Agricultural Marketing Service
Forest Service
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Industry and Security Bureau
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Management and Budget Office
Trade Representative, Office of United States
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Trade Representative, Office of United States
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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
This rule reduces the production cap for the 2003 diversion program (RDP) for Natural (sun-dried) Seedless (NS) raisins from 2.75 to 2.0 tons per acre. The cap is specified under the Federal marketing order for California raisins (order). The order regulates the handling of raisins produced from grapes grown in California and is administered locally by the Raisin Administrative Committee (RAC). Under a RDP, producers receive certificates from the RAC for curtailing their production to reduce burdensome supplies. The certificates represent diverted tonnage. Producers sell the certificates to handlers who, in turn, redeem the certificates with the RAC for raisins from the prior year's reserve pool. The production cap limits the yield per acre that a producer can claim in a RDP. Reducing the cap for the 2003 RDP is expected to bring the figure in line with anticipated 2003 crop yields.
Effective March 20, 2003. Comments received by April 3, 2003, will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail:
Maureen T. Pello, Senior Marketing Specialist, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule reduces the production cap for the 2003 RDP for NS raisins from 2.75 to 2.0 tons per acre. The cap is specified in the order. Under a RDP, producers receive certificates from the RAC for curtailing their production to reduce burdensome supplies. The certificates represent diverted tonnage. Producers sell the certificates to handlers who, in turn, redeem the certificates with the RAC for raisins from the prior year's reserve pool. The production cap limits the yield per acre that a producer can claim in a RDP. Reducing the cap for the 2003 RDP is expected to bring the figure in line with anticipated 2003 crop yields. This action was recommended by the RAC at a meeting on January 29, 2003. An interim final rule modifying provisions of the raisin diversion program was published in the
The order provides authority for volume regulation designed to promote orderly marketing conditions, stabilize prices and supplies, and improve producer returns. When volume regulation is in effect, a certain percentage of the California raisin crop may be sold by handlers to any market (free tonnage) while the remaining percentage must be held by handlers in a reserve pool (reserve) for the account of the RAC. Reserve raisins are disposed of through various programs authorized under the order. For example, reserve raisins may be sold by the RAC to handlers for free use or to replace part of the free tonnage they exported; carried over as a hedge against a short
The RDP is another program concerning reserve raisins authorized under the order and may be used as a means for bringing supplies into closer balance with market needs. Authority for the program is provided in § 989.56 of the order, and additional procedures are specified in § 989.156 of the order's administrative rules and regulations.
Pursuant to these sections, the RAC must meet each crop year to review raisin data, including information on production, supplies, market demand, and inventories. If the RAC determines that the available supply of raisins, including those in the reserve pool, exceeds projected market needs, it can decide to implement a diversion program, and announce the amount of tonnage eligible for diversion during the subsequent crop year. Producers who wish to participate in the RDP must submit an application to the RAC. Approved producers curtail their production by vine removal or some other means established by the RAC. Such producers receive a certificate from the RAC that represents the quantity of raisins diverted. Producers sell these certificates to handlers who pay producers for the free tonnage applicable to the diversion certificate minus the established harvest cost for the diverted tonnage. Handlers redeem the certificates by presenting them to the RAC and paying an amount equal to the established harvest cost plus payment for receiving, storing, fumigating, handling, and inspecting the tonnage represented on the certificate. The RAC then gives the handler raisins from the prior year's reserve pool in an amount equal to the tonnage represented on the diversion certificate. The new crop year's volume regulation percentages are applied to the diversion tonnage acquired by the handler (as if the handler had bought raisins directly from a producer).
Section 989.56(a) of the order specifies a production cap of 2.75 tons per acre for any production unit of a producer approved for participation in a RDP. The RAC may recommend, subject to approval by USDA, reducing the 2.75 ton per acre production cap. The production cap limits the yield that a producer can claim. Producers who historically produce yields above the production cap can choose to produce a crop rather than participate in the diversion program. No producer is required to participate in a RDP.
Pursuant to § 989.156, producers who wish to participate in a program must submit an application to the RAC. Producers must specify, among other things, the raisin production and the acreage covered by the application. RAC staff verifies producers' production claims using handler acquisition reports and other available information. However, a producer could misrepresent production by claiming that some raisins produced on one ranch were produced on another, and use an inflated yield on the RDP application. Thus, the production cap limits the amount of raisins for which a producer participating in a RDP may be credited, and protects the program from overstated yields.
The RAC met on January 29, 2003, and recommended allocating 35,000 tons of 2002 NS reserve raisins to a 2003 RDP. The program will be limited to vine removal for complete production units, with a 5-year moratorium on replanting raisin-variety grapes. Damages of $700 per ton of creditable fruit weight represented on the RDP certificate will be imposed on producers who replant prior to July 31, 2008. Harvest costs were established at $340 per ton. The RAC also recommended reducing the production cap from 2.75 to 2.0 tons per acre. With this year's large crop of about 373,000 tons, the RAC believes that the grape vines will produce a smaller crop next year. Thus, the RAC recommended reducing the cap from 2.75 to 2.0 tons per acre to reflect anticipated 2003 crop yields.
The RAC's RDP recommendation passed with 24 members in favor and 21 opposed. Those opposed expressed concern with the RDP as a whole, not the production cap. They believe that many producers have already pulled out their vines, and that attrition should occur naturally in the industry. Concern also was expressed that the tonnage allocated to the diversion program would be added to next year's crop estimate, thereby reducing next year's free tonnage percentage and producer returns. Those in favor of the program contend that, with a 2002 NS crop estimated at about 373,000 tons, and a computed trade demand (comparable to market needs) of 196,185 tons, there would be 176,815 tons of reserve raisins. A diversion program is one avenue authorized under the order to utilize these reserve raisins.
On February 7, 2003, USDA approved the requirements of the RDP recommended by the RAC, with the exception of the production cap, which requires informal rulemaking. This rule implements the RAC's recommendation to reduce the 2003 RDP production cap from 2.75 to 2.0 tons per acre. Paragraph (t) in § 989.156 of the order's rules and regulations is revised accordingly.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less that $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.
This rule revises § 989.156(t) of the order's rules and regulations regarding the RDP. Authority for this action is provided in § 989.56(a) of the order. Under a RDP, producers receive certificates from the RAC for curtailing their production to reduce burdensome supplies. The certificates represent diverted tonnage. Producers sell the certificates to handlers who, in turn, redeem the certificates with the RAC for raisins from the prior year's reserve pool. The order specifies a production cap limiting the yield per acre that a producer can claim in a RDP.
This rule reduces the cap from 2.75 to 2.0 tons per acre to reflect next year's estimated yield. Regarding the impact of
Reducing the production cap will have little impact on raisin handlers. Handlers will pay producers for the free tonnage applicable to the diversion certificate minus the $340 per ton harvest cost. Handlers will redeem the certificates for 2002-03 crop NS reserve raisins and pay the RAC the $340 per ton harvest cost plus payment for receiving, storing, fumigating, handling (currently totaling $46 per ton), and inspecting (currently $9.00 per ton) the tonnage represented on the certificate. Reducing the production cap will have little impact on handler payments for reserve raisins under the 2003 RDP.
Alternatives to the recommended action include leaving the production cap at 2.75 tons per acre or reducing it to another figure besides 2.0 tons per acre. However, the majority of RAC members believe that a cap of 2.0 tons per acre will more accurately reflect anticipated 2003 crop yields.
This rule imposes no additional reporting or recordkeeping requirements on either small or large raisin handlers. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirement referred to in this rule (
Further, the RAC's meeting on January 29, 2003, and the RAC's Administrative Issues Subcommittee meeting on January 24, 2003, when this action was deliberated were both public meetings widely publicized throughout the raisin industry. All interested persons were invited to attend the meetings and participate in the industry's deliberations. Finally, all interested persons are invited to submit information on the regulatory and information impact of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the RAC and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
(t) Pursuant to § 989.56(a), the production cap for the 2003 raisin diversion program for the Natural (sun-dried) Seedless varietal type is 2.0 tons of raisins per acre.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment supersedes Airworthiness Directive (AD) 2002-13-02, which applies to all Air Tractor, Inc. (Air Tractor) Models AT-300, AT-301, AT-302, and AT-400A airplanes that have aluminum spar caps; certain Air Tractor Models AT-400 airplanes that have aluminum spar caps; and all Models AT-300 and AT-301 airplanes that have aluminum spar caps and are or have been converted to turbine power. AD 2002-13-02 currently requires you to inspect (one-time) the wing centerline splice joint for cracks and, if any crack is found, replace the affected wing spar lower cap; requires you to report the results of the inspection to the Federal Aviation Administration (FAA); and requires you to replace the wing spar lower caps after a certain amount of usage. Based upon the inspection results from AD 2002-13-02, FAA has determined that the mandatory wing spar lower cap replacement times should be reduced. This AD maintains the wing spar lower cap replacement and reporting requirements from AD 2002-13-02 and reduces the compliance time of these replacements. The actions specified by this AD are intended to detect and correct cracks in the wing centerline splice joint. If not detected and corrected, these cracks could eventually result in the wing separating from the airplane during flight.
This AD becomes effective on April 4, 2003.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of April 4, 2003.
The Federal Aviation Administration (FAA) must receive any comments on this rule on or before April 25, 2003.
Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-CE-09-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. You may also send comments electronically to the following address:
You may get the service information referenced in this AD from Air Tractor, Inc., P.O. Box 485, Olney, Texas 76374. You may view this information at FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-CE-09-AD, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.
Andy McAnaul, Aerospace Engineer, FAA, Fort Worth Airplane Certification Office, 2601 Meacham Boulevard, Fort Worth, Texas 76193-0150; telephone: (817) 222-5156; facsimile: (817) 222-5960.
The following airplanes have a similar type design to that of the accident airplane:
AD 2002-13-02 currently requires you to inspect (one-time) the wing centerline splice joint for cracks and, if any crack is found, replace the affected wing spar lower cap; report the results of the inspection to FAA; and replace the wing spar lower caps after a certain amount of usage.
Accomplishment of these actions is required in accordance with Snow Engineering Co. Process Specification 197, dated February 23, 2001, Revised May 1, 2002, and Revised May 3, 2002; and Snow Engineering Co. Service Letter #220, dated May 3, 2002.
The manufacturer has revised or issued the following service information to address this situation:
In preparation of this rule, we contacted type clubs and aircraft operators to obtain technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included, in the rulemaking docket, a discussion of any information that may have influenced this action.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a)
(1) Models AT-300, AT-301, AT-302, and AT-400A airplanes, all serial numbers, that have aluminum spar caps;
(2) Models AT-400 airplanes, serial numbers 400-0244 through 400-0415, that have aluminum spar caps; and
(3) Models AT-300 and AT-301 airplanes, all serial numbers that have aluminum spar caps and are or have been converted to turbine power.
(b)
(c)
(d)
(e)
(1)
(i) The date of the scheduled replacement;
(ii) Cracks are found during any inspection allowed by paragraph (e) of this AD; or
(iii) Upon accumulating 900 hours TIS after the initial inspection accomplished in accordance with paragraph (e)(1) of this AD.
(2)
(i) The date of the scheduled replacement;
(ii) Cracks are found during any inspection allowed by paragraph (e) of this AD; or
(iii) Upon accumulating 600 hours TIS after the initial inspection required by paragraph (e)(2) of this AD.
(f)
(1) Submit this report within 10 days after the inspection or within 10 days after April 4, 2003 (the effective date of this AD), whichever occurs later.
(2) Use the form (Figure 1 of this AD) and submit it to FAA, Fort Worth Airplane Certification Office, 2601 Meacham Boulevard, Fort Worth, Texas 76193-0150; telephone: (817) 222-5156; facsimile: (817) 222-5960.
(3) The Office of Management and Budget (OMB) approved the information collection requirements contained in this regulation under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(g)
(1) Your alternative method of compliance provides an equivalent level of safety; and
(2) The Manager, Fort Worth Airplane Certification Office (ACO), approves your alternative. Submit your request through an FAA Principal Maintenance Inspector. The inspector may add comments before sending it to the Manager, Fort Worth ACO.
(3) Alternative methods of compliance approved in accordance with AD 2002-13-02, which is superseded by this AD, are not approved as alternative methods of compliance with this AD.
This AD applies to each airplane identified in paragraphs (a)(1), (a)(2), and (a)(3) of this AD, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (g) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if you have not eliminated the unsafe condition, specific actions you propose to address it.
(h)
(1) Operate in day visual flight rules (VFR) only.
(2) Ensure that the hopper is empty.
(3) Limit airspeed to 135 miles per hour (mph) indicated airspeed (IAS).
(4) Avoid any unnecessary g-forces.
(5) Avoid areas of turbulence.
(6) Plan the flight to follow the most direct route.
(i)
(j)
(k)
Federal Aviation Administration (FAA), DOT.
Direct final rule; request for comments; correction.
This action corrects a direct final rule; request for comments that was published in the
This direct final rule is effective on 0901 UTC, May 15, 2003.
Comments for inclusion in the Rules Docket must be received on or before March 25, 2003.
Kathy Randolph, Air Traffic Division, Airspace Branch, ACE-520C, DOT Regional Headquarters Building, Federal Aviation Administration, 901 Locust, Kansas City, MO 64106; telephone: (816) 329-2525.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect a change of sponsor's name from Vetrepharm Research, Inc., to Bioniche Animal Health USA, Inc.
This rule is effective March 19, 2003.
David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail: dnewkirk@cvm.fda.gov.
Vetrepharm Research, Inc., 119 Rowe Rd., Athens, GA 30601, has informed FDA of a change of name to Bioniche Animal Health USA, Inc. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect this change.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A), because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains a correction to Treasury Decision 8168, which was published in the
This correction is effective on December 22, 1987.
Patricia Zweibel at (202) 622-5020 (not a toll-free number).
The final regulations that are the subject of this correction are under section 163(h) of the Internal Revenue Code.
As published, TD 8168 contains an error which may prove to be misleading and is in need of clarification.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
Coast Guard, HS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the drawbridge operation regulations for the Brightman Street Bridge, mile 1.8, across the Taunton River between Fall River and Somerset, Massachusetts. This deviation from the regulations allows the bridge to remain in the closed position from 9 p.m. on March 14, 2003 through 4 p.m. on March 28, 2003. This deviation is necessary to facilitate scheduled maintenance at the bridge.
This deviation is effected from March 14, 2003 through March 28, 2003.
John W. McDonald, Project Officer, First Coast Guard District, at (617) 223-8364.
The vertical clearance under the bridge in the closed position is 27 feet at mean high water and 31 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.619(b).
The bridge owner, Massachusetts Highway Department, requested a temporary deviation from the drawbridge operation regulations to facilitate necessary structural repairs at the bridge, replacement of the stringers on both bascule spans, at the bridge.
Under this deviation the bridge may remain in the closed position from 9 p.m. on March 14, 2003 through 4 p.m. on March 28, 2003.
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, DHS.
Notice of temporary deviation from regulations; request for comments.
The Commander, Seventh Coast Guard District, has approved a temporary deviation from the regulations governing the operation most of the Palm Beach County bridges across the Atlantic Intracoastal Waterway, Palm Beach County, Florida. This temporary deviation allows the Coast Guard to test an operating schedule with the bridges opening twice an hour with a one hour closure period in the morning and afternoon. It will allow the Coast Guard to gather data to determine if this schedule meets the reasonable needs of navigation while accommodating an increase in vehicle traffic throughout the county and whether it should be proposed as a permanent change.
This deviation is effective from 6 a.m. on March 17, 2003, until 8 p.m. on June 15, 2003. Comments must reach the Coast Guard on or before June 30, 2003.
You may mail comments and related material to Commander (obr), Seventh Coast Guard District, 909 SE. 1st Avenue, Room 432, Miami, FL 33131.
Comments and material received from the public, as well as comments indicated in this preamble as being available in the docket, are part of docket (CGD07-03-031) and are available for inspection or copying at Commander (obr), Seventh Coast Guard District, 909 SE. 1st Avenue, Room 432, Miami, FL 33131 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Mr. Barry Dragon, Project Manager, Seventh Coast Guard District, Bridge Branch at (305) 415-6743.
We encourage you to comment on this test schedule by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this notice (CGD07-03-031), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
This test schedule has been requested by various public officials within the County of Palm Beach to ease vehicular traffic which has overburdened roadways, and to standardize bridge openings for vessel traffic. This test will allow most of the bridges in Palm Beach County to operate on a standardized schedule, which will meet the reasonable needs of navigation and improve the vehicular traffic. The schedules will be staggered in order to facilitate the movement of vessels from bridge to bridge along the Atlantic Intracoastal Waterway.
The existing regulations governing the operation of the Palm Beach County bridges are published in 33 CFR 117.5 and 117.261. This temporary deviation includes all bridges across Atlantic Intracoastal Waterway in Palm Beach County except Jupiter Lighthouse bridge, mile 1004.1, and the Jupiter Federal bridge, mile 1004.8, which will continue to operate on demand. The following bridges need not open between 8 a.m. and 9 a.m. and from 5 p.m. to 6 p.m. Monday through Friday, except Federal holidays. And will operate at all other times on the schedules as follows:
During the deviation period, from 6 a.m. on March 17, 2003, until 8 p.m. on June 15, 2003, the bridges will operate as follows:
This test deviation does not affect the Jupiter Lighthouse bridge, mile 1004.1, and the Jupiter Federal bridge, mile 1004.8, which will continue to open on signal, as these areas have been determined to be unsafe for vessels to hold while waiting for a bridge opening.
If at any time during this test deviation it is determined that the test schedule poses any safety concerns at any location, this test deviation may be withdrawn.
The District Commander has granted a test deviation from the operating regulations listed in 33 CFR 117.261 and 117.5 to evaluate the effectiveness of these new schedules on vehicular and vessel traffic.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the drawbridge operation regulations that govern the Routes 1 & 9 (Lincoln Highway) Bridge, at mile 1.8, across the Passaic River at Newark, New Jersey. This temporary deviation will allow the bridge to remain in the closed position from March 12, 2003 through April 2, 2003 and from April 12, 2003 through May 10, 2003. This action is necessary to facilitate maintenance at the bridge.
This deviation is effective from March 12, 2003 through May 10, 2003.
Mr. Jose Arca, Project Officer, First Coast Guard District, (212) 668-7165.
The Route 1 & 9 (Lincoln Highway) Bridge has a vertical clearance of 40 feet at mean high water and 45 feet at mean low water. The existing regulations listed at 33 CFR § 117.739(b), require the draw to open on signal after at least a four-hour advance notice is given.
The bridge owner, the New Jersey Department of Transportation, requested a temporary deviation from the drawbridge operation regulations to facilitate scheduled maintenance, the replacement of the counterweight cables and the machining of the trunions and journals, at the bridge.
Under this temporary deviation the bridge may remain in the closed position from 7 a.m. on March 12, 2003 through midnight on April 2, 2003, and from 7 a.m. on April 12, 2003 through midnight on May 10, 2003.
The bridge normally has few requests to open. The Coast Guard coordinated the deviation closure schedule with the only known waterway user. No objections were received.
This deviation from the drawbridge 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, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the drawbridge operation regulations for the P.J. McArdle Bridge, mile 0.3, across Chelsea River between East Boston and Chelsea, Massachusetts. Under this temporary deviation a four-hour advance notice will be required for openings at night from March 9, 2003 through April 7, 2003. This temporary deviation is necessary to facilitate repairs at the bridge.
This deviation is effective from March 9, 2003 through April 7, 2003.
John McDonald, Project Officer, First Coast Guard District, at (617) 223-8364.
The P.J. McArdle Bridge has a vertical clearance in the closed position of 21 feet at mean high water and 30 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.593.
The bridge owner, the City of Boston, requested a temporary deviation from the drawbridge operation regulations to facilitate necessary maintenance, the replacement of the segmental girders, floor beams, and bascule span balancing, at the bridge. The bridge must remain in the closed position to perform these repairs.
The waterway users who normally navigate the Chelsea River at night are commercial tugs and fuel barges. The Coast Guard coordinated this closure with the mariners and the oil facilities who normally use this waterway to help facilitate this necessary bridge repair and to minimize any disruption to the marine transportation system.
Under this temporary deviation the P.J. McArdle Bridge will open on signal provided a four-hour advance notice is given for openings during the following time periods: March 9, through March 15, from 6 p.m. through 7 a.m., March 16, through March 22, from 8 p.m. through 6 a.m., March 23, through March 29, from 8 p.m. through 6 a.m., March 30, through April 5, from 8 p.m. through 6 a.m., April 6, through April 7, from 8 p.m. through 8 a.m.
The bridge owner did not provide the required thirty-day notice to the Coast Guard for this deviation; however, this deviation was approved because the repairs are necessary repairs that must be performed without delay in order to assure the continued safe reliable operation of the bridge and prevent an unscheduled closure due to component failure.
This deviation from the operating regulations is authorized under 33 CFR 117.35(b), and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing fixed security zones extending 25 yards in the U.S. navigable waters around all piers, abutments, fenders and pilings of the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San Francisco Bay, California. These security zones are needed for national security reasons to protect the public and ports from potential subversive acts. Entry into these security zones is prohibited, unless doing so is necessary for safe navigation, to conduct official business such as scheduled maintenance or retrofit operations, or unless specifically authorized by the Captain of the Port San Francisco Bay, or his designated representative.
This regulation is effective from 11 a.m. PST on February 13, 2003 to 11:59 p.m. PDT on September 30, 2003.
Documents indicated in this preamble as being available in the docket are part of docket [COTP San Francisco Bay 03-003] and are available for inspection or copying at Coast Guard Marine Safety Office San Francisco Bay, Coast Guard Island, Alameda, California, 94501, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Diana Cranston, U.S. Coast Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), for the reasons set forth below, the Coast Guard finds that good cause exists for not publishing an NPRM. Also, 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 to 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 waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures.
In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge would have on the public interest, the Coast Guard is establishing security zones around the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against these bridges. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on these bridges would have on the public, the transportation system, and surrounding areas and communities, security zones are prudent for these structures.
In this temporary rule, the Coast Guard is establishing fixed security zones extending from the surface to the sea floor, 25 yards in the waters around all piers, abutments, fenders and pilings of the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San Francisco Bay, California. Entry into these security zones is prohibited, unless doing so is necessary for safe navigation, or to conduct official business such as scheduled maintenance or retrofit operations. Vessels and people may be allowed to enter an established security zone on a case-by-case basis with authorization from the Captain of the Port.
Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years.
Coast Guard personnel will enforce this regulation and the Captain of the Port may be assisted by other Federal, State, or local agencies in the patrol and enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 33 U.S.C. 1231.
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 Homeland Security (DHS).
Although this regulation restricts access to the zones, the effect of this regulation will not be significant because: (i) The zones will encompass only a small portion of the waterway; (ii) vessels will be able to pass safely around the zones; and (iii) vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative.
The sizes of the zones are the minimum necessary to provide adequate protection for the bridges, vessels operating in the vicinity, their crews and passengers, adjoining areas and the public. The entities most likely to be affected are commercial vessels transiting the main ship channel en route the San Francisco Bay and Delta ports and pleasure craft engaged in recreational activities and sightseeing.
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. The security zones will not have a significant economic impact on a substantial number of small entities for several reasons: small vessel traffic can pass safely around the security zones and vessels engaged in recreational
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
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 establishing a security zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Harbors, Marine safety, Navigation (water), Reports and record keeping 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)
(2) Persons desiring to transit the area of the security zone may contact the Captain of the Port at telephone number 510-437-3073 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.
(d)
(e)
(f)
Coast Guard, DHS.
Final rule.
The Coast Guard is revising current safety zone regulations by establishing security zones around and under all liquefied hazardous gas (LHG) tank vessels 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 subversive 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 March 21, 2003.
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 02-005] 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 December 27, 2002, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; Liquefied Hazardous Gas Tank Vessels San Pedro Bay, CA” in the
Current regulations issued under 33 CFR 165.1151 provide for safety zones around LHG tank vessels that are anchored, moored, or underway near the Los Angeles-Long Beach port areas. However, these safety zones are inadequate to address increased security requirements for LHG tank vessels. On January 28, 2002, we published a temporary final rule (TFR) entitled “Security Zones; San Pedro Bay, California” in the
On December 31, 2002, we published a similar TFR entitled “Security Zones; Liquefied Hazardous Gas Tank Vessels, San Pedro Bay, CA” in the
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 waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191
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 LHG tank vessel would have on the public interest, the Coast Guard is revising current LHG safety zone regulations by establishing security zones around and under LHG tank vessels 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 LHG tank vessels. The Coast Guard has determined the establishment of security zones is prudent for LHG tank vessels because they carry LHG cargoes in bulk.
We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.
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 Homeland Security (DHS).
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 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
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” 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 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 establishing 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; Department of Homeland Security Delegation No. 0170.
(a)
(b)
(1) All waters, extending from the surface to the sea floor, within a 500 yard radius around any liquefied hazardous gas (LHG) tank vessel that is anchored at a designated anchorage either inside the Federal breakwaters bounding San Pedro Bay or outside at designated anchorages within three nautical miles of the breakwater;
(2) The shore area and all waters, extending from the surface to the sea floor, within a 500 yard radius around any LHG tank vessel that is moored, or 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;
(3) All waters, extending from the surface to the sea floor, within 1000 yards ahead and 500 yards on each side and astern of any LHG tank vessel that is underway either on the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within three 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 (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 shall comply with the instructions of the Captain of the Port or his or her designated representative.
(3) When any LHG tank vessels approach within 500 yards of a vessel that is moored or anchored, the stationary vessel must stay moored or anchored while it remains within the LHG tank vessel's security zone unless it is either ordered by or given permission from the Captain of the Port Los Angeles-Long Beach to do otherwise.
(d)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of Long Beach, California for the Red Baron Squadron aerobatic flight demonstration on April 12 and 13, 2003. This temporary safety zone is necessary to provide for public safety in order to protect life and prevent property damage beneath the aerobatic flight demonstration. Persons and vessels are prohibited from entering into or transiting through this safety zone unless authorized by the Captain of the Port, Los Angeles-Long Beach.
This rule is effective from 10 a.m. to 12 p.m. (p.d.t.) on April 12 and 13, 2003.
Documents indicated in this preamble as being available in the docket are part of docket (COTP Los Angeles-Long Beach 03-001) 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.
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. Final dates and other logistical details for the event were not provided to the Coast Guard in time to draft and publish an NPRM prior to the event, as the event would occur before the rulemaking process was complete. Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to provide a safety zone to ensure the safety of the spectators and other vessels in the area.
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
At the request of the Federal Aviation Administration (FAA) Flight Standards District Office in Long Beach, California, the Coast Guard is establishing a temporary safety zone in the navigable waters of Long Beach, California for the Red Baron Squadron aerobatic flight demonstration on April 12 and 13, 2003. One these dates, Red Baron Squadron is scheduled to perform a 15-minute aerobatic flight demonstration. This flight demonstration team consists of a three ship formation, performing aerobatic flight maneuvers in close proximity to each other, over Long Beach harbor between the hours of 10 a.m. and 12 p.m. (P.d.t.) both days in conjunction with the Grand Prix of Long Beach.
At the request of the FAA, the Coast Guard will close the waterway to all vessels and persons 30 minutes prior to the start of the aerobatic flight demonstration and will reopen the waterway approximately 30 minutes after the conclusion of the aerobatic flight demonstration if the Patrol Commander determines that it is safe to do so. A broadcast notice to mariners will be issued for this event.
The following described area constitutes a temporary safety zone: All waters of Long Beach harbor, from surface to bottom, encompassed by lines connecting points beginning at latitude 33°45′45″ N, longitude 118°10′28″ W; then to 33°45′17″ N, 118°09′53″ W; then to 33°44′41″ N, 118°10′37″ W; then to 33°45′09″ N, 118°11′09″ W, and then returning to the point of origin. (Datum: NAD 1983). This area is approximately 1,400 yards wide and 1,800 yards long and is geographically centered between the Queen Mary, Island Grissom, Island White, and Island Freeman near Long Beach, California.
Persons and vessels are prohibited from entering into or transiting through this temporary safety zone during the aerobatic flight demonstration. By prohibiting persons and vessels from entering the waters beneath the aerobatic flight demonstration, the risk of loss of life and damage to property will be significantly reduced. Without this safety zone, the aerobatic flight demonstration would be cancelled.
U.S. Coast Guard personnel will enforce this safety zone. The Coast Guard may be assisted by other Federal, State, or local agencies, which during this event may include the Coast Guard Auxiliary, Long Beach Lifeguards, and Long Beach Police Department.
Section 165.23 of title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in this Safety Zone.
Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232, any violation of the safety zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and
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 Homeland Security (DHS). Due to the limited scope of the safety zone, the fact that vessel traffic can pass safely around the zone, and the short duration of the zone, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10 (e) of the regulatory policies and procedures of DHS is unnecessary.
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.
This rule will possibly affect the following entities, some of which may be small entities: the owners and operators of private and commercial vessels intending to transit or anchor in the affected area. The impact to these entities would not, however, be significant since this zone will encompass only a small portion of the waterway for a limited period of time and vessels can safely navigate around the safety zone.
For these reasons and the reasons stated in the Regulatory Evaluation section above, 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.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact the person listed under
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order
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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because we are establishing a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
(2) Persons desiring to transit the area of the safety zone may contact the Captain of the Port at telephone number (800) 221-8724 or the Patrol Commander on VHF-FM channel 16 (156.8 MHz). 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.
Department of Veterans Affairs.
Final rule.
This document amends a Board of Veterans' Appeals Rule of Practice to remove an unnecessary restriction on who may withdraw an appeal to the Board of Veterans' Appeals and to clarify appeal withdrawal procedures.
Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).
Initial decisions on claims for Federal veterans' benefits are made at Department of Veterans Affairs (VA) field offices throughout the nation. Claimants may appeal those decisions to the Board of Veterans' Appeals (Board).
On February 1, 2002, VA published in the
We received comments from two County veterans service officers. Both commenters opposed the proposed rule with respect to removing the restriction on a representative's authority to withdraw an appeal. The commenters maintained that the duty of a representative with the power of attorney is to assist, inform, and advise the appellant on the best course of action to take in his or her claim, but that the ultimate decision to pursue the claim should be left only to the appellant. Both commenters argued that the proposed rule would circumvent this process and potentially deprive the appellant of the opportunity to make a critical decision in his or her appeal.
We agree that the appellant is the one making the decisions. This amendment will not change that basic tenet of representation. All the rule will do is to make it possible for a representative to execute the appellant's desire to withdraw an appeal. The amendment will not result in any fundamental change in the nature of representation. Moreover, as we observed in the proposed-rule notice, an appellant could contractually limit the authority of his or her representative if such a limitation was deemed warranted by the parties. Accordingly, we make no change based on these comments. Based on the rationale set forth above and in the proposed rule, we adopt the amendments as proposed, with a nonsubstantive change to reflect the current title of the official with whom the withdrawal may be filed.
The Unfunded Mandates Reform Act of 1995 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 final rule would have no measurable monetary effect on State, local, or tribal governments.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. Any economic impact on service organizations or law firms would be minimal. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Secretary hereby certifies that this final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
Administrative practice and procedure; Claims; Lawyers; Legal services; Veterans; Authority delegations (government agencies).
38 U.S.C. 501(a) and as noted in specific sections.
(a)
(b)
(2)
(3)
(c)
Federal Communications Commission.
Final rule.
This document eliminates the cable/broadcast cross ownership rule in response to a court decision vacating the rule and directing the Commission to repeal the rule. The action is taken in compliance with the court's directive.
This document became effective on January 31, 2003.
Erin Dozier, Attorney, Media Bureau, 202-418-7040.
1. As part of the 1998 Biennial Regulatory Review mandated by section 202(h) of the Telecommunications Act of 1996 (47 U.S.C. 161), the Commission reexamined the cable/broadcast cross-ownership rule and determined that the rule should be retained. (
2. Accordingly, the Commission hereby repeals section 76.501(a) of our rules. The Commission also repeals as no longer applicable section 76.501(c) of our rules, which established the effective date of the rule.
3. Accordingly, paragraphs (a) and (c) of section 76.501 of the Commission's rules, 47 CFR 76.501(a), and 76.501(c) are repealed, effective upon the adoption of this Order.
4. The Commission's rules are further amended as set forth in the rule amendments section of this decision.
5. This action is taken pursuant to sections 4(i), 4(j), and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), and 303, and section 202(h) of the Telecommunications Act of 1996, 47 U.S.C. 161. The Commission finds that notice and comment are unnecessary under 5 U.S.C. 553(b) because this is a ministerial order issued at the direction of the United States Court of Appeals for the District of Columbia Circuit.
Cable television.
47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 317, 325, 338, 339, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, and 573.
Federal Housing Finance Board.
Proposed rule.
The Federal Housing Finance Board (Finance Board) is proposing to amend its rules to provide that at least one of the appointed directors serving on the board of directors of each Federal Home Loan Bank (Bank) has a background or experience that reasonably demonstrates that the director would have a strong understanding of the risks arising from the activities of a particular Bank. The proposed rule is intended to enhance the corporate governance practices of the Banks.
The Finance Board will consider written comments on the proposed rulemaking that are received on or before June 17, 2003.
Send comments by electronic mail to
Neil R. Crowley, Deputy General Counsel, 202/408-2990,
The Finance Board long has believed that an active and informed board of directors is one of the cornerstones of safe and sound Bank operations.
Section 7(a) of the Federal Home Loan Bank Act (Bank Act), 12 U.S.C. 1427(a), provides the Finance Board with broad discretion to appoint a requisite number of directors to the board of directors of each Bank, although such directors must meet certain minimum statutory requirements. For example, appointed directors must be citizens of the United States, must be a resident of the district of the Bank on whose board the director serves, and at least two of the appointed directors on each Bank's board must be representatives chosen from organizations with more than a two-year history representing consumer or community interests on banking services, credit needs, housing, or financial consumer protections.
Given the broad discretion afforded the Finance Board by section 7(a) of the Bank Act, the Finance Board also has authority to establish eligibility standards in addition to the minimum requirements set forth in the Bank Act that must be met by potential appointed directors before it will appoint such persons.
The proposed rule does not require the Finance Board to appoint a person with the required expertise to a specific Bank's board of directors each year, but provides that there will be at all times, an appointed director serving on the board of a Bank with the required understanding. Thus, if there is an existing appointed director on a Bank's board who, in the Finance Board's opinion, reasonably demonstrates the skills required under the proposed rule, and who will continue to serve on the board for the coming year, another person with these skills would not need to be identified and appointed to that Bank's board.
To fulfill the criteria of the proposed rule, a person would be expected to bring knowledge and perspective to a Bank's board that would strengthen the board's ability to analyze and manage the risks faced by the Banks, including interest rate risk, market risk, and the risks arising from options associated
Generally, the Finance Board believes that a potential appointed director could be considered to have the required skills if, based on work experience, publications or other relevant information, the Finance Board reasonably believed that an individual would have a strong understanding of the market, interest rate and other risks faced by a particular Bank. The Finance Board also believes that the proposed rule should not limit narrowly the professional pool from which a qualified appointed director could be chosen but that the pool of potential candidates should encompass a wide variety of professions including academia, the legal profession and government service. The Finance Board specifically requests comment on the criteria discussed above.
The Finance Board expects this new requirement to be mandatory and to apply to public interest director appointments for each of the 12 Banks for the terms beginning on January 1, 2004. The Finance Board requests comments on whether one such director at each Bank is sufficient, or whether the requirement should be expanded to two or more directors with the requisite expertise who would serve terms that are not co-terminus. In addition, the Finance Board is interested in receiving comments on whether the rule should specify other specific areas of expertise, in addition to the ones specified in this proposal, that should apply to the appointment of public interest directors.
The Finance Board also is proposing to delete from § 915.10(b) language that was needed to implement the “staggering” required by the GLB Act for replacement of a Bank's directors.
The final rule would apply only to the Finance Board and the Banks, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (RFA).
The Finance Board does not propose to amend current forms that potential appointed directors must complete. Thus, the proposed rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995.
Banks, Banking, Conflict of interests, Elections, Ethical conduct, Federal home loan banks, Financial Disclosure, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Finance Board proposes to amend title 12 CFR part 915 as follows:
1. The authority citation for part 915 continues to read as follows:
12 U.S.C. 1422a(a)(3), 1422b(a), 1426, 1427, 1432.
2. Revise § 915.10 by adding a new sentence to the end of paragraph (a) and by deleting the second sentence of paragraph (b) to read as follows:
(a) * * * In making its selections, the Finance Board will provide that at least one appointed director serving on the board of directors of each Bank for the coming year, either appointed in past selections or appointed in current selections, has a background or experience that reasonably demonstrates that the director possesses a strong understanding of the risks, including the interest rate risk, market risk and options risk, arising from a Bank's activities.
3. Appendix A to part 915 is removed.
By the Board of Directors of the Federal Housing Finance Board.
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD), applicable to all EMBRAER Model EMB-120 series airplanes, that would have required replacing certain existing potentiometers with recently manufactured potentiometers, modifying the flexible couplers that attach the shafts of the potentiometers to the shafts of the primary flight controls, performing repetitive calibration tests of the potentiometers and obtaining repetitive readouts of the flight data recorder (FDR), and reporting the results to the FAA. This new action proposes initial and repetitive testing of the potentiometers to detect noisy signals and replacement of only those with noisy signals. The actions specified by this new proposed AD are intended to prevent the potentiometers that provide
Comments must be received by April 14, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-120-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington.
Robert D. Breneman, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1263; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-120-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-120-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR 39) to add an airworthiness directive (AD), applicable to all EMBRAER Model EMB-120 series airplanes, was published as a notice of proposed rulemaking (NPRM) in the
Due consideration has been given to the comments received in response to the original NPRM.
