rule would not have any adverse economic impact on small entities. Today's proposed rule proposes to amend certain provisions of the Tier 2 rule (65 FR 6698, February 10, 2000), such that regulated entities will find it easier to comply with the requirements of the Tier 2 rule. More specifically, today's action proposes to make minor revisions to clarify the regulations governing compliance with the Tier 2 rule.
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 for any single 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 that is not the least costly, most cost-effective, or least burdensome alternative if we provide an explanation in the final rule of why such an alternative was adopted.
Before we establish any regulatory requirement that may significantly or uniquely affect small governments, including tribal governments, we must develop a small government plan pursuant to section 203 of the UMRA. Such a plan must provide for notifying potentially affected small governments, and enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant federal intergovernmental mandates. The plan must also provide for informing, educating, and advising small governments on compliance with the regulatory requirements.
This rule contains no federal mandates for state, local, or tribal governments as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. Nothing in the rule will significantly or uniquely affect small governments.
We have determined that this rule does not contain a federal mandate that may result in estimated expenditures of more than $100 million to the private sector in any single year. This action has the net effect of revising certain provisions of the Tier 2 rule. Therefore, the requirements of the UMRA do not apply to this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires us to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
Under section 6 of Executive Order 13132, we may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute,
Section 4 of the Executive Order contains additional requirements for rules that preempt state or local law, even if those rules do not have federalism implications (
This 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. This rule revises certain provisions of earlier rules that adopted national standards to control vehicle emissions and gasoline fuel sulfur levels. The requirements of the rule will be enforced by the federal government at the national level. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
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.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. Today's proposed rule does not uniquely affect the communities of American Indian tribal governments since the motor vehicle requirements for private businesses in today's rule will have national applicability. Furthermore, today's rule does not impose any direct compliance costs on these communities and no circumstances specific to such communities exist that will cause an impact on these communities beyond those discussed in the other sections of today's document. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, section 5-501 of the Executive Order directs us to evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
This rule is not subject to the Executive Order because it is not an economically significant regulatory action as defined by Executive Order 12866. Furthermore, this rule does not concern an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to use voluntary consensus standards in our regulatory activities unless it would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule references technical standards adopted by us through previous rulemakings. No new technical standards are established in today's rule. The standards referenced in today's rule involve the measurement of gasoline fuel parameters and motor vehicle emissions.
Statutory authority for today's final rule is found in the Clean Air Act, 42 U.S.C. 7401
Environmental protection, Administrative practice and procedure, Motor vehicle pollution.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to clarify and revise certain provisions of the Tier 2/Gasoline Sulfur regulations (hereinafter referred to as the Tier 2 rule). Today's action makes minor revisions to clarify the regulations governing compliance with the Tier 2 rule, and it modifies the Tier 2 program to provide for the certification of cleaner diesel engines than were anticipated during the interim Tier 2 program (through the 2006 model year).
This direct final rule is effective on March 6, 2003, without further notice, unless we receive adverse comments by January 6, 2003, or if we receive a request for a public hearing by December 23, 2002. Should we receive any adverse comments on this direct final rule, we will publish a timely withdrawal in the
Roberts French, U.S. EPA, National Vehicle and Fuel Emissions Laboratory, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone (734) 214-4380, fax (734) 214-4050, e-mail
EPA is publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse comment. However, in the “Proposed Rules” section of today's
Today's action is available electronically on the date of publication from EPA's
EPA
Please note that due to differences between the software used to develop the documents and the software into which the documents may be downloaded, changes in format, page length, etc., may occur.
Entities potentially affected by this action are those that manufacture and sell motor vehicles in the United States. The table below gives some examples of entities that may have to comply with the regulations. However, since these are only examples, you should carefully examine these and other existing regulations in 40 CFR part 80. If you have any questions, please call the person listed in the
The technical amendments described below pertain to the Tier 2/Gasoline Sulfur regulations finalized by EPA on February 10, 2000 (65 FR 6698), hereafter referred to as the Tier 2 rule or the Tier 2 program. Although we attempt to provide some context in the following discussions, the emission control program that we are amending is very complex and detailed and cannot be described completely in this direct final rule. Readers are advised to consult the documents associated with this rulemaking if they require more information than is provided in this direct final rule. Information regarding the Tier 2 rule that readers may be interested in consulting may be found on the EPA Web site at
The Tier 2/Gasoline Sulfur program is designed to significantly reduce the
The Tier 2 rule when fully phased in contains eight emission standards “bins” (bins 1 through 8). Each bin is a set of emission standards to which manufacturers can certify their vehicles, provided that each manufacturer meets a specified fleet average NO
In addition to bins of exhaust emission standards for the Federal Test Procedure (FTP), the Tier 2 rule also established exhaust emission standards for the Supplemental Federal Test Procedure (SFTP). The SFTP procedures are intended to control emissions that occur during types of driving that are not well-represented on the FTP, including rapid accelerations and decelerations, high speed driving, and driving with the air conditioner operating.