One commenter requests that the applicability of the NPRM be changed from “all Model EMB-120 series airplanes” to “All Model EMB-120 series airplanes with a Flight Data Recorder installed or required by the Federal Aviation Regulations, certificated in any category.” The commenter points out that some Model EMB-120 series airplanes have been converted from passenger operation to freighter operation and, therefore, are no longer required to operate with FDRs. The FAA agrees and has changed this AD so that it applies to “Model EMB-120 series airplanes which are required by 14 CFR 135 to operate with a flight data recorder (FDR), certificated in any category.”
Three commenters request that the proposed replacement of all in-service potentiometers with potentiometers manufactured less than 12 months ago be changed. The commenters suggest instead that a download of the FDR testing data be performed to identify potentiometers with noisy signals and that only those potentiometers should be replaced.
The FAA agrees. EMBRAER has developed a procedure for determining whether or not a potentiometer has a noisy signal. That procedure has been incorporated into Section 31-30-00 of the EMBRAER Model EMB-120 Airplane Maintenance Manual (AMM), dated April 10, 2002. Accordingly, we have revised paragraphs (a), (b), and (c) of this supplemental NPRM to require testing of the potentiometers and replacement of those with noisy signals.
The same three commenters request that the interval for the repetitive testing of potentiometers be extended from 6
The FAA agrees. We find that the new procedure specified in the AMM will detect potentiometers with noisy signals and, thus, agree that the current MRB requirements for a yearly download are sufficient. We have changed the language of this proposed AD accordingly.
One commenter requests that the FAA drop the proposed requirement to add locktite to the flexible coupler attachment screws to prevent loosening of the attachment screws. The commenter states that a screw which is properly installed and torqued should never come loose.
The FAA does not agree. We have had multiple reports of couplers coming loose and shifting the calibration; such a shift in calibration would not be discovered until the next readout of the FDR. Accordingly, no such change has been made to this proposed AD.
One commenter requests that the proposed requirement to report results of the calibration test and readout be deleted. The commenter states that the requirement is unnecessary and imposes a hardship on operators.
The FAA agrees in part. We have dropped the reporting requirement in this AD, because we find that EMBRAER's procedure for detecting potentiometers with noisy signals will detect them and, therefore, reporting the results to the FAA, as proposed in the NPRM, is not necessary. Therefore, we have deleted the reporting requirement.
One commenter asks that use of EMBRAER Service Bulletin 120-31-0038, Change 02, dated June 25, 1998, be allowed in addition to the original issue, dated February 22, 1997. The commenter indicates that there is no difference in technical content between the original issue and Change 02 of the service bulletin. The FAA concurs and has revised the language of this proposed AD accordingly.
Since these changes expand the scope of the originally proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
The FAA estimates that 250 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 3 work hours to perform the noise check of the potentiometers and obtain a readout of the FDR, that it would take approximately 1 work hour to apply adhesive to the flexible couplers, and that the average labor rate is $60 per work hour. The cost impact of the proposed AD on U.S. operators for the initial or repetitive testing of an airplane is as shown on the following table:
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or
To prevent the potentiometers that provide information on the positions of the primary flight controls to the FDR from transmitting noisy signals or becoming improperly calibrated, resulting in the transmission of incomplete or inaccurate data to the FDR, accomplish the following:
(a) Within 6 months after the effective date of this AD: Adjust the potentiometers to the ailerons, elevators, and rudder; perform a noise check of the potentiometers; and obtain a readout of the FDR, in accordance with Section 31-30-00 of the EMBRAER EMB-120 Airplane Maintenance Manual, dated April 10, 2002.
(b) Repeat the noise check of the potentiometers and obtain a readout of the FDR, as required by paragraph (a) of this AD, at intervals not to exceed 12 months.
(c) If any readout of the FDR, conducted in accordance with paragraphs (a) or (b) of this AD, indicates a potentiometer with a noisy signal: Within 20 days after obtaining the readout, replace the potentiometer in accordance with Section 31-30-05 of EMBRAER EMB-120 Airplane Maintenance Manual, dated July 17, 1998, with one that has a date of manufacture no greater than 12 months from the date of installation.
(d) Prior to further flight, after the accomplishment of paragraph (a) of this AD: Apply locktite adhesive over the threads of the screws of the flexible couplers that attach the shafts of the potentiometers to the shafts of the primary flight controls, in accordance with EMBRAER Service Bulletin 120-31-0038, original issue, dated February 22, 1997; or Change 02, dated June 25, 1998.
(e) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(f) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in Brazilian airworthiness directive 97-08-01, dated August 29, 1997.
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document provides notice of cancellation of a public hearing on proposed regulations by cross-reference to temporary regulations relating to information reporting to taxable stock under section 6043(c) of the Internal Revenue Code.
The public hearing originally scheduled for Tuesday, March 25, 2003, at 10 a.m., is cancelled.
Treena Garrett of the Regulations Unit, Associate Chief Counsel (Procedure and Administration) (202) 622-7180 (not a toll-free number).
A notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing (REG-143321-02), was published originally in the
The notice of proposed rulemaking and notice of public hearing, instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Tuesday, March 11, 2003, no one has requested to speak. Therefore, the public hearing scheduled for Tuesday, March 25, 2003, is cancelled.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to change the operating regulations of the Caloosahatchee River bridge (SR 29), Okeechobee Waterway, mile 103, LaBelle, Florida. This proposed rule would require the bridge to open on signal, except during the morning and evening rush hours when the bridge need not open. Tugs with tows, public vessels of the United States, and vessels in distress would be passed at any time. This proposed rule is intended to improve the movement of vehicular traffic during rush hour periods while not unreasonably interfering with the needs of navigation.
Comments and related material must reach the Coast Guard on or before May 19, 2003.
You may mail comments and related material to Commander (obr), Seventh Coast Guard District, 909 SE. 1st Avenue, Room 432, Miami, FL 33131. 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 (CGD07-02-141) and are available for inspection or copying at Commander (obr), Seventh Coast Guard District, 909 SE. 1st Avenue, Miami, Florida 33131 between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
Mr. Barry Dragon, Bridge Branch, 909 SE. 1st Ave, Miami, FL 33131, telephone number 305-415-6743.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD07-02-141), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Bridge Branch, Seventh Coast Guard District, 909 SE. 1st Ave, Room 432, Miami, Florida 33131, explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the
The Caloosahatchee River bridge (SR 29) is a two-lane, narrow, undivided arterial roadway. The waterway has safe waiting areas on each side of the bridge for all vessels, however the waterway is predominately used by small to mid-sized recreational vessels. The roadway is severely congested due to insufficient vehicular capacity. The existing operating schedule is published in 33 CFR 117.5 and requires the bridge to open on signal. The Mayor of Labelle requested that the bridge be allowed to remain in the closed position during the morning and evening rush hours to facilitate vehicular traffic movement. This proposed rule would continue to require the drawbridge to open on signal, except that from 7 a.m. until 9 a.m. and from 4 p.m. until 6 p.m., Monday through Friday, except Federal holidays, the draw need not open. Tugs with tows, public vessels of the United States and vessels in distress would be passed at any time.
In order to facilitate vehicular traffic flow while not unreasonably impacting navigation, the Coast Guard proposes to require the Caloosahatchee River bridge (SR 29) to open on signal, except that from 7 a.m. until 9 a.m. and from 4 p.m. until 6 p.m., Monday through Friday, except Federal holidays, the bridge need not open. Tugs with tows, public vessels of the United States and vessels in distress would be passed at any time. This proposed rule would facilitate the movement of vehicle traffic across the bridge while not unreasonably interfering with or decreasing vessel safety while awaiting passage through the draw.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary because this proposed rule would only slightly modify the existing bridge operation schedule during weekday vehicle traffic rush hours.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
This proposed rule may affect the following entities, some of which might be small entities: the owners or operators of vessels and vehicles intending to transit under and over the Caloosahatchee River bridge (SR 29) during the hours of 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m., Monday through Friday, except Federal holidays. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities because this proposed rule only slightly modifies the existing bridge operation schedule during weekday vehicle traffic rush hours.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This proposed rule would call 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 proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed 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 considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (32) (e) of Commandant Instruction M16475.lD, this proposed rule is categorically excluded from further environmental documentation.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
1. The authority citation for part 117 continues to read as follows:
33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section 117.255 also issued under authority of Pub. L. 102-587, 106 Stat. 5039.
2. Section 117.317(k) is added to read as follows:
(k)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone in the navigable waters of the Mission Creek Waterway in China Basin surrounding the construction site of the Fourth Street Bridge, San Francisco, California. This temporary safety zone is necessary to protect persons and vessels from hazards associated with bridge construction activities. The safety zone will temporarily prohibit usage of the Mission Creek Waterway surrounding the Fourth Street Bridge; specifically, no persons or vessels will be permitted to come within 100 yards of either side of the bridge or pass beneath the bridge during construction, unless authorized by the Captain of the Port, or his designated representative.
Comments and related material must reach the Coast Guard on or before April 7, 2003.
You may mail comments and related material to U.S. Coast Guard Marine Safety Office San Francisco Bay, Coast Guard Island, Alameda, California 94501. The Waterways Management Branch maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Waterways Management Branch between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Diana Cranston, Chief, Waterways Management Branch U.S. Coast Guard Marine Safety Office San Francisco Bay, (510) 437-3073.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (COTP San Francisco Bay 03-004), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.
In our final rule, we will include a concise general statement of the comments received and identify any changes from the proposed rule based on the comments. If as we anticipate, we make the final rule effective less than 30 days after publication in the
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Management Branch at the address under
The San Francisco Department of Public Works is requesting a waterway closure on Mission Creek for the purpose of performing significant work to the Fourth Street Bridge. The Fourth Street Bridge was erected across the Mission Creek Waterway at the China Basin in 1917, and was determined eligible for listing in the National Register of Historic Places in 1985 as part of the California Department of Transportation (Caltrans) Historic Bridge Inventory. Caltrans, Division of Structures, evaluated the Fourth Street Bridge and recommended that the bridge be brought up to current seismic safety standards. In view of extensive corrosion to the steel components and concrete approaches of the bridge, Caltrans has also placed traffic load limitations over this bridge. Three primary objectives are to be met in rehabilitating the Fourth Street Bridge: (i) Seismically retrofit the structure while not significantly altering the historical appearance of the bridge; (ii) repair the damage to the concrete approaches and several steel and concrete members of the movable span, and (iii) reinitiate light rail service across the bridge.
The first phase of this project will entail the removal of the lift span, which will take approximately 6 weeks, scheduled to begin April 15, 2003. During this period, the channel will be closed at the Fourth Street Bridge to boating traffic. The second phase of this project will entail the construction of the north and south approaches, the new counterweight and its enclosing pit; but for the most part, boating traffic will not be affected during this phase. The last phase of this project will entail the replacement of the lift span and aligning the bridge to accept the light rail track system, which will take approximately five months, scheduled to begin April 1, 2004. During this period, the channel will be closed at the Fourth Street Bridge to boating traffic.
The Fourth Street Bridge Project is funded by Federal Highway Administration and State of California. The state funding restricts the construction to a start date before August 2003 and completion by September 2005. Any additional delays or deferrals in start of construction will impact the secured funding for the project.
There are two major environmental issues that restrict the construction in the channel, namely the annual pacific hearing-spawning season that runs from December 1st to March 31st and noise constraint in the water for steelhead from December 1st to June 1st. Any demolition, pile driving and excavation in the water during those time periods will be monitored and restricted for possible impact on the fish.
The Fourth Street Bridge Project is part of the larger Third Street Light Rail Project and many public presentations on the project's components, channel closure schedules, impacts to surrounding uses and project duration have been made by the City and Port of San Francisco. The Third Street Light Rail Advisory Group was created as a forum to keep the public informed on the progress being made on the Third Street Light rail project. Also, this project has been presented at several Mission Bay Citizen Advisory Committee meetings. At these meetings, the public was notified of the project components, impacts and the need to temporarily close the waterway. Specific to the Fourth Street Bridge project, an Environmental Assessment, required by the Federal Highway Administration and Caltrans, (under the National Environmental Protection Act) was conducted by the City of San Francisco. A public hearing regarding the Environmental Assessment was held on January 17, 2002, at San Francisco Arts College, Timken Lecture Hall, 1111 8th Street in San Francisco, California, and was well attended.
In January 2003, the City of San Francisco advised the Coast Guard Captain of the Port that two channel closures would be necessary in order to accomplish the Fourth Street Bridge project. The Coast Guard met with various City and Port officials to ensure that there would be minimal impacts on involved and potentially involved entities.
This proposed temporary safety zone in the navigable waters of Mission Creek surrounding the construction site of the Fourth Street Bridge would be in effect during the course of a 6-week period, starting April 15, 2003, and again for a 5-month period, starting April 1, 2004. Both periods would be effective 24 hours a day.
The Coast Guard proposes to establish a safety zone that consists of a portion of the navigable waters located at the Fourth Street Bridge in the Mission Creek Waterway in China Basin, San Francisco, California. The proposed safety zone is to affect a waterway closure during periods of demolition and reconstruction of the Fourth Street Bridge and would be effective 24 hours a day between April 15, 2003, and May 27, 2003, and again between April 1, 2004, and September 1, 2004.
The proposed safety zone is necessary to protect persons and vessels from hazards, injury and damage associated with bridge construction activities. No vessel or person may come within 100 yards of either side of the bridge, or pass beneath the bridge during construction.
The proposed safety zone would encompass the navigable waters, from the surface to the bottom, within two lines; one line drawn from a point on the north shore of Mission Creek extending southeast to a point on the opposite shore, 100 yards west of the bridge, and the other line drawn from a point on the north shore of Mission Creek extending southeast to a point on the opposite shore, 100 yards east of the bridge.
Vessels and people may be allowed to enter an established safety zone on a case-by-case basis with authorization from the Captain of the Port or a designated representative thereof. Section 165.23 of title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in this Safety Zone.
Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232, any violation of the safety zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and
Coast Guard personnel will enforce this regulation and the Captain of the Port may be assisted by other Federal, State, or local agencies in the patrol and enforcement of the regulation.
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). Due to the limited scope of the safety zone, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10 (e) of the regulatory policies and procedures of DOT is unnecessary.
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. For the same reasons set forth in the above Regulatory Evaluation, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on any substantial number of entities, regardless of their size.
The Mission Creek Harbor Association has a lease agreement with the Port of San Francisco for both houseboats and pleasure boats to moor at the head of the channel. The channel closure will not impact land access to the houseboats during the bridge closures, however during the two channel closures, a small number of sail boats that moor in the harbor may be impacted. The Department of Public Works and the Port of San Francisco are in consultation with the Mission Creek Harbor Association to assess the temporary impacts to the boaters on closing the channel for this needed work.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This regulation contains no collection of information requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
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 establishing a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Harbors, Marine safety, Navigation (water), Reports and record keeping
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. Add § 165.T11-079 to read as follows:
(a)
(b)
(c)
(d)
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to approve a revision to the state implementation plan (SIP) of the Commonwealth of Kentucky to revise the motor vehicle emissions budgets (MVEBs) for the Northern Kentucky maintenance area for the year 2010. The Northern Kentucky maintenance area, a subset of the Cincinnati-Hamilton maintenance area, includes the three Kentucky counties of Boone, Campbell and Kenton. The revision to the MVEBs is allowable because of an available safety margin for volatile organic compounds (VOCs) and nitrogen oxides (NO
Written comments must be received on or before April 18, 2003.
All comments should be addressed to: Michele Notarianni; Regulatory Development Section; Air Planning Branch; Air, Pesticides and Toxics Management Division; U.S. Environmental Protection Agency, Region 4; 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. (404/562-9031 (phone) or
Copies of documents relative to this action are available at the following addresses for inspection during normal business hours:
Persons wanting to examine these documents should make an appointment at least 24 hours before the visiting day and reference file KY143. (Telephone number: 404/562-9031)
Michele Notarianni, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. (404/562-9031 (phone) or
This section is organized as follows:
The Commonwealth of Kentucky submitted a request on February 6, 2003, to revise the MVEBs for the Northern Kentucky maintenance area for the year 2010. The Northern Kentucky area (
Primarily, the transportation sector represented by OKI will benefit from this revision. Through the Interagency Consultation Group, which includes the Kentucky transportation and air quality partners, OKI identified a need for revised MVEBs for the Northern Kentucky area to allow for growth in the transportation sector. KDAQ, a partner of the Interagency Consultation Group, evaluated the potential to revise the MVEBs for the Northern Kentucky area and prepared this SIP revision to accommodate OKI's request.
Transportation conformity means that the level of emissions from the transportation sector (
The transportation conformity rules require an ozone maintenance area to compare the actual projected emissions from cars, trucks and buses on the highway network, to the MVEB established by the maintenance plan. The Northern Kentucky area has an approved maintenance plan. EPA's approval of the maintenance plan on June 19, 2000, established the MVEBs for transportation conformity purposes.
An MVEB is the projected level of controlled emissions from the transportation sector (mobile sources) that is estimated in the SIP. The SIP controls emissions through regulations, for example, on fuels and exhaust levels for cars. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and revise the MVEB. The transportation conformity rule allows the MVEB to be changed as long as the total level of emissions from all sources remains below the attainment level of emissions.
A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. For example, the Northern Kentucky area attained the 1-hour ozone NAAQS during the 1996-1998 time period. Kentucky uses 1996 as the attainment level of emissions for the area. The emissions from point, area and mobile sources in 1996 equaled 39.71 tons per day (tpd) of VOC for the Northern Kentucky area. KDAQ projected emissions out to the year 2010 and projected a total of 32.55 tpd of VOC. The safety margin for VOCs is calculated to be the difference between these amounts or, in this case, 7.16 tpd of VOC for 2010. By this same method, 4.78 tpd (
The emissions are projected to maintain the area's air quality consistent with the NAAQS. The safety margin credit can be allocated to the transportation sector. The total emission level must stay below the attainment level to be acceptable. The safety margin is the extra emissions that can be allocated as long as the total attainment level of emissions is maintained.
In today's action, EPA is proposing to approve a revision to the 2010 MVEBs for the Northern Kentucky maintenance area. The revised MVEBs are 17.13 tpd for NO
Kentucky has requested that EPA parallel process this proposed SIP revision. Under this procedure, the Regional Office works closely with the Commonwealth of Kentucky while the Commonwealth is developing new or revised regulations. The state submits a copy of the proposed regulation or other revisions to EPA before conducting its public hearing. EPA reviews this proposed state action, and prepares a notice of proposed rulemaking. EPA's notice of proposed rulemaking is published in the
EPA is proposing to approve the Commonwealth's SIP revision because it meets all of the requirements of section 110 of the Clean Air Act.
Additionally, this SIP revision request meets the applicable requirements of the Transportation Conformity Rule. The Commonwealth has identified a VOC and NO
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. 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 proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This proposed 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 proposes to approve 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 proposed 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
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
42 U.S.C. 7401
Office of Pipeline Safety (OPS), Research and Special Programs Administration (RSPA), DOT.
Proposed rule; notice of extension of comment period.
This notice extends the period for comment on the notice of proposed rulemaking published in the
The comment period for interested persons to submit written comments on the proposed gas pipeline integrity management rule ends April 30, 2003.
You may submit written comments by mail or delivery to the Dockets Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. It is open from 10 a.m. to 5 p.m., Monday through Friday, except Federal holidays. All written comments should identify the docket and notice numbers stated in the heading of this notice. Anyone desiring confirmation of mailed comments must include a self-addressed stamped postcard.
You may also submit written comments to the docket electronically. To submit comments electronically, access the following Internet Web address:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if
You may contact the Dockets Facility by phone at (202) 366-9329, for copies of this proposed rule or other material in the docket. All materials in this docket may be accessed electronically at
Mike Israni by phone at (202) 366-4571, by fax at (202) 366-4566, or by e-mail at
RSPA/OPS published a proposed rule on pipeline integrity management in high consequence areas for gas transmission pipelines on January 28, 2003 (68 FR 4278). That notice provided a 60-day comment period ending on March 31, 2003. By petition dated March 6, 2003, the American Gas Association (AGA), the American Public Gas Association (APGA), and the Interstate Natural Gas Association of America (INGAA) requested that the comment period be extended by 60 days, from March 31, 2003, to May 30, 2003.
In the petition, the associations argue that because the proposed rule is lengthy and complex, additional time is necessary to analyze the proposal and prepare comments. The petition also refers to the public meeting on March 14, 2003, where OPS will discuss the proposed rule. The associations maintain it will take time for them to inform their member companies about the discussions at the meeting so that the companies can use the information in developing their comments.
RSPA/OPS has decided to extend the comment period in light of the request and the complexity of this proposed rule. RSPA/OPS does not consider that a 60-day extension is necessary. A statutory requirement (Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60109(c)) requires us to publish the final rule by December 17, 2003. A 60-day extension of the comment period would not allow us to meet this statutory deadline. A 30-day extension provides 45 days after the public meeting for interested parties to submit comments.
RSPA/OPS believes that an extension of the comment period by 30 days from the existing closing date (March 31, 2003) is reasonable; the comment period is hereby extended to April 30, 2003.
Notice.
This notice advises the public that the Research and Special Programs Administration (RSPA) has assumed the lead role from the Federal Motor Carrier Safety Administration (FMCSA) for rulemaking addressing the security of motor carrier shipments of hazardous materials. On July 16, 2002, the two agencies published a joint advance notice of proposed rulemaking (ANPRM), requesting comments on technological and operational measures to enhance hazardous materials transportation security. Because the Homeland Security Act of 2002 provides RSPA with enhanced authority to regulate hazardous materials transportation security, RSPA will lead further rulemaking development on this subject.
This notice is effective March 19, 2003.
You can mail, fax, hand deliver or electronically submit written comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, FAX (202) 493-2251, on-line at
Susan Gorsky, Office of Hazardous Materials Standards, Research and Special Programs Administration, 202-366-8553.
On July 16, 2002, FMCSA and RSPA published a joint ANPRM entitled “Security Requirements for Motor Carriers Transporting Hazardous Materials” (67 FR 46622). In the ANPRM, RSPA and FMCSA sought information on the feasibility of imposing specific security requirements on motor carriers that transport hazardous materials in commerce. The ANPRM noted that certain government agencies, including the Department of Defense, the Department of Energy, and the Nuclear Regulatory Commission, as well as some private companies, employ rigorous security measures to protect sensitive shipments and suggested that some of these security measures could also be appropriate for broader application to commercial motor carrier shipments of hazardous materials. In addition, the ANPRM described technological solutions for tracking shipments, communicating with drivers, or securing shipments within trailers that can protect shipments from hijacking or provide an early indication of a potential security problem. The ANPRM asked for comments on the feasibility of mandating technological or operational measures such as escorts, vehicle tracking and monitoring systems, emergency warning systems, remote shut-offs, direct short-range communications, and advance notification of shipments to state and local authorities. After an extension, the comment period for the ANPRM closed November 15, 2002. Comments received in response to the ANPRM are accessible through DOT's Dockets Management System under Docket No. FMCSA-01-11650 (HM-232A).
RSPA's lead role in addressing hazardous materials transportation security was clarified with an amendment to the Federal hazardous materials transportation law (Federal hazmat law; 49 CFR 5101
Once RPSA develops its next regulatory action on this subject, it will establish its own docket number. RSPA plans to provide public access to that regulatory action, through a hyperlink connecting the current FMCSA docket number to the new RSPA docket number. Thus, parties searching for updated information on this rulemaking through the former docket number will be apprised of RSPA's rulemaking.
Research, Education, and Economics, USDA.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App., the United States Department of Agriculture announces a meeting of the National Agricultural Research, Extension, Education, and Economics Advisory Board.
The National Agricultural Research, Extension, Education, and Economics Advisory Board will meet on March 24-26, 2003.
The public may file written comments before or up to two weeks after the meeting with the contact person.
On March 24 and 25, 2003, the meeting will take place at the Phoenix Park Hotel, 20 North Capitol Street, NW., Washington, DC 20001. On March 26, 2003, the meeting will occur at the United States Department of Agriculture, National Agricultural Statistics Service (NASS), located at the South Building, 5th Floor, 4th Wing, 1400 Independence Avenue, SW., Washington, DC 20250.
Written comments from the public may be sent to the Contact Person identified in this notice at: The National Agricultural Research, Extension, Education, and Economics Advisory Board; Research, Education, and Economics Advisory Board Office, Room 344-A, Jamie L. Whitten Building, United States Department of Agriculture, STOP 2255, 1400 Independence Avenue, SW., Washington, DC 20250-2255.
Deborah Hanfman, Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board; telephone: (202) 720-3684; fax: (202) 720-6199; or e-mail:
On Monday, March 24, 2003, the National Agricultural Research, Extension, Education, and Economics Advisory Board will hold a general meeting at The Phoenix Park Hotel (Phoenix Park Ballroom). In the morning, starting at 8:30 a.m., you will hear welcome remarks from the Advisory Board Chair and the USDA Under Secretary for Research, Education, & Economics (REE). Starting at 9 a.m., the Advisory Board will conduct its general business with a special Agricultural Research Service (ARS) Update on the Peer Review Process of National Intramural Research Programs by an ARS Official. A special focus session follows at 10 a.m. that recaps Board Recommendations to the Secretary during the current Administration. A Working Lunch follows with a panel of invited congressional staff who will discuss agricultural research issues. At 1:30 p.m., the Board will convene with a special focus session on REE Relevance and Adequacy of Funding. Invited speakers for this session include the REE Budget Coordinator, and the chair of the “Committee on Opportunities in Agriculture” that conducted the study of the REE mission area under the auspices of the National Academy of Sciences. At 4 p.m., the Board will begin breakout groups to address topics related to REE relevance and adequacy of funding. From 7 to 9 p.m. in The Phoenix Park Hotel, a working dinner will be held for the Board and meeting attendees and include a guest speaker. The public is responsible for its own meals.
On Tuesday, March 25, 2003, the Advisory Board will continue with the focus session breakout groups on the “Relevance and Adequacy of Funding Review”. At 1:30 p.m., breakout groups will reconvene, report to the full Board on their respective findings and come to closure on recommendations.
On Wednesday, March 26, 2003, the Advisory Board meeting will be held at USDA's National Agricultural Statistics Service (NASS) facility, which is located at 1400 Independence Avenue SW., Washington, DC 20036 (South Building, 5th Floor, 4th Wing). NASS will conduct the program and highlight their key activities.
The Advisory Board Meeting will adjourn on Wednesday, March 26, 2003, at 11:30 a.m. Opportunities for public comment will be available on March 24 around 11:45 a.m., March 25 around 4:30 p.m., and March 26 prior to the 11:30 a.m. adjournment. Also, written comments for the public record will be welcomed before and up to two weeks following the Board meeting (by close of business Wednesday, April 9, 2003). All statements will become a part of the official record of the National Agricultural Research, Extension, Education, and Economics Advisory Board and will be kept on file for public review in the Research, Extension, Education, and Economics Advisory Board Office.
The findings of this Advisory Board Meeting and two Focus Sessions will be based on input from speakers, other stakeholders, the general public, and Board discussions.
The consolidated meeting agenda is as follows:
Location: The Phoenix Park Hotel, Phoenix Park Ballroom.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service, USDA, will prepare an environmental impact statement (EIS) on proposed activities in areas burned in the summer of 2002 by the Biscuit Fire. The Biscuit Fire affected almost 500,000 acres burning in the steep canyons of the Klamath/Siskiyou Mountains. It destroyed four homes, burned millions of trees, and altered habitat for various plant, wildlife, and fish species, including Threatened, Endangered, and Sensitive species. The fire damaged roads, trails, recreation signs and other structures. The implementation of this proposal is scheduled for fiscal years 2004 through 2009. The proposed action would be in compliance with the 1989 Siskiyou National Forest Land and Resource Management Plan, as amended by the Northwest Forest Plan, which provides the overall guidance for management of this area. The Rogue River and Siskiyou National Forests invites written comments and suggestions on the scope of the analysis. The agency will give notice of the full environmental analysis and decision-making process so interested and affected people may be able to participate and contribute in the final decision.
Comments concerning the scope of the analysis must be received by April 18, 2003.
Send E-Mail comments to
Questions about the proposed action and EIS can be directed to: Tom Link, Biscuit Fire Recovery Project Leader, Rogue River and Siskiyou National Forests, phone: (541) 471-6500, E-Mail to:
There is a need to recover merchantable timber before it's value is lost to deterioration.
There is a need to restore vegetation that has been killed or altered by the Biscuit Fire. Approximately 225,000 acres have lost a significant conifer tree component, including almost 80,000 acres of Northern Spotted Owl habitat. Revegetation is needed to accelerate restoration of conditions that existed prior to fire exclusion. The objective is to restore lost habitat and provide for future timber production.
There is a need to protect the remaining late successional habitat, used by Threatened or Endangered (T&E) species, from further loss from fire and insects. The objective is to reduce the risk of future catastrophic fire that can destroy this habitat. There may also be a need to reduce the risk of insect infestation that can skill remaining healthy trees.
There is a need to protect forest users, adjacent private property values, and communities. The objective is to reduce the risk of catastrophic fire and insect infestations from developing on National Forest System lands and moving onto adjacent lands.
This project will also include a number of learning opportunities that can be integrated within the proposed action. Some post fire management actions are controversial and there is uncertainity about how well some activities will achieve objectives.
The salvage of commercial wood products from Matrix lands is planned on approximately 7,000 acres with an estimated potential recovery of 90 mmbf. These areas will be consistent with the standards and guidelines of the Siskiyou Land and Resource Management Plan (LRMP) as amended by the Northwest Forest Plan.
The protection of late successional habitat and communities is proposed by reducing fuels on about 16,000 acres (many of these acres are within Late Successional Reserves). Treatments could include cutting, yarding, piling, or burning existing hazardous fuels adjacent to remaining late successional habitat patches (about 4,000 acres). A portion of these treatments will result in shaded fuelbreaks (approximately 12,000 acres) as described by Agee
Meadow habitat treatments are proposed on about 1,000 acres. This may include removing dead trees to better maintain the meadows over time. Some historic meadows that were overgrown by trees, had those trees killed by the fire. The removal of excessive amounts of dead wood can help maintain meadow grass and forb species over time.
Reforestation of conifer stands is proposed on approximately 30,000 acres. These areas are expected to need varying levels of site preparation. Site preparation will include reducing competing vegetation by manual methods or reducing dead fuels by cutting, moving, or burning.
This proposal will analyze the probability of bark beetle outbreaks and, if indicated, consider the salvage of bug-infested green trees.
Improvement or closing of roads may be proposed to reduce the risk to water quality. Treatments could include improved drainage, erosion control designs, or decommissioning of roads that are sediment risks and not needed for management purposes.
There is an opportunity to design recovery actions to learn about the effectiveness of various methods for recovering post fire environments. These proposals can include differing reforestation techniques, fuels treatments, or salvage harvesting methods, as well as, comparing natural recovery processes to more active methods. These proposals may be incorporated into project alternatives.
The proposed action considers treatments (not including salvage logging) of 2,000 acres in Inventoried Roadless Areas (IRA's). The goal of treatments is to reduce ladder fuels and concentrations of hazardous fuels around key areas of remaining habitat for T&E species and to improve fuelbreaks adjacent to communities. These treatments could reduce the likelihood of uncharacteristic wildfire effects (
A portion of the proposed action may analyze and recommend activities on federal lands under the administration
The scoping process will include: identifying potential issues, identifying major issues to be analyzed in depth, eliminating non-significant issues or those previously covered by a relevant environmental analysis, considering additional alternatives which will be derived from issues recognized during scoping activities, and identifying potential environmental effects of this proposed action and alternatives (
Public comments about this proposal are requested in order to assist in properly scoping issues, determining how to best manage the resources, and fully analyzing environmental effects. Comments received to this notice, 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 Parts 215 and 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 confidentiality should be aware that, under FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality, 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 a specified number of days.
A draft EIS will be filed with the Environmental Protection Agency (EPA) and available for public review by July 2003. The EPA will publish a Notice of Availability (NOA) of the draft EIS in the
The Forest Service believes, at this early stage, it is important to given 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 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.
The final EIS is scheduled to be available November 2003. In the final EIS, the Forest Service is required to respond to substantive comments received during the comment period for the draft EIS. The Forest Service is the lead agency and the Responsible Official is the Forest Supervisor, Rogue River and Siskiyou National Forests. The responsible official will decide whether or not, and where, to savage harvest timber, construct fuel-breaks, plant trees and other vegetation, prevent or mitigate pest outbreaks, repair facilities, stabilize soils, and mitigate safety hazards. The responsible official will also decide how to mitigate impacts of these actions and will determine when and how much monitoring of effects will take place.
The Responsible Official will document the Biscuit Fire Recovery Project decision and reasons for the decision in the Record of Decision. That decision will be subject to Forest Service Appeal Regulations (36 CFR Part 215).
Agenda and Notice of Public Meeting of the Montana Advisory Committee Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the Montana Advisory Committee to the Commission will convene at 6 p.m. and adjourn at 8:30 p.m. on Monday, March 31, 2003, at the Holiday Inn Express, 701 Washington Street, Helena, Montana 59601. The purpose of the briefing is a follow up activities to the Committee's report, Equal Educational Opportunity for Native American Students in Montana Public Schools.
Persons desiring additional information, or planning a presentation to the Committee, should contact, John Dulles, Director of the Rocky Mountain Regional Office, 303-866-1040 (TDD 303-866-1049). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
The Department of Commerce (DOC) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, DOC Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20230.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Mississippi Coast Foreign-Trade Zone, Inc., grantee of FTZ 92, requesting authority on behalf of Chevron Products Company (Chevron), to expand the scope of manufacturing activity conducted under zone procedures within Subzone 92D at the Chevron oil refinery complex in Pascagoula, Mississippi. 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 March 11, 2003.
Subzone 92D (3,100 acres, 1,200 employees) was approved by the Board in 1995 and is located on the Mississippi Sound, east of Pascagoula, some 35 miles east of Gulfport, in Jackson County, Mississippi. Authority was granted for the manufacture of fuel products and certain petrochemical feedstocks and refinery by-products (Board Order 747, 60 FR 32503, June 22, 1995, as amended by Board Order 1116, 65 FR 52696, August 30, 2000).
The refinery (310,000 barrels per day) is used to produce fuels and petrochemical feedstocks. The expansion request involves several modified and upgraded processing units. The reconfigured facilities will increase the overall capacity of the refinery to 360,000 BPD. The feedstocks used and product slate will remain unchanged. Some 95 percent of the crude oil will be sourced from abroad.
Zone procedures would exempt the new refinery facilities from Customs duty payments on the foreign products used in its exports. Some 15 percent of the plant's shipments are exports. On domestic sales, the company would be able to choose the Customs duty rates for certain petrochemical feedstocks (duty-free) by admitting foreign crude oil in non-privileged foreign status. The application indicates that the savings from zone procedures help improve the refinery's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ staff has been appointed 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:
1. Submissions Via Express/Package Delivery Services: Foreign-Trade Zones Board, U.S. Department of Commerce, Franklin Court Building—Suite 4100W, 1099 14th St. 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 Ave. NW., Washington, DC 20230. The closing period for their receipt is May 19, 2003. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to June 2, 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 the first address listed above, and at the Bureau of Customs and Border Protection, 535 Delmas Avenue, Suite 2, Pascagoula, MS 39567.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board), by the Cleveland-Cuyahoga County Port Authority, grantee of Foreign-Trade Zone 40, requesting authority to expand its zone in the Cleveland, Ohio, area, within the Cleveland 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 March 10, 2003.
FTZ 40 was approved on September 29, 1978 (Board Order 135, 43 FR 46886,
The applicant is now requesting authority to expand existing Site 8 by adding an additional 91 acres within the Strongsville Industrial Park, near the intersection of Foltz Industrial Parkway and Lunn Road, Strongsville. This increases the total acreage at this site to 174 acres. The site is owned by Duke Realty Corp., Astro Instrumentation L.L.C. and Arthur Properties Ltd. The site will provide public warehousing and distribution services to area businesses. It will also offer sites suitable for manufacturing activity, though no specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by-case basis.
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 3 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.
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 May 19, 2003. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to June 2, 2003).
A copy of the application and accompanying exhibits will be available during this time for public inspection at address Number 1 listed above, and at the U.S. Department of Commerce Export Assistance Center, 600 Superior Avenue East, Suite 700, Cleveland, OH 44114.
The Materials Technical Advisory Committee will meet on April 8, 2003, 10:30 a.m., Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Industry and Security with respect to technical questions that affect the level of export controls applicable to materials and related technology.
1. Opening remarks and introductions.
2. Presentation of papers and comments by the public.
3. Discussion on list of chemicals proposed for the Australia Group control list:
4. Discussion of matters properly classified under Executive Order 12958, dealing with U.S. export control programs and strategic criteria related thereto.
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the materials should be forwarded prior to the meeting to the following address: Ms. Lee Ann Carpenter, OSIES/EA/BIS MS: 3876, U.S. Department of Commerce, 14 St. and Constitution Ave., NW., Washington, DC 20230.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on February 6, 2002, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, that the series of meetings or portions of meetings of the Committee and of any Subcommittee thereof dealing with the classified materials listed in 5 U.S.C. 552(c)(1) shall be exempt from the provisions relating to public meetings found in section 10(a)(1) and (a)(3) of the Federal Advisory Committee Act. The remaining series of meetings or portions thereof will be open to the public. For more information, call Lee Ann Carpenter at (202) 482-2583.
Import Administration, International Trade Administration, Department of Commerce.
Notice of initiation and preliminary results of changed circumstances antidumping duty review, and intent to revoke order in part.
In accordance with 751(b) of the Tariff Act of 1930, as amended (“the
March 19, 2003.
Catherine Bertrand or Peter Mueller, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3207, and (202) 482-5811, respectively.
On January 31, 2003, Nippon requested that the Department revoke in part the antidumping duty order on certain corrosion-resistant carbon steel flat products from Japan. Specifically, Nippon requested that the Department revoke the order with respect to imports meeting the following specifications: (1) flat-rolled products (provided for in HTSUS subheading 7210.49.00), other than of high-strength steel, known as “ASE Iron Flash” and either: (A) Having a base layer of zinc-based zinc-iron alloy applied by hot-dipping and a surface layer of iron-zinc alloy applied by electrolytic process, the weight of the coating and plating not over 40 percent by weight of zinc; or (B) two-layer-coated corrosion-resistant steel with a coating composed of (a) a base coating layer of zinc-based zinc-iron alloy by hot-dip galvanizing process, and (b) a surface coating layer of iron-zinc alloy by electro-galvanizing process, having an effective amount of zinc up to 40 percent by weight, and (2) corrosion resistant continuously annealed flat-rolled products, continuous cast, the foregoing with chemical composition (percent by weight): carbon not over 0.06 percent by weight, manganese 0.20 or more but not over 0.40, phosphorus not over 0.02, sulfur not over 0.023, silicon not over 0.03, aluminum 0.03 or more but not over 0.08, arsenic not over 0.02, copper not over 0.08 and nitrogen 0.003 or more but not over 0.008; and meeting the characteristics described below: (A) Products with one side coated with a nickel-iron-diffused layer which is less than 1 micrometer in thickness and the other side coated with a two-layer coating composed of a base nickel-iron-diffused coating layer and a surface coating layer of annealed and softened pure nickel, with total coating thickness for both layers of more than 2 micrometers; surface roughness (RA-microns) 0.18 or less; with scanning electron microscope (SEM) not revealing oxides greater than 1 micron; and inclusion groups or clusters shall not exceed 5 microns in length; (B) products having one side coated with a nickel-iron-diffused layer which is less than 1 micrometer in thickness and the other side coated with a four-layer coating composed of a base nickel-iron-diffused coating layer; with an inner middle coating layer of annealed and softened pure nickel, an outer middle surface coating layer of hard nickel and a topmost nickel-phosphorus-plated layer; with combined coating thickness for the four layers of more than 2 micrometers; surface roughness (RA-microns) 0.18 or less; with SEM not revealing oxides greater than 1 micron; and inclusion groups or clusters shall not exceed 5 microns in length; (C) products having one side coated with a nickel-iron-diffused layer which is less than 1 micrometer in thickness and the other side coated with a three-layer coating composed of a base nickel-iron-diffused coating layer, with a middle coating layer of annealed and softened pure nickel and a surface coating layer of hard, luster-agent-added nickel which is not heat-treated; with combined coating thickness for all three layers of more than 2 micrometers; surface roughness (RA-microns) 0.18 or less; with SEM not revealing oxides greater than 1 micron; and inclusion groups or clusters shall not exceed 5 microns in length; or (D) products having one side coated with a nickel-iron-diffused layer which is less than 1 micrometer in thickness and the other side coated with a three-layer coating composed of a base nickel-iron-diffused coating layer, with a middle coating layer of annealed and softened pure nickel and a surface coating layer of hard, pure nickel which is not heat-treated; with combined coating thickness for all three layers of more than 2 micrometers; surface roughness (RA-microns) 0.18 or less; SEM not revealing oxides greater than 1 micron; and inclusion groups or clusters shall not exceed 5 microns in length.
The products covered by the antidumping duty order include flat-rolled carbon steel products, of rectangular shape, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating, in coils (whether or not in successively superimposed layers) and of a width of 0.5 inch or greater, or in straight lengths which, if of a thickness less than 4.75 millimeters, are of a width of 0.5 inch or greater and which measures at least 10 times the thickness or if of a thickness of 4.75 millimeters or more are of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the HTSUS under item numbers 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0090, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.1000, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7212.60.0000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090. Included in this order are corrosion-resistant flat-rolled products of non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process (
Excluded from this order are flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (“terne plate”), or both chromium and chromium oxides (“tin-free steel”), whether or not painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating.
Also excluded from this order are clad products in straight lengths of 0.1875 inch or more in composite thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness.
Also excluded from this order are certain clad stainless flat-rolled products, which are three-layered corrosion-resistant carbon steel flat-
Also excluded from this order are certain corrosion-resistant carbon steel flat products meeting the following specifications: (1) Widths ranging from 10 millimeters (0.394 inches) through 100 millimeters (3.94 inches); (2) thicknesses, including coatings, ranging from 0.11 millimeters (0.004 inches) through 0.60 millimeters (0.024 inches); and (3) a coating that is from 0.003 millimeters (0.00012 inches) through 0.005 millimeters (0.000196 inches) in thickness and that is comprised of either two evenly applied layers, the first layer consisting of 99% zinc, 0.5% cobalt, and 0.5% molybdenum, followed by a layer consisting of chromate, or three evenly applied layers, the first layer consisting of 99% zinc, 0.5% cobalt, and 0.5% molybdenum followed by a layer consisting of chromate, and finally a layer consisting of silicate.
Also excluded from this order are carbon steel flat products measuring 1.84 millimeters in thickness and 43.6 millimeters or 16.1 millimeters in width consisting of carbon steel coil (SAE 1008) clad with an aluminum alloy that is balance aluminum, 20% tin, 1% copper, 0.3% silicon, 0.15% nickel, less than 1% other materials and meeting the requirements of SAE standard 783 for Bearing and Bushing Alloys.
Also excluded from this order are carbon steel flat products measuring 0.97 millimeters in thickness and 20 millimeters in width consisting of carbon steel coil (SAE 1008) with a two-layer lining, the first layer consisting of a copper-lead alloy powder that is balance copper, 9% to 11% tin, 9% to 11% lead, less than 1% zinc, less than 1% other materials and meeting the requirements of SAE standard 792 for Bearing and Bushing Alloys, the second layer consisting of 45% to 55% lead, 38% to 50% PTFE, 3% to 5% molybdenum disulfide and less than 2% other materials.
Also excluded from this order are doctor blades meeting the following specifications: carbon steel coil or strip, plated with nickel phosphorous, having a thickness of 0.1524 millimeters (0.006 inches), a width between 31.75 millimeters (1.25 inches) and 50.80 millimeters (2.00 inches), a core hardness between 580 to 630 HV, a surface hardness between 900-990 HV; the carbon steel coil or strip consists of the following elements identified in percentage by weight: 0.90% to 1.05% carbon; 0.15% to 0.35% silicon; 0.30% to 0.50% manganese; less than or equal to 0.03% of phosphorous; less than or equal to 0.006% of sulfur; other elements representing 0.24%; and the remainder of iron.
Also excluded from this order are products meeting the following specifications: carbon steel flat products measuring 1.64 millimeters in thickness and 19.5 millimeters in width consisting of carbon steel coil (SAE 1008) with a lining clad with an aluminum alloy that is balance aluminum; 10 to 15% tin; 1 to 3% lead; 0.7 to 1.3% copper; 1.8 to 3.5% silicon; 0.1 to 0.7% chromium, less than 1% other materials and meeting the requirements of SAE standard 783 for Bearing and Bushing Alloys.
Also excluded from this order are products meeting the following specifications: carbon steel coil or strip, measuring 1.93 millimeters or 2.75 millimeters (0.076 inches or 0.108 inches) in thickness, 87.3 millimeters or 99 millimeters (3.437 inches or 3.900 inches) in width, with a low carbon steel back comprised of: carbon under 8%, manganese under 0.4%, phosphorous under 0.04%, and sulfur under 0.05%; clad with aluminum alloy comprised of: 0.7% copper, 12% tin, 1.7% lead, 0.3% antimony, 2.5% silicon, 1% maximum total other (including iron), and remainder aluminum.
Also excluded from this order are products meeting the following specifications: carbon steel coil or strip, clad with aluminum, measuring 1.75 millimeters (0.069 inches) in thickness, 89 millimeters or 94 millimeters (3.500 inches or 3.700 inches) in width, with a low carbon steel back comprised of: carbon under 8%, manganese under 0.4%, phosphorous under 0.04%, and sulfur under 0.05%; clad with aluminum alloy comprised of: 0.7% copper, 12% tin, 1.7% lead, 2.5% silicon, 0.3% antimony, 1% maximum total other (including iron), and remainder aluminum.
Also excluded from this order are products meeting the following specifications: carbon steel coil or strip, measuring a minimum of and including 1.10mm to a maximum of and including 4.90mm in overall thickness, a minimum of and including 76.00mm to a maximum of and including 250.00mm in overall width, with a low carbon steel back comprised of: Carbon under 0.10%, manganese under 0.40%, phosphorous under 0.04%, sulfur under 0.05%, and silicon under 0.05%; clad with aluminum alloy comprised of: under 2.51% copper, under 15.10% tin, and remainder aluminum as listed on the mill specification sheet.
Also excluded from this order are products meeting the following specifications: (1) Diffusion annealed, non-alloy nickel-plated carbon products, with a substrate of cold-rolled battery grade sheet (“CRBG”) with both sides of the CRBG initially electrolytically plated with pure, unalloyed nickel and subsequently annealed to create a diffusion between the nickel and iron substrate, with the nickel plated coating having a thickness of 0-5 microns per side with one side equaling at least 2 microns; and with the nickel carbon sheet having a thickness of from 0.004” (0.10mm) to 0.030” (0.762mm) and conforming to the following chemical specifications (%): C ≤ 0.08; Mn ≤ 0.45; P ≤ 0.02; S ≤ 0.02; Al ≤ 0.15; and Si ≤ 0.10; and the following physical specifications: Tensile = 65 KSI maximum; Yield = 32-55 KSI; Elongation = 18% minimum (aim 34%); Hardness = 85-150 Vickers; Grain Type = Equiaxed or Pancake; Grain Size (ASTM) = 7-12; Delta r value = aim less than +/−0.2; Lankford value = ≥ 1.2; and (2) next generation diffusion-annealed nickel plate meeting the following specifications: (a) nickel-graphite plated, diffusion annealed, tin-nickel plated carbon products, with a natural composition mixture of nickel and graphite electrolytically plated to the top side of diffusion annealed tin-nickel plated carbon steel strip with a cold rolled or tin mill black plate base metal conforming to chemical requirements based on AISI 1006; having both sides of the cold rolled substrate electrolytically plated with natural nickel, with the top side of the nickel plated strip electrolytically plated with tin and then annealed to create a diffusion between the nickel and tin layers in which a nickel-tin alloy is created, and an additional layer of mixture of natural nickel and graphite then electrolytically plated on the top side of the strip of the nickel-tin alloy; having a coating thickness: top side: nickel-graphite, tin-nickel layer ≥ 1.0 micrometers; tin layer only ≥ 0.05 micrometers, nickel-graphite layer only > 0.2 micrometers, and bottom side: nickel layer ≥ 1.0 micrometers; (b) nickel-graphite, diffusion annealed, nickel plated carbon products, having a natural composition mixture of nickel and graphite electrolytically plated to the top side of diffusion annealed nickel plated steel strip with a cold rolled or tin mill black plate base metal conforming to chemical requirements based on AISI 1006; with both sides of the cold rolled base metal initially electrolytically plated with natural nickel, and the material then annealed
Also excluded from this order are products meeting the following specifications: (1) Widths ranging from 10 millimeters (0.394 inches) through 100 millimeters (3.94 inches); (2) thicknesses, including coatings, ranging from 0.11 millimeters (0.004 inches) through 0.60 millimeters (0.024 inches); and (3) a coating that is from 0.003 millimeters (0.00012 inches) through 0.005 millimeters (0.000196 inches) in thickness and that is comprised of either two evenly applied layers, the first layer consisting of 99% zinc, 0.5% cobalt, and 0.5% molybdenum, followed by a layer consisting of phosphate, or three evenly applied layers, the first layer consisting of 99% zinc, 0.5% cobalt, and 0.5% molybdenum followed by a layer consisting of phosphate, and finally a layer consisting of silicate.
Pursuant to sections 751(d)(1) and 782(h)(2) of the Act, the Department may revoke an antidumping or countervailing duty order, in whole or in part, based on a review under section 751(b) of the Act (
Furthermore, 19 CFR 351.222(g)(1) provides that the Department will conduct a changed circumstances administrative review under 19 CFR 351.216, and may revoke an order (in whole or in part), if it determines that producers accounting for substantially all of the production of the domestic like product to which the order pertains have expressed a lack of interest in the relief provided by the order, in whole or in part, or if other changed circumstances sufficient to warrant revocation exist. In addition, in the event that the Department concludes that expedited action is warranted, 19 CFR 351.221(c)(3)(ii) permits the Department to combine the notices of initiation and preliminary results.
In accordance with sections 751(d)(1) and 782(h)(2) of the Act, and 19 CFR 351.216 and 351.222(g), based on affirmative statements by domestic producers of the like product, Bethlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation (“Domestic Producers”), no further interest exists in continuing the order with respect to certain corrosion-resistant carbon steel flat products meeting the following specifications: (1) Flat-rolled products (provided for in HTSUS subheading 7210.49.00), other than of high-strength steel, known as “ASE Iron Flash” and either: (A) Having a base layer of zinc-based zinc-iron alloy applied by hot-dipping and a surface layer of iron-zinc alloy applied by electrolytic process, the weight of the coating and plating not over 40 percent by weight of zinc; or (B) two-layer-coated corrosion-resistant steel with a coating composed of (a) a base coating layer of zinc-based zinc-iron alloy by hot-dip galvanizing process, and (b) a surface coating layer
Furthermore, because domestic producers have expressed a lack of interest, we determine that expedited action is warranted, and we preliminarily determine that continued application of the order with respect to certain corrosion-resistant carbon steel flat products falling within the description above is no longer of interest to domestic interested parties. Because we have concluded that expedited action is warranted, we are combining these notices of initiation and preliminary results. Therefore, we are hereby notifying the public of our intent to revoke in part the antidumping duty order with respect to imports of certain corrosion-resistant carbon steel flat products meeting the above-mentioned specifications from Japan.
If the final revocation in part occurs, we intend to instruct the U.S. Customs Service (“Customs”) to liquidate without regard to antidumping duties, as applicable, and to refund any estimated antidumping duties collected for all unliquidated entries of certain corrosion-resistant carbon steel flat products meeting the specifications indicated above, not subject to final results of administrative review as of the date of publication in the
Interested parties are invited to comment on these preliminary results. Parties who submit argument in this proceeding are requested to submit with the argument (1) a statement of the issue, and (2) a brief summary of the argument. Parties to the proceedings may request a hearing within 14 days of publication. Any hearing, if requested, will be held no later than two days after the deadline for the submission of rebuttal briefs, or the first workday thereafter. Case briefs may be submitted by interested parties not later than 14 days after the date of publication of this notice. Pursuant to 19 CFR 351.309(d)(1), rebuttal briefs and rebuttals to written comments, limited to the issues raised in those comments, may be filed not later than five days after the deadline for submission of case briefs. All written comments shall be submitted in accordance with 19 CFR 351.303 and shall be served on all interested parties on the Department's service list in accordance with 19 CFR 351.303. Persons interested in attending the hearing should contact the Department for the date and time of the hearing.
This notice is published in accordance with section 751(b)(1) of the Act and 19 CFR 351.216 and 351.222.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review.
The Department of Commerce (the Department) has conducted an administrative review of the antidumping duty order on certain cut-to-length carbon steel plate (steel plate) from Mexico (A-201-809) manufactured by Altos Hornos de Mexico, S.A. de C.V. (AHMSA). The period of review (POR) is August 1, 2000, through July 31, 2001. We determine that AHMSA made no sales of steel plate below the normal value (NV). We will instruct the U.S. Customs Service to assess no antidumping duties on AHMSA's entries.
March 19, 2003.
Thomas Killiam, Mike Heaney, or Robert James, AD/CVD Enforcement, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC. 20230, telephone: (202) 482-5222, (202) 482-4475, or (202) 482-0649, respectively.
On September 13, 2002, the Department of Commerce (the Department) published in the
The products covered in this review include hot-rolled carbon steel universal mill plates (
These HTS item numbers are provided for convenience and U.S. Customs purposes. The written descriptions remain dispositive.
The issues raised by the parties in the case brief and the rebuttal brief are listed in the Appendix to this notice and are addressed in the “Issues and Decision Memorandum” (Decision Memorandum) from Barbara E. Tillman, Acting Deputy Assistant Secretary, to Joseph A. Spetrini, Acting Assistant Secretary, dated March 12, 2003, which is hereby adopted by this notice, and on file in Import Administration's Central Records Unit, Room B-099 of the main Department of Commerce Building. The Decision Memorandum can be accessed directly from the Internet at http://ia.ita.doc.gov. The paper and electronic versions of the Decision Memorandum are identical in content.
Based on our analysis of the comments received, we have revised the interest expense ratios for AHMSA.
We determine that the following percentage weighted-average margins exist for the period August 1, 2000, through July 31, 2001:
The Department will determine, and the Customs Service shall assess, zero antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated a customer-specific assessment rate for merchandise subject to this review. The Department will issue appropriate assessment instructions directly to the Customs Service within 15 days of publication of these final results of review. We will direct the Customs Service to assess the resulting zero assessment rates against the entered, customs values for the subject merchandise on customer's entries during the review period.
In addition, the following deposit requirements will be effective upon publication of this notice for all shipments of steel plate from Mexico entered or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Tariff Act: (1) For the company reviewed, the cash deposit rate will be the rate listed above, (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a previous segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published in the most recent final results in which that manufacturer or exporter participated; (3) if the exporter is not a firm covered in this review or in any previous segment of this proceeding, but the manufacturer is, the cash deposit rate will be that established for the manufacturer of the merchandise in these final results of review or in the most recent segment of the proceeding in which that manufacturer participated; and (4) if neither the exporter nor the manufacturer is a firm covered in this review or in any previous segment of this proceeding, the cash deposit rate will be 49.25 percent, the “all others” rate established in the LTFV investigation (58 FR 44165, August 19, 1993). These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred, and in the subsequent assessment of double antidumping duties.
This notice also serves as the only reminder to parties subject to
We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act, and 19 CFR 351.214.
1. Gain on Monetary Position in Financial Expense Ratio.
2. Debt Default.
3. Product Specifications Error in the Model Match.
4. Net Price Calculation Errors.
5. Billing Adjustments and Packing Costs in Selling Expenses Calculation.
6. Plate-cutting Fees Excluded from Selling Expenses.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results and recision in part of antidumping duty administrative review.
On September 9, 2002, the Department of Commerce (the Department) published in the
Based on our analysis of the comments received, we have made changes in the margin calculations for Acindar. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margin for Acindar is listed below in the section entitled “Final Results of Review.” In addition, we are rescinding the review with respect to Siderca.
March 19, 2003.
Fred Baker, Mike Heaney, or Robert James, AD/CVD Enforcement, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-2924, (202) 482-4475, or (202) 482-0649, respectively.
On September 9, 2002, the Department published the Preliminary Results. We invited parties to comment on those preliminary results. On October 9, 2002, we received case briefs from United States Steel Corporation (petitioner) and Acindar. On October 17, 2002, we received rebuttal briefs from petitioner, Acindar, and IPSCO Tubulars, Inc., Lone Star Steel Company, and Maverick Tube Corporation (domestic interested parties). On January 31, 2003, we issued a supplemental questionnaire to Acindar. We received Acindar's response on February 12, 2003. On February 19, 2003, petitioner submitted a case brief commenting on that submission. On February 21, 2003, Acindar submitted rebuttal comments.
On October 9, 2002, we received a request from Acindar for a public hearing on the issues raised in the case and rebuttal briefs. We held this hearing on December 5, 2002. A transcript of the hearing is on file in the central records unit (CRU) at room B-099 of the Department.
As indicated in our preliminary results, following publication of the preliminary results we continued to seek confirmation that Siderca had no shipments to the United States during the POR.
Under section 751(a)(3)(A) of the Tariff Act, the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review with in the statutory time limit. On December 12, 2002, the Department extended the time limit for the final results to March 10, 2003.
The POR is August 1, 2000, through July 31, 2001.
Oil country tubular goods (OCTG) are hollow steel products of circular cross-section, including oil well casing and tubing of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, whether or not conforming to American Petroleum Institute (API) or non-API specifications, whether finished or unfinished (including green tubes and limited service OCTG products).
This scope does not cover casing or tubing pipe containing 10.5 percent or more of chromium. Drill pipe was excluded from this order beginning August 11, 2000.
The OCTG subject to this order are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30,
The HTSUS subheadings are provided for convenience and customs purposes. Our written description of the scope of this order is dispositive.
In the preliminary results we stated that Siderca reported that it had no shipments during the POR. We also stated we would continue seeking confirmation of this claim and that we would put our findings into a memorandum which we would place on the record of this review. Our on-site inspection of Siderca's sales facilities uncovered no evidence that Siderca had shipments to the United States during the POR. A memorandum describing the verification is on file in the central records unit of the Herbert C. Hoover building. Therefore, we are rescinding the review with respect to Siderca. Siderca's cash deposit rate will remain at 1.36 percent, which is the rate established for Siderca in the less-than-fair-value investigation.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (Decision Memorandum) from Barbara E. Tillman, Acting Deputy Assistant Secretary, Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, dated March 10, 2003, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as an appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099 of the main Department of Commerce building. In addition, a complete version of the decision memorandum can be accessed directly on the Web at
Based on our analysis of comments received, we have made changes in the margin calculations for Acindar. The changes are listed below:
1. We calculated depreciation on a per-unit basis based on production volume, rather than by applying a ratio to the cost of manufacture.
2. We added direct selling expenses into the calculation of constructed value (CV).
3. We removed packing from the setup string in the calculation of CVPROFIT and FUPDOL.
4. We removed the downward adjustment to CV for the Factor Convergence program. Additionally, we made the Reintegro reimbursement as a downward adjustment to CV, rather than a downward adjustment to selling expenses.
As a result of our review, we determine the weighted-average dumping margin for the period August 1, 2000, through July 31, 2001, to be as follows:
The Department will determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an exporter/importer (or customer)-specific assessment rate for merchandise subject to this review. The Department will issue appropriate assessment instructions directly to the Customs Service within 15 days of publication of these final results of review. We will direct the Customs Service to assess the resulting assessment rates against the entered customs values for the subject merchandise on each of the importer's/customer's entries during the review period. For duty-assessment purposes, we will calculate importer-specific assessment rates by dividing the dumping margins calculated for each importer by the total entered value of sales for each importer during the POR.
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication, as provided by section 751(a)(1) of the Tariff Act: (1) The cash deposit rate for the reviewed company will be the rate shown above; (2) for previously reviewed or investigated companies not listed above, the cash deposit will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be that established for the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this review, any previous reviews, or the LTFV investigation, the cash deposit rate will be 1.36 percent, the “all others” rate established in the LTFV investigation.
These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties or countervailing duties occurred and the subsequent assessment of double antidumping duties or countervailing duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) or their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
On September 10, 2002, the Department of Commerce (“the Department”) published in the
Based on our analysis of the comments received, we have made a change in the selection of an adverse facts available margin. As such, the final results differ from the preliminary results of review. The final antidumping duty margin is listed below in the section entitled “Final Results of the Review.”
March 19, 2003.
Mark Hoadley at (202) 482-3148, or Jessica Burdick at (202) 482-0666, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
Since the issuance of the preliminary results of review (
The products covered by this order are certain scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks. They are sold in the following shapes: tapers, spirals, and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers. The products were classified under the Tariff Schedules of the United States (TSUS) item 755.25, Candles and Tapers. The products are currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) item 3406.00.00. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this proceeding remains dispositive.
The period of review (POR) is August 1, 2000 through July 31, 2001.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum for Final Results of Antidumping Duty Administrative Review of Petroleum Wax Candles from the People's Republic of China,” to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, from Barbara E. Tillman, Acting Deputy Assistant Secretary for Import Administration, dated March 10, 2003 (
Based on our analysis of the comments received, we have made a change in the selection of adverse facts available margin.
The Department conducted verification at Fay Candle's factory in China from July 22 through 26, 2002. On July 22, 2002, respondents presented
The next week, the Department informed respondents that it would proceed with the U.S. portion of the verification, and the Department and respondents agreed on August 12 through 15, 2002 as the dates for this verification.
For these final results of review, we continue to find that, in accordance with section 776(a)(2)(D) of the Act, the use of facts available for respondents is appropriate. Respondents' decision not to allow the Department to conduct an on-site U.S. verification prevented necessary information from being verified as provided in section 782(i), a condition specifically listed in section 776(a)(2)(D) as mandating the use of facts available. Once the Department determines that the use of facts available is warranted, section 776(b) of the Act further permits the Department to apply an adverse inference if it makes the additional finding that “an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information.” As stated above, the Department set a date for the U.S. portion of the verification that respondents agreed was acceptable. Respondents decided not to proceed with verification. Respondents did not ask that the verification be rescheduled, but simply stated that they would not proceed with the verification. Since respondents cancelled the U.S. sales verification, the Department cannot rely on respondents' questionnaire responses to calculate a dumping margin for Fay Candle. The U.S. sales verification is integral to our calculation because, without performing the U.S. sales verification, we were unable to complete the sales reconciliation as well as verification of total quantity and value, which are principal elements of the overall verification of respondents' questionnaire responses.
Furthermore, while the Department was able to verify parts of the questionnaire responses in China, that information is inextricably linked with the information unverified in the United States.
Therefore, we determine that respondents did not cooperate to the best of their ability for these final results of review and that the use of adverse facts available is appropriate under section 776(b). In the
Since the
We emphasize that we are not establishing a
In addition to examining the adverse facts available margin applied to determine whether it is appropriate, we have also in the past determined to choose margins that are sufficiently adverse to encourage full cooperation in future reviews.
Section 776(c) of the Act provides that when the Department relies on the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The
Accordingly, we determine that the 65.02 percent rate is in accord with section 776(c)'s requirement that secondary information is reliable. The information used in the new shipper review to calculate the final margin of 95.22 percent, for which the 65.02 percent margin is an integral part of the underlying calculation, was fully verified and subject to the comments of both respondent and petitioner throughout the review. Thus, the 65.02 percent margin is ultimately based on the verified sales and production data of respondent in that review, as well as on the most appropriate surrogate value information available to the Department, chosen from submissions by the parties in that review as well as information gathered by the Department itself.
With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. In this case, as discussed above, the Department has chosen one of the margins weight-averaged in the new shipper review, the rate of 65.02 percent. We chose this margin after concluding that using the highest rate or the weighted-average margin from the new shipper review was inappropriate, due to the wide range of margins weight averaged therein.
We determine that the following percentage margin exists for the period August 1, 2000 through July 31, 2001:
The Department will disclose calculations performed in connection with these final results of review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
The Department will determine, and the U.S. Customs Service (Customs) shall assess, antidumping duties on all appropriate entries. For Fay Candle, the assessment rate will be based on the margin noted above. The Department will issue appropriate assessment instructions directly to Customs within 15 days of publication of these final results of review. We will direct Customs to assess the resulting assessment rates against the entered Customs values for the subject merchandise on each of the exporter's entries during the review period.
The following deposit requirements will be effective upon publication of these final results for this administrative review for all shipments of petroleum wax candles from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Fay Candle will be 65.02 percent; (2) for previously-reviewed PRC and non-PRC exporters with separate rates, the cash deposit rate will be the company-specific rate established
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 771(I) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of countervailing duty administrative review.
On September 10, 2002, the Department of Commerce (the Department) published in the
Based on information received since the
March 19, 2003.
Tipten Troidl or Carrie Farley, Office of AD/CVD Enforcement VI, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-2786.
Pursuant to 19 CFR 351.213(b), this review covers only those producers or exporters of the subject merchandise for which a review was specifically requested. Accordingly, this review covers Inchon. This review covers the period January 1, 2000 through December 31, 2000 and eighteen (18) programs.
On August 6, 1999, the Department published in the
As noted in the
We published the
For purposes of this review, the products covered are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this review is classified in the
Excluded from the scope of this order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
The Department has determined that certain specialty stainless steel products are also excluded from the scope of this order. These excluded products are described below:
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of between 0.002 and 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (
All issues raised in the case and rebuttal briefs by parties to this review are addressed in the “Issues and Decision Memorandum: Final Results and Partial Rescission of Countervailing Duty Administrative Review: Stainless Steel Sheet and Strip from the Republic of Korea” (Decision Memorandum) dated March 10, 2003, which is hereby adopted by this notice. A list of issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as Appendix I. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in room B-099 of the Main Commerce Building. In addition, a complete version of the Decision Memorandum can be accessed directly on the World Wide Web at http://ia.ita.doc.gov, under the heading “Federal Registe Notices.” The paper copy and electronic version of the Decision Memorandum are identical in content.
In accordance with section 705(c)(1)(B)(i) of the Act, we calculated an
We will instruct the Customs Service (“Customs”) to assess countervailing duties as indicated above. The Department will instruct Customs to collect cash deposits of estimated countervailing duties in the percentage detailed above of the f.o.b. invoice prices on all shipments of the subject merchandise from the producers/exporters under review, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review. As of April 1, 2001, Inchon, changed its name to INI. Thus, for all of Inchon's shipments of the subject merchandise from the producers/exporters under review, entered, or withdrawn from warehouse, for consumption on or after April 1, 2001, we will instruct customs to assign Inchon's cash deposit to INI.
Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2) of the Act. The requested review will normally cover only those companies specifically named.
We will instruct Customs to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. As of April 1, 2002, Sammi changed its name to BNG. Thus, for all of Sammi's shipments of the subject merchandise from the producers/exporters under review, entered, or withdrawn from warehouse, for consumption on or after April 1, 2002, we will instruct customs to assign Sammi's cash deposit rate to BNG. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for that company established in the most recently completed administrative proceeding conducted under the URAA. If such a review has not been conducted, the rate established in the most recently completed administrative proceeding pursuant to the statutory provisions that were in effect prior to the URAA amendments is applicable.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of duties prior to liquidation of the relevant entries during this review period.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written 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 sanctionable violation.
This administrative review and notice are issued and published in accordance with section 751(a)(1) of the Act.
International Trade Administration, Commerce.
Notice of Funding Availability.
The International Trade Administration (ITA) of the U.S. Department of Commerce (the Department) requests that eligible organizations submit proposals (applications) for the fiscal year (FY) 2003 competition for Market Development Cooperator Program (MDCP) awards. ITA creates economic opportunity for U.S. workers and firms by promoting international trade, opening foreign markets, ensuring compliance with U.S. trade laws and agreements, and supporting U.S. commercial interests at home and abroad.
Through MDCP cooperative agreements the Department works with export multiplier organizations providing technical and financial assistance which these organizations match. Export multiplier organizations compete for a limited number of MDCP awards.
Eligible export multipliers include trade associations, state economic development/trade departments, small business development centers, World Trade Centers, chambers of commerce, and other non-profit industry organizations. These export multipliers are particularly effective in reaching small- and medium-size enterprises (SMEs). MDCP awards help to underwrite the start-up costs of new export ventures which export multipliers are often reluctant to undertake without Federal Government support. MDCP aims to develop, maintain and expand foreign markets for non-agricultural goods and services produced in the United States and serves to:
• Challenge the private sector to think strategically about foreign markets;
• Spur private-sector innovation and investment in exporting; and
• Increase the number of U.S. companies, particularly SMEs, taking decisive export actions.
As an active partner, ITA will, as appropriate, guide and assist export multipliers in achieving project objectives. ITA encourages export multipliers to propose projects that (1) best meet their industry's market development needs; and (2) leverage the partnership between the export multiplier and ITA.
As set forth under
Mr. Brad Hess, Manager, Market Development Cooperator Program, Trade Development, ITA, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room 3215, Washington, DC 20230.
Email:
Phone/Fax: (202) 482-2969/ -4462.
Internet:
From March 19, 2003 through May 15, 2003, the Department does not counsel potential applicants regarding the merits of projects they may propose in their applications. During this competition period, the Department may respond to potential applicants' questions regarding eligibility, technical issues, procedures, general information, and referral.
Several definitions are provided below to assist readers in preparing MDCP applications. These definitions do not supplant or supercede definitions provided in the Department's Grants and Cooperative Agreements Interim Manual (February 2002).
Several terms used throughout this request for applications have specific meanings that may not be evident. These are defined below.
Some terms are best understood in the context of a more detailed discussion. For terms that do not appear above, refer to the RFA section where the term is discussed.
The goal of the MDCP as set out in authorizing legislation is to develop, maintain, and expand foreign markets for non-agricultural goods and services produced in the United States. Non-agricultural goods and service means goods and services other than agricultural products as defined in 7 U.S.C. 451.
Applicants should propose activities appropriate to the market development needs of the relevant U.S. industry.
As noted above in
The same cooperator could claim fees paid by the company for trade show participation, if the cooperator adds value and the fees represent something of value that furthers project goals. For example, the cooperator could create its own trade-show participation package. This might include finding optimal hotel accommodations, securing group airfare, meeting with trade show organizers before the show, and organizing a reception to take place during the show. Such a cooperator package would help determine project success. When companies pay the fees for such a package, they are doing more than getting themselves to a trade show, they are agreeing that the project itself has value. Because the cooperator's package adds value and furthers project goals, the cooperator could charge fees, use the fees to pay project expenses, and claim them as cash match.
Applicants can claim only the fair market value of the in-kind contribution.
Applicants should structure their budgets carefully when expenditures by companies that benefit from project activity are involved. An expenditure by such a company that primarily benefits only that company cannot be claimed as in-kind match.
For example, a company may have made and paid for its own arrangements to attend a trade show that a cooperator has included in its project. The cooperator could not claim the amount paid by the company as in-kind match. The company incurs airfare and other expenses for its own benefit, but not necessarily to accomplish project objectives. Such expenditures are more self-serving than are true in-kind contributions to project success.
This policy should not deter applicants from proposing in-kind match. For example, a cooperator can claim the value of airfare donated by a U.S. airline. Although the airline benefits from goodwill associated with donating the service, it is the cooperator's project that benefits directly when the airfare is used to achieve project objectives. Unlike the company in the example above, the airline does not use the donated airfare itself and thereby benefit directly from it.
This example establishes a cost-share ratio of three-to-one: three cooperator dollars for each dollar of Federal funds. The cooperator assumes 3/4 of the total cost. In other words, 75 percent of the funding is provided by the recipient and 25 percent by the Federal Government. This means that the cooperator will receive one dollar for every four dollars in project expenditures.
The Department will determine allowable costs on the basis of the applicable cost principles and definitions in OMB Circulars A-21, A-87, and A-122; in 45 CFR part 74, appendix E; and in 48 CFR part 31.
Federal funds may be used only to cover direct costs. The applicant must incur and pay direct costs that equal or exceed the amount of Federal funds. However, any portion of the balance of applicant's match that does not exceed the levels set forth below in
Indirect costs are capped by the cooperator's total direct costs or the indirect cost rate, whichever is less.
The Commercial Service will provide, as part of the cooperative agreements, a limited amount of reasonable assistance to MDCP cooperators at no charge. The policy set forth below applies to Commercial Service resources that are provided as part of the cooperative agreements.
For assistance that goes beyond the “limited amount of reasonable assistance” as defined below, applicants should make provision in their budgets. To determine the cost for services provided by the Commercial Service, applicants should contact the USEACs or overseas Commercial Service offices. These may be identified at
There may be situations that prevent the Commercial Service from providing no-charge services to cooperators. Perhaps the most common example is another event to which the Commercial Service office has already committed its resources.
The definitions below will guide the domestic or overseas Commercial Service offices in implementing this policy.
USEACs can generally implement the policy as a no-charge extension of normal client support. Most USEAC service to cooperators is provided as part of long-term relationships developed in local exporting communities throughout the United States.
U.S. trade associations, non-profit industry organizations, and state departments of trade and their regional associations are eligible to apply for an MDCP award. In cases where no entity described above represents the industry, private industry firms or groups of firms, may be eligible to apply for an MDCP award. Such private industry firms or groups of firms must provide in their application, documentation demonstrating that no entity in the first three categories listed below represents their industry.
(1) Chamber of commerce,
(2) Board of trade,
(3) Business, export or trade council/interest group,
(4) Visitors bureau or tourism promotion group,
(5) Economic development group,
(6) Small business development center, or
(7) Port authority.
3.
4.
In such a case, the eligible entity will include in its application a signed letter stating that MDCP funds will be used only by the eligible entity for the purposes outlined in its application, and that no such funds will be used by or retained by the educational institution, even though the funds may need to go through the educational institution because of the eligible entity's lack of a separate accounting system or lack of status as a separate legal entity.
MDCP aims to increase export market development activities by using program funds to encourage new initiatives. MDCP funds are not intended to replace funds from other sources, nor are they intended to replace MDCP funding from a previous award. Current or past cooperators may propose a new project.
i. The letter described in
Prospective applicants should submit eligibility determination requests as soon as possible, if they wish to have determinations prior to the application deadline. This deadline will not be extended, and applicants should continue to work on applications while awaiting the Department's eligibility determination.
The basic elements of the application are set forth below. Additional instructions and required forms are provided in the application kit available from
(1) Applicant-Designed Performance Measures: Applicants should develop and utilize performance measures which reasonably gauge project success.
(2) ITA Performance Measures: ITA reports results using the Government Performance and Results Act (GPRA) measures defined for its programs and activities.