With the exception of some adjustments to the interim program to account for the lack of availability of low sulfur diesel fuel, an overarching principle of the Tier 2 program is the applicability of the same Tier 2 standards to all LDVs and LDTs, regardless of the fuel they are designed to use. Diesel powered LDVs and LDTs tend to be used in the same applications as their gasoline counterparts, and we believe that they should therefore meet the same standards. We stated in the Tier 2 final rule that major technological innovations will not be required for gasoline vehicles to meet the Tier 2 standards, but that the standards will be especially challenging for diesel vehicles and will likely require the application of advanced aftertreatment technologies. These aftertreatment technologies are dependent on the availability of clean diesel fuel, without which they are not effective and may be susceptible to damage. For this reason, we included some provisions in the initial years of the Tier 2 program to enable diesels to meet the interim requirements without the availability of low sulfur diesel fuel. We also allowed manufacturers to certify vehicles to an interim bin 10 during the initial years of the program. We stated that we believed diesel engines could meet the full useful life requirements in bin 10 without the need for low sulfur diesel fuel (65 FR 6739). Beyond the interim program, however, we have provided for the availability of clean diesel fuel starting in mid-2006 (66 FR 5001, January 18, 2001), and thus the program was structured so that diesels will be treated no differently than gasoline vehicles when the final Tier 2 program is effective and applicable to the entire fleet.
Section IV.B.4.a of the Tier 2 rule preamble (65 FR 6740) briefly explains the bin 10 provisions as they relate to diesel vehicles. Specifically, we stated that diesel vehicles “may opt not to meet the intermediate life standards associated with this bin.” In addition, a footnote to the table of Tier 2 intermediate useful life standards for the Federal Test Procedure (FTP) reads “Intermediate life standards are optional for diesels certified to bin 10” (65 FR 6741). Although not specifically stated in this language, it was EPA's intent to exempt diesel vehicles from the intermediate life standards of both the FTP and SFTP. As was noted in the Tier 2 rule, low sulfur diesel fuel may be needed for diesels to meet the intermediate useful life standards of the interim Tier 2 program, yet low sulfur diesel fuel will not be widely available during the time frame of the interim program (65 FR 6740). This exemption was intended to apply only for the temporary duration of bin 10. The Tier 2 rule provided the option for diesels of opting out of the intermediate life standards of bin 10 in order to enable light-duty diesels to continue to be manufactured in the absence of low sulfur fuel, while their gasoline-fueled counterparts will already be able to enjoy the advantages of clean low sulfur fuel in meeting the interim standards. Further, the intermediate useful life standards for diesels certifying to bin 10 during the interim program are not necessary because diesel engine-out emissions (
Although we intended to make optional for diesels the FTP intermediate useful life standards, the SFTP 4,000-mile standards, and the SFTP intermediate useful life standards during the interim program, the regulatory language does not capture this intent and requires diesel vehicles certifying to bin 10 to comply with full useful life SFTP standards and either the 4,000-mile or intermediate life SFTP standards. Specifically, the regulations currently require that all vehicles subject to SFTP standards must meet a 4,000-mile standard and a full useful life standard. The regulations currently provide that diesel vehicles have the option of complying with an intermediate useful life standard instead of the 4,000-mile standard through the 2006 model year.