(a) How does MDCP project activity increase:
(i) Awareness and understanding of ITA products and services,
(ii) Satisfaction with the quality of ITA products and services,
(iii) Ease of use of ITA's Internet portal, and
(iv) Ease of access to ITA export and trade information and data,
(b) Number of deals
(c) Dollar value of exports of U.S. businesses resulting from participation in MDCP project activities,
(d) Number of U.S. businesses that are new to export,
(e) Number of U.S. businesses that are new to market,
(f) Brief description of each partnership
(g) Number of export activities undertaken by U.S. businesses. (
(3) Performance Measure Reporting Requirements: Each cooperator should report on both applicant-designed measures and ITA performance measures in its quarterly reports.
(4) Performance Measure Recording and Reporting System: Each applicant should describe its recording and reporting system in its proposal. Ultimately, it is the success of individual companies that determines the project's export success. Therefore, applicants should demonstrate how they plan to ensure that participant companies, and any other sources of export success information, will report to it anecdotes and other performance measurement information.
The international trade priorities listed below are the priorities referred to in
(1) Promote an industry particularly well suited to foreign market development including information technology, telecommunications, energy, environmental technology, tourism, services, and healthcare;
(2) Increase trade opportunities by opening markets through the development of new trade agreements, the support of World Trade Organization negotiations, the removal of non-tariff barriers, or the development of commercial infrastructure in emerging economies;
(3) Increase overall export awareness and awareness of ITA programs and services among U.S. companies, by making SMEs export-ready or by facilitating deal-making;
(4) Ensure compliance with trade agreements;
(5) Support the Administration's broader foreign policy objectives through trade-related initiatives;
(6) Promote the use of e-commerce as a low-cost, low-risk tool to help SMEs to export;
(7) Increase “hands-on” export education designed for SMEs through:
(a) Developing educational tools such as curricula and media, and/or
(b) Providing company-specific assistance; and
(8) Develop non-traditional approaches to creating demand for the products/services developed from new U.S. technologies.
a. Address its ability to provide a competent, experienced staff and other resources;
b. Describe its structure and composition;
c. Discuss the degree to which it represents the industry in question;
d. Describe the role, if any, foreign membership plays in its affairs;
e. Summarize the recent history of its industry's international competitiveness;
f. Provide a resume for the project director and professional personnel; and
g. Project the amount of time each professional will devote to the project.
a. Form 424A “Budget Information—Non-Construction Programs”;
b. Budget for Project Award Period;
c. Supporting worksheets and explanations;
d. A discussion of financial systems and projections of how, when, and from what sources the matching funds will be or have been raised;
e. A summary of all financial assistance awards received in excess of $20,000 over the last five years. This should include the award reference number, contact name, title, organization, email (if available), fax, and mailing address;
f. The most recent audited financial statements. If the applicant is a sub-unit of an audited entity, in addition to the financial statements of the audited entity, the applicant should provide financial statements at the most specific level available, whether or not these are audited. If the applicant's most recent financial statements are not audited, it should submit the most recent unaudited financial statements and a statement indicating whether it currently has an auditor and when it plans to issue audited financial statements; and
g. Any additional evidence of financial responsibility.
a. SF-424 Application for Federal Assistance;
b. SF-424B Assurances—Non-Construction Programs;
c. CD-346 Applicant for Funding Assistance; and
d. CD-511 Certifications Regarding Debarment, Suspension, and Other Responsibility Matters.
In addition, applicants may determine that they need to complete forms CD-512 “Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions and Lobbying” and/or form SF-LLL “Disclosure of Lobbying Activities”. These are available at
If an applicant submits an original and two copies or any other number of copies greater than two and less than seven (7), the Department will make additional copies to allow all reviewers to read each application. However, the Department cannot guarantee that the copies will include features that are not easily reproduced on standard photocopy machines. For example, tabs might not be inserted, color pages might be reproduced in black and white, fold-out pages might not fold out, unusually sized (not 8.5″ x 11″) pages might be broken up, and the copies might be bound with staples or clips instead of the binding used for applicant-submitted material.
The Department is interested in projects that demonstrate the possibility of both significant results during the award period and lasting benefits extending beyond the award period. To that end, consideration for financial assistance under the MDCP will be based upon the following evaluation criteria:
Applicants should provide detailed explanations of projected results of the project.
Applicants must provide quantifiable estimates of projected increases and explain how they are derived. See
As noted in the
In order to determine whether a project is entirely new, the current or past cooperator must provide, as a separate appendix, a comparison between the elements of the proposed project and the elements of its current or past MDCP-funded projects. Current or past cooperators that propose projects that are not entirely new will receive fewer points under this criterion than they would receive otherwise.
In determining the number of points under this criterion, the selection panel will consider the level to which a particular applicant has incorporated elements of its previously funded MDCP projects. To do this, current or past cooperators should submit a table wherein they approximate the amount of resources devoted to each project element as a percentage of the total. For example, if an applicant received an MDCP award in 1995 and spent approximately $400,000 of a total $1,000,000 project budget on opening an office in Beijing, it could report that 40 percent of the resources of its 1995 project went toward the project element of opening its Beijing office. The applicant would do the same for the other elements of its projects.
Each of the above criteria is worth a maximum of 20 points. The five criteria together constitute the application score. At 20 points per criterion, the total possible score is 100.
The applicant is responsible for submitting a complete application in a timely manner. Prior to selection, each complete application receives a thorough evaluation as set forth below.
The selection panel's recommendation will not deviate from the rank order. This means, for example, that the selection panel cannot recommend funding for the application ranked seventh without recommending funding for applicants ranked first through sixth. The selection panel recommendation includes the panel's written assessment of the strengths and weaknesses of the top-ranked applications.
Award winners will be notified by letter. Once award winners formally accept their awards, the Department will announce the award winners at
Within ten days of the Department's announcement of the awards, unsuccessful applicants will be notified in writing and invited to receive a debriefing from MDCP officials.
1.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before May 19, 2003.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Patsy A. Bearden at 907-586-7228, or at
The procedures in question are designed for Western Alaska Community Development Quota (CDQ) catcher/processors and American Fisheries Act (AFA) catcher/processors and AFA motherships and involve catch weighing, observer sampling stations, and observer coverage requirements. This existing information collection would be revised to incorporate catch-weighing requirements for AFA inshore processors (shoreside processors and stationary floating processors).
NMFS must be able to ensure that the total weight, species composition, and catch location for each delivery are reported accurately. This is accomplished through a catch-monitoring system that: allows for independent verification of catch weight, species composition and haul location data; ensures that all catch is weighed accurately; and provides a record of the weight of each delivery that may be audited by NMFS. Requirements include approval of scale types for use, inspection requests, scale tests, an inshore processor catch monitoring and control plan, and printed output from scales.
Forms or may be e-mailed, FAXed or submitted in paper form. The daily scale test forms and scale printed output are paper forms that are not submitted to NMFS.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Number of Respondents: 320.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before May 19, 2003.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to John Armor at 301-713-3125, ext. 117, or at
In order to gain access to the Tortugas ecological reserve, persons must obtain a permit. The permit holders must notify NOAA by radio no less than 30 minutes and no more than 6 hours before entering the reserve, and when leaving it. Permit actions may be appealed.
The purposes of the access permit and notifications are to (1) protect this unique deepwater coral reef and (2) facilitate the enforcement of the no-take regulations in this remote area. The overall intended effect of this collection is to protect the deepwater coral reef community in this area from being degraded by human activities.
Applications and notifications are made by phone. Appeals must be in writing.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection;
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before May 19, 2003.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Amy Sloan or Ruth Johnson at 301-713- 2289, or to
The respondents will be applicants for and holders of scientific research and enhancement permits, commercial and educational photography permits, public display permits for captures and first-time imports, and Letter of Confirmation holders under the General Authorization for Level B scientific research projects. The Marine Mammal Protection Act (MMPA), the Fur Seal Act (FSA) and the Endangered Species Act (ESA) prohibit the taking, import, and export of marine mammals with certain exceptions. Applicants desiring a permit or authorization to take, import, or export must provide certain information to be used as a basis for determining whether the proposed activity is consistent with the purposes, policies, and requirements of the MMPA, ESA, and/or FSA and if a permit or authorization should be issued. Permit holders and authorized researchers under the General Authorization are required to report periodically on activities conducted and species taken to ensure compliance with permit conditions and protection of the animals. This also updates information as necessary on any marine mammals held captive for purposes of maintaining the marine mammal inventory as required under the 1994 Amendments to the MMPA.
There is no overlap or duplication for marine mammal permit actions under the ESA as the marine mammal regulations (50 CFR 216.32 - 216.44) address requirements of both laws, and a single application and permit covers all requirements of both.
Most application material is paper and written to respond to a required format. Some reports can be submitted electronically.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Belinda L. Rubinstein, New England Aquarium, Central Wharf, Boston, MA 02110 has been issued a permit to take harbor seals (Phoca vitulina), harp seals (
The permit and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)713-0376;
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978)281-9200; fax (978)281-9371; and
Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727)570-5301; fax (727)570-5320.Amy Sloan or Ruth Johnson, (301)713-2289.
On August 5, 2002, notice was published in the
Solitary seals will be captured, tagged, sampled (including tooth extraction, blubber biopsy, blood and milk collection, anal swabs and fecal samples), and released. In addition to taking wild animals, the applicant also requests authority to sample conspecifics held in rehabilitation facilities. Samples may be exported and re-imported for analyses. The purposes of the research are to study habitat utilization using satellite telemetry and flipper tagging, determine stock association, and monitor health of phocids along the east coast of the U.S., from Maine to Virginia.
USSTRATCOM, DoD.
Notice of closed meeting.
The Strategic Advisory Group (SAG) will meet in a closed session on April 24 and 25, 2003.
The mission of the SAG is to provide timely advice on scientific, technical, intelligence, and policy-related issues to the Commander, U.S. Strategic Command during the development of the Nation's war plans. Full development of the topics will require discussion of information classified in accordance with Executive Order 12958, dated April 17, 1995. Access to this information must be strictly limited to personnel having the requisite security clearances and specific need-to-know. Unauthorized disclosure of the information to be discussed at the SAG meeting could have exceptionally grave impact on national defense.
In accordance with section 10(d) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), it has been determined that this SAG meeting concerns matters listed in 5 U.S.C., section 552b(c), and that, accordingly, this meeting will be closed.
April 24 and 25, 2003.
USSTRATCOM, 901 SAC Boulevard, Suite 1F7, Offutt Air Force Base, NE 68113-6030.
Connie Druskis, SAG, (402) 294-4102; Jerome Mahar, Joint Staff, (703) 614-6465.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before May 19, 2003.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Carey at (202) 708-6287. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Wednesday, April 9, 2003, 6 p.m.
DOE Information Center, 475 Oak Ridge Turnpike, Oak Ridge, TN.
Pat Halsey, Federal Coordinator, Department of Energy Oak Ridge Operations Office, PO Box 2001, EM-90, Oak Ridge, TN 37831. Phone (865) 576-4025; Fax (865) 576-5333 or e-mail:
• Mike Jugan, DOE-Oak Ridge, will provide a historical review of the MSRE project and an update on current and planned activities.
Take notice that on March 7, 2003, ANR Pipeline Company (ANR), tendered for filing a notification to the Commission of a change in the termination date of a Firm Storage Service Agreement and certain associated transportation agreements.
ANR states that the notice and associated agreement reflect that the negotiated rate agreement between ANR and Reliant Energy Marketing Services, Inc. and all underlying service will be terminated on April 1, 2003 instead of March 31, 2004.
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 385.314 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
Calpine Power America—OR, LLC and Calpine Power America—CA, LLC (collectively, “Applicants”) filed an application for market-based rate authority, with accompanying tariffs. The proposed market-based rate tariffs provide for the sale of capacity, energy and ancillary services, resale of transmission rights and for the reassignment of transmission rights. Applicants also requested waiver of various Commission regulations. In particular, Applicants requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Applicants.
On February 24, 2003, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted the request for blanket approval under part 34, subject to the establishment of a period of time for the filing of protests.
Accordingly, any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Applicants should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214).
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is March 26, 2003.
Absent a request to be heard in opposition by the deadline above, Applicants are authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Applicants, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Applicants' issuances of securities or assumptions of liability.
Copies of the full text of the Order by the Director, Division of Tariffs and Market Development-South, are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on March 6, 2003, CenterPoint Energy Gas Transmission Company (CEGT), formerly Reliant Energy Gas Transmission Company, tendered for filing its compliance filing in conformity with the letter order of the Federal Energy Regulatory Commission issued on February 19, 2003 in Docket No. RP02-353-000.
CEGT states that a copy of this filing has been served on each person designated on the official service list in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. 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 March 7, 2003, CenterPoint Energy Gas Transmission Company (CEGT) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets to be effective March 3, 2003:
CEGT states that the purpose of this filing is to comply with the Commission's order issued February 27, 2003, in Docket No. RP03-246-000.
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 March 5, 2003, Cinergy Services, Inc. filed with the Federal Energy Regulatory Commission (Commission) a compliance filing pursuant to the Commission's Order issued on February 4, 2003 in Docket No. EC02-113-000, 102 FERC § 61,128.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on March 4, 2003, Eastern Shore Natural Gas Company (ESNG) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, certain revised tariff sheets in the above captioned docket, with a proposed effective date of April 1, 2003.
ESNG states that the purpose of this instant filing is to track rate changes attributable to a storage service purchased from Transcontinental Gas Pipe Line Corporation (Transco) under its Rate Schedules GSS and LSS. The costs of the above referenced storage service comprises the rates and charges payable under ESNG's Rate Schedules GSS and LSS. This tracking filing is being made pursuant to section 3 of ESNG's Rate Schedules GSS and LSS.
ESNG states that copies of the filing have been served upon its 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 385.314 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 March 5, 2003, Eastern Shore Natural Gas Company (ESNG) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing, with a proposed effective date of April 1, 2003.
ESNG states that the purpose of this instant filing is to track rate changes attributable to a storage service purchased from Columbia Gas Transmission (Columbia) under its Rate Schedule FSS. The costs of the above referenced storage service comprises the rates and charges payable under ESNG's Rate Schedule CFSS.
ESNG states that copies of the filing have been served upon its 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 385.314 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 February 28, 2003, El Paso Natural Gas Company (El Paso) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, the following tariff sheets to become effective January 1, 2003.
El Paso states that the tendered tariff sheets revise El Paso's inflation adjustment filing in Docket No. RP03-111-000 to escalate for inflation the California Receipt Service usage rates recently accepted by the Commission.
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 March 10, 2003, Enbridge Pipelines (AlaTenn) L.L.C. (AlaTenn) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing, to be made effective March 1, 2003.
AlaTenn states that the purpose of the filing is to comply with the Commission's Order issued on February 25, 2003 in the above referenced docket.
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 May 6, 2003, MIGC, Inc. (MIGC) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No.1, the following tariff sheets, to become effective May 1, 2003.
MIGC asserts that the purpose of this filing is to update MIGC's tariff to provide MIGC with more flexibility to enhance Shipper rights on a not unduly discriminatory basis, to allow MIGC to more effectively manage imbalances and measurement equipment on its system and to make effective certain housekeeping changes. Specifically, MIGC proposes the following revisions:
Authorize MIGC to waive any provisions of its effective tariff regarding MIGC rights or Shipper obligations for good cause and on a basis which is not unduly discriminatory.
Allow MIGC the flexibility to offer early contract terminations or reduction for all Shippers on a not unduly discriminatory basis.
Allow MIGC the flexibility to bear costs associated with constructing new interconnects.
Add tariff language providing for the purchase and sale of gas supply by MIGC for the purpose of maintaining
Revise cash out formula to provide for the cash out of all imbalances.
Provide that measurement facilities shall be installed, owned, maintained and operated by MIGC, unless agreed to otherwise.
Make several housekeeping revisions.
MIGC states that copies of the filing are being served on all jurisdictional customers and interested state commissions.
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 March 7, 2003, National Fuel Gas Supply Corporation (National Fuel) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, Second Revised Sheet No. 478, with an effective date of April 1, 2003.
National Fuel states that the purpose of this filing is to submit for Commission review and acceptance four non-conforming service agreements and the tariff revision identifying these agreements. The agreements contain provisions which deviate from the Form of Service Agreement for Firm Storage Transportation and Firm Storage Service contained in National Fuel's Volume No. 1 Tariff in the following areas: rate, term, and miscellaneous.
National Fuel states that copies of this filing were served upon its customers and interested state commissions.
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 March 5, 2003, Natural Gas Pipeline Company of America (Natural) tendered for filing to be part of its FERC Gas Tariff, Sixth Revised Volume No. 1 and Second Revised Volume No. 2, certain tariff sheets to be effective March 5, 2003.
Natural states that the purpose of the filing is to cancel Natural's Rate Schedule X-85, which provided for an exchange service between Natural and Northern Natural Gas Company (Northern) pursuant to a gas exchange agreement between Natural and Northern dated May 5, 1980.
Natural states that the subject tariff sheets are being filing in compliance with Ordering Paragraph (A) of the Commission's order issued February 26, 2003 in Docket No. CP03-38-000. Such order authorized Natural to abandon its exchange service with Northern authorized in Docket No. CP81-64-000.
Natural states that copies of the filing have been mailed to all parties set out on the Commission's official service list in Docket No. CP03-38-000.
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 March 5, 2003, Northern Natural Gas Company (Northern), tendered for filing in its FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheets, with an effective date of February 13, 2003:
Northern states that the filing is being made in compliance with the Commission's order issued on February 12, 2003, in Docket No. RP03-235-000 (Order):
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
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 February 28, 2003, Paiute Pipeline Company (Paiute) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, Tenth Revised Sheet No. 161, with an effective date of March 1, 2003.
Paiute indicates that the purpose of its filing is to reflect (1) a reduction in the monthly billing determinants for one of its firm transportation shippers, Sierra Pacific Power Company, and (2) a recent change in the name of another of its firm transportation shippers.
Paiute states that copies of the filing are being served upon all of Paiute's 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 385.314 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 March 7, 2003, Panhandle Eastern Pipe Line Company (Panhandle) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Second Revised Sheet No. 249; Original Sheet No. 249A; Second Revised Sheet No. 250; Original Sheet No 250A; First Revised Sheet No. 254; and Second Revised Sheet No. 254A, to be effective February 1, 2003.
Panhandle states that this filing is being made to comply with the Commission's Letter Order dated February 26, 2003, in Docket No. RP03-129-000 which directed Panhandle to file actual tariff sheets, consistent with the
Panhandle states that copies of this filing are being served on all jurisdictional customers, interested state regulatory agencies and parties to this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with section 385.211 of the Commission's rules and regulations. All such protests must be filed in accordance with section 154.210 of the Commission's regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. 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 March 7, 2003, Questar Pipeline Company (Questar) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Substitute Fifth Revised Sheet No. 56A; Substitute Second Revised Sheet No. 69; and Substitute Original Sheet No. 69A, to be effective April 7, 2003.
Questar states that this filing proposes to amend Questar's cleanup tariff filing that was filed February 20, 2003. Two sheets in that filing contained language that was not clear or could be interpreted as inconsistent with Commission policy. Questar seeks to rectify the February 20, 2003, filing.
Questar 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 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 March 10, 2003, Questar Southern Trails Pipeline Company (Southern Trails) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheets, to be effective March 1, 2003:
Southern Trails states that the filing is being made in compliance with the Commission's Order on Compliance with Order Nos. 637, 587-K, 587-L, 587-M and 587-N issued February 6, 2003, (February Order) in Docket Nos. RP02-318-000 and RP02-318-001.
On May 1, 2002, Southern Trails filed tariff sheets in Docket Nos. CP99-163-000,
Southern Trails states that a copy of this filing has been served upon its customers and the public service commissions of Utah, New Mexico, Arizona and California.
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 March 7, 2003, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the tariff sheets listed in Appendix A attached to the filing, with an effective date of April 1, 2003.
Transco states that the purpose of the instant filing is to supplement Transco's Electric Power Tracker filing of February 28, 2003 (February 28 filing), which inadvertently reflected an incorrect calculation of the MDt-Miles and the Traversing Volumetric
Further, Transco states that it is removing $2,076 from its Estimated TEP costs included in the February 28 filing related to projected Station 535 TEP costs. Transco has determined that these estimated costs are storage-related and thus should not have been included in the Estimated TEP costs included in February 28 filing.
Transco states that it is serving copies of the instant filing to its affected customers, interested State Commissions and other interested parties.
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 March 7, 2003, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Substitute Eleventh Revised Sheet No. 40J.01 and Substitute Eighth Revised Sheet No. 40J.02. The tariff sheets are proposed to be effective April 1, 2003.
Transco states that the purpose of the instant filing is to incorporate the revised electric power rates reflected in Transco's Supplemental Electric Power Tracker Filing in Docket No. RP03-271-000, dated March 7, 2003, into its February 28, 2003, Sunbelt Commodity Rate Filing (February 28 filing). Transco is not proposing any other changes to its February 28 filing.
Transco states that copies of the filing are being mailed to affected customers, interested State Commissions and other interested parties.
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 March 7, 2003, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Substitute Seventeenth Revised Sheet No. 44, with an effective date of April 1, 2003.
Transco states that the filing is being submitted to supplement Transco's Fuel Tracker filing of February 28, 2003, which inadvertently reflected an incorrect calculation of the Commodity Fuel Dt-Miles and The Commodity Volume Traversing Zones included in the calculation of the system transportation fuel retention percentages by zone. The result of the revised calculation of the system transportation fuel retention percentages is an increase in Zone 4A from 0.42% to 0.43% and Zone 5 from 1.19% to 1.20%.
Transco states that copies of the filing are being mailed to its affected customers and interested state commissions.
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 March 6, 2003, Williston Basin Interstate Pipeline Company (Williston Basin), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1 and Original Volume No. 2, the tariff sheets listed on Appendix A to the filing, to become effective on April 1, 2003.
Williston Basin states that it has come to Williston Basins attention that it had incorrectly presented the electric power reimbursement rates on its tariff sheets in the above referenced filing. Williston Basin requests that it be allowed to substitute the corrected sheets for the corresponding sheets in its February 28, 2003, 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
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on March 7, 2003, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) pursuant to Section 205 of the Federal Power Act and Section 35.13 of the Commission's regulations, 18 CFR 35.13, submitted for filing a revised Interconnection and Operating Agreement among GM Transmission, LLC, the Midwest ISO and Northern States Power Company d/b/a Xcel Energy.
Midwest ISO states that a copy of this filing was sent to the GM Transmission, LLC and Northern States Power Company d/b/a Xcel Energy.
Take notice that on March 3, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) and TRANSLink Development Company, LLC (TRANSLink Development) tendered for filing with the Federal Energy Regulatory Commission (Commission) revisions to certain provisions of the Appendix I Agreement (Agreement) between the Midwest ISO and TRANSLink Development, pursuant to the Commission's January 15, 2003 Order in docket number ER03-216-000.
The Midwest ISO and TRANSLink have requested an effective date of March 4, 2003.
The Midwest ISO states that it has served copies of its filing on all affected customers. In addition, the Midwest ISO has electronically served a copy of this filing, without attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region. In addition, the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on March 6, 2003, Mesquite Power LLC (Mesquite) tendered for filing with the Federal Energy Regulatory Commission (Commission) an amendment to its petition for waivers and blanket approvals under various regulations of the Commission and for an order accepting its FERC Electric Tariff No. 1, originally filed on January 17, 2003 and amended on February 28, 2003.
Take notice that on March 6, 2003, the New York Independent System Operator, Inc. (NYISO), submitted corrected tariff sheets to the NYISO's Open Access Transmission Tariff (OATT) originally filed on February 21, 2003. The NYISO has requested that the Commission make the filing effective 90 days after the Commission issues a final order accepting it.
The NYISO states that copies of the filing were served on all parties that have executed Service Agreements under the NYISO's OATT or Services Tariff, the New York State Public Service Commission and to the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice that on March 6, 2003, Minnesota Power tendered for filing with the Federal Energy Regulatory Commission (Commission) Substitute First Revised Sheet Nos. 71, 77, 78 and 79 superseding Original Sheet Nos. 71, 77, 78 and 79 and Original Sheet No. 83 of the Second Revised Rate Schedule FERC No. 136, designated as required by Commission Order No. 614, for wholesale electric service to the City of Hibbing, Minnesota Public Utilities
Take notice that on March 6, 2003, Southern Company Services, Inc., acting on behalf of Alabama Power Company (APC), filed with the Federal Energy Regulatory Commission (Commission), a Notice of Cancellation of the Interconnection Agreement between Tenaska Alabama III Partners, L.P. and APC (Service Agreement No. 338 under Southern Companies' Open Access Transmission Tariff, Fourth Revised Volume No. 5).
APC is requesting an effective date of October 1, 2002.
Take notice that on March 7, 2003, Brookhaven Energy Limited Partnership (Brookhaven Energy), filed with the Federal Energy Regulatory Commission (Commission) an application for approval of its initial tariff (FERC Electric Tariff Original Volume No. 1), and for blanket approval for market-based rates pursuant to part 35 of the Commission's regulations.
Brookhaven Energy states that it is a limited partnership formed under the laws of Delaware and intends to construct, own and operate a 540-MW power generation facility to be located in Brookhaven, New York (Facility). The Facility is expected to begin commercial operation by July 2005.
Take notice that on March 5, 2003, Entergy Services, Inc. (Entergy Services) submitted for filing on behalf of Entergy Arkansas, Inc. (EAI) a 2003 Wholesale Formula Rate Update (Update) in accordance with: (1) The Power Coordination, Interchange and Transmission Service Agreements (PCITA) between EAI and the Cities of Conway, West Memphis and Osceola Arkansas (Arkansas Cities); the cities of Campbell and Thayer, Missouri (Missouri Cities); and the Arkansas Electric Cooperative Corporation (AECC); (2) the Transmission Service Agreement (TSA) between EAI and the City of Hope, Arkansas (Hope); (3) the TSA between EAI and the Louisiana Energy & Power Authority (LEPA); (4) the Wholesale Power Service Agreement (WPSA) between EAI and the City of Prescott, Arkansas (Prescott); and (5) the WPSA between EAI and the Farmers Electric Cooperative Corporation (Farmers). In addition, the distribution rate charged to the City of North Little Rock pursuant to the Network Integration Transmission Service Agreement is also redetermined by this filing. Entergy Services states that the Update redetermines the formula rate charges and the Transmission Loss Factor in accordance with: (1) The above agreements; (2) the 1994 Joint Stipulation between EAI and AECC accepted by the Commission in Docket No. ER95-49-000, as revised by the 24th Amendment to the AECC PCITA on March 26, 1996 in Docket No. ER96-1116; (3) the formula rate revisions accepted by the Commission on February 21, 1995 in Docket No. ER95-393-000, as applicable to the Arkansas Cities, the Missouri Cities, Hope and North Little Rock; (4) the formula rate revisions applicable to LEPA accepted by the Commission on January 10, 1997 in Docket No. ER97-257-000; and (5) the Settlement Agreement accepted by the Commission on July 2, 1999 in Docket No. ER98-2028-000 (the 1998 Formula Rate Update proceeding).
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on March 7, 2003, Mill Run Windpower LLC (Mill Run) and FPL Energy Pennsylvania Wind, LLC (FPL Wind) (collectively Applicants) filed with the Federal Energy Regulatory Commission (Commission) a joint application pursuant to Section 203 of the Federal Power Act for authorization of a disposition of jurisdictional facilities whereby Applicants request approval of the transfer of 100% of the membership interests in Mill Run from Atlantic Renewable Energy Corporation and Zilkha Renewable Energy, LLC to FPL Wind.
Mill Run states that it is engaged exclusively in the business of owning and operating a 15 MW wind-powered electric generating facility located in Springfield and Stewart Townships, Fayette County, Pennsylvania (the Facility), and selling its capacity and energy at wholesale to Exelon Generation Company LLC. The Applicants request privileged treatment by the Commission of the detailed Membership Interest Purchase Agreement between Zilkha Renewable Energy, LLC and FPL Wind which governs the proposed transfer.
Take notice that on March 7, 2003, Brookhaven Energy Limited Partnership (Brookhaven Energy), a Delaware limited partnership with its principal
Brookhaven Energy states that it intends to construct, own and operate a 540-MW power generation facility located in Brookhaven, New York (the Facility). When completed, the Facility will be interconnected to the transmission system of the Long Island Power Authority. The Facility is expected to begin commercial operation by July 2005.
Take notice that on March 7, 2003, Maine Public Service Company (MPS) submitted revisions to its Open Access Transmission Tariff (OATT) to implement an Agreement Regarding Maine Public Service Company's 2002 Informational Filing (Agreement). MPS proposes that the OATT revisions become effective June 1, 2002.
MPS states that copies of this filing were served on the parties to the proceeding, parties to the Settlement Agreement in Docket No. ER00-1053-000, the Commission Trial Staff, the Maine Public Utilities Commission, the Maine Public Advocate, and current MPS open access transmission tariff customers.
Take notice that on March 6, 2003, Duke Energy South Bay, LLC (Duke South Bay) and Duke Energy Oakland, LLC (Duke Oakland) submitted refund reports to the Federal Energy Regulatory Commission (Commission) in response to the Commission's November 21, 2002 Order in the above-referenced Dockets.
Take notice that on March 7, 2003, TXU Pedricktown Cogeneration Company LP (TXU Pedricktown), tendered for filing with the Federal Energy Regulatory Commission (Commission) a correction of its first revised market-based rate tariff (Tariff) that was filed on January 10, 2003. The correction reflects a slight change to paragraph seven (7) “Affiliate Sales Prohibited” of its Tariff to comply with the Commission Staff's request for a language change. TXU Pedricktown is requesting an effective date of December 3, 2002 for its first revised Tariff.
Take notice that on March 7, 2003, Central Maine Power Company (CMP), filed with the Federal Energy Regulatory Commission (Commission), pursuant to Section 205 of the Federal Power Act, and the Commission's February 14, 2003 Letter Order, an unredacted form of the executed S.D. Warren Somerset Entitlement Agreement, effective as of March 1, 2003, and designated as Original FERC Rate Schedule No. 201.
Take notice that on March 7, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) tendered for filing proposed revisions to the Midwest ISO Open Access Transmission Tariff, FERC Electric Tariff, Second Revised Volume No. 1, in compliance with the Commission's Order in Midwest Independent Transmission System Operator Inc., 102 FERC § 61,181 (2003). The Midwest ISO has requested an effective date of 15 days after the Commission rules on whether the Network Integration Transmission Service Agreement between Consumers Energy Company and Michigan Electric Transmission Company dated April 1, 2002 is a Service Agreement under the Midwest ISO OATT or a Grandfathered Agreement under Attachment P of the Midwest ISO OATT.
The Midwest ISO has served copies of its filing on all affected customers. In addition, the Midwest ISO states it has electronically served a copy of this filing, without attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region. In addition, Midwest ISO states that the filing has been electronically posted on the Midwest ISO's Web site at www.midwestiso.org under the heading “Filings to FERC” for other interested parties in this matter. The Midwest ISO states it will provide hard copies to any interested parties upon request.
Take notice that on March 7, 2003, Sierra Pacific Power Company (Sierra Pacific), submitted for filing supplemental information and an amendment to the Power Purchase Agreement (PPA) between Sierra Pacific and its affiliate, Nevada Power Company, that was filed with the Commission in the above-referenced docket on January 17, 2003. Sierra Pacific requested confidential treatment of certain of the supplemental information and expedited consideration of the request for approval of the PPA.
Take notice that on March 7, 2003, Nevada Power Company (Nevada Power), submitted for filing supplemental information regarding five power purchase agreements (PPAs) between Nevada Power and its affiliate, Sierra Pacific Power Company, that were filed in the above-referenced docket on January 17, 2003. Nevada Power requested confidential treatment of certain of the supplemental information and expedited consideration of the request for approval of the PPAs.
Take notice that on March 7, 2003, Automated Power Exchange, Inc. (APX) tendered for filing pursuant to 18 CFR 385.205, an Amended Application for Order Accepting Rate Schedule, Granting Authorizations and Blanket Authority and Waving Certain Requirements. The amended application replaces the application APX filed in this docket on February 26, 2003.
Take notice that on March 7, 2003, Louisville Gas and Electric Company (LG&E)/Kentucky Utilities (KU) (hereinafter Companies) tendered for filing with the Federal Energy Regulatory Commission (Commission) an unexecuted unilateral Service Sales Agreement between Companies and Kansas City Power and Light (KCPL) under the Companies' Rate Schedule MBSS.
Take notice that on March 3, 2003, Cross-Sound Cable Company, LLC (CSC LLC) filed revised procedures for customers to reassign their firm transmission rights over the Cross Sound Cable (CSC). TransÉnergie U.S., Ltd. filed procedures for the reassignment of CSC transmission rights in Docket No. ER00-1-002 on July 3, 2000 in compliance with the Commission's June 1, 2000 order, 91 FERC § 61,230 approving negotiated rates for transmission service over the CSC. CSC LLC requests that the Commission allow the new reassignment right procedures to become effective March 3, 2003.
CSC LLC states that a copy of this filing has been mailed to each person designated on the official service list complied by the Secretary of the Commission in Docket No. ER00-1-002.
Take notice that on March 7, 2003, San Diego Gas & Electric Company (SDG&E) tendered for filing a revised Transmission Owner Tariff (TO Tariff), FERC Electric Tariff, Original Volume No. 10. SDG&E states that the proposed change would increase the charges to End Use Customers by $32.3 million based on the 12-month period ending April 30, 2004.
SDG&E states that the amendment to the TO Tariff is being made so that the TO Tariff will more accurately recover SDG&E's actual transmission revenue requirement. In addition, SDG&E states that it is revising the TO Tariff to adopt a formula rated to derive charges for transmission services. An effective date of May 1, 2003 has been requested for this amendment.
SD&G states that copies of the filing were served on the California Public Utilities Commission, the California Independent System Operator.
Take notice that on March 7, 2003, West Penn Power Company, d/b/a Allegheny Power, filed Addenda to its Electric Service Agreement with PPL Electric Utilities Corporation, formerly Pennsylvania Power & Light Company, to add three delivery points. An effective date for the new delivery points of March 10, 2003 is requested.
West Penn Power Company states that copies of the filing have been provided to the customer, the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Maryland Public Service Commission, the Virginia State Corporation Commission, and the West Virginia Public Service Commission.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of a proposal by National Fuel Gas Supply Corporation (National Fuel) to abandon certain facilities at its Summit Storage Field in Summit Township, Erie County, Pennsylvania.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the abandonment of the proposed facilities. The pipeline company would seek to negotiate a mutually acceptable agreement. However, if the projects are approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the notice National Fuel provided to affected landowners. This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
National Fuel proposes to plug and abandon natural gas storage wells P-
The project area encompasses a total of approximately 1.19 acres of land, including the three well pad work areas and a 35-foot-wide ROW associated with each of the three well lines. Work space will be confined to National Fuel's existing 35-foot-wide permanent ROW and the three wellhead areas. No access roads other than public roadways and roadways within the Summit Heights residential community will be required to complete the proposed project. No improvements to these roads will be required for the proposed activities.
Following completion of the abandonment project, National Fuel would allow the easements associated with the permanent ROWs to revert back to the use of property owners in Summit Heights Mobile Home Park. The construction workspaces would be restored and allowed to revert to their previous land use and vegetative cover.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires the Commission to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission requests public comments on the scope of the issues it will address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
The EA will discuss impacts that could occur as a result of the proposed abandonment project under these general headings:
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas. Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section below.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 3.
• Reference Docket No. CP03-49-000.
• Mail your comments so that they will be received in Washington, DC on or before April 14, 2003.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding.
We may mail the EA for comment. If you are interested in receiving it, please return the Information Request (Appendix 3). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “Intervener.” Interveners play a more formal role in the process. Among other things, Interveners have the right to receive copies of case-related Commission documents and filings by other Interveners. Likewise, each Intervener must provide 14 copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an Intervener you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (
Affected landowners and parties with environmental concerns may be granted
This notice is being sent to individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. It is also being sent to all identified potential right-of-way grantors and residents adjacent to the proposed facilities. By this notice we are also asking governmental agencies, to express their interest in becoming cooperating agencies for the preparation of the EA.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
Take notice that the following hydroelectric license application has been filed with the Commission and is available for public inspection.
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k. Pursuant to Section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian tribe, or person believes that an additional scientific study should be conducted in order to form an factual basis for complete analysis of the application on its merit, the resource agency, Indian tribe, or person must file a request for a study with the Commission not later than 60 days after the application filing and serve a copy of the request on the applicant.
l. Deadline for filing additional study requests and requests for cooperating agency status: April 28, 2003.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
m. The application is not ready for environmental analysis at this time.
n. Project Description: The existing Big Falls Milldam Hydroelectric Project consists of the following facilities: (1) a 256-foot-long by 18-foot-high dam, topped with a 76-foot-long fixed crest ogee with 6-inch flashboards and one 16-foot-wide Taintor gate; (2) a 23.27-acre reservoir (Big Falls Flowage) with a negligible gross storage capacity at a normal elevation of 901.65 feet Mean Sea Level; (3) a 7-foot-diameter by 175-foot-long penstock leading to; (4) a powerhouse containing one, vertical-shaft Francis turbine-generator with an installed generating capacity of 350 kilowatts (kW), producing a total of 1,513,514 kilowatt-hours (kWh) annually; and (5) appurtenant facilities.
o. A copy of the application is on file with the Commission and is available for public inspection. This filing may also be viewed on the web at
p. With this notice, we are initiating consultation with the WISCONSIN STATE HISTORIC PRESERVATION OFFICER (SHPO), as required by § 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
q. Procedural schedule: The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule will be made as appropriate. The Commission staff proposes to issue one environmental assessment rather than issue a draft and final EA. Comments, terms and conditions, recommendations, prescriptions, and reply comments, if any, will be addressed in an EA issued in the spring of 2004.
Take notice that the following review has been initiated by the Commission:
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All documents (original and eight copies) should be filed with: 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.
Please include the docket number (UL03-1-000) on any comments, protests, or motions to intervene filed.
i. Pursuant to Section 23(b)(1) of the Federal Power Act ( FPA), 16 U.S.C. 817(1), a non-federal hydroelectric project must (unless it has a still-valid pre-1920 federal permit) be licensed if it: (1) Is located on a navigable water of the United States; (2) occupies lands of the United States; (3) utilizes surplus water or water power from a government dam; or (4) is located on a body of water over which Congress has Commerce Clause jurisdiction, project construction occurred on or after August 26, 1935, and the project affects the interests of interstate or foreign commerce.
j. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
k. 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, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any protests or motions to intervene must be received on or before the specified comment date for the particular application.
l. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Docket Number of the particular review.
m. Agency Comments—Federal, state, and local agencies are invited to file comments on the described review. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments.
The staff of the Federal Energy Regulatory Commission (Commission), in cooperation with the staff of the Arizona State Office of the U.S. Department of the Interior, Bureau of Land Management (BLM), is issuing this notice to announce the date and location of a public scoping meeting on the proposed Red Lake Gas Storage Project. The Commission staff will be preparing an environmental impact statement (EIS) for Red Lake Gas Storage, L.P.”s project in Mohave County, Arizona. The planned facilities would consist of two solution-mined underground salt caverns, about 52 miles of various diameter pipeline, a 25,000-horsepower (hp) compressor station, a 9,000-hp compressor station, four water withdrawal wells, four brine disposal wells, and appurtenant facilities. The EIS will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity. You are invited to attend the public meeting to enter into the Commission's record any comments you might have. The staff is particularly interested in receiving comments on the alternative pipeline routes identified in its February 28, 2003 notice. Comments received at the scoping meeting will help us to determine the issues to be evaluated in the EIS. The date, time, and location are shown below:
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before April 18, 2003.
Follow the detailed instructions in
Dr. Nicole Owens, National Center for Environmental Economics, Office of Policy, Economics, and Innovation, Mail Code 1809T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 566-2302; fax number: (202) 566-2338; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 28, 2002 (67
EPA has established a public docket for this ICR under Docket ID No. OEI 2002-0011, which is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice, and according to the following detailed instructions: (1) Submit your comments to EPA online using EDOCKET (our preferred method), by e-mail to
EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public 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 EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket,
• Test the quality and effectiveness of the computerized survey instrument in yielding robust estimates for both use and non-use values of improvements to coastal water quality;
• Test the effect of the use of color in computerized survey instruments;
• Test the appropriateness of the design values used in the choice questions;
• Test the effect of a $5 incentive on the response rate;
• Test the effectiveness of the survey administration mode for periodic, panel surveys, and
• Test the effectiveness of the survey administration mode for environmental surveys.
The subject of the survey was chosen for a variety of reasons. First, at this time, no suitable information exists that will allow the estimation of the benefits of statewide or national changes in coastal water quality. Existing studies focus on estimating recreational (use) values for very specific reaches of coastal waters, thus limiting the use of the resulting estimates for benefit transfer and ignoring non-use values completely (
Further development of the survey cannot be completed without a pilot survey. The pilot survey will take place in California using a computerized survey instrument. The survey instrument is specific to the state of California and, depending upon the results of the pilot survey, may be used
The pilot survey is designed to collect information using Knowledge Networks, a survey research firm with a pre-recruited panel of individuals throughout the United States who complete surveys using WebTV. We are requesting permission to conduct a pilot survey of 600 respondents in California. It should be noted, however, that no expectations have been formed regarding the administration mode for future pilots or surveys using this or parallel survey instruments. While we expect to continue using a self-administered computerized format, we plan to explore alternative modes of administration.
The only burden imposed by the pilot survey on respondents will be the time required to complete the survey. Based upon a limited number of cognitive pretest interviews, the survey developers estimate that this will involve an average of 30 minutes per respondents. With a total of 600 respondents for the pilot survey this involves a total of 150 hours. Based on an average hourly rate of $22.15 (including employer costs of all employee benefits), the survey developers expect that the average per-respondent cost for the pilot survey will be $11.08 and the corresponding one-time total cost to all respondents will be $6645.00. This information collection does not involve any special equipment, thus, respondents will not incur any capital or operation and maintenance (O&M) costs.
Responses to the pilot survey will be voluntary. Typically, panel members are free to choose whether or not to respond to any particular survey as long as they meet survey quotas set in their agreement with the research firm. The survey will fully conform to federal regulations—specifically the Privacy Act of 1974 (5 U.S.C. 552a), the Hawkins-Stafford Amendments of 1988 (Pub. L. 100-297), and the Computer Security Act of 1987.
The pilot survey data will be collected and stored electronically by the survey research firm, and all identifying information will be removed by the survey research firm prior to transfer to EPA. EPA will perform all data analyses used to determine the efficacy of this survey instrument for estimating the values associated with improved coastal water quality.
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, and are identified on the form and/or instrument, if applicable.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection as described below.
Comments must be submitted on or before May 19, 2003.
Follow the detailed instructions as provided in Unit I.B. of the
Craig Dufficy, Office of Solid Waste, (5306W), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-9037; fax number: (703) 308-8686; email address:
A. The groups affected by the requirements in part 258 are owners or operators of new Municipal Solid Waste Landfills (MSWLF), existing MSWLFs, and lateral expansions of existing MSWLFs. These owners or operators could include Federal, State, and Local governments, and private waste management companies. Facilities in the following SIC codes may be affected by this rule listed in the table below:
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You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as Confidential Business Information (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.
For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
Any comments related to this ICR should be submitted to EPA and OMB within 60 days of this notice, and according to the following detailed instructions: (1) Submit your comments to EPA online using EDOCKET (our preferred method), by e-mail to
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Send by Hand Delivery or Courier the information identified as CBI only to the following address: Regina Magbie, RCRA DCO, 2800 Crystal Drive, 7th Floor, Arlington, VA 22202, Attention: Docket ID No. RCRA-2003-0008. 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 identified in the
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 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 your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collections of information are 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 estimates of the burdens of the proposed collections of information.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collections of information on those who are to respond, including through the use of appropriate automated or electronic collection technologies or other forms of information technology,
Environmental Protection Agency (EPA).
Notice
EPA is announcing the availability of approximately $500,000 in fiscal year 2003 grant/cooperative agreement funds under section 20 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) as amended. This funding is for grants to States and federally recognized Native American Tribes for research, public education, training, monitoring, demonstrations, and studies that advance pesticide risk reduction.
Applications must be received by the appropriate EPA Regional Office on or before May 16, 2003. EPA will make its award decisions by June 20, 2003.
Your EPA Regional PESP Coordinator listed under Unit V. of this notice.
This action is directed to the public in general but will be of particular interest to eligible applicants which include the 50 States, District of Columbia, U.S. Virgin Islands, Commonwealth of Puerto Rico, any territory or possession of the United States, any agency or instrumentality of a State including State universities, and all federally recognized Native American Tribes. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult your EPA Regional PESP Coordinator listed under Unit V. of this notice.
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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.
3.
With this publication, EPA is announcing the availability of approximately $500,000 in grant/cooperative agreement funds for FY'03. The Agency has delegated grant making authority to the EPA Regional Offices. Federal funding is limited to $40,000 per project and matching funds are not required. Projects which leverage funding from other sources are encouraged.
In accordance with the Act, “. . . Federal agencies, universities, or others as may be necessary to carry out the purposes of the act, . . .” are eligible to receive funding. Restrictions on the funds appropriated for this program limit the eligible applicants to the 50 States, District of Columbia, U.S. Virgin Islands, Commonwealth of Puerto Rico, any territory or possession of the United States, any agency or instrumentality of a State including State universities, and all federally recognized Native American Tribes. The term “State” in this notice refers to all eligible applicants.
Local governments, private universities, private nonprofit entities, private businesses, and individuals are not eligible. EPA encourages organizations excluded from applying directly to work with eligible applicants in developing proposals that include them as participants in the projects. Contact your EPA Regional PESP Coordinator for assistance in identifying and contacting eligible applicants.
The goal of PESP is to reduce the risks associated with pesticide use in agricultural and non-agricultural settings in the United States. The purpose of the grant program is to support projects that address this goal. Pesticide pollution prevention, integrated pest management (IPM), IPM in schools, children's health issues related to pesticides, and those research methods for documenting IPM adoption or the reduction of risks associated with changes in pesticide use will receive priority consideration. Other projects will be considered as they complement these goals through public education, training, monitoring, demonstrations, and other activities.
EPA specifically seeks to build IPM capacities or to evaluate the economic feasibility of new IPM approaches at the local level (i.e., innovative approaches and methodologies that use application or other strategies to reduce the risks associated with pesticide use). Projects might focus on, for example:
• Researching the effectiveness of multimedia communication activities for; including but not limited to: promoting local IPM activities, providing technical assistance to pesticide users; collecting and analyzing data to target outreach and technical assistance opportunities; developing measures to determine and document progress in pollution prevention; and identifying regulatory and non-regulatory barriers or incentives to pollution prevention.
• Researching methods for establishing IPM as an environmental management priority, establishing prevention goals, developing strategies to meet those goals, and integrating the ethic within both governmental and non-governmental institutions of the State or region.
• Initiating research or other projects that test and support: Innovative techniques for reducing pesticide risk or using pesticides in a way to reduce risk, and innovative application techniques to reduce worker and environmental exposure.
• Implementing reduced-risk pest management programs with special considerations of the impact to human health, water and/or air quality, or ecosystem processes. A list of projects funded since FY'98 and their proposals may be obtained at http://www.epa.gov/oppbppd1/PESP/regional_grants.htm or from your Regional PESP Coordinator.
EPA Regional Offices are responsible for the solicitation, screening, and selection of proposals for funding. A generic request for proposal will be available on EPA's website on or before March 26, 2003, at http://www.epa.gov/oppbppd1/PESP/regional_grants.htm. Interested applicants must contact the appropriate EPA Regional PESP Coordinator to obtain specific instructions, regional criteria, guidance, and format for submitting proposals. Proposals will be evaluated based on the following criteria:
1. Qualifications and experience of the applicant relative to the proposed project.
• Does the applicant demonstrate experience in the field of the proposed activity?
• Does the applicant have the properly trained staff, facilities, or infrastructure in place to conduct the project?
2. Consistency of proposal with the risk reduction goals of PESP.
3. Does the project provide for a quantitative or qualitative evaluation of achieving the stated goals?
• Is the project designed in such a way that it is possible to measure and document the results quantitatively and qualitatively?
• Does the applicant identify the method that will be used to measure and document the results quantitatively and qualitatively?
4. Likelihood the project can be replicated to benefit other communities or the product may have broad utility to a widespread audience. Can this project, taking into account typical staff and financial restraints, be replicated by similar organizations in different locations to address the same or similar problem?
The awarding of FY'03 funds will be managed through the EPA Regional Offices. Quality Assurance/Quality Control plans may be required, depending on the nature of the project and the data collected. Contact your Regional PESP Coordinator for more information about this requirement.
Region I: (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont), Andrea Szylvian, 1 Congress St., Suite 1100, (CPT), Boston, MA 02114-2023; telephone: (617) 918-1198; e-mail: szylvian.andrea@epa.gov.
Region II: (New Jersey, New York, Puerto Rico, Virgin Islands), Tara
Region III: (Delaware, Maryland, Pennsylvania, Virginia, West Virginia, District of Columbia), Fatima El-Abdaoui, 1650 Arch St., (3WC32), Philadelphia, PA 19103-2029; telephone: (215) 814-2129; e-mail: el-abdaoui.fatima@epa.gov.
Region IV: (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee), Troy Pierce, 61 Forsyth St., SW., Atlanta, GA 30303-8960; telephone: (404) 562-9016; e-mail: pierce.troy@epa.gov.
Region V: (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin), Heather McDonald, 77 W Jackson Blvd., (DT-8J), Chicago, IL 60604-3507; telephone: (312) 886-3572; e-mail: mcdonald.heather@epa.gov.
Region VI: (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), Jerry Collins, 1445 Ross Ave., Suite 1200, (6PD-P), Dallas, TX 75202-2733; telephone: (214) 665-7562; e-mail: collins.jerry@epa.gov.
Region VII: (Iowa, Kansas, Missouri, Nebraska), Brad Horchem, 901 N 5th St., (WWPDPEST), Kansas City, KS 66101; telephone: (913) 551-7137; e-mail: horchem.brad@epa.gov.
Region VIII: (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming), Peg Perreault, 999 18th St, Suite 300, (8P-P3T), Denver, CO 80202-2466; telephone: (303) 312-6286; e-mail: perreault.peg@epa.gov.
Region IX: (Arizona, California, Hawaii, Nevada, American Samoa, Guam), Paul Feder, 75 Hawthorne St., (CMD-1), San Francisco, CA 94105; telephone: (415) 947-4160; e-mail: feder.paul@epa.gov.
Region X: (Alaska, Idaho, Oregon, Washington), Sandy Halstead, 24106 North Bunn Road, Prosser, WA 99350; telephone: (509) 786-9225; e-mail: halstead.sandra@epa.gov.
Environmental protection, Pesticides, Risk reduction.
Environmental Protection Agency (EPA).
Notice.
EPA Region 6 is soliciting Initial Proposals (IP) from State water pollution control agencies, interstate agencies, other public or nonprofit agencies, institutions, organizations, and other entities as defined by the Clean Water Act (CWA) interested in applying for Federal assistance for Water Quality Cooperative Agreements under the CWA section 104(b)(3) in the States of Arkansas, Louisiana, New Mexico, Oklahoma and Texas. Region 6 EPA will award an estimated $1 million to eligible applicants through assistance agreements ranging in size, on average, from $40,000 up to $200,000 (Federal) for innovative projects/demonstrations/studies that can be used as models relating to the prevention, reduction, and elimination of water pollution. From the IPs received, EPA estimates up to10 to 12 projects may be selected to submit full applications. The Agency reserves the right to reject all IPs and not make awards. A request for proposals for tribal governments will be issued under a separate notice.
EPA will consider all proposals received on or before 12 p.m. midnight central standard time May 5, 2003. IPs received after the due date will not be considered for funding.
IPs should be mailed to: Terry Mendiola (6WQ-AT), U.S. Environmental Protection Agency, Region 6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, Texas 75202-2733. Overnight delivery may be sent to the same address.
Terry Mendiola by telephone at 214-665-7144 or by e-mail at
EPA Region 6's Water Quality Protection Division is requesting proposals from State water pollution control agencies, interstate agencies, other public or nonprofit agencies, institutions, organizations, and other entities as defined by the CWA for unique and innovative projects that address the National Pollutant Discharge Elimination System (NPDES) program with special emphasis on concentrated animal feeding operations (CAFO) permitting, sanitary sewer overflow (SSO) impact studies, watershed integration through NPDES, homeland security, and promotion of “good data” efforts to support NPDES decisions, as well as, water quality projects relating to water quality standards, assessment methods, and reporting, ecoregion and subregion delineation, and improved approaches to total maximum daily load (TMDL) modeling.
An organization whose IP is selected for Federal assistance must complete an EPA Application for Assistance, including the Federal SF-424 form (Application for Federal Assistance,
WQCAs awarded under section 104(b)(3) may only be used to conduct and promote the coordination and acceleration of activities such as research, investigations, experiments, training, education, demonstrations, surveys, and studies relating to the causes, effects, extent, prevention, reduction, and elimination of water pollution. These activities, while not defined in the statute, advance the state of knowledge, gather information, or transfer information. For instance, “demonstrations” are generally projects that demonstrate new or experimental technologies, methods, or approaches and the results of the project will be disseminated so that others can benefit from the knowledge gained. A project that is accomplished though the performance of routine, traditional, or established practices, or a project that is simply intended to carry out a task rather than transfer information or advance the state of knowledge, however worthwhile the project may be, is not a demonstration. Research projects may include the application of the practices when they contribute to learning about an environmental concept or problem.
EPA Region 6 has identified several subject areas for priority consideration. EPA will award WQCAs for research, investigations, experiments, training, demonstrations, surveys and studies related to the causes, effects, extent, prevention, reduction, and elimination
Demonstration of treatment/reuse/disposal technologies and controls that are designed to reduce CAFO-based nutrients in watersheds, with a demonstration of amount of loading reductions from those technologies,
The following specific criteria will be used to evaluate this priority area:
• Demonstrate treatment/reuse/disposal technologies and controls through testing and/or modeling.
• Report on the efficiencies.
Demonstration of nutrient indicator tracing in CAFO dominated, nutrient impaired watersheds,
The following specific criteria will be used to evaluate this priority area:
• Demonstrate nutrient indicator tracing in CAFO dominated, nutrient impaired watersheds, with identification and differentiation of sources of animal/CAFO wastes from human wastes.
Impact studies and/or innovative implementation processes to control SSOs. Innovative pilot projects associated with collection systems and treatment facilities at the headworks for POTWs, to demonstrate the impact to water quality in receiving waters from control technologies on SSOs,
The following specific criteria will be used to evaluate this priority area:
• Overall cost analysis of technologies or controls to implement on a full or larger scale, estimated O&M costs, and a technical evaluation of treatment, based on mass and volume. Biochemical oxygen demand, total suspended solids, and pathogen evaluations are essential, along with other pertinent pollutant identification and evaluation.
Development of innovative permit tool(s) supporting watershed-based permitting activities for specific parameters. Establish a technique for identifying all dischargers and their respective contribution levels for parameter(s) of concern within an impaired watershed. Should determine the overall impact of point and non-point dischargers on receiving waters. Pollutant data for water quality parameters, such as nutrients, dissolved oxygen, fecal coliform, etc., could be used in the development of a model (such as self-implementing general permits) for permitting activities. The model may incorporate unique permitting approaches including effluent trading scenarios (in accordance with the Water Quality Trading Policy, January 13, 2003), which may be implemented in the general permit for specific water quality parameters.
The following specific criteria will be used to evaluate this priority area:
• Include consideration of all waterbodies in a watershed.
• Include consideration of all point sources.
• Consider net contribution of non-point sources in aggregate effects.
• Provide aggregate water quality modeling which determines aggregate affects in the watershed.
Studies of ability of conventional or innovative wastewater treatment plant processes to effectively treat, remove, or render harmless biological, chemical, or radiological agents, which could be introduced into the collection or treatment system.
Development of models for hardening of collection systems, lift stations, and wastewater treatment plant processes to prevent introduction of harmful biological, chemical, or radiological agents.
The following specific criteria will be used to evaluate this priority area:
• Actual performance data of processes vs. technical predictions of performance.
• Enhanced security procedure models and development of model emergency operating plans.
Survey of laboratories to identify inconsistencies, errors, and adherence to appropriate QA/QC for whole effluent toxicity (WET) testing and test organism culturing.
The following specific criteria will be used to evaluate this priority area:
• Surveying a sampling of the major laboratories in Region 6, which perform whole effluent toxicity (WET) testing for NPDES permittees.
• A minimum of six laboratories shall be surveyed/audited.
• Investigation shall be performed in accordance with “Manual for the Evaluation of Laboratories Performing Aquatic Toxicity Testing EPA/600/4-90/031”, all sampling and testing conditions normally required in NPDES permits issued in EPA Region 6, and requirements contained in 40 CFR part 136 for purposes of ensuring compliance with State narrative criteria for the protection of aquatic life.
Estimation of the extent of waters supporting their designated beneficial uses, and determination of causes of impairment, based on a core set of indicators of ecological condition and environmental stressors. Biological measures should form the primary basis for assessing attainment of the aquatic life use with chemical, physical, and watershed measurements used to assess and rank the relative importance of stressors.
The following specific criteria will be used to evaluate this priority area:
• Mechanisms to evaluate the interrelationships between biological assemblages, ambient water chemistry, fish tissue contaminants, physical habitat, and/or watershed characteristics.
• Offer the potential to improve a State's approaches to make decisions about whether or not water quality standards are being attained.
• Apply a probabilistic approach to site selection to support estimates of conditions across an entire study area.
• Result in the ability to compare environmental indicator data across State and regional boundaries for ambient and reference conditions.
• Offer the potential to improve a State's approach to estimate the extent of waterbody impairment statewide.
Development of effects based nutrient criteria and assessment methods, based on the relationship(s) between evidence of impairment of biological integrity, and/or other response indicators, and instream nutrient concentrations observed at reference waterbodies.
The following specific criteria will be used to evaluate this priority area:
• Demonstrate approaches or provide tools that may be applied in other areas.
• Apply the latest scientific approaches or innovative techniques to establish and validate the relationship(s) between elevated nutrient concentrations and indicator response.
• Result in recommendations for numeric water quality criteria standards
• Include mechanisms for technology transfer.
Development of best management practice (BMP) performance equations and/or statistical tools to assist in evaluation of waterbody recovery, based on a study of the physical, chemical, and biological processes governing the stochastic properties of pollutants in the environment. The project may lead to TMDL development, implementation, and/or water quality trading on a watershed basis.
The following specific criteria will be used to evaluate this priority area:
• Description of methods to be used to quantify the uncertainty in load estimates and load allocations, and/or the effectiveness of individual BMPs.
• Development of tools that may be transferred to meet the needs of others faced with developing TMDLs or monitoring waterbody recovery.
Ecoregion and subregion delineation providing an improved basis for waterbody classification, supporting definition of water quality management goals and expectations, development of water quality standards, and water quality monitoring and assessment.
The following specific criteria will be used to evaluate this priority area:
• Conducted in Louisiana, New Mexico, or Oklahoma.
• High degree of coordination among natural resource and environmental management agency scientists.
• Result in completion of ecoregion and subregion boundaries and descriptions for an entire state.
• Conducted using methods comparable to those employed in other states by the EPA Office of Research and Development, National Health and Environmental Effects Research Laboratory, to achieve level IV subregionalization.
• Result in a nationally consistent set of subregion management units.
Funding is authorized under the provisions of the CWA sec. 104(b)(3), 33 U.S.C. 1254(b)(3).
The regulations governing the award and administration of Water Quality Cooperative Agreements are in 40 CFR part 30 (for institutions of higher learning, hospitals, and other nonprofit organizations) and 40 CFR part 31 (for States, local governments, and interstate agencies).
Applicants requested to submit a full application will be required to comply with Intergovernmental Review requirements (40 CFR part 29) and the Quality Assurance requirements (40 CFR part 30.54 and 31.45) if projects involve environmentally related measurements or data generation.
Total funding available for award by Region 6 is dependent on EPA's appropriation for Fiscal Year 2003; however, it is estimated that $1 million, including the tribal allocation, will be available for funding approved projects. The average size of an award is anticipated to be approximately $100,000. A minimum match of five percent will be required for all approved projects and should be included in the total funding requested for each proposal submitted.
Construction projects, except for the construction required to carry out a demonstration project, and acquisition of land are not eligible for funding under this program. New or on-going programs to implement routine environmental controls are not eligible for funding under this program.
IPs should be no more than three pages with a minimum font size of 10 pitch in Wordperfect/Word or equivalent. Failure to follow the format or to include all requested information could result in the IP not being considered for funding. Full application packages should not be submitted at this time. It is recommended that confidential information not be included in this IP. The following format should be used for all IPs:
The match is based on the total project cost not the Federal amount. To determine a proposed minimum match of 5%, use the following example:
The Federal amount is 95% of T, therefore:
If the total project cost is $26,316, then:
EPA Region 6 will award WQCA on a competitive basis and evaluate IPs based on the specific criteria listed in each priority area and the following general criteria:
• Adequacy of proposal, including the relationship of the proposed project to the priorities identified in this notice, innovation of project proposal and level of multi-organizational support, if needed. (10 points)
• Compliance with proposal format/guidance, including how well the proposal follows the solicitation notice, clearly defined milestones/schedule and clearly identified deliverables. (5 points)
• Cost effectiveness/likelihood of success of the proposal, including adequacy of resources committed to project/realistic budget, realistic implementation schedule and clearly defined measures of success that are reasonably attainable. (5 points)
• Applicant's past performance, if applicable. (3 points)
The IPs will be evaluated by regional staff in a two phased approach. Initially, each IP will be evaluated against the specific criteria listed under the priority area for which it was submitted. In order for the IP to be considered in the second evaluation phase, it must address, at a minimum, ALL the specific criteria listed under the priority area. In the second phase, each IP will be evaluated against the general criteria listed above for a possible total score of 20. Points will be taken away for poor past performance if knowledge of applicant's past performance is available to EPA.
Final selection of IPs will be made by the Director of Water Quality Protection Division, EPA Region 6. Selected
It is expected that unsuccessful applicants will be notified in writing.
Eligible applicants for assistance agreements under section 104(b)(3) of the CWA are State water pollution control agencies, interstate agencies, other public or nonprofit agencies, institutions, organizations, and other entities as defined by the CWA. IPs received for projects outside of Region 6 will not be considered.
Please mail three copies of the IP(s).
Procedures located in 40 CFR part 30.63 and 30.70 apply.
It is expected that all the awards under this program will be cooperative agreements. States and interstate agencies meeting the requirements in 40 CFR part 35.504 may include the funds for WQCA in a Performance Partnership Grant (PPG) in accordance with the regulations governing PPGs in 40 CFR part 35, subparts A and B. For States and interstate agencies that choose to do so, the regulations provide that the workplan commitments that would have been included in the WQCA must be included in the PPG workplan.
A description of the Agency's substantial involvement in cooperative agreements will be included in the final agreement.
This is the estimated schedule of activities for submission, review of proposals and notification of selections:
May 5, 2003—Proposals due to EPA.
July 2, 2003—Initial approvals identified and sponsors of projects selected for funding will be requested to submit a formal application package.
A list of selected projects will be posted on the Region 6 Water Quality Protection Division, Assistance Programs Branch Web site
Environmental Protection Agency (EPA)
Notice of public meetings.
This notice announces a public meeting to gather comments from expert scientists and others on in vivo and in vitro-testing protocols for metals which may be applicable at cleanup activities. The 2003 U.S. EPA Bioavailability Workshop will be a 2-day meeting (4 half-day panel sessions) to provide the EPA with expert technical opinions specific to applications of bioavailability measurements for human health risk assessment. The EPA expects to use information presented during this workshop in its efforts to establish the most scientifically-sound approach to utilizing bioavailability measurements at contaminated sites. National experts will participate through presentations and panel discussions. Candid scientific discussion will be encouraged among invited scientists and the workshop audience. A contractor will collect summary notes and comments during the presentations. No formal publication is anticipated although individual authors and presenters may submit manuscripts to journals after presenting the data to EPA. This meeting is being sponsored by EPA's Office of Solid Waste and Emergency Response, the Science Policy Council of EPA's Office of Research and Development, EPA Region 7 and EPA Region 8. There is no charge for attending the conference.
The workshop will be held on April 15 and 16, 2003. The workshop hours will be from 8:30 am to 4 pm on April 15 and from 8 am to 3 pm on Wednesday, April 16.
The workshop will be held at the Safety Harbor Resort, 105 N. Bayshore Drive, Tampa, Florida, 34695. To attend the workshop as an observer, contact Syracuse Research Corp. (SRC) by electronic mail, or by telephone. The electronic registration web site is at
For general information, contact the RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In the Washington, DC metropolitan area, call 703-412-9810 or TDD 703-412-3323. For more detailed technical information on this conference call Richard Troast (703-603-8805) Office of Emergency and Remedial Response, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 5204G. Information concerning the meeting (including agenda, speaker list, and registration) is available online at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA), Science Advisory Board (SAB), Drinking Water Committee (DWC), a Federal Advisory Committee, is announcing a public meeting.
The meeting will begin on Friday, April 11, 2003, at 9 a.m. (Eastern Time) and adjourn no later than 5:30 p.m. that day.
The meeting will be held in Washington, DC. Location of the meeting will be announced on the SAB Web site,
Any member of the public wishing further information concerning this meeting must contact Dr. James Rowe, Designated Federal Officer, USEPA Science Advisory Board (1400A), Suite 6450, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone/voice mail at (202) 564-6488; fax at (202) 501-0582; or via e-mail at
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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 by registrants to voluntarily cancel certain pesticide registrations.
Unless a request is withdrawn by the registrant before September 15, 2003, the Agency will approve these cancellations and the cancellations will become effective on September 15, 2003.
Diane Isbell, Special Review and Reregistration Division 7508C, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8154; e-mail address: isbell.diane@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
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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 cancel three pesticide products registered under section 3 of FIFRA. These registrations are listed in sequence by registration number in Table 1 of this unit.
Unless a request is withdrawn by the registrant within 180 days of publication of this notice, orders will be issued canceling all of these registrations. Users of these pesticides or anyone else desiring the retention of a registration should contact the applicable registrant directly during this 180-day period.
Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 of this unit, 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 canceled. FIFRA 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 cancellation must submit such withdrawal in writing to the person listed under
In accordance with the Phosmet Interim Reregistration Eligibility Decision (IRED) document, dated October 30, 2001, and the Memorandum of Agreement signed by Gowan Company on October 20, 2001, the following two products, as identified in Table 1, are prohibited from sale: EPA Reg. Nos. 10163-167 and 28293-15. In addition, Wellmark International is prohibited from selling or distributing existing stocks of phosmet product EPA Reg. No. 2724-169, after March 30, 2003.
Wellmark International signed an Agreement where the signatory, and non-signatory registrants agreed to: Stop formulating phosmet product (EPA Reg. No. 2724-169) for the dog use on August 30, 2002; and stop sales of the product on March 30, 2003. Sales of the subject product at the retail level can continue until supplies are exhausted; and existing stocks of phosmet technical not formulated into the dog use product will be used to formulate livestock use products.
This is in accordance with the Agency's statement of policy as prescribed in the
Existing stocks are those stocks of registered pesticide products which are currently in the United States and which have been packaged, labeled, and released for shipment prior to the effective date of the cancellation action. Unless the provisions of an earlier order apply, existing stocks already in the hands of dealers or users can be distributed, sold, or used legally until they are exhausted, provided that such further sale and use comply with the EPA-approved label and labeling of the affected product. Exception to these general rules will be made in specific cases when more stringent restrictions on sale, distribution, or use of the products or their ingredients have already been imposed, as in a Special Review action, or where the Agency has identified significant potential risk concerns associated with a particular chemical.
Environmental protection, organophosphate, pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice, pursuant to section 4(g)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), concludes the comment period for the Reregistration Eligibility Decision (RED) for triallate. No comments were received for triallate.
Dirk V. Helder, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-4610; fax number: (703) 308-8041; e-mail address: helder.dirk@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal
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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 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 constitutes and announces the closing of the comment period for the triallate RED. The Agency published a notice in the
A copy of the triallate RED can be found under docket control number OPP-34226A or on the EPA website at http://www.epa.gov/pesticides/reregistration/status.htm.
The legal authority for this RED falls under FIFRA, as amended in 1988 and 1996. Section 4(g)(2)(A) of FIFRA directs that, after submission of all data concerning a pesticide active ingredient, “the Administrator shall determine whether pesticides containing such active ingredients are eligible for reregistration,” and either reregister products or take “other appropriate regulatory action.”
Environmental protection, Pesticide Tolerances.
Environmental Protection Agency (EPA).
Notice.
This notice, pursuant to section 4(g)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), concludes the 30-day comment period for the Tolerance Reassessment Progress and Interim Risk Management Decision (TRED) for fenbutatin-oxide. No comments were submitted. These tolerances are now reassessed and considered safe under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA).
Beth Edwards, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5400; fax number: (703) 308-8041; e-mail address: edwards.beth@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or the Federal Food, Drug, and Cosmetic Act (FFDCA); environmental, human health, and agricultural advocates; pesticide users; and the public interested in the use of pesticides. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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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 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.
EPA issued a notice published in the
In reviewing these tolerances, the Agency must consider, among other things, aggregate risks from non-occupational sources of pesticide exposure, whether there is increased susceptibility to infants and children, and the cumulative effects of pesticides with a common mechanism of toxicity. The tolerances are considered reassessed once the safety finding has been made that aggregate risks are not of concern. A reregistration eligibility decision (RED) was completed for fenbutatin-oxide in June 1996, prior to FQPA enactment, and therefore needed an updated assessment to consider the provisions of the Act.
The authority for this TRED is found in section 408(q) of the FFDCA, 21 U.S.C. 346a(q). Section 408(q) requires EPA to review tolerances and exemptions for pesticide chemical residues in effect of August 2, 1996, to determine whether the tolerance or exemption meets the requirements of 408(b)(2) or (c)(2). This review is to be completed by Agust 3, 2006.
Environmental protection, Pesticide Tolerances.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed agreement and covenant not to sue concerning the Tinkham's Garage Superfund site in Londonderry, New Hampshire with the following settling party: Gilcreast Realty Holdings II, LLC. The settlement requires the settling parties to pay $25,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling parties pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection with the Regional Docket Clerk, U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Mailcode RCG, Boston, Massachusetts (U.S. EPA Docket No. CERCLA 01-2003-0012).
Comments must be submitted on or before April 18, 2003.
The proposed settlement is available for public inspection with the Regional Docket Clerk, One Congress Street, Boston, Massachusetts. A copy of the proposed settlement may be obtained from RuthAnn Sherman, U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Mailcode SES, Boston, Massachusetts 02214, (617) 918-1886. Comments should reference the Tinkham's Garage Superfund Site, Londonderry, New Hampshire, and EPA Docket No. 01-2003-0012 and should be addressed to the Docket Clerk, U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Mailcode RCG, Boston, Massachusetts 02214.
RuthAnn Sherman, U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Mailcode SES, Boston, Massachusetts 02214, (617) 918-1886.
Environmental Protection Agency.
Notice of availability.
This notice announces the availability of EPA decisions identifying water quality limited segments and associated pollutants in Arkansas to be listed pursuant to Clean Water Act section 303(d), and requests public comment. Section 303(d) requires that States submit and EPA approve or disapprove lists of waters for which existing technology-based pollution controls are not stringent enough to attain or maintain State water quality standards and for which total maximum daily loads (TMDLs) must be prepared.
On March 10, 2003, EPA partially approved and partially disapproved
EPA is providing the public the opportunity to review its decisions to add waters and pollutants to Arkansas' 2002 section 303(d) list, as required by EPA's Public Participation regulations (40 CFR part 25). EPA will consider public comments in reaching its final decisions on the additional water bodies and pollutants identified for inclusion on Arkansas' final list.
Comments must be submitted in writing to EPA on or before April 18, 2003.
Comments on the decisions should be sent to Ellen Caldwell, Environmental Protection Specialist, Water Quality Protection Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, TX 75202-2733, telephone (214) 665-7513, facsimile (214) 665-6490, or email:
Ellen Caldwell at (214) 665-7513.
Section 303(d) of the Clean Water Act (CWA) requires that each State identify those waters for which existing technology-based pollution controls are not stringent enough to attain or maintain State water quality standards. For those waters, States are required to establish TMDLs according to a priority ranking.
EPA's Water Quality Planning and Management regulations include requirements related to the implementation of section 303(d) of the CWA (40 CFR 130.7). The regulations require States to identify water quality limited waters still requiring TMDLs every two years. The list of waters still needing TMDLs must also include priority rankings and must identify the waters targeted for TMDL development during the next two years (40 CFR 130.7). On March 31, 2000, EPA promulgated a revision to this regulation that waived the requirement for States to submit section 303(d) lists in 2000 except in cases where a court order, consent decree, or settlement agreement required EPA to take action on a list in 2000 (65 FR 17170).
Consistent with EPA's regulations, Arkansas submitted to EPA its listing decisions under section 303(d) on September 5, 2002. On March 10, 2003, EPA approved Arkansas' listing of 76 waters and associated priority rankings. EPA disapproved Arkansas' decisions not to list 52 water quality limited segments and associated pollutants. EPA identified these additional waters and pollutants along with priority rankings for inclusion on the 2002 section 303(d) list. EPA solicits public comment on its identification of 52 additional waters and associated pollutants for inclusion on Arkansas' 2002 section 303(d) list.
Environmental Protection Agency (EPA).
Notice of availability.
This notice corrects unintentional scriveners' errors concerning the final agency action on nine (9) waterbody/pollutant combinations in the Louisiana Ouachita and Calcasieu river basins. On February 14, 2002, EPA proposed to delist five (5) waterbody/pollutant combinations because Total Maximum Daily Loads (TMDLs) were not needed. In response to comments and further review, EPA determined that TMDLs were indeed warranted for these waterbody/pollutant combinations and published a notice at 67 FR 40738 (June 13, 2002) that these TMDLs had been established. These waterbody/pollutant combinations also were incorrectly published on that same date at 67 FR 40737 as determinations that TMDLs were not needed. Documents from the administrative record files for the 5 TMDLs, including TMDL calculations and responses to comments may be viewed at
At 67 FR 15196 (March 29, 2002) EPA published a draft TMDL for a number of waterbody/pollutant combinations in the Calcasieu Estuary. Based on comments received, EPA determined that it was not appropriate to establish TMDLs for four (4) of these waterbody/pollutant combinations. These four (4) waterbody/pollutant combinations were erroneously indicated in the Final Agency Action as having TMDLs established at 67 FR 40735 (June 13, 2002). In fact, TMDLs were not established for these waterbody/pollutant combinations.
Documents from the administrative record files may be obtained by writing or calling Ms. Ellen Caldwell, Environmental Protection Specialist, Water Quality Protection Division, U.S. Environmental Protection Agency Region 6, 1445 Ross Ave., Dallas, TX 75202-2733. Please contact Ms. Caldwell to schedule an inspection.