In this direct final rule, we are amending the regulations to be consistent with the original intent that for diesel vehicles certifying to bin 10, compliance with the intermediate useful life standards of both the FTP and the SFTP be optional. This optional compliance will only be available as long as bin 10 is available. In the case of the SFTP standards, this means that, like the FTP, diesel vehicles will only be required to meet a full useful life standard. This change primarily applies to NO
This direct final rule also revises the regulations applicable to diesel vehicles certified to bin 9 so that the intermediate useful life FTP and SFTP standards will also be optional for bin 9 diesel vehicles. When the Tier 2 rule was finalized more than two years ago, we limited the diesel intermediate life option to bin 10 because the information available at the time suggested that it would be challenging for diesel vehicles to meet the bin 10 standards in the absence of low sulfur diesel fuel, and no vehicle manufacturers were predicting that diesels would be able to meet the standards of more stringent bins during the interim program. However, in the time since the finalization of the Tier 2 rule we have learned that light-duty diesel vehicles are under development that are capable of meeting the bin 9 exhaust emission standards and could be introduced during the interim Tier 2 program. One manufacturer of these vehicles has therefore requested that the regulations be modified such that the bin 9 requirements for diesels mirror those of bin 10 by providing diesels the option of opting out of meeting the intermediate useful life standards. Certification to the bin 9 standards would be a significant achievement in the advancement of light-duty diesel technology in the initial years of the Tier 2 program, as the NO
Therefore, in this direct final rule we are modifying the provisions of the Tier 2 interim program such that the bin 9 provisions are consistent with bin 10. We are doing this by extending the intermediate life opt-out option to diesels certifying to bin 10 or bin 9. Diesel vehicles require this additional flexibility for bin 9 during the interim period for the same reasons that this option was provided for bin 10, as discussed above (
The Tier 2 rule added a new definition to 40 CFR part 86, subpart S for “U.S. Sales.” This new definition specifies that the term means sales in the United States, excluding sales in California and in states that have adopted the California emissions control program for motor vehicles under section 177 of the Clean Air Act. This new definition became necessary to ensure that vehicles sold in states not subject to the federal emissions control program would not be included in the determination of a manufacturer's fleet average emissions level. However, the new definition inadvertently changed the intended use of the term in some other sections of the Tier 2 regulations. In particular, the term “U.S. sales” is used to determine the eligibility of manufacturers for provisions applicable to small volume manufacturers (see 40 CFR 86.1801-01(d), 86.1838-01(b)(1), and 86.1838-01(b)(2)). Applying the new definition of U.S. sales in these cases could result in an incorrect determination of eligibility for small volume manufacturer provisions, because the small volume provisions intended to use the term to mean sales in all U.S. states and territories, including California and the section 177 states. Therefore, this direct final rule is amending 40 CFR 86.1801-01(d), 86.1838-01(b)(1), and 86.1838-01(b)(2) such that the term “U.S. sales” is replaced with “sales in all states and territories of the United States.” The word “state” is used in this context consistently with the definition of “State” in section 302(d) of the Clean Air Act, and includes the District of Columbia, Puerto Rico, and other parts of the United States that are not formally considered to be states.
40 CFR 86.1811-04(f)(4) currently states that “[i]nterim non-Tier 2 gasoline, diesel and flexible-fueled LDV/LLDTs certified to bin 10 FTP exhaust emission standards * * * may meet the gasoline Tier 1 SFTP requirements found at § 86.1811-01(b).” The effect of the language in the current regulations is to apply the Tier 1 SFTP standards for LDVs to LDT1s
Interim non-Tier 2 gasoline, diesel and flexible-fueled LDV/LLDTs certified to bin 10 FTP exhaust emission standards from Table S04-1 in paragraph (c) of this section may meet the gasoline Tier 1 SFTP requirements found at §§ 86.1811-01(b), 86.1812-01(b), 86.1813-01(b), for LDVs, LDT1s, and LDT2s, respectively.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency is required to determine whether this regulatory action would be “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The order defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that may:
• 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;
• Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
• Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or,
• 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 final rule is not a “significant regulatory action.”
The Paperwork Reduction Act of 1980, 44 U.S.C. 3501
EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities.
For purposes of assessing the impacts of today's direct final rule on small entities, small entity is defined as: (1) A motor vehicle manufacturer with fewer than 1000 employees; (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. After considering the economic impacts of today's direct final rule on small entities, we have determined that this action will not have a significant economic impact on a substantial number of small entities. This direct final rule will not have any adverse economic impact on small entities. Today's rule revises certain provisions of the Tier 2 rule (65 FR 6698, February 10, 2000), such that regulated entities will find it easier to comply with the requirements of the Tier 2 rule. More specifically, today's action makes minor revisions to clarify the regulations governing compliance with the Tier 2 rule.
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 for any single 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 that is not the least costly, most cost-effective, or least burdensome alternative if we provide an explanation in the final rule of why such an alternative was adopted.