Ellen Caldwell at (214) 665-7513.
In 1996, two Louisiana environmental groups, the Sierra Club and Louisiana Environmental Action Network (plaintiffs), filed a lawsuit in Federal Court against the EPA, styled
March 13, 2003.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a current valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before May 19, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
For additional information or copies of the information collection(s) contact Les Smith at 202-418-0217 or via the Internet at
OMB Control Number: 3060-0750.
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 2, 2003.
Board of Governors of the Federal Reserve System, March 13, 2003.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC Reports Clearance Officer on (404) 498-1210. CDC is requesting an emergency clearance for this data collection with a two week public comment period. CDC is requesting OMB approval of this package 7 days after the end of the public comment period.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 14 days of this notice.
This project is designed to provide a systematic and consistent mechanism to review requests that come to CDC for Select Agents. In light of current Bioterrorism concerns and the significant NIH grant monies being directed toward Select Agent research, NCID anticipates the receipt of hundreds of requests for Select Agents. Applicants will be expected to complete an application form in which they will
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for PRECEDEX and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent that claims that human drug product.
Submit written comments and petitions 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.
Claudia Grillo, Office of Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3460.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product PRECEDEX (dexemedetomidine). PRECEDEX is indicated for sedation of adult patients in the intensive care unit setting. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for PRECEDEX (U.S. Patent No. 4,910,214) from Orion Corp., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated April 26, 2002, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of PRECEDEX represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for PRECEDEX is 3,894 days. Of this time, 3,529 days occurred during the testing phase of the regulatory review period, while 365 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 3,919 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Dockets Management Branch (see
Comments and petitions should be submitted to the Dockets Management Branch. Three copies of any information are to be submitted, except that individuals may submit one copy, identified with the docket number found in brackets in the heading of this document. Comments and petitions may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for TOPAMAX and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Commissioner of Patents and Trademarks, Department of Commerce, for the extension of a patent that claims that human drug product.
Submit written comments and petitions 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.
Claudia V. Grillo, Office of Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3460.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted, as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product TOPAMAX (topiramate). TOPAMAX is indicated as adjunctive therapy in the treatment of adults with partial onset seizures. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for TOPAMAX (U.S. Patent No. 4,513,006) from McNeilab, Inc., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated May 2, 2001, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of TOPAMAX represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for TOPAMAX is 3,844 days. Of this time, 2,984 days occurred during the testing phase of the regulatory review period, while 860 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,826 days of patent term extension.
Anyone with knowledge that any of the dates as published is incorrect may submit to the Dockets Management Branch (see
Comments and petitions should be submitted to the Dockets Management Branch (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing a revised guidance for industry entitled “Bioavailability and Bioequivalence Studies for Orally Administered Drug Products—General Considerations.” This guidance revises the guidance of the same name that issued in October 2000.
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of the revised guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your requests. Submit written comments on the guidance 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. See the
Aida L. Sanchez, Center for Drug Evaluation and Research (HFD-650), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-5847.
The agency is announcing the availability of a revised guidance for industry entitled “Bioavailability and Bioequivalence Studies for Orally Administered Drug Products—General Considerations.” This is a revision of the guidance of the same name issued in October 2000. The guidance is intended to provide information to sponsors and/or applicants planning to include bioavailability (BA) and bioequivalence (BE) information for orally administered drug products in investigational new drug applications (INDs), new drug applications (NDAs), and abbreviated new drug applications (ANDAs) and their supplements. Since the October 2000 guidance was issued there have been changes due to the following: (1) Agency thinking based, in part, on input from the Advisory Committee for Pharmaceutical Science, (2) experience with the guidance, and (3) outside comments. Therefore, the agency decided to revise the guidance.
A draft of the revision was published in the
Interested persons may submit to the Dockets Management Branch (see
Persons with access to the Internet may obtain the document at either http://www.fda.gov/cder/guidance/index.htm or http://www.fda.gov/ohrms/dockets/default.htm.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to OMB under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, call the HRSA Reports Clearance Officer on (301) 443-1129.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Division of Facilities and Loans within the Health Resources and Services Administration monitors outstanding direct and guaranteed loans made under section 621 of title VI and section 1601 of title XVI of the Public Health Service Act, as well as loans insured under the section 242 Hospital Mortgage Insurance Program of the National Housing Act. These programs were designed to aid construction and modernization of health care facilities by increasing the access of facilities to capital through the assumption of the mortgage credit risk by the Federal government.
Operating statistics and financial information are collected annually from hospitals with mortgages that are insured under these programs. The
The estimated response burden is as follows:
Send comments to Susan G. Queen, Ph.D., HRSA Reports Clearance Officer, Room 14-45, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Indian Health Service, HHS.
Notice of Availability of Funds for Competitive Grants for Youth Initiatives: Health promotion, intentional and unintentional injury prevention, youth wellness, recreation and education, and mentoring programs for American Indian and Alaska Native (AI/AN) youth.
The Indian Health Service (IHS) announces the availability of approximately $700,000 for competitive grants established under the authority of section 301(a) of the Public Health Service Act, as amended, to be awarded to Tribal, Urban and nonprofit Indian organizations for the support of AI/AN youth. There will be only one funding cycle during Fiscal Year (FY) 2003 (see Fund Availability and Period of Support). This program is described in the
The Public Health Service (PHS) is committed to achieving the health promotion and disease prevention objectives of
Projects will be included in one of two categories: (1) Services assessment, which may include the demographics of Native American children and youth between the ages of 5 and 19, the development of a survey tool of youth services and needs, or the development of assessment tools or interdisciplinary teams; or (2) direct services with a prevention component, which may include the forming of children and youth-specific clinics/services/programs/camps/before and after school programs/recreation programs/programs for at risk youth with an injury prevention focus and/or the fostering of traditional values as well as family and intergenerational activities. This may involve children and youth with special needs, particularly at risk populations such as detained or incarcerated youth, or aftercare for youth in residential treatment programs.
Applications shall be considered as meeting the deadline if they are either: (1) Received on or before the deadline, with hand carried applications received by 5 p.m.; or (2) postmarked on or before the deadline date and received in time to be reviewed along with all other timely applications. A legibly dated receipt from a commercial carrier or the U.S. Postal Service will be accepted as proof of timely mailing. Private metered postmarks will not be accepted as proof of timely mailing. Applications received after the announced closing date will be returned to the applicants and will not be considered for funding.
(a) Application Review Date: June 19, 2003.
(b) Applicants Notified of Results (approved, approved unfunded, or disapproved): June 26, 2003.
(c) Anticipated Start Date: July 1, 2003.
This announcement provides information on the general program goal, eligibility and documentation requirements, programmatic activities, funding availability, period of support, and application procedures.
Documentation of Support:
(a) Tribal Resolutions
(1) A resolution of the Tribe or Tribal organization supporting this specific project must accompany the application submission.
(2) Applications that propose services to benefit more than one Tribe must include resolutions from all Tribes to be served.
(3) Applications from Tribal organizations will not require resolution(s) if the current, operational Tribal resolution(s) encompasses the proposed grant activities. A statement of proof or a copy of the current operational resolution must accompany the application.
(4) If a resolution or a statement is not submitted, the application will be considered incomplete and will be returned without consideration.
(b) Nonprofit organizations must submit a copy of the 501(c) (3) Certificate;
(c) Letters of Cooperation/Collaboration/Assistance
(1) Letters included in the application should be specific to this program.
(2) If other related human services programs are to be involved in the project, letters confirming the nature and extent of their cooperation/collaboration/assistance must be submitted. Indicate if matching funds, cost sharing or in-kind services will be applied.
(a) Demographic projects will identify the health and demographic characteristics of the AI/AN child and youth populations. Inclusion of children and youth with special needs and special populations,
(b) The development of teen-specific clinics/programs (
(c) The education of children and youth, and their communities and their families, is part of the IHS effort to promote awareness of the particular needs of children and youth.
Therefore, proposed projects may plan, execute and demonstrate strategies that incorporate pamphlets, books, workbooks, posters, modules or training sessions, audio, video, educational television network programming, or other media presentations aimed either at the consumer and/or the supporter of youth initiatives.
(a) Follow the outline provided in the announcement as a guide in preparing the application to facilitate the reviewers' ability to find the required information.
(b) Demonstrate how the project will be coordinated with other agencies and organization inside and outside the community that serves the targeted population. Where possible, indicate the use of volunteers, community resources, and family involvement.
(c) Consider Tribal cultural aspects in your program design.
All applications must include the following, in the order presented:
(a) Tribal Resolution(s) and Documentation or 501(c)(3) Certification.
(b) Standard Form 424, Application for Federal Assistance.
(c) Standard Form 424A, Budget Information—Non-Construction Programs (pages 1 and 2).
(d) Standard Form 424B, Assurances—Non-Construction Programs (front and back).
(e) Checklist (pages 25-26) Note: each standard form and the checklist is contained in the PHS Grant Application, Form PHS 5161-1 (Rev. 07/00).
(f) A Project Abstract (may not exceed one typewritten page), which should present a summary view of “who-what-when-where-how-cost” to determine acceptability for review.
(g) A table of contents to correspond with numbered pages.
(h) Project Narrative (10 Pages).
(1) Introduction and Need for Assistance.
(2) Project Objective(s), Approach, and Results and Benefits.
(3) Project Evaluation.
(4) Organizational Capabilities and Qualifications.
(5) Budget.
(i) Appendix to include:
(1) Resumes of key staff.
(2) Position descriptions for key staff.
(3) Organizational chart.
(4) Documentation of current certified financial management systems.
(5) Copy of current negotiated indirect cost rate agreement.
(6) A map of the area to benefit from the project.
(7) Application Receipt Card, IHS-815-1A (Rev. 4/97).
(a) Narrative
The narrative section of the application must include the following:
(1) Justification for the need for assistance;
(2) A work plan (including use of appropriate native healing practices), program objectives, approach, expected results, and evaluation process;
(3) Adequacy of management controls; and
(4) Key personnel.
The work plan section should be project-specific. These instructions for the preparation of the narrative are to be used in lieu of the instructions on page 21 of the PHS 5161-1. The narrative section should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. The narrative may not exceed ten single-spaced pages, excluding attachments, budget and Tribal Resolutions/501(c)(3), and nonprofit certificates/letters of support (pages must be numbered).
(b) Need for Assistance.
(1) Describe and define the target population at the project location (
(2) Describe the existing resources and services available, including the maintenance of Native healing systems, where appropriate, which are related to the specific program/service the applicant is proposing to provide. Supply the name, address, and phone number of a contact person for each.
(3) Describe in detail the needs of the target population and what efforts have been made in the past to meet these needs, collaborative efforts with State/county programs, and availability of program funding from Federal/non-Federal sources).
(4) Summarize the applicable national, IHS, and/or State standards, laws and regulations, such as those in the arenas of safety, school attendance, and child welfare.
(c) Work Plan.
(1) Project Objectives.
(i) State concisely the objectives of the project.
(ii) Describe briefly what the project intends to accomplish.
(iii) Describe how the accomplishment of the objectives will be measured (including if the accomplishments are replicable).
(2) Approach.
(i) Describe the tasks and resources needed to implement and complete this project.
(ii) Provide a task time line (milestones) breakdown or chart. Include the date that the project will begin to accept clients (if applicable).
(3) Expected Results.
(i) Discuss data collection for the project, and how it will be obtained, analyzed, and maintained by the project. Data should include, but is not limited to, the number of children and youth served, services provided, program outcomes and satisfaction, and costs associated with the program.
(ii) Describe how the data collection will support the stated project objectives and how it will support the project evaluation in order to determine the impact of the project.
(4) Project Evaluation.
(i) Describe the methods for evaluating the project activities, effectiveness of interventions, success in achieving objectives, impact of interventions, acceptance by the targeted population (focus groups and customer surveys), and workload accomplishments.
(ii) Identify who will conduct the evaluation of the projected outcomes and when the evaluation is to be completed.
(iii) Identify the cost of the evaluation (whether internal or external).
(5) Project Continuance. Discuss how the project services will be continued after the grant expires.
(6) Experience Sharing. Indicate the project personnel's willingness to share the project experience with IHS Areas, urban programs, Tribes, and other Tribal organizations.
(d) Adequacy of Management Controls.
(1) Describe where the project will be housed,
(2) Describe the management controls of the grantee over the direction and acceptability of the work to be performed. Discuss the personnel and financial systems in place and any changes planned for this grant.
(3) Demonstrate that the organization has adequate systems and expertise to manage Federal funds. Include a letter from the organization's accounting firm describing the results of the most recent organization-wide audit.
(e) Key Personnel.
(1) Provide a biographical sketch (qualifications) and position description for the program director and other key personnel as described on page 22 of the PHS 5161-1. Identify existing personnel and new program staff to be hired.
(2) Provide an organizational chart, and indicate how the project will operate within the organization. Describe how this project will interface with other existing available resources.
(3) List the qualifications and experience of consultants or contractors where their use is anticipated. Identify who will determine if the work of a contractor is acceptable.
(f) Budget.
(1) Provide an itemized estimate of costs and a justification for the proposed project by line item on Form SF 424A. Budget Information Non-Construction Programs.
(2) Submit a narrative justification for all costs. Indicate needs by listing the individual items and quantities necessary. The need for these items and the corresponding quantities should be clearly specified in the narrative justification.
(3) Indicate any special start-up costs.
(4) Multi-Year Project—Projects requiring two or three years or funding. Include a brief project narrative and budget for each additional year of funding requested. The applicant may use one additional page to describe the developmental plans for each additional year of the project.
(5) Grant funding may not be used to supplant existing public and private resources.
(g) Assurances. The application shall contain an assurance to the Secretary that the applicant will comply with program regulations 42 CFR part 36, subpart H.
(1) Progress Report—Project progress reports will be required semiannually by March 30 and September 30 of each funding year. These reports will include a brief description comparing the actual accomplishments to the goals established for the period; the reasons for slippage, if applicable, and other pertinent information as required. A final report is due 90 days after expiration of the project/budget period.
(2) Financial Status Report—A semiannual financial status report will be submitted 30 days after the end of the half-year point of each funding year. Final financial status reports are due 90 days after expiration of the project/budget period. Standard Form 269 (long form) will be used for financial reporting.
(1) 45 CFR part 92. Department of Health and Human Services, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, or 45 CFR part 74, Administration of Grants to Non-profit Recipients.
(2) Public Health Service Grants Policy Statement, and
(3) Appropriate Cost Principles: OMB Circular A-87, State and Local Governments, or OMB Circular A-122, Nonprofit Organizations.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Wayne Eddins, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Plaza Building, Room 8003, Washington, DC 20410 or
Beverly Miller, Director, Office of Multifamily Asset Management, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410, telephone (202) 708-3730 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection 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 proposed collection of information; (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 the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
The Paperwork Reduction Act of 1955, 44 U.S.C., Chapter 35, as amended.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Wayne Eddins, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Plaza Building, Room 8003, Washington, DC 20410, or
Margaret E. Burns, Deputy Director, Office of Single Family Program Development, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410, telephone (202) 708-0317, (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection 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 proposed collection of information; (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 the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Wayne Eddins, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Plaza Building, Room 8003, Washington, DC 20410 or
Sivert W. Ritchie, Systems Accountant, Office of Financial Services, Department of Housing and Urban Development, 451 7th Street, SW., Room 6254, Washington, DC 20410, telephone (202) 708-2866 ext. 3266 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection 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 proposed collection of information; (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 the use of appropriate automated collection techniques or other forms of
This notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Bureau of Land Management (BLM), Anchorage Field Office.
Notice of Intent (NOI) to prepare a Resource Management Plan (RMP) and Environmental Impact Statement (EIS), a request for information for the scoping process, and a call for coal resource information.
Notice is hereby given that the BLM, Anchorage Field Office, Alaska, is initiating a planning effort to prepare the Ring of Fire RMP. This planning activity encompasses approximately 1.3 million acres of public land. Section 201 and 202 of the Federal Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C. 1711) and the regulations in 43 CFR 1600 direct this planning effort. The plan will fulfill the needs and obligations set forth by the National Environmental Policy Act (NEPA). As required in 43 CFR 3420.1-2, this notice is also a specific call for coal resource information and identification of areas where there is an interest in future leasing and development of federal coal.
The BLM will work closely with interested parties to identify the management decisions that are best suited to the needs of the public. This collaborative process will take into account local, regional, and national needs and concerns. This notice initiates the public scoping process to identify planning issues and to develop planning criteria. The public is invited to nominate potential areas of critical environmental concern (ACEC), and river segments for wild and scenic river consideration during the planning process.
Interested parties may obtain further information or request to be placed on the mailing list for the Ring of Fire RMP planning effort by contacting Bob Lloyd, RMP Team Leader or Peter Ditton, Acting Field Manager, Anchorage Field Office, 6881 Abbott Loop Road, Anchorage, Alaska 99507, (907) 267-1246.
The planning area extends from below Dixon Entrance in southeast Alaska to Attu Island at the end of the Aleutian Chain and presents significant challenges. This is a lineal distance of some 2,500 miles. The area contains 80% of the total population of the State including Anchorage, the largest city, and Juneau, the State capital. The boundaries are the Canadian border for the southeast part of the planning area, the Matanuska-Susitna, Anchorage and Kenai Boroughs in Southcentral Alaska, Kodiak Island, and the Alaska Peninsula, and Aleutian Island Chain.
Within this 61,000,000 acre area there are approximately 1,300,000 acres (surface estate) of BLM-administered lands occurring as large blocks to small scattered tracts. Approximately 813,000 acres of the 1.3 million acres have been selected by the State of Alaska and Native Corporations, but have not been conveyed. Due to over selection, BLM will retain management of some of this selected land. Lands administered by BLM and not selected total approximately 463,000 acres.
Preliminary issues and management concerns have been identified by BLM and other agencies, and in meetings with individuals and user groups. They represent the BLM's knowledge to date on the existing issues and concerns with current management. The major issues that will be addressed in the plan effort are subsistence; oil and gas; access; locatable minerals; off-highway vehicle (OHV) use and designation; wild fire and fuels management; wild, scenic and recreation rivers; recreation; and land tenure adjustments.
The scoping comment period will commence with the publication of this notice. Meetings and comment deadlines will be announced through the local news media, newsletters and a web site to be developed by a contractor. Comments on issues and planning criteria should be received on or before the end of the scoping period at the address listed below.
Written comments should be sent to the Bureau of Land Management, Anchorage Field Office, 6881 Abbott Loop Road, Anchorage, Alaska 99507; Fax 907-267-1267. Documents pertinent to this proposal may be examined at the Anchorage Field Office located in Anchorage, Alaska. Comments, including names and street addresses of respondents, will be available for public review at the Anchorage Field Office located in Anchorage, Alaska during regular business hours 7:30 a.m. to 4 p.m., Monday through Friday, except holidays, and may be published as part of the EIS. Individual respondents may request confidentiality. If you wish to withhold your name or street address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your written comment. Such requests will be honored to the extent allowed by law. All submissions from organizations and businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be available for public inspection in their entirety. After gathering public comments on what issues the plan should address, the suggested issues will be placed in one of three categories:
1. Issues to be resolved in the plan;
2. Issues resolved through policy or administrative action; or
3. Issues beyond the scope of this plan.
Rationale will be provided in the plan for each issue placed in category two or three. In addition to these major issues, a number of management questions and concerns will be addressed in the plan. The public is encouraged to help identify these questions and concerns during the scoping process.
An interdisciplinary approach will be used to develop the plan in order to consider the variety of resource issues and concerns identified. Disciplines involved in the planning process will include specialists with expertise in fire management, geology, forestry, outdoor recreation, archaeology, paleontology, subsistence, wildlife and fisheries, lands and realty, hydrology, soils, sociology and economics.
Notice is hereby given in accordance with the Federal Advisory Committee Act that a meeting of the Chesapeake and Ohio Canal National Historical Park Advisory Commission will be held at 10 a.m. on Friday, April 4, 2003, at park headquarters, 1850 Dual Highway, Suite 100, Hagerstown, Maryland.
The Commission was established by Public Law 91-664 to meet and consult with the Secretary of the Interior on general policies and specific matters related to the administration and development of the Chesapeake and Ohio Canal National Historical Park.
The members of the Commission are as follows: Mrs. Sheila Rabb Weidenfeld, Chairman, Mr. Charles J. Weir, Mr. Barry A. Passett, Mr. Terry W. Hepburn, Ms. Elise B. Heinz, Ms. JoAnn M. Spevacek, Mrs. Mary E. Woodward, Mrs. Donna Printz, Mr. Rockwood H. Foster, Mrs. Ferial S. Bishop, Ms. Nancy C. Long, Mrs. Jo Reynolds, Dr. James H. Gilford, Mrs. Sue Ann Sullivan, Brother James Kirkpatrick.
Topics that will be presented during the meeting include:
1. Status of the draft Land Protection Plan.
2. Major construction/development projects.
3. Historic Leasing Program.
4. Duke Power Company right-of-way easement application.
5. Mecklenburg Warehouse planning project.
6. Western Maryland Railroad right-of-way planning study.
7. Business Plan.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning the matters to be discussed. Persons wishing further information concerning this meeting, or who wish to submit written statements, may contact Douglas D. Faris, Superintendent, C&O Canal National Historical Park, 1850 Dual Highway, Suite 100, Hagerstown, Maryland 21740.
Minutes of the meeting will be available for public inspection six (6) weeks after the meeting at park headquarters, Hagerstown, Maryland.
Notice is given in accordance with the Federal Advisory Committee Act that the first meeting of the Juan Bautista de Anza National Historic Trail Advisory Commission will be held from 8:30 a.m. to 4:30 p.m. at the following location and dates.
Monday, March 31 and Tuesday April 1, 2003.
The meeting will be held at the offices of the Pima County Parks and Recreation Department, 3500 West River Road, Tucson, Arizona 85741. A field trip to trail sites along the Santa Cruz River in Tucson, Tubac Presidio State Historic Park, and Tumacacori National Historical Park will occur on the afternoon of March 31. The public is welcome, but transportation will only be provided to commission members.
Meredith Kaplan, Juan Bautista de Anza National Historic Trail, 1111 Jackson Street, Suite 700, Oakland, California 94607, at 510-817-1438, or
The Advisory Commission was established in accordance with the National Trails System Act 915 U.S.C. 1241
This meeting is open to the public and opportunity will be provided for public comments at specific times during the meeting and prior to closing the meeting. The meeting will be recorded for documentation and transcribed for dissemination. Minutes of the meeting will be available to the public after approval of the full Advisory Commission.
United States International Trade Commission.
Institution of investigation.
Following receipt of a request on January 21, 2003, from the United States Trade Representative (USTR), the Commission instituted investigation No. TA-2104-5, U.S.-Chile Free Trade Agreement: Potential Economywide and Selected Sectoral Effects, under section 2104(f) of the Trade Act of 2002 (19 U.S.C. 3804(f)).
As requested by the USTR, the Commission will prepare a report as specified in section 2104(f)(2)-(3) of the Trade Act of 2002 assessing the likely impact of the U.S.-Chile FTA on the United States economy as a whole and on specific industry sectors and the interests of U.S. consumers. The report will assess the likely impact of the agreement on the United States economy as a whole and on specific industry sectors, including the impact the agreement will have on the gross domestic product, exports and imports, aggregate employment and employment opportunities, the production, employment, and competitive position of industries likely to be significantly affected by the agreement and the interests of United States consumers.
In preparing its assessment, the Commission will review available economic assessments regarding the agreement, including literature regarding any substantially equivalent proposed agreement, and will provide in its assessment a description of the analyses used and conclusions drawn in such literature, and a discussion of areas of consensus and divergence between the various analyses and conclusions, including those of the Commission regarding the agreement.
Section 2104(f)(2) requires that the Commission submit its report to the President and the Congress not later than 90 days after the President enters into the agreement, which he can do 90 days after he notifies the Congress of his intent to do so. The President notified the Congress on January 30, 2003, of his intent to enter into an FTA with Chile.
The ITC has begun its assessment, and it will seek public input for the investigation when a public version of the agreement is made available by the U.S. Trade Representative. The ITC will issue a follow-up
Information may be obtained from James Stamps, Project Leader, Office of Economics (202-205-3227). For information on the legal aspects of this investigation, contact William Gearhart of the Office of the General Counsel (202-205-3091). For media information, contact Peg O'Laughlin (202-205-1819). Hearing impaired individuals are advised that information on this matter can be obtained by contacting the TDD terminal on (202-205-1810).
By order of the Commission.
60-day notice of information collection under review; revision of a currently approved collection; Hate Crime Incident Report and Quarterly Hate Crime Report.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with established review procedures of 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 May 19, 2003.
All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Gregory E. Scarbro, Unit Chief, Federal Bureau of Investigations, Criminal Justice Information Services Division (CJIS), Module E-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306, or facsimile to (304) 625-3566.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. 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 agency's 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 of other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mr. Robert B. Briggs, Department Clearance Officer, Information Management and Security Staff, Justice Management Division, United States Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
60-day notice of information collection under review: New collection; individual clearance of BJS publications surveys.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics (BJS) 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 for “sixty days” until May 19, 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 Bill Ballweber, (202) 305-2975, National Institute of Justice, U.S. Department of Justice, 810 Seventh Street, NW., Washington, DC 20531.
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Brenda E. Dyer, Department Deputy Clearance Officer, Information Management and Security Staff, Justice Management Division, Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
30-day notice of information collection under review: Reinstatement, without change, of a previously approved collection for which approval has expired, Victim Assistance Grant Program Performance Report.
The Department of Justice (DOJ), Office of Justice Programs has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until April 18, 2003. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be
Request written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mrs. Brenda E. Dyer, Deputy Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 1600, Patrick Henry Building, 601 D Street, NW., Washington, DC 20530.
Notice.
The Department of Labor (Department), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, the Employee Benefits Security Administration is soliciting comments concerning the proposed extension of the information collection provisions of the Prohibited Transaction Class Exemption 91-38. A copy of the Information Collection Request (ICR) may be obtained by contacting the office listed in the addresses section of this notice.
Written comments must be submitted to the office shown in the addresses section below on or before May 19, 2003.
Joseph S. Piacentini, Office of Policy and Research, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Room N-5718, Washington, DC 20210. Telephone: (202) 693-8410; Fax: (202) 219-5333. These are not toll-free numbers.
Prohibited Transaction Class Exemption 91-38 provides an exemption from the prohibited transaction provisions of ERISA for certain transactions between a bank collective investment fund and persons who are parties in interest with respect to an employee benefit plan provided that the plan's participation in the collective investment fund does not exceed a specified percentage of the total assets in the fund. Without this exemption, such transactions might be prohibited by sections 406 and 407(a) of ERISA and section 4975(c)(1) of the Internal Revenue Code. In order to ensure that the rights of participants and beneficiaries are protected, and that bank collective funds can demonstrate compliance with the terms of the exemption, the Department requires a bank to maintain records regarding the exempted transaction for six years.
The Department is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
This notice requests comments on the extension of the ICR included in the Exemption for Certain Transactions Involving Bank Collective Investment Funds. The Department is not proposing or implementing changes to the existing ICR at this time.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, the Employee Benefits Security Administration is soliciting comments concerning the information collection request (ICR) incorporated in Prohibited Transaction Class Exemption 94-20 (PTCE 94-20). A copy of the ICR may be obtained by contacting the office listed in the addresses section of this notice.
Written comments must be submitted to the office shown in the addresses section below on or before May 19, 2003.
Joseph S. Piacentini, Office of Policy and Research, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Room N-5718, Washington, DC 20210. Telephone: (202) 693-8410; Fax: (202) 219-5333. These are not toll-free numbers.
PTCE 94-20 permits the purchase and sale of foreign currencies between an employee benefit plan and a bank or broker-dealer or an affiliate thereof that is a party in interest with respect to such plan. In the absence of this exemption, certain aspects of these transactions could be prohibited by section 406(a) of ERISA. To protect the interests of participants and beneficiaries of the employee benefit plan, the exemption requires that a bank, broker-dealer of affiliate thereof that wishes to take advantage of the exemption: develop written procedures applicable to trading in foreign currencies on behalf of an employee benefit plan; provide a written confirmation with respect to each transaction in foreign currency; and, maintain records for a period of six years.
The Department is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
This notice requests comments on the extension of the ICR included in PTCE 94-20. The Department is not proposing or implementing changes to the existing ICR at this time.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 28, 2003, in response to a worker petition filed by a company official on behalf of workers at Jideco of Bardstown, Inc., Farmington Hills, Michigan.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to 29 CFR 90.18(C) an application for administrative
Pursuant to 29 CFR 90.18(C) an application for administrative reconsideration was filed with the Director of the Division of Trade Adjustment Assistance for workers at Osram Sylvania Products, Inc., Central Falls, Rhode Island. The application contained no new substantial information which would bear importantly on the Department's determination. Therefore, dismissal of the application was issued.
TA-W-41,588; Osram Sylvania Products, Inc., Central Falls, Rhode Island (February 3, 2003).
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 29, 2003 in response to a worker petition filed on behalf of workers at The Rival Company, Sweet Springs, Missouri.
The petitioning group of workers is covered by an earlier petition filed on January 29, 2003 (TA-W-50,280) that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore the investigation under this petition has been terminated.
Pursuant to 29 CFR 90.18(C) an application for administrative reconsideration was filed with the Director of the Division of Trade Adjustment Assistance for workers at Roxio, Inc., Maple Grove, Minnesota. The application contained no new substantial information which would bear importantly on the Department's determination. Therefore, dismissal of the application was issued.
TA-W-50,232; Roxio, Inc., Maple Grove, Minnesota (March 7, 2003).
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on December 19, 2002 in response to a worker petition which was filed on behalf of workers at Siemens Business Systems, Rumford, Maine.
An active certification covering the petitioning group of workers is already in effect (TA-W-41,327, as amended). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than March 31, 2003.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than March 31, 2003.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 2, 2003, in response to a worker petition filed by a company official on behalf of workers at Sprague Industries, Providence, Rhode Island.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on January 27, 2003, in response to a worker petition filed by a company official on behalf of workers at Wards Cove Packing Company, Seattle, Washington.
The petitioning group of workers is covered by an earlier petition filed on January 13, 2003 (TA-W-50,542), that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore the investigation under this petition has been terminated.
Employment and Training Administration.
Correction.
This document corrects the document which was published Wednesday, February 26, 2003. (68 FR 8929).
February 26, 2003.
Charlene G. Giles (202) 693-2950 (not a toll-free call).
In the
In accordance with section 223 of the Trade Act of 1974, as amended, the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) issued during the period of February and March 2003.
In order for an affirmative determination to be made and a certification of eligibility to apply for worker adjustment assistance to be issued, each of the group eligibility requirements of section 222 of the Act must be met.
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, have become totally or partially separated, or are threatened to become totally or partially separated; and
(2) That sales or production, or both, of the firm or sub-division have decreased absolutely, and
(3) That increases of imports of articles like or directly competitive with articles produced by the firm or appropriate subdivision have contributed importantly to the separations, or threat thereof, and to the absolute decline in sales or production of such firm or subdivision.
In each of the following cases the investigation revealed that criterion (3) has not been met. A survey of customers indicated that increased imports did not contribute importantly to worker separations at the firm.
In the following case, the investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that criterion (a)(2)(A) (I.C.) (Increased imports) and (a) (2)(B) (II.B) (No shift in production to a foreign country) have not been met.
The workers firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria (2) has not been met. The workers' firm (or subdivision) is not an upstream supplier or components for trade-affected companies.
The investigation revealed that criterion (a)(2)(A) (I.A) (no employment declines) has been met.
The investigation revealed that criterion (a)(2) (I.A.) (No employment declines) and (a)(2)(B) (No shift in production to a foreign country) have been met.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of (a)(2)(A) (increased imports) of Section 222 have been met.
The following certifications have been issued. The requirements of (a)(2)(B) (shift in production) of Section 222 have been met.
Also, pursuant to Title V of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182) concerning transitional adjustment assistance hereinafter called (NAF
In order for an affirmative determination to be made and a certification of eligibility to apply for NAF
(1) That a significant number or proportion of the workers in the workers' firm, or an appropriate subdivision thereof, (including workers in any agricultural firm or appropriate subdivision thereof) have become totally or partially separated from employment and either—
(2) That sales or production, or both, of such firm or subdivision have decreased absolutely,
(3) That imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and that the increases imports contributed importantly to such workers' separations or threat of separation and to the decline in sales or production of such firm or subdivision; or
(4) That there has been a shift in production by such workers' firm or subdivision to Mexico or Canada of articles like or directly competitive with articles which are produced by the firm or subdivision.
In each of the following cases the investigation revealed that criteria (3) and (4) were not met. Imports from Canada or Mexico did not contribute importantly to workers' separations. There was no shift in production from the subject firm to Canada or Mexico during the relevant period.
The investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that the workers of the subject firm did not produce an article within the meaning of Section 250(a) of the Trade Act, as amended.
I hereby certify that the aforementioned determinations were issued during the months of February and March 2003. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Application for Certificate to Employ Homeworkers, WH-46, Piece Rate Measurements, and Homeworker Handbook (WH-75). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail
I.
II.
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility and clarity of the information to be collected; and
* Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
III.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
The regular Spring meetings of the Business Research Advisory Council and its committees will be held on March 26 and 27, 2003. All of the meetings will be held in the Conference Center of the Postal Square Building, 2 Massachusetts Avenue, NE., Washington, DC.
The Business Research Advisory Council and its committees advise the Bureau of Labor Statistics with respect to technical matters associated with the Bureau's programs. Membership consists of technical officials from American business and industry.
The schedule and agenda for the meetings are as follows:
1. New measures of the ratios of hours worked to hours paid for major sector productivity.
2. Industry productivity measures for the service sector: overview of trends and plans for future development.
3. Brief update on plans for NAICS conversion.
4. International trends in manufacturing productivity.
5. Discussion of agenda items for the Fall 2003 meeting.
1. Discussion of what items are included in and excluded from the Employment Cost Index.
2. Continued discussion of the methods of determining the cost of benefits, and how benefit usage figures into cost calculations.
3. Discussion of agenda items for the Fall 2003 meeting.
1. Impact of Census 2000 on the CPS-CES gap—Tom Nardone.
2. Review of past and current approaches, and discussion of possible future approaches to benchmarking State and area labor force estimates to the CPS—Sandi Mason.
3. Impact of the CES Redesign and NAICS implementation on sub-national data—John Steward.
4. Discussion of agenda items for the Fall 2003 meeting.
1. The new superlative CPI (C-CPI-U) is routinely revised to incorporate more recent information. The first such revisions were issued with CPI data for January 2003. The impact of the revisions on the behavior of the superlative measure will be discussed.
2. In conjunction with the Bureau of Economic Analysis, BLS staff undertook an analysis of the differences in behavior of the CPI and the implicit price deflators for the personal consumption expenditures (PCE) component of the national accounts. The results of this analysis will be presented.
3. Use of hedonic quality adjustment techniques in the CPI has expanded considerably over the past several years. Reactions to the recommendations of the Committee on National Statistics on this topic and our future research plans will be presented.
4. Discussion of agenda items for the Fall 2003 meeting.
1. Commissioner's address.
2. Discussion of agenda items for the Fall 2003 meeting.
1. 2001 Survey of Occupational Injuries and Illnesses Results: a. December Summary Release; b. March Case and Demographics Release;
2. Status of Internet Data Collection: Recommendations regarding new data on Time of Event; and Start of Shift.
3. Upcoming publications: a. CFOI Chart Book; b. Respirator Survey Analytical Tables, c. Workplace Violence, Multiple Fatalities.
4. Budget Update.
5. Recommendations for new Committee Members.
6. Discussion of agenda items for the Fall 2003 meeting.
The meetings are open to the public. Persons with disabilities wishing to attend these meetings as observers should contact Tracy A. Jack, Liaison, Business Research Advisory Council at 202-691-5869 or
Due to scheduling difficulties, we have been unable to provide the full 15 days of advance notice for the meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. APP. 2) and implementing regulation 41 CFR 101.6, announcement is made for the following committee meeting:
This meeting will be open to the public. However, due to space limitations and access procedures, the name and telephone number of individuals planning to attend must be submitted to the Information Security Oversight Office (ISOO) no later than April 4, 2003. ISOO will provide additional instructions for gaining access to the location of the meeting.
Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to OMB and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Information pertaining to the requirement to be submitted:
1.
2.
3.
4.
5.
6.
7.
Submit, by May 19, 2003, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC Worldwide Web site:
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Brenda Jo. Shelton, U.S. Nuclear Regulatory Commission, T-6 E6, Washington, DC 20555-0001, by telephone at (301) 415-7233, or by Internet electronic mail to
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from Title 10 of the Code of Federal Regulations (10 CFR) part 50, section 50.60(b) for Facility Operating License No. 59, issued to FirstEnergy Corporation (the licensee), for operation of the Perry Nuclear Power Plant (PNPP), located in Lake County, Ohio. Therefore, as required by 10 CFR 51.21, the NRC is issuing this environmental assessment and finding of no significant impact.
10 CFR 50.60 requires that pressure-temperature (P-T) limits be established for reactor pressure vessels during normal operating and hydrostatic or leak rate testing conditions in accordance with appendices G and H to part 50. Specifically, 10 CFR part 50, appendix G, states, “The appropriate requirements on both the pressure-temperature limits and the minimum permissible temperature must be met for all conditions.” Appendix G of 10 CFR part 50 specifies that the requirements for these limits are the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code (Code), section XI, appendix G limits. The licensee requested in its submittal that the staff exempt PNPP from application of specific requirements of 10 CFR part 50, section 50.60(a) and appendix G, and substitute use of ASME Code Case N-640. Code Case N-640 permits the use of an alternate reference fracture toughness (K
The new P-T limits calculated by the methodologies that are subject to the exemptions are incorporated into the PNPP Technical Specifications by an associated proposed license amendment submitted by the licensee. The proposed action is in accordance with the licensee's application for exemption and amendment dated June 4, 2002.
The revised P-T limits are desired to allow required reactor vessel hydrostatic and leak tests to be performed at a significantly lower temperature. These tests are to be performed during the upcoming refueling outage scheduled to commence in April 2003. The lower temperature for the tests can reduce refueling outage critical path time by reducing or eliminating the heatup time to achieve required test conditions.
The Commission has evaluated the proposed action and concludes that the exemption and associated license amendment described above would provide an adequate margin of safety against brittle failure of the PNPP reactor vessel. Since the proposed changes do not adversely affect the integrity of the reactor vessel, the function of the vessel to act as a radiological barrier during an accident is not affected.
The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released off site, and there is not significant increase in occupational or public radiation exposure. Therefore, there are not significant environmental impacts associated with the proposed action.
With regard to potential non-radiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect non-radiological plant effluents and has no other environmental impact. Therefore, there are no significant non-radiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there is not significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
The action does not involve the use of any different resources that those previously considered in the Final Environmental Statement for the PNPP, dated April 1974.
On March 11, 2003, the staff consulted with the Illinois State Official, Frank Niziolek of the Illinois Department of Nuclear Safety, regarding the environmental impact of the proposed action. The Staff official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated June 4, 2002. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from Title 10 of the
The proposed action would exempt the licensee from the requirements of 10 CFR Part 50, Section 50.60(a) and Appendix G, which would allow the use of American Society of Mechanical Engineers
The regulation at 10 CFR part 50, section 50.60(a), requires, in part, that except where an exemption is granted by the Commission, all light-water nuclear power reactors must meet the fracture toughness requirements for the reactor coolant pressure boundary set forth in Appendix G to 10 CFR part 50. Appendix G to 10 CFR part 50 requires that P-T limits be established for reactor pressure vessels (RPVs) during normal operating and hydrostatic or leak-rate testing conditions. Specifically, 10 CFR part 50, Appendix G, states, “The appropriate requirements on both the P-T limits and the minimum permissible temperature must be met for all conditions.” Appendix G of 10 CFR part 50 specifies that the requirements for these limits are the ASME Code, section XI, Appendix G, limits.
ASME Code Case N-641 permits the use of alternate reference fracture toughness (
The proposed action is in accordance with the licensee's application dated July 23, 2002, as supplemented by letters dated November 15, 2002, and January 24, 2003.
The proposed exemption is needed to allow the licensee to implement ASME Code Case N-641 in order to revise the method used to determine the P-T curves and because low temperature overpressure protection system setpoints continued use of the method specified by Appendix G to 10 CFR part 50, unnecessarily restricts the P-T operating window.
The underlying purpose of Appendix G, is to protect the integrity of the reactor coolant pressure boundary (RCPB) in nuclear power plants. This is accomplished through regulations that, in part, specify fracture toughness requirements for ferritic materials of the RCPB. Pursuant to 10 CFR part 50, Appendix G, it is required that P-T limits for the reactor coolant system (RCS) be at least as conservative as those obtained by applying the methodology of the ASME Code, section XI, Appendix G. Current P-T limits produce operational constraints by limiting the P-T range available to the operator to heat up or cool down the plant. The operating window through which the operator heats up and cools down the RCS becomes more restrictive with continued reactor vessel service. Reducing this operating window could potentially have an adverse safety impact by increasing the possibility of inadvertent low temperature overpressure protection system actuation due to pressure surges associated with normal plant evolutions, such as reactor coolant pump start and swapping operating charging pumps with the RCS in a water-solid condition. P-T limits for an increased service period of operation of 32 effective full-power years for D.C. Cook Unit 2, based on ASME Code, section XI, Appendix G requirements, would significantly restrict the ability to perform plant heatup and cooldown, and create an unnecessary burden to plant operations, and challenge control of plant evolutions required with the Over Pressure Protection Section enabled. Continued operation of D.C. Cook Unit 2 with P-T curves developed to satisfy ASME Code, section XI, Appendix G, requirements without the relief provided by ASME Code Case N-641 would unnecessarily restrict the P-T operating window, especially at low temperature conditions. Use of the K
In the associated exemption, the NRC staff has determined that, pursuant to 10 CFR part 50, section 50.12(a)(2)(ii), the underlying purpose of the regulation will continue to be served by the implementation of ASME Code Case N-641.
The NRC has completed its evaluation of the proposed action and concludes that there are no significant environmental impacts associated with the use of the alternative analysis method to support the revision of the RCS P-T limits.
The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential nonradiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect nonradiological plant effluents and has no other environmental impact. Therefore, there are no significant nonradiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
The action does not involve the use of any different resource than those previously considered in the Final Environmental Statement for the Donald C. Cook Nuclear Plant Units 1 and 2, dated August 1973.
On February 10, 2003, the staff consulted with the Michigan State official, Ms. Sara De Cair of the Department of Environmental Quality, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the
For further details with respect to the proposed action, see the licensee's letter dated July 23, 2002, as supplemented by letters dated November 15, 2002, and January 24, 2003. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Planning and Procedures will hold a meeting on April 9, 2003, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance, with the exception of a portion that may be closed pursuant to 5 U.S.C. 552b(c)(2) and (6) to discuss organizational and personnel matters that relate solely to internal personnel rules and practices of ACRS, and information the release of which would constitute a clearly unwarranted invasion of personal privacy.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss proposed ACRS activities and related matters. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Mr. Sam Duraiswamy (telephone: 301/415-7364) between 7:30 a.m. and 4:15 p.m. (ET) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 7:30 a.m. and 4:15 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes in the agenda.
The ACRS Subcommittee on Plant License Renewal will hold a meeting on April 9, 2003, Room T-2B3, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The purpose of this meeting is to review the license renewal application for the St. Lucie nuclear plant and the NRC staff's initial Safety Evaluation Report. The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, the Florida Power and Light Company, and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Mr. Timothy Kobetz (telephone 301/415-8716) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted.
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 7:30 a.m. and 4:15 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes to the agenda.
The Nuclear Regulatory Commission (NRC) has issued for public comment a proposed revision of a guide in its Regulatory Guide Series. Regulatory Guides are developed to describe and make available to the public such information as methods acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques used by the staff in evaluating specific problems or postulated accidents, and data needed by the staff in its review of applications for permits and licenses.
The draft guide is temporarily identified by its task number, DG-1107, which should be mentioned in all correspondence concerning this draft guide. Draft Regulatory Guide DG-1107, “Water Sources for Long-Term Recirculation Cooling Following a Loss-of-Coolant Accident” is being developed to describe methods acceptable to the NRC staff for implementing requirements with respect to the sumps and suppression pools performing the functions of water sources for emergency core cooling, containment heat removal, or containment atmosphere clean up. Section 1.1.4 of DG-1107 contains discussions of active debris mitigation systems in lieu of the passive sump screens that are in many of the nuclear plants. Specifically, comments on alternative solutions to debris strainers for ensuring long-term cooling are solicited.
This draft guide has not received complete staff approval and does not represent an official NRC staff position.
Comments may be accompanied by relevant information or supporting data. Written comments may be submitted by mail to the Rules and Directives Branch,
You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (
Although a deadline is given for comments on these draft guides, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
Regulatory guides are available for inspection at the NRC's Public Document Room, 11555 Rockville Pike, Rockville, MD; the PDR's mailing address is USNRC PDR, Washington, DC 20555; telephone (301) 415-4737 or (800) 397-42056; fax (301) 415-3548; e-mail
(5 U.S.C. 552(a))
For the Nuclear Regulatory Commission.
Office of Management and Budget, Executive Office of the President.
Notice of public availability of agency inventories of activities that are not inherently governmental and of activities that are inherently governmental.
Agency inventories of activities that are not inherently governmental are now available to the public from the agencies listed below, in accordance with the “Federal Activities Inventory Reform Act of 1998” (Pub. L. 105-270) (“FAIR Act”). Agency inventories of activities that are inherently governmental are also now available to the public from the agencies listed below. This is the fourth and final release of the 2002 FAIR Act inventories. The Office of Federal Procurement Policy has made available a summary FAIR Act User's Guide through its Internet site:
The FAIR Act requires OMB to publish an announcement of public availability of agency inventories of activities that are not inherently governmental upon completion of OMB's review and consultation process concerning the content of the agencies' inventory submissions. After review and consultation with OMB, the agency inventories are made available to the public. Interested parties who disagree with the agency's initial judgment can challenge the inclusion or the omission of an activity on the list and, if not satisfied with this review, may also demand a higher agency review/appeal.
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Comments regarding the information collection should be addressed to Ronald J. Hodapp, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611-2092 and to the OMB Desk Officer for the RRB, at the Office of Management and Budget, Room 10230, New Executive Office Building, Washington, DC 20503.
Securities and Exchange Commission (“Commission”).
Notice of application under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from section 12(d)(1)(G)(i)(II) of the Act.
Applicants request an order to permit funds of funds relying on section 12(d)(1)(G) of the Act to invest in securities and other financial instruments. The requested order also would amend a prior order.
T. Rowe Price Balanced Fund, Inc. (“Balanced Fund”); T. Rowe Price Blue Chip Growth Fund, Inc.; T. Rowe Price California Tax-Free Income Trust; T. Rowe Price Capital Appreciation Fund; T. Rowe Price Capital Opportunity Fund, Inc.; T. Rowe Price Corporate Income Fund, Inc.; T. Rowe Price Developing Technologies Fund, Inc.; T. Rowe Price Diversified Small-Cap Growth Fund, Inc.; T. Rowe Price Dividend Growth Fund, Inc.; T. Rowe Price Equity Income Fund, Inc.; T. Rowe Price Equity Series, Inc.; T. Rowe Price Financial Services Fund, Inc.; T. Rowe Price Fixed Income Series, Inc.; T. Rowe Price Global Technology Fund, Inc.; T. Rowe Price GNMA Fund; T. Rowe Price Growth & Income Fund, Inc.; T. Rowe Price Growth Stock Fund, Inc.; T. Rowe Price Health Sciences Fund, Inc.; T. Rowe Price High Yield Fund, Inc.; T. Rowe Price Index Trust Inc.; T. Rowe Price Institutional Equity Funds, Inc.; T. Rowe Price Institutional International Funds, Inc.; T. Rowe Price International Funds, Inc.; T. Rowe Price International Index Fund, Inc.; T. Rowe Price International Series, Inc.; T. Rowe Price Media & Telecommunications Fund, Inc.; T. Rowe Price Mid-Cap Growth Fund, Inc.; T. Rowe Price Mid-Cap Value Fund, Inc.; T. Rowe Price New America Growth Fund; T. Rowe Price New Era Fund, Inc.; T. Rowe Price New Horizons Fund, Inc.; T. Rowe Price New Income Fund, Inc.; T. Rowe Price Personal Strategy Funds, Inc.; T. Rowe Price Prime Reserve Fund, Inc.; T. Rowe Price Real Estate Fund, Inc.; T. Rowe Price Retirement Funds, Inc.; T. Rowe Price Reserve Investment Funds, Inc.; T. Rowe Price Science & Technology Fund, Inc.; T. Rowe Price Short-Term Bond Fund, Inc.; T. Rowe Price Small-Cap Stock Fund, Inc.; T. Rowe Price Small-Cap Value Fund, Inc.; T. Rowe Price Spectrum Fund, Inc. (together with any other fund of funds relying on the Spectrum Fund Order, “Spectrum Funds”); T. Rowe Price State Tax-Free Income Trust; T. Rowe Price Summit Funds, Inc.; T. Rowe Price Summit Municipal Funds, Inc.; T. Rowe Price Tax-Efficient Funds, Inc.; T. Rowe Price Tax-Exempt Money Fund, Inc.; T. Rowe Price Tax-Free High Yield Fund, Inc.; T. Rowe Price Tax-Free Income Fund, Inc.; T. Rowe Price Tax-Free Intermediate Bond Fund, Inc.; T. Rowe Price Tax-Free Short-Intermediate Fund, Inc.; T. Rowe Price U.S. Bond Index Fund, Inc.; T. Rowe Price U.S. Treasury Funds, Inc.; T. Rowe Price Value Fund, Inc.; T. Rowe Price Institutional Income Funds, Inc. (collectively, together with any other registered open-end investment company that is in the same group of investment companies as the named investment companies, the “Price Funds”); and T. Rowe Price Associates, Inc. (“T. Rowe Price”).
The application was filed on October 8, 2002 and amended on March 13, 2003.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on April 7, 2003, and should be accompanied by proof of service on Applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Commission's Secretary.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, c/o T. Rowe Price Associates, Inc., 100 East Pratt Street, Baltimore, MD 21202, Attn.: Henry H. Hopkins, Esq. and Forrest R. Foss, Esq.
John L. Sullivan, Senior Counsel, at (202) 942-0681, or Nadya B. Roytblat, Assistant Director, at (202) 942-0578 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (tel. (202) 942-8090).
1. The Balanced Fund is a Maryland corporation registered under the Act as an open-end management investment company. T. Rowe Price is an investment adviser registered under the Investment Advisers Act of 1940, and is the investment adviser to the Balanced Fund. The Balanced Fund will invest in shares of the T. Rowe Price Institutional High Yield Fund (“IHY Fund”) and/or any other Price Fund (collectively, the “Underlying Funds”), as well as directly in stocks, bonds, and other securities. Applicants request that the relief also apply to other existing Price Funds and any Price Funds that might be organized in the future (collectively, the “Upper-Tier Funds”) that wish to invest in any existing or future Underlying Fund.
2. The IHY Fund was created for the purpose of offering a high yield investment option to institutional clients of T. Rowe Price and Price International and various Price Funds, such as the Balanced Fund, that invest a portion of their assets in high yield bonds. Applicants believe that the IHY Fund will provide a more efficient and cost-effective means of investing assets of the Balanced Fund, as well as other Price Funds acting as Upper-Tier Funds,
1. Section 12(d)(1)(A) of the Act provides that no registered investment company may acquire securities of another investment company if such securities represent more than 3% of the acquired company's outstanding voting stock or more than 5% of the acquiring company's total assets, or if such securities, together with the securities of other investment companies, represent more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or cause more than 10% of the acquired company's voting stock to be owned by investment companies.
2. Section 12(d)(1(G) of the Act provides that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if: (i) The acquiring company and the acquired company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Securities Exchange Act of 1934 or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end management investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act. Applicants state that the proposed arrangement would comply with the provisions of section 12(d)(1)(G), but for the fact that the Balanced Fund's investment policies contemplate that its investments will include direct investments in equity securities, bonds, and other securities.
3. Section 12(d)(1)(J) of the Act provides that the Commission may exempt persons or transactions from any provision of section 12(d)(1) if, and to the extent that, the exemption is consistent with the public interest and the protection of investors. Applicants request an order under section 12(d)(1)(J) exempting them from section 12(d)(1)(G)(i)(II). Applicants assert that permitting the Balanced Fund and other Upper Tier Funds to invest in Underlying Funds and directly in securities as proposed, would not raise any of the concerns that the requirements of section 12(d)(1)(G) were designed to address.
1. Applicants also request an order under section 12(d)(1)(J) of the Act and under sections 6(c) and 17(b) of the Act to amend the Spectrum Fund Order and permit an Upper-Tier Fund in which a Spectrum Fund invests pursuant to the Spectrum Fund Order (“Spectrum Underlying Fund”) to purchase shares of an Underlying Fund in excess of the limits contained in section 12(d)(1)(A)(i) of the Act but within the limits in section 12(d)(1)(A)(ii) and (iii).
2. Applicants believe that the proposed modification of the Spectrum Fund Order satisfies the standards of sections 12(d)(1)(J), 6(c), and 17(b). The requested amendment would allow a Spectrum Underlying Fund to own in excess of 3% of the outstanding voting securities of IHY Fund or another Underlying Fund. Applicants submit that any concerns about undue influence underlying section 12(d)(1) of the Act are addressed by the fact that the Spectrum Underlying Fund and the IHY Fund or another Underlying Fund will be in the same group of investment companies. Since the Spectrum Underlying Fund will remain subject to the limits in section 12(d)(1)(A)(ii) and (iii) when it invests in the IHY Fund or another Underlying Fund, applicants submit that concerns about complex fund structures and layering of fees will not be present. Applicants also submit that the conditions to the Spectrum Fund Order (as they would be modified) and the conditions to the requested order further would address these concerns.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. Before approving any advisory contact under section 15 of the Act, the board of directors/trustees (“Board”) of the Balanced Fund or any Upper Tier Fund, including a majority of the directors/trustees who are not “interested persons” as defined in section 2(a)(19) of the Act, will find that advisory fees, if any, charged under such contract are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to the Underlying Fund's advisory contract. Such finding, and the basis upon which the finding was made, will be recorded fully in the minute books of the Balanced Fund or Upper Tier Fund.
2. Applicants will comply with all provisions of section 12(d)(1)(G) of the Act, except for section 12(d)(1)(G)(i)(II) to the extent that it restricts the Balanced Fund or an Upper Tier Fund from investing directly in securities as described in the application.
Applicants also agree that conditions number 2 and 5 to the Spectrum Fund Order would be modified as follows (for purposes of these conditions, the defined terms have the same meanings as in the Spectrum Fund Order):
2. No Underlying Fund shall acquire securities of any other investment company in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent such Underlying Fund acquires securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Fund to acquire securities of one or more registered open-end investment companies in the same group of investment companies as the Underlying Fund (a) that are money market funds or short-term bond funds for short-term cash management purposes; or (b) within the limits in section 12(d)(1)(A)(ii) and (iii) of the Act.
5. Any sales charges or service fees charged with respect to securities of Spectrum Fund, when aggregated with (i) any sales charges and service fees paid by Spectrum Fund with respect to securities of the Underlying funds, and (ii) any sales charges and service fees paid by an Underlying Fund with respect to securities acquired as permitted in condition 2(b), shall not exceed the limits set forth in Rule 2830 of the Rules of Conduct of the National Association of Securities Dealers, Inc.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (the “Commission”).
Notice of an application for an amended order pursuant to Section 26(c) of the Investment Company Act of 1940 (the “1940 Act”).
Lincoln Benefit Life Company (“Lincoln Benefit”), Lincoln Benefit Life Variable Annuity Account (the “VA Account”), and Lincoln Benefit Life Variable Life Account (the “VL Account”) (collectively, “Applicants”).
Applicants seek an order of the Commission amending a prior order granted April 30, 2002 (Release No. IC-25562) (the “April 30 Order”), which authorized Applicants to effect a substitution of shares of one underlying portfolio for shares of another portfolio. The purpose of the Amendment is to modify a term of the April 30 Order pertaining to limits on the receipt of direct or indirect future benefits from the Replacement Fund, its adviser, or their affiliates.
The application was filed on June 11, 2002.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing on this application by writing to the Commission's Secretary and serving Applicants with a copy of the request, in person or by mail. Hearing requests must be received by the Commission by 5:30 p.m. on April 7, 2003, and must be accompanied by proof of service on Applicants in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Secretary of the Commission.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants: c/o Jorden Burt LLP, 1025 Thomas Jefferson Street, NW., Suite 400 East, Washington, DC 20007-0806, Attention: Christopher S. Petito, Esq.
Zandra Y. Bailes, Branch Chief, Office of Insurance Products, Division of Investment Management, at (202) 942-0670.
The following is a summary of the application. The complete application is available for a fee from the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 [tel. (202) 942-8090].
1. Lincoln Benefit is a stock life insurance company organized under the laws of the state of Nebraska. The VA Account is a segregated asset account of Lincoln Benefit. It was established in 1992 and is registered as a unit investment trust under the 1940 Act. Lincoln Benefit issues certain variable annuity contracts through the VA Account.
2. The VL Account was established in 1992 and is registered as a unit investment trust under the 1940 Act. The VL Account is used to fund certain variable life insurance policies issued by Lincoln Benefit. (The VA Account and the VL Account are referred to collectively as the “Separate Account Applicants.” Certain variable annuity contracts and variable life policies are referred to herein as “Contracts.”).
3. In the substitution approved by the April 30 Order (the “Substitution”), Lincoln Benefit, on behalf of the Separate Account Applicants, substituted shares of T. Rowe Price MidCap Growth Fund (the “Replacement Fund”), a series of the T. Rowe Price Equity Series, Inc., for shares of the Strong Discovery Fund II (the “Replaced Fund”). The Substitution is described in more detail in the Notice of Application for the April 30 Order [Release No. IC-25509 (April 4, 2002) (the “Notice”)].
4. One of the representations (the “Service Fee Representation”) in the Notice, which Applicants now seek to amend, is the following:
Lincoln Benefit does not currently receive, and will not receive for three years from the date of the requested Commission order, any direct or indirect benefit from the Replacement Fund, T. Rowe Price Inc., or any of its affiliates at a higher rate than Lincoln Benefit has received from the Replaced Fund, SCM, or any of its affiliates, including without limitation Rule 12b-1 fees, shareholder service or administrative or other service fees, revenue sharing or other arrangements, either with specific reference to the Replacement Fund or as part of an overall business arrangement.
5. Applicants state that on May 17, 2002, they effected the Substitution in full compliance with the April 30 Order. Applicants represent that they intend to continue to comply with Service Fee Representation unless and until the amended order is granted.
6. Applicants seek to amend the April 30 Order to permit the replacement of the Service Fee Representation with the following representation (the “Amended Service Fee Representation”):
Lincoln Benefit will not receive, for three years from the date of the Substitution, any direct or indirect benefits from the Replacement Fund, its adviser or underwriter, or their respective affiliates, in connection with assets attributable to Contracts affected by the Substitution, at a higher rate than it received from the Replaced Fund, its adviser or underwriter, or their respective affiliates, including without limitation Rule 12b-1 fees, shareholder service or administrative or other service fees, revenue-sharing or other arrangements in connection with such assets. Lincoln Benefit represents that the Substitution and its selection of the Replacement Fund was not motivated by any financial consideration paid or to be paid to it by the Replacement Fund, its adviser or underwriter, or their respective affiliates.
7. Applicants state that after the Notice was issued, they learned that another substitution order involving similar circumstances would be issued to other insurance companies and their respective separate accounts in part based on a representation identical in substance to the Amended Service Fee Representation.
1. Section 26(c) of the 1940 Act provides, in pertinent part, that “[i]t shall be unlawful for any depositor or trustee of a registered unit investment trust holding the security of a single issuer to substitute another security for such security unless the Commission shall have approved such substitution.” The purpose of Section 26(c) is both to protect the expectations of investors that the unit investment trust will accumulate the shares of a particular issuer and to prevent unscrutinized substitutions which might, in effect, force shareholders dissatisfied with a substituted security to redeem their shares, thereby incurring either a loss of the sales load deducted from initial purchase payments, an additional sales load upon reinvestment of the redemption proceeds, or both. Section 26(c) affords this protection to investors by preventing a depositor or trustee of a unit investment trust holding the shares of one issuer from substituting for those shares the shares of another issuer, unless the Commission approves the substitution.
2. By approving the April 30 Order, the Commission determined that the Substitution was “consistent with the protection of the investors and the purposes fairly intended by the policy and provisions of [the 1940 Act].” Applicants submit that the amended order also will meet this standard. Applicants submit that the requested amendment is appropriate and in the public interest, and that the interests of fairness require that the April 30 Order be amended to be no more restrictive than the relief granted other parties in the same circumstances.
3. Applicants submit that a restriction of the type in the April 30 Order is less necessary in the context of a liquidation. Applicants submit that in this situation, the need for a substitution is forced on the insurer and is not a product of the insurer's independent business planning. Accordingly, Applicants argue, it is less likely that an improper or self-interested motive has prompted the insurer's action, and it should not be presumed that a prophylactic measure like the Service Fee Representation is necessary. Moreover, Applicants believe that because the Amended Service Fee Representation directly and fully denies the existence of any financial incentive from the Replacement Fund or its affiliates, the broad restriction imposed by the existing Service Fee Representation is wholly unnecessary.
4. Second, Applicants submit that the existing Service Fee Representation places a significant burden on assets that are entirely unrelated to the Substitution. Applicants state that because the Replaced Fund was not popular among investors, only a few Contracts and a small amount of Applicants' subaccount assets were invested in the Replaced Fund. On the other hand, a significant amount of subaccount assets were invested in the Replacement Fund, which was an existing investment option under the Contracts. Applicants submit that in the absence of the Substitution, the service fee rate was set and could be changed as a product of arm's length bargaining between Applicants and the Replacement Fund's adviser. Applicants submit that it is unfair to impose an artificial restriction on Applicants' negotiating posture with respect to all service fees for all of those assets, as well as assets relating to new product developments entirely unrelated to the Substitution, because of a substitution that was compelled by circumstances beyond Applicants' control.
5. Applicants also argue that imposing the restriction in the existing Service Fee Representation may discourage insurers in some circumstances from selecting the most appropriate replacement fund in future substitutions. Applicants argue that limiting service fees with respect to all other funds in a replacement fund's fund complex creates an incentive for insurers to effect substitutions only with members of fund families in which the insurer does not already invest, and that this incentive may conflict with the interests of investors.
6. Applicants submit that fairness requires that the Service Fee Representation be amended to conform with the representation on which the May 1 Order was based. Applicants submit that the circumstances there were identical in all material respects with the circumstances presented by this substitution. Applicants state that both cases involved the liquidation of an unaffiliated fund for reasons unrelated to the affected insurers and the substitution into another unaffiliated fund. Applicants submit that by granting the May 1 Order, the Commission determined that a representation such as the Amended Service Fee Representation was in the public interest in circumstances involving a substitution prompted by liquidation of an unaffiliated fund. Given the similarity of the two cases, Applicants submit that here also, the proposed change in the Service Fee Representation would be fair and in the public interest.
7. Applicants submit that, for the reasons summarized above, their request meets the standards set out in Section 26(c) of the 1940 Act. Accordingly, Applicants request an order, pursuant to Section 26(c) of the 1940 Act, amending the April 30 Order as requested above.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
The Securities and Exchange Commission (“Commission”).
Notice of application for an order of approval pursuant to section 26(c) of the Investment Company Act of 1940 (the “1940 Act”).
Allianz Life Insurance Company of North America (“Allianz Life”), Allianz Life Variable Account A (“Allianz Account A”), Allianz Life Variable Account B (“Allianz Account B”), Allianz Life Insurance Company of New York (“Allianz Life of NY”) and Allianz Life of NY Variable Account C (“Allianz Account C”). Allianz Life and Allianz Life of NY are collectively referred to as the “Insurance Company Applicants.” Allianz Account A, Allianz Account B and Allianz Account C are collectively referred to as the “Separate Account Applicants.”
The application was filed on May 20, 2002, and amended and restated on August 6, 2002, December 16, 2002, March 7, 2003 and March 13, 2003.
Applicants request an order of approval to permit the substitution of shares of The Dreyfus Stock Index Fund (“Dreyfus Fund”) for shares of Franklin Templeton Variable Insurance Products Trust's (the “Trust's”) Franklin S&P 500 Index Fund (“Franklin Fund”) (the “Substitution”).
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Secretary of the Commission and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on April 3, 2003, and should be accompanied by proof of service on Applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Secretary of the Commission.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, c/o Allianz Life Insurance Company of North America, 5701 Golden Hills Drive, Minneapolis, Minnesota 55416, Attention: Stewart D. Gregg, Esq.
Leland B. Erickson, Staff Attorney, or Zandra Y. Bailes, Branch Chief, Division of Investment Management, Office of Insurance Products, at (202) 942-0670.
The following is a summary of the application. The complete application is available for a fee from the Public Reference Branch of the Commission, 450 Fifth Street, NW., Washington, DC 20549 (tel. (202) 942-8090).
1. Allianz Life is organized under the laws of the state of Minnesota. Allianz Life offers fixed and variable life insurance and annuities and group life, accident and health insurance. Allianz Life is licensed to do direct business in 49 states and the District of Columbia. Allianz Life is a wholly-owned subsidiary of Allianz Versicherungs AG Holding.
2. Allianz Life of NY is organized under the laws of the state of New York. (Until January 1, 2003, Allianz Life of NY was known as Preferred Life Insurance Company of New York). Allianz Life of NY offers variable annuities, group life, and group accident and health insurance. Allianz Life of NY is licensed to do business in six states, including New York and the District of Columbia. Allianz Life of NY is a wholly-owned subsidiary of Allianz Life, which is a wholly-owned subsidiary of Allianz Versicherungs AG Holding.
3. Allianz Account A is a segregated asset account of Allianz Life. Allianz Account A was established by Allianz Life on May 31,1985, under Minnesota insurance laws. Allianz Account A is used to fund certain variable life insurance policies issued by Allianz Life. Allianz Account A is divided into several subaccounts, each of which invests in and reflects the investment performance of a specific underlying registered investment company or portfolio thereof. Allianz Account A is registered as a unit investment trust under the 1940 Act.
4. Allianz Account B is a segregated asset account of Allianz Life. Allianz Account B was established by Allianz Life on May 31, 1985, under Minnesota insurance laws. Allianz Account B is used to fund certain variable annuity contracts issued by Allianz Life. Allianz Account B is divided into several subaccounts, each of which invests in and reflects the investment performance of a specific underlying registered investment company or portfolio thereof. Allianz Account B is registered as a unit investment trust under the 1940 Act.
5. Allianz Account C is a segregated asset account of Allianz Life of NY. Allianz Account C was established by Allianz Life of NY on February 26, 1988 under New York insurance laws. (Until January 1, 2003, Allianz Account C was known as Preferred Life Account C). Allianz Account C is used to fund certain variable annuity contracts issued by Allianz Life of NY. Allianz Account C is divided into several subaccounts, each of which invests in and reflects the investment performance of a specific underlying registered investment company or portfolio thereof. Allianz Account C is registered as a unit investment trust under the 1940 Act.
6. The Separate Account Applicants support certain variable annuity contracts and variable life policies (collectively, the “Contracts”) issued by the Insurance Company Applicants. The Contracts offer a large number of widely diverse variable investment options. For purposes of clarity, the Contracts can be divided into four general categories. There are currently offered contracts and three categories of closed contracts no longer available for sale.
• First, there are six currently offered Contracts that historically have offered the Franklin Fund. Each of these Contracts currently offers a total of 50 variable investment options, including a money market investment option. (The Franklin Fund is not included as one of the 50 available options, as it is closed to allocations of new premium payments and transfers of Contract value.) Each Contract in this Category offers the same 50 investment options.
• Second, there are two “Category 1 Closed Contracts.” These are Contracts that are no longer available for sale. Each of these Contracts makes available the same investment options that are available through currently offered Contracts, and, as such, each of these Contracts permits owners of existing Contracts to allocate new premium payments and transfers among 50 investment options.
• Third, there is one “Category 2 Closed Contract.” This Contract is no longer available for sale. This Contract permits owners of existing Contracts to allocate new premium payments and transfers among forty-two variable investment options, including a money market option.
• Fourth, there are three “Category 3 Closed Contracts.” These Contracts are no longer available for sale. These contracts permit owners of existing Contracts to allocate new premiums (if permitted by the terms of the Contract) and transfers among thirty-six variable investment options, including one money market option. Each Contract in this Category offers the same thirty-six investment options.
7. As of March 13, 2003, 42 of the 50 investment options offered through currently offered Contracts and Category 1 Closed Contracts have been offered through each of these Contracts for a year or more. All of the investment options available in the Category 2 Closed Contract other than the Dreyfus Fund have been available for over a year. Lastly, all of the investment options available in the Category 3 Closed Contracts other than the Dreyfus Fund have been available through each of these Contracts for over a year. In addition, Applicants will not add or close any investment options prior to the effective date of the proposed Substitution.
8. Under the Contracts, the Insurance Company Applicants reserve the right to substitute one of the variable investment options with another variable investment option subject to prior approval of the Commission. Moreover, the Insurance Company Applicants are entitled to limit further investment in a variable investment option.
9. Each Contract permits transfers of Contract values. In most instances, up to twelve transfers may be made during each year free of charge.
10. The Contracts provide for a free withdrawal privilege equal to at least 10% of Contract value annually; this right is not subject to reduction or withdrawal. No tax liability or consequences are associated with the transfer of Contract values within the Contract.
11. The Franklin Fund is part of the Trust, which was organized as a Massachusetts business trust on April 26, 1988. Shares of the Franklin Fund are sold to the Separate Account Applicants for the purpose of funding the Contracts. The Franklin Fund is managed by Franklin Advisers, Inc. (“Franklin Advisers”). The Franklin Fund's investment objective is to match the performance of the Standard & Poor's 500 Composite Stock Price Index (“S&P 500 Index”) before the deduction of fund expenses. The Franklin Fund seeks to invest at least 80% of its total assets in the common stocks of companies included in the S&P 500 Index. The Trust offers two classes of shares of the Franklin Fund to insurance company separate accounts. The terms of the Class 1 and Class 2 shares are identical except that the Class 2 shares bear the expenses of the Class 2 distribution plan. The Trust is registered as an open-end management company under the 1940 Act, and its shares are registered as securities under the Securities Act of 1933 (“1933 Act”). Under an agreement with Franklin Advisers, SSgA Funds Management, Inc. (“SSgA”) is the Franklin Fund's sub-adviser. Neither Franklin Advisers nor SSgA is affiliated with the Applicants.
12. The Dreyfus Fund is a Maryland Corporation formed on January 24, 1989. It is registered as an open-end management company under the 1940 Act, and its shares are registered as securities under the 1933 Act. The investment adviser for the Dreyfus Fund is The Dreyfus Corporation (“Dreyfus”). Shares of the Dreyfus Fund are currently sold exclusively to insurance company separate accounts for the purpose of funding variable annuity contracts and variable life insurance policies. Like the Franklin Fund, the Dreyfus Fund's investment objective is to match the total return of the S&P 500 Index. The Dreyfus Fund attempts to have a correlation with the S&P 500 Index of at least .95 before expenses. A correlation of 1.00 would mean that the Dreyfus Fund and the S&P 500 Index were perfectly correlated. The Dreyfus Fund offers two classes of shares, Initial Class and Service Class. The terms of the Initial Class and Service Class are identical except that the Service Class shares bear the expenses of the Service Class distribution plan. Mellon Equity Associates, an affiliate of Dreyfus, serves as the Dreyfus Fund's index fund manager. Neither Dreyfus nor Mellon Equity Associates is affiliated with the Applicants.
13. In December of 2001, the Insurance Company Applicants were informed by Franklin Advisers that the Board of Trustees of the Franklin Fund had determined that the Franklin Fund would be dissolved and liquidated. Franklin Advisers stated that the closing of the Franklin Fund was proposed primarily because the Franklin Fund had not attracted and/or retained sufficient assets to be a sufficiently economically viable fund.
14. Effective May 1, 2002, in anticipation of the closing of the Franklin Fund, the Insurance Company Applicants closed the Franklin Fund to new premiums and transfers. Also on May 1, the Insurance Company Applicants added the Dreyfus Fund as a variable investment option offered through the Contracts.
15. Applicants request the Commission's approval to effect the substitution of shares of the Franklin Fund with shares of the corresponding class of shares of the Dreyfus Fund. Dreyfus Initial Class shares would be substituted for Franklin Class 1 shares, and Dreyfus Service Class shares would be substituted for Franklin Class 2 shares.
16. Applicants believe that the Dreyfus Fund is an appropriate replacement for the Franklin Fund, and an appropriate investment vehicle for the Contract owners, because the two Funds share a virtually identical investment objective. The Franklin Fund and the Dreyfus Fund both seek to match the performance of the S&P 500 Index. Both funds use similar policies and strategies to attempt to match the performance of the S&P 500 Index.
17. The expenses of the Franklin Fund and the Dreyfus Fund as of December 31, 2002, and currently, as a percentage of average daily net assets, are as follows:
18. As the foregoing chart indicates, for each Class, as of December 31, 2002, the Dreyfus Fund had lower expense ratios than the corresponding class of the Franklin Fund. In addition, the Applicants believe that the addition of assets resulting from the Substitution may result in even lower expense ratios for the Contract owners that have currently allocated their Contract values to the Franklin Fund.
19. Contract owners were first notified of the proposed Substitution in May of 2002. This notice informed Contract owners of the proposed Substitution and the reason for the Substitution, and also provided Contract owners a toll free number for obtaining a current prospectus for the Dreyfus Fund. In addition, on or before February 4, 2003, approximately 60 days prior to the projected effective date of the Substitution, Contract owners were sent a second notice of the Substitution. The
• Informed Contract owners of the proposed Substitution and the projected effective date of the Substitution (approximately April 4, 2003);
• Informed Contract owners that a substitution of Dreyfus Fund shares for Franklin Fund shares would occur if contrary transfer instructions were not received from the owner;
• Informed owners that they were entitled to a “free transfer right” prior to the Substitution commencing on the date of the notice. This free transfer right permits Contract owners to make one transfer from the Franklin Fund, without that transfer incurring any transfer charge or counting toward any limitation on free transfers. If the Contract owners choose to transfer Contract value from the Franklin Fund to multiple transferee funds, it will still count as only one (free) transfer;
• Informed owners that there would be no charge associated with a default allocation of Franklin Fund assets to the Dreyfus Fund, and that any such default allocation will not count toward any limit on free transfers;
• Informed owners that from the date of the Substitution owners would have an additional thirty-day free transfer right out of the Dreyfus Fund, if they had not already exercised their free transfer right, without that transfer incurring any transfer charge or counting toward any limitation on free transfers;
• Included a transfer form that can be filled out and mailed by the customer;
• Included information regarding all investment options currently available under their Contract; and
• Included instructions for obtaining a current prospectus for the Dreyfus Fund or any other currently available investment option.