Before we establish any regulatory requirement that may significantly or uniquely affect small governments, including tribal governments, we must develop a small government plan pursuant to section 203 of the UMRA. Such a plan must provide for notifying potentially affected small governments, and enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant federal intergovernmental mandates. The plan must also provide for informing, educating, and advising small governments on compliance with the regulatory requirements.
This rule contains no federal mandates for state, local, or tribal governments as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. Nothing in the rule will significantly or uniquely affect small governments.
We have determined that this rule does not contain a federal mandate that may result in estimated expenditures of more than $100 million to the private sector in any single year. This action has the net effect of revising certain provisions of the Tier 2 rule. Therefore, the requirements of the UMRA do not apply to this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires us to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
Under section 6 of Executive Order 13132, we may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or we consults with state and local officials early in the process of developing the proposed regulation. We also may not issue a regulation that has federalism implications and that preempts state law, unless the Agency consults with state and local officials early in the process of developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements for rules that preempt state or local law, even if those rules do not have federalism implications (
This 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. This rule revises certain provisions of earlier rules that adopted national standards to control vehicle emissions and gasoline fuel sulfur levels. The requirements of the rule will be enforced by the federal government at the national level. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
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.” This final rule does not have tribal implications, as specified in Executive Order 13175. Today's rule does not uniquely affect the communities of American Indian tribal governments since the motor vehicle requirements for private businesses in today's rule will have national applicability. Furthermore, today's rule does not impose any direct compliance costs on these communities and no circumstances specific to such communities exist that will cause an impact on these communities beyond those discussed in the other sections of today's document. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, section 5-501 of the Executive Order directs us to evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
This rule is not subject to the Executive Order because it is not an economically significant regulatory action as defined by Executive Order 12866. Furthermore, this rule does not concern an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to use voluntary consensus standards in our regulatory activities unless it would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule references technical standards adopted by us through previous rulemakings. No new technical standards are established in today's rule. The standards referenced in today's rule involve the measurement of gasoline fuel parameters and motor vehicle emissions.
The Congressional Review Act, 5 U.S.C. 801
Statutory authority for today's final rule is found in the Clean Air Act, 42 U.S.C. 7401
Environmental protection, Administrative practice and procedure, Motor vehicle pollution.
For the reasons set forth in the preamble, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401-7671q.
(d)
3. Section 86.1811-04 is amended by:
The revisions and additions read as follows:
(c) * * *
(4) * * *
(iv) For diesel vehicles certified to bin 9 or bin 10, intermediate life standards are optional regardless of whether the manufacturer certifies the test group to a full useful life of 120,000 miles or 150,000 miles.
(6) * * *
(f) * * *
(4) Interim non-Tier 2 gasoline, diesel and flexible-fueled LDV/LLDTs certified to bin 10 FTP exhaust emission standards from Table S04-1 in paragraph (c) of this section may meet the gasoline Tier 1 SFTP requirements found at §§ 86.1811-01(b), 86.1812-01(b), 86.1813-01(b), for LDVs, LDT1s, and LDT2s, respectively.
(7) For diesel vehicles certified to the bin 9 or bin 10 standards of paragraph (c) of this section, 4000 mile SFTP and intermediate life SFTP standards are optional regardless of whether the manufacturer certifies the test group to a full useful life of 120,000 miles or 150,000 miles.
(b) * * *
(1) * * *
(i) The optional small-volume manufacturers certification procedures apply to LDV/Ts and MDPVs produced by manufacturers with sales in all states and territories of the United States, including all vehicles and engines imported under provisions of 40 CFR 85.1505 and 85.1509 (for the model year in which certification is sought) of fewer than 15,000 units (LDV/Ts, MDPVs, heavy-duty vehicles and heavy-duty engines combined).
(ii) If the aggregated sales in all states and territories of the United States of the manufacturer, as determined in paragraph (b)(3) of this section are fewer than 15,000 units, the manufacturer (or each manufacturer in the case of manufacturers in an aggregated relationship) may certify under the provisions of paragraph (c) of this section.
(2) * * *
(i) If the aggregated sales in all states and territories of the United States, as determined in paragraph (b)(3) of this section are equal to or greater than 15,000 units, then the manufacturer (or each manufacturer in the case of manufacturers in an aggregated relationship) will be allowed to certify a number of units under the small volume test group certification procedures in accordance with the criteria identified in paragraphs (b)(2)(ii) through (iv) of this section.