20. The Insurance Company Applicants will confirm all transfers made at the request of Contract owners during the free transfer period, as well as any transfer of Contract value made in connection with the Substitution, in accordance with Rule 10b-10 under the Securities Exchange Act of 1934.
21. Within five days following the Substitution, the Insurance Company Applicants will send Contract owners a third notice. The third notice will inform the Contract owners that the Substitution has taken place and notify them that they are entitled to one free transfer from the Dreyfus Fund for a period of thirty days from the date of the Substitution, if they have not already exercised this right prior to the Substitution. Specifically, the third notice will inform Contract owners that the free transfer right permits Contract owners to make one transfer of Contract value attributable to the Franklin Fund out of the Dreyfus Fund and into any other investment option without that transfer incurring any transfer charge or counting toward any limitation on free transfers. If Contract owners choose to transfer Contract value to multiple transferee funds, it will still count as only one (free) transfer. The third notice will include a transfer form that can be filled out and mailed by the customer. The notice will include information regarding all investment options currently available under their Contract. Lastly, the notice will include directions for obtaining prospectuses for any of the investment options available under the Contract. In addition, a current prospectus for the Dreyfus Fund will be included with the third notice to Contract owners affected by the Substitution, if not previously provided. The Insurance Company Applicants will file this notice with the Commission pursuant to Rule 497 under the 1933 Act as a supplement to their current prospectuses.
22. At the close of business on the date selected for the Substitution, the Insurance Company Applicants will redeem shares of the Franklin Fund held on behalf of their respective Separate Account Applicants in kind. Simultaneously, the Insurance Company Applicants, on behalf of each of its Separate Account Applicants, will place a purchase order for shares of the corresponding class of the Dreyfus Fund so that each purchase will be for the exact amount of the assets received as redemption proceeds. Accordingly, at all times monies attributable to Contract owners then invested in the Franklin Fund will remain fully invested and will result in no change in the amount of any owner's contract value, death benefit or investment in the applicable Separate Account Applicant.
23. The redemption and purchase will be made at prices based on the current net asset values next computed after receipt of the redemption request and purchase order and, therefore, in a manner consistent with Rule 22c-1 under the 1940 Act. The full net asset value of the redeemed shares held by the Separate Account Applicants will be reflected in Contract owner's contract values following the Substitution without reduction for brokerage or other such fees or charges. The Insurance Company Applicants, or the adviser to the Dreyfus Fund or the Franklin Fund, will pay all expenses incurred in connection with the Substitution, including legal, accounting, brokerage, and other fees and expenses.
24. Neither the rights nor the obligations of the Insurance Company Applicants under the Contracts will be altered in any way. The proposed Substitution will in no way alter insurance benefits to Contract owners. The Substitution will not have any adverse tax consequences to Contract owners. The proposed Substitution will not cause Contract fees and charges currently being paid by existing Contract owners to be greater after the proposed Substitution than before the proposed Substitutions. The proposed Substitution will not be treated as a transfer for the purpose of assessing transfer charges.
25. The Insurance Company Applicants represent that the proposed Substitution and the selection of the Dreyfus Fund were not motivated by any financial consideration paid or to be paid to the Insurance Company Applicants or their affiliates by the Dreyfus Fund, its adviser or underwriter or their affiliates. The Insurance Company Applicants represent that, immediately after the Substitution, they will not receive any direct or indirect benefits from the Dreyfus Fund, its adviser or underwriter (or their affiliates), in connection with assets attributable to Contracts affected by the Substitution, at a higher rate than they had received from the Franklin Fund, its advisor or underwriter (or their affiliates), including without limitation, 12b-1, shareholder service, administration or other service fees, revenue sharing or other arrangements. As noted above, the Substitution is occurring because of the planned closing of the Franklin Fund.
1. Section 26(c) of the 1940 Act requires the depositor of a registered unit investment trust holding the securities of a single issuer to receive Commission approval before substituting the securities held by the trust. Specifically, section 26(c) of the 1940 Act provides that “[i]t shall be unlawful for any depositor or trustee of a registered unit investment trust holding the security of a single issuer to substitute another security for such security unless the Commission shall have approved such substitution.”
2. Section 26(c) of the 1940 Act was enacted as part of the Investment Company Act Amendments of 1970. Prior to the enactment of these amendments, a depositor of a unit investment trust could substitute new securities for those held by the trust by notifying the trust's security holders of
3. Applicants assert that the purposes, terms, and conditions of the Substitution are consistent with the principles and purposes of section 26(c) and do not entail any of the abuses that section 26(c) is designed to prevent. The Applicants state that the Contracts are designed with a number of features that provide adequate protection to Contract owners in the event of a substitution. These features include free partial withdrawal rights, transferability between investment options including 12 free transfers per year, and a significant number of investment options. In addition, Contract owners are free to transfer to any other option available under the relevant Contract for approximately 60 days prior to the date of the Substitution and 30 days after the Substitution (“Free Transfer Period”) without any transfer fee and without that transfer counting as one of the twelve permitted each year free of charge. In addition, the Contracts provide reasonably diversified investment options. Contract owners will be assessed no charges whatsoever in connection with the Substitution, and their annual fund expense ratios are expected to decrease. Further, Contract owners will be substituted into the Dreyfus Fund, whose investment objectives and policies are substantially similar in all material respects to those of the Franklin Fund. In addition, expenses for the Dreyfus Fund are lower than those of the Franklin Fund.
4. Applicants submit that the Substitutions do not present the type of costly forced redemption or other harms that section 26(c) was intended to guard against and is consistent with the protection of investors and the purposes fairly intended by the 1940 Act. The Substitution will be in accordance with Contract owners' objectives and risk expectations because the investment objective of the Franklin Fund is nearly identical to that of the Dreyfus Fund. In addition, the Contracts provide adequate protection in the event of a substitution. Moreover, the Substitution will be subject to the following terms and conditions:
(a) After receipt of Notice informing a Contract owner of the Substitution, a Contract owner may request that his or her assets be reallocated to another subaccount at any time during the Free Transfer Period. The Free Transfer Period provides sufficient time for Contract owners to consider their reinvestment options;
(b) The Substitution will be at net asset value of the respective shares, without the imposition of any transfer, brokerage, or similar charge;
(c) Neither the Contract owners, the Franklin Fund, nor the Dreyfus Fund will bear any costs of the Substitution, and all legal costs and any brokerage or other costs incurred in the Substitution will be paid by the Insurance Company Applicants or Franklin Advisers, and accordingly, the Substitution will have no impact on the Contract owners' Contract values;
(d) The Substitution will in no way alter the contractual obligations of the respective Insurance Company Applicants or the rights and privileges of Contract owners under the Contracts, or alter insurance benefits to Contract owners; and
(e) The Substitution will in no way alter the tax benefits to Contract owners.
5. Applicants represent that the fees and expenses of the Dreyfus Fund have historically been less than those of the Franklin Fund. Accordingly, the proposed Substitution poses no concerns in connection with the fees and expenses that will arise therefrom.
Applicants request an Order of the Commission pursuant to section 26(c) of the 1940 Act to permit them to effect the Substitution on the terms set forth in the Application. Applicants believe, for all of the reasons stated in the Application, that their request for approval meets the standards set forth in section 26(c).
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Amex proposes to add the iShares S&P 100 Index Fund to the list of Exchange Traded Funds (“ETFs”) for which the Exchange pays non-reimbursed fees to third parties, (included in Note 4 to the Amex Equity Fee Schedule). The text of the proposed rule change is available at the Amex and at the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for its proposal and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The Amex has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange has included in Note 4 to the Amex Equity Fee Schedule a list of ETFs that are subject to transaction charges set forth in Item 9 to the Equity Fee Schedule, relating to ETFs for which the Exchange pays unreimbursed fees to a third party.
The Exchange believes that the proposal is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Amex. All submissions should refer to file number SR-Amex-2003-13 and should be submitted by April 9, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Amex proposes to amend paragraphs (a) and (d) of Amex Rule 950, and add new paragraph (q) to Amex Rule 950, to provide that when a specialist represents an options order as agent, the specialist is required to accord priority only to those orders of public customers over the specialist's principal transactions. The text of the proposed rule change is below. New language is italicized; deleted language is in brackets.
(a) The following Floor Rules shall apply to Exchange option transactions and other transactions on the Exchange in options contracts: 100, 101, 104, 105, 106, 110, 112, 117, 123, 129, 130, 135, 150, 151, 152, 153, [155,] 157, 172, 173, 174, 175, 176, 177, 180, 181, 183, 184, 185, 192 and 193. Unless the context otherwise requires, the term “stock” wherever used in the foregoing Rules shall be deemed to include option contracts. Except as otherwise provided in this Rule, all other Floor Rules (series 100
(b)-(c) No change.
(d) No change.
Commentary—
.01 No change
.02 A member who holds both an order for a public customer of a member organization and a facilitation order may cross such orders if:
(a) No change
(b) No change
(c) No change
(d) No change
For purposes of this Rule
.03 No change
.04 No change
.05 No change
(f)-(p) No change
In its filing with the Commission, the Amex included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Amex has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Amex is proposing to amend Amex Rule 950 for the purpose of revising the obligation of specialists in representing options orders. Currently, Amex Rule 950(a) incorporates and applies Amex Rule 155 to options so that a specialist is required to give precedence to orders entrusted to him as an agent in any option in which he is registered before executing at the same price any purchase or sale in the same option for an account in which he has an interest.
Amex represents that a number of developments in the options industry and at the Amex in recent years have resulted in an increasing number of options orders left with specialists for representation. In particular, the consolidation of firms and changing economics have resulted in a decline in the number of independent floor brokers who formerly represented orders in trading crowds at the Amex.
The introduction of the Booth Automated Routing System (“BARS”)
The Amex believes it will become increasingly difficult for specialists to compete against Registered Options Traders (“ROTs”) and other members in the trading crowd given the preference for electronic order routing. As the percentage of electronically routed orders increases, the incentive to assume the affirmative obligations and exposure in managing a specialist unit decrease. Therefore, the Amex believes this proposal is justified in light of the particular responsibilities, burdens and costs borne by specialists as compared to other market participants. For example a specialist unit has greater market making responsibilities than ROTs and other non-specialists, higher capital requirements, and other costs such as staffing in connection with brokerage quote updating and quote processing.
The Amex offers the following example to help illustrate how the current order precedence rule works at the Amex. A specialist who had been bidding $2 as dealer receives an order for a broker-dealer that has been electronically routed by an unaffiliated floor broker via BARS. The broker-dealer is seeking to buy 50 contracts of XYZ at a limit of $2 at a time when the market is 2 (bid) −2.25 (offer). A Registered Options Trader (“ROT”) now walks into the trading crowd to sell 100 contracts of XYZ at $2. The specialist must represent the order of the floor broker and, in addition, may bid as dealer to compete against other non-specialists to trade against the ROT order for 100 contracts. The specialist, however, must, when bidding as dealer, accord priority to the order of the floor broker and cannot compete to trade against that order. If competition in the trading crowd is such that the specialist is allocated 20 contracts (or less) in the trade of 100 contracts, the specialist will have no chance to participate, as principal, in the trade. If the specialist did not have to accord priority to the order of the broker-dealer, the specialist would be able to compete equally with the other trading crowd participants and assert its participation right if the trade occurred at the specialist's previously established principal bid or offer.
The Amex believes this proposal is substantially similar to a proposal by the Chicago Board Options Exchange, Inc. (“CBOE”) that was approved by the Commission.
The Amex, notes, however, that although Commission approval of this
Accordingly, the Amex believes that the instant proposal limiting the priority of options orders to those orders of public customers entrusted to specialists for execution is consistent with the Act and Amex rules. The addition of new paragraph (q) to Amex Rule 950 will, therefore, allow specialists acting as agent to compete equally with other members and broker-dealers in the trading crowd by not being required to afford priority to such member or broker-dealer orders.
The Amex believes that the proposed rule change is consistent with section 6(b) of the Act,
The Amex believes that the proposed rule change will impose no burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Amex. All submissions should refer to File No. SR-Amex-2002-86 and should be submitted by April 9, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to expand the order types that can trade on the Exchange's LOU system. Below is the text of the proposed rule change. Proposed new language is in italics:
This Rule governs the operation of the Large Order Utility (“LOU”) system.
(a) Definitions. For purposes of this Rule, the following definitions shall apply.
(i) The term “LOU” means a facility of the Exchange that provides order routing, handling, and execution for eligible options orders routed electronically to the Exchange.
(ii) The term “In-Person Wheel” means an order allocation mechanism
(iii) The term “Linkage Order” means an order routed to the Exchange through the Options Intermarket Linkage pursuant to the Plan for the Purpose of Creating and Operating an Intermarket Options Linkage.
(b) LOU Eligibility.
The following criteria must be met for an order to be eligible for LOU:
(i) The order must be a market order or marketable limit order that is not for an account in which a member, or any non-member broker-dealer (including foreign broker-dealer) has an interest
(ii) The order must be of a size greater than the RAES eligibility limit for the subject option series as established pursuant to Rule 6.8(c);
(iii) the order may not be a Linkage Order;
(iv) at the time the order is received, the Exchange must be disseminating a quote at the national best bid or offer (NBBO) for the appropriate side of the market;
(v) at the time the order is received, the Exchange's disseminated quote may not be a manual quote;
(vi) the order must be in an option class which is designated as subject to the terms of Rule 6.8.B concerning booked orders; and,
(vii) the order must be in an option class designated by the appropriate FPC as subject to this Rule 6.10.
The senior person then in charge of the Exchange's Control Room shall have the authority to turn off LOU with respect to a class of options if there is a system malfunction that affects the Exchange's ability to disseminate or update market quotes.
(c) Order Receipt.
(i) Orders Equal to or Smaller than the Exchange's Disseminated Quotation Size. When LOU receives an order smaller than the Exchange's disseminated quotation size, the system will automatically stop the order against the Exchange's disseminated market. The order will then be automatically routed for representation in the crowd to allow for price improvement and to allocate the order to members of the trading crowd pursuant to paragraph (d) below.
(ii) Orders Larger than the Exchange's Disseminated Quotation Size. When LOU receives an order larger than the Exchange's disseminated quotation size, the system will automatically stop a portion of the order against the Exchange's disseminated market up to the Exchange's disseminated size. The stopped portion of the order will then be automatically routed for representation in the crowd to allow for price improvement and to allocate the order to members of the trading crowd pursuant to paragraph (d) below. Simultaneously, the balance of the order that was not stopped at the Exchange's disseminated price will be routed for normal order handling.
(d) Execution and Allocation. Upon receipt, the LOU order (or the stopped portion of the LOU order) shall be announced and exposed to the crowd to allow for price improvement. Any portion of a LOU order that does not receive price improvement will be allocated as follows:
(i) The LOU order will be assigned in open outcry consistent with Rule 6.45 and Rule 8.87. To the extent an order is not fully assigned in open outcry, the remaining portion of the order will be assigned to Market-Makers via the In-Person Wheel. If a portion of the LOU order still remains after the In-Person Wheel allocations are exhausted, the balance of the order shall be assigned in accordance with the RAES trade allocation methodology in effect for the subject option class pursuant to Rule 6.8, Interpretation and Policy .06.
(e) Obligations of Participating Market-Makers. Any Market-Maker who is present in the trading crowd and who makes markets in a particular security traded in that crowd, must be logged onto the In-Person Wheel for that security.
.01 The provisions of Rule 8.17 regarding stopping of option orders shall not apply to orders received pursuant to this Rule 6.10.
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On July 11, 2002, the Securities and Exchange Commission (“Commission”) approved a CBOE rule change to establish the Large Order Utility (“LOU”).
As proposed, Rule 6.10 would be modified to provide that the appropriate Floor Procedure Committee may allow the following two broker-dealer order categories to be eligible for LOU on a class or series basis: (1) All broker-dealer orders, and (2) all broker-dealer orders except orders for the accounts of market makers or specialists. These orders would receive full LOU treatment except that they would not receive LOU treatment when CBOE's NBBO quote is represented by an order on CBOE's limit order book. Currently, broker-dealer orders eligible for RAES do not automatically execute against the limit order book. Therefore, the Exchange does not believe it is appropriate, at this time, to allow broker-dealer orders such capability through LOU.
The Exchange believes that the proposed rule change will help a
The CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
The CBOE has requested that the Commission waive the five-day pre-filing notice requirement and the 30-day operative delay. The Commission believes that waiving the five-day pre-filing notice requirement and the 30-day operative delay is consistent with the protection of investors and the public interest in that it will enable the CBOE to guarantee execution of broker-dealer orders at the disseminated price at the full disseminated size (except in the case where CBOE's NBBO quote is represented by an order on the Exchange's limit order book). For this reason, the Commission designates the proposal to be effective and operative immediately.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether it is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to File No. SR-CBOE-2003-09, and should be submitted by April 9, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its initial listing standards to allow options to be listed on “covered securities” when, among other things, the trading price of the underlying security was at least $3 for the five business days prior to certification with The Options Clearing Corporation.
The text of the proposed rule change appears below. New text is in italics. Deleted text is in brackets.
(b) No change.
(1)-(4) No change.
(5) Either:
[(i)]
[ii]
(c) Securities of Restructured Companies.
(1)-(3) No change.
(4) “Market Price” Guideline. In determining whether a Restructure Security satisfies the market price history guidelines set forth in Rule 502(b)5) (the Market Price Guideline”), the Exchange may consider the market price history of the Original Equity Security prior to the “ex-date” of the Restructuring Transaction if:
(i) the Restructure security satisfies the “Substantiality Test” set forth in subparagraph (c)(5) below; and
(ii) in the case of the application of the Market Price Guideline to a Restructure Security that is distributed pursuant to a public offering or a rights distribution:
(A) the Restructure Security trades “regular way” on an exchange or automatic quotation system for at least the five trading days immediately preceding the date of selection; and
(B) at the close of trading on each trading day on which the Restructure Security trades “regular way” prior to the date of selection, and the opening of trading on the date of selection, the market price of the Restructure Security was at least $7.50
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its pricing requirement for securities underlying options traded on the Exchange (“underlying securities”). ISE Rule 502(b)(5) currently provides that options can be listed on underlying securities if (i) the market price per share of the underlying security has been at least $7.50 for the majority of business days during the three calendar months preceding the date of selection, or (ii) options on the underlying security are traded on at least one other registered national securities exchange and have a average daily trading volume of at least 5,000 contracts.
The Exchange now proposes to amend ISE Rule 502(b)(5) to allow the listing of options on underlying securities that are “covered securities” under section 18(b)(1)(A) of the Securities Act of 1933
For the purposes of consistency within the ISE Rules, the Exchange proposes to amend ISE Rule 502(c)(4)((ii)(B), which provides a method to certify that the market price of a Restructure Security satisfies the pricing requirement of ISE Rule 502(b)(5) and specifically references the $7.50 market price per share requirement. The amendment would reflect that the market price standard for Restructure Securities also is reduced from $7.50 to $3.00 as long as the Restructure Security is a “covered security” as defined in ISE Rule 502(b)(5).
This proposed rule change is identical to a change by the Chicago Board Options Exchange, Inc. (“CBOE”) to its initial listing standards that became effective January 15, 2003.
The Exchange believes that the proposed $3.00 market price per share standard is consistent with the guideline contained in ISE Rule 503(b)(4) related to the withdrawal of approval of underlying securities, which sets a $3.00 market price per share as the threshold for determining whether the Exchange may continue listing and trading options on an underlying security. In addition, the Exchange believes that a “look back” period of five consecutive days would provide a sufficient measure of protection from any attempts to manipulate the market price of the underlying security. The proposed $3 price standard and the five-day look-back period would provide a reliable test for stability and, at the same time, presents a more reasonable time period for qualifying the price of an underlying security. The Exchange further believes that this proposed abbreviated qualification period, in combination with the Exchange's existing quarterly delisting program,
The Exchange's basis for the proposed rule change is the requirement under Section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act
Under rule 19b-4(f)(6)(iii) 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 Section. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-ISE-2003-04 and should be submitted by April 9, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is proposing to amend its fee structure to clarify which fees apply to trades pertaining to the options intermarket linkage (“Linkage”) and to specify that such fees are for a one-year pilot. The text of the proposed rule change is below; proposed new language is in italics.
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
In File No. SR-ISE-2002-19, the Exchange adopted rules governing operation of the Linkage.
The Exchange believes that the basis under the Act for this proposed rule change is the requirement under section 6(b)(4) of the Act
The Exchange believes that the proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 35 days of the date of publication of this notice in the
(a) By order approve such proposed rule change; or
(b) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
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”),
Retroactive to July 1, 2002, Nasdaq proposes to: (1) Establish a $75 maximum execution fee cap for a single SuperSoes transaction; and (2) Establish a $37.50 maximum cap on the rebate amount provided by Nasdaq to market participants that provide liquidity to its market.
(a)-(h) No change.
(i) Transaction Execution Services.
(1) No change.
(2) Nasdaq National Market Execution System (SuperSOES).
The following charges shall apply to the use of the Nasdaq National Market Execution System:
For a pilot period commencing on November 1, 2001 and lasting until March 31, 2003, the per share charge will be $0.002 per share executed for all fully or partially executed orders (entering party only).
(3) No change.
(4) Liquidity provider rebate.
For a pilot period commencing on November 1, 2001 and lasting until March 31, 2003:
(A) NASD members that do not charge an access fee to market participants accessing their quotations through the Nasdaq National Market Execution System will receive a rebate of $0.001 per share when their quotation is executed against by a Nasdaq National Market Execution System order.
(B) NASD members will receive a rebate of $0.001 per share when they send a Nasdaq National Market Execution System order that executes against the quotation of a market participant that charges an access fee to market participants accessing its quotations through the Nasdaq National Market Execution System.
(C)
(j)-(s) No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change, as amended, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In order to control trading costs for low-priced stocks, Nasdaq proposes to establish, retroactive to July 1, 2002, a maximum SuperSoes execution fee of $75.00 per trade and liquidity provider rebate cap of $37.50 per trade for securities trading at $1.00 or less per share.
Nasdaq assessed on parties entering orders into SuperSoes a $0.002 per share charge for all resulting full or partial trade executions. This fee applied regardless of the price of the individual security traded and there was no maximum fee per individual trade. Nasdaq also rebated $0.001 per share to market participants that provided liquidity to the market by having their quotes accessed by SuperSoes orders, when those quoting market participants did not themselves charge a separate fee for that access. When a market participant entered an order into SuperSoes that interacted with the quote of an access fee-charging Electronic Communications Network (“ECN”), Nasdaq likewise rebated $0.001 per share to that entering party. Like the per-share SuperSoes execution fee, these rebates had no maximum dollar amount.
Nasdaq represents that market activity caused the prices of many Nasdaq securities to fluctuate, and in some cases lose significant value. As the prices of these securities declined, market participants generally needed to purchase or sell an increasing number of total shares to actively participate in the market for these issues. This increase in the size of individual transactions, when combined with SuperSoes' unlimited per share fee structure, raised execution costs to market participants. Similarly, large transactions involving low-priced securities also can result in disproportionate liquidity-provider rebates.
In response, Nasdaq has determined to establish per trade maximums for SuperSoes execution fees and liquidity provider rebates in low-priced ($1.00 or less per share) securities. Under the proposal, Nasdaq would cap at $75 the maximum execution fee it would impose on the entering party for a single SuperSoes trade where the price of the security traded was one dollar or less. For rebates, Nasdaq would cap at $37.50 the amount it gives back to market participants for providing liquidity in low-priced securities or when their orders access the low-priced quotes of fee-charging ECNs. Nasdaq notes that the ratio between its low-priced maximum per trade fee and per trade rebate is the same as those that are applicable to higher-priced issues.
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A of the Act,
Nasdaq does not believe that the proposed rule change, as amended, will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change; or
(B) Institute proceedings to determine whether the proposed rule change, as amended, should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. 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, as amended, 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 filings will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2002-107 and should be submitted by April 9, 2003.
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 May 19, 2003.
Send all comments regarding whether these information collections are necessary for the proper performance of the function of the agency, whether the burden estimate are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collections, to Sandra Johnston, Program Analyst, Office of Financial Assistance, Small Business Administration, 409 3rd Street SW., Suite 8300, Washington, DC 20416.
Sandra Johnston, Program Analyst, (202) 205-7528 or Curtis B. Rich, Management Analyst, (202) 205-7030.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimate is accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Charles George, Deputy Assistant Administrator, Office of Government Contracting & Business Development, Small Business Administration, 409 3rd Street SW., Suite 8000, Washington, DC 20416.
Charles George, Deputy Assistant Administrator, 202-401-2899 or Curtis B. Rich, Management Analyst, (202) 205-7030.
Cameron County and the contiguous counties of Clearfield, Clinton, Elk, McKean and Potter in the State of Pennsylvania constitute an economic injury disaster loan area as a result of a fire that occurred on February 28, 2003 in the Borough of Emporium. Eligible small businesses and small agricultural cooperatives without credit available elsewhere may file applications for economic injury assistance as a result of this disaster until the close of business on
The interest rate for eligible small businesses and small agricultural cooperatives is 3.189 percent. The number assigned for economic injury for this disaster is 9U4400.
Office of the United States Trade Representative, Department of Labor.
Request for comments.
The Trade Policy Staff Committee (TPSC) gives notice that the Office of the United States Trade Representative (USTR) and the Department of Labor (Labor) are initiating a review of the impact of the proposed U.S.-Central America Free Trade Agreement (FTA) on United States employment, including labor markets. This notice seeks written public comment on potentially significant sectoral or regional employment impacts (both positive and negative) in the United States as well as other likely labor market impacts of the FTA.
USTR and Labor will accept any comments received during the course of the negotiations of the FTA. However, comments should be received by April 25, 2003, to be assured of timely consideration in the preparation of the report.
Submissions by electronic mail:
For procedural questions concerning public comments, contact Gloria Blue, Executive Secretary, TPSC, Office of the USTR, 1724 F Street, NW., Washington, DC 20508, telephone (202) 395-3475. Substantive questions concerning the employment impact review should be addressed to Jorge Perez-Lopez, Director, Office of International Economic Affairs, Bureau of International Labor Affairs, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, telephone (202) 693-4883; or William Clatanoff, Assistant U.S. Trade Representative for Labor, telephone (202) 395-6120.
On October 1, 2002, in accordance with section 2104(a)(1) of the Bipartisan Trade Promotion Authority Act of 2002, 19 U.S.C. 3804(a)(1), the United States Trade Representative notified the Congress of the President's intent to enter into trade negotiations with the five members of the Central American Economic Integration System (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua, hereinafter “Central America”). The notification letters to the Congress can be found on the USTR Web site at
The FTA will build on the Caribbean Basin Initiative (CBI). Since 1985, the U.S. trade relationship with Central America has been driven by U.S. unilateral trade preferences through the CBI. By moving from unilateral trade preferences to a reciprocal trade agreement, the FTA will seek to eliminate duties and unjustified barriers to trade in both U.S.- and Central American-origin goods and also address trade in services, trade in agricultural products, investment, trade-related aspects of intellectual property rights, government procurement, trade-related environmental and labor matters, and other issues. The FTA is expected to contribute to stronger economies, the rule of law, sustainable development, and more accountable institutions of governance, complementing ongoing domestic, bilateral, and multilateral efforts in the region. Finally, the FTA will lend momentum to concluding the Free Trade Area of the Americas negotiations by January 2005.
Two-way trade in goods between the United States and Central America totaled $20 billion in 2001, consisting of $9 billion in U.S. exports and $11 billion in U.S. imports. Leading U.S. exports to Central America include textiles, machinery, electrical
Section 2102(c)(5) of the Bipartisan Trade Promotion Authority Act of 2002, 19 U.S.C. 3802(c)(5), directs the President to “review the impact of future trade agreements on United States employment, including labor markets, modeled after Executive Order 13141 to the extent appropriate in establishing procedures and criteria, report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate on such review, and make that report available to the public.” USTR and the Department of Labor will conduct the employment reviews through the TPSC.
The employment impact review will be based on the following elements, which are modeled to the extent appropriate after those in EO 13141. The review will be: (1) Written; (2) initiated through a
Comments may be submitted on potentially significant sectoral or regional employment impacts (both positive and negative) in the United States as well as other likely labor market impacts of the FTA. Persons submitting comments should provide as much detail as possible in support of their submissions.
To ensure prompt and full consideration of responses, the TPSC strongly recommends that interested persons submit comments by electronic mail to the following e-mail address:
Written comments will be placed in a file open to public inspection pursuant to 15 CFR 2003.5, except confidential business information exempt from public inspection in accordance with 15 CFR 2003.6. Confidential business information submitted in accordance with 15 CFR 2003.6 must be clearly marked “Business Confidential” at the top of each page, including any cover letter or cover page, and must be accompanied by a non-confidential summary of the confidential information. All public documents and non-confidential summaries will be available for public inspection in the USTR Reading Room in Room 3 of the Annex of the Office of the USTR, 1724 F Street, NW., Washington, DC 20508. An appointment to review the file may be made by calling (202) 395-6186. The USTR Reading Room is generally open to the public from 10 a.m.-12 noon and 1-4 p.m., Monday through Friday. Appointments must be scheduled at least 48 hours in advance.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on the petition received must identify the petition docket number involved and must be received on or before April 8, 2003.
Send comments on any petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2003-14324 at the beginning of your comments. If you wish to receive confirmation that FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to
Mike Brown (202) 267-7653, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of RTCA program Management Committee meeting.
The FAA is issuing this notice to advise the public of a meeting of the RTCA Program Management Committee.
The meeting will be held April 10, 2003 starting at 9 a.m.
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC 20036.
RTCA Secretariat, 1828 L Street, NW., Suite 850, Washington, DC 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Program Management Committee meeting. The agenda will include:
• April 10:
• Opening Session (Welcome and Introductory Remarks, Review/Approve Summary of Previous Meeting).
• Publication Consideration/Approval:
• Final Draft,
• Final Draft,
• Final Draft,
• Final Draft,
• Discussion:
• Special Committee Chairman's Reports
• Action Item Review:
• Review/Status—All open action items
• Closing Session (Other Business, Document Production, Date and Place of Next Meeting, Adjourn)
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Members of the public may present a written statement to the committee at any time.
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Outagamie County Airport under the provisions of 49 U.S.C. 40117 and part 148 of the Federal Regulations (14 CFR part 158).
Comments must be received on or before April 18, 2003.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Minneapolis Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, Minnesota 55450.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Jeff Mulder, Airport Manager of the Outagamie County Airport at the following address: W6390 Challenger Drive, Suite 201, Appleton, Wisconsin 54915.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the County of Outagamie under section 158.23 of part 158.
Sandra E. DePottey, Program Manager, Minneapolis Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, Minnesota 55450, (612) 713-4363. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC at Outagamie County Airport under the provisions of 49 U.S.C. 40117 and part 158 of the Federal Aviation Regulations (14 CFR part 158).
On February 27, 2003 the FAA determined that the application to impose and use the revenue from a PFC submitted by County of Outagamie was substantially complete within the requirements of section 158.25 of part 158. The FAA will approve or disapprove the application, in whole or in part, no later than May 31, 2003.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the County of Outagamie.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemption; request for comments.
This notice publishes the FMCSA decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 37 individuals. The FMCSA has statutory authority to exempt individuals from vision standards if the exemptions granted will
This decision is effective March 23, 2003.. Comments from interested person should be submitted by April 18, 2003.
You can mail or deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. You can also submit comments at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union etc.). You may review the Department of Transportation's complete Privacy Act Statement in the
Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, (202) 366-2987, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may renew an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of commercial motor vehicles in interstate commerce, for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. This notice addresses 37 individuals who have requested renewal of their exemptions in a timely manner. The FMCSA has evaluated these 37 petitions for renewal on their merits and decided to extend each exemption for a renewable 2-year period. They are:
These exemptions are extended subject to the following conditions: (1) That each individual have a physical exam every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for 2 years unless rescinded earlier by the FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31315 and 31136(e).
Under 49 U.S.C. 3135(b)(1), an exemption may be granted for no longer than 2 years from its approval date and may be renewed upon application for additional 2-year periods. In accordance with 49 U.S.C. 31315 and 31136(e), each of the 37 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (65 FR 33406, 65 FR 57230, 65 FR 45817, 65 FR 77066, 65 FR 66286, 66 FR 13825, 65 FR 78256, 66 FR 16311). Each of these 37 applicants has requested timely renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the standard specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past 2 years indicates each applicant continues to meet the vision exemption standards. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, the FMCSA concludes that extending the exemption for each renewal applicant for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.
The FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31315 and 31136(e). However, the FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by April 18, 2003.
In the past the FMCSA has received comments from Advocates for Highway and Auto Safety (Advocates) expressing continued opposition to the FMCSA's procedures for renewing exemptions from the vision requirement in 49 CFR 391.41(b)(10). Specifically, Advocates objects to the agency's extension of the exemptions without any opportunity for public comment prior to the decision to renew, and reliance on a summary
The issues raised by Advocates were addressed at length in 66 FR 17994 (April 4, 2001). the FMCSA continues to find its exemption process appropriate to the statutory and regulatory requirements.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 4506-A, Request for Public Inspection or Copy of Exempt Organization Tax Form.
Written comments should be received on or before May 19, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Larnice Mack, at (202) 622-3179, or
Title: Request for Public Inspection or Copy of Exempt Organization IRS Form.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5452, Corporate Report of Nondividend Distributions.
Written comments should be received on or before May 19, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Larnice Mack, at (202) 622-3179, or
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-5-91 (TD 8437), Limitations on Percentage Depletion in the Case of Oil and Gas Wells (Section 1.613A-3(e)).
Written comments should be received on or before May 19, 2003 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6411, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Larnice Mack (202) 622-3179, or through the Internet (
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed
Submit written comments on the collection of information to David Sturm, VA Debt Management Center, Bishop Henry Whipple Federal Building, 1 Federal Drive, Room 156D, Ft. Snelling, MN 55123 or e-mail to:
David Sturm at (612) 970-5702 or FAX (612) 970-5687.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before May 19, 2003.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before May 19, 2003.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before May 19, 2003.
Submit written comments on the collection of information to Nancy J. Kessinger, Veterans Benefits Administration (20S52), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Nancy J. Kessinger at (202) 273-7079 or FAX (202) 275-5947.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. Application for Work-Study Allowance (38 Up.So.CA. Chapters 30, 31, 32 and 35; 10 Up.So.CA Chapter 1606), VA Form 22-8691.
b. Student Work-Study Agreement (Student Services), VA Form 22-8692.
c. Extended Student Work-Study Agreement, VA Form 22-8692a.
d. Work-Study Agreement (Student Services), VA Form 22-8692b.
a. Eligible veterans, selected reservists, and survivors or dependents complete VA Form 22-8691 to apply for work-study benefits.
b. VA Form 22-8692 is used by claimants to request an advance payment of work-study allowance.
c. VA Form 22-8692a is used by the claimant to extend his or her contract.
d. VA Form 22-8692b is used by claimants who do not want a work-study advanced allowance payment.
VA uses the information to determine the applicant's eligibility to work-study allowance and the amount payable.
a. Application for Work-Study Allowance (38 Up.So.CA. Chapters 30, 31, 32 and 35; 10 Up.So.CA Chapter 1606), VA Form 22-8691—6,625 hours.
b. Student Work-Study Agreement (Student Services), VA Form 22-8692—1,333 hours.
c. Extended Student Work-Study Agreement, VA Form 22-8692a—275 hours.
d. Work-Study Agreement (Student Services), VA Form 22-8692b—1,333 hours.
a. Application for Work-Study Allowance (38 Up.So.CA. Chapters 30, 31, 32 and 35; 10 Up.So.CA Chapter 1606), VA Form 22-8961—15 minutes.
b. Student Work-Study Agreement (Student Services), VA Form 22-8692—5 minutes.
c. Extended Student Work-Study Agreement, VA Form 22-8692a—3 minutes.
d. Work-Study Agreement (Student Services), VA Form 22-8692b—5 minutes.
a. Application for Work-Study Allowance (38 Up.So.CA. Chapters 30, 31, 32 and 35; 10 Up.So.CA Chapter 1606), VA Form 22-8961—26,500.
b. Student Work-Study Agreement (Student Services), VA Form 22-8692—16,000.
c. Extended Student Work-Study Agreement, VA Form 22-8692a—5,500.
d. Work-Study Agreement (Student Services), VA Form 22-8692b—16,000.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 18, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0262” in any correspondence.
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 18, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503, (202) 395-7316. Please refer to “OMB Control No. 2900-0379” in any correspondence.
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 18, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503, (202) 395-7316. Please refer to “OMB Control No. 2900-0198” in any correspondence.
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 Federal Register Notice with a 60-day comment period soliciting comments on this collection of information was published on November 15, 2002, at page 69305.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Comments must be submitted on or before April 18, 2003.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0051” in any correspondence.
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
By direction of the Secretary.
Fish and Wildlife Service (FWS), Interior, and National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Final rule.
We, FWS and NMFS, collectively “the Services,” designate critical habitat for the Gulf sturgeon (
Critical habitat identifies specific areas that are essential to the conservation of a listed species, and that may require special management considerations or protection. Section 7(a)(2) of the Act requires that each Federal agency shall, in consultation with and with the assistance of the Services, insure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of critical habitat. Section 4 of the Act requires us to consider economic and other relevant impacts of specifying any particular area as critical habitat. We solicited data and comments from the public on all aspects of the proposal, including data on economic and other impacts of the designation.
The effective date of this rule is April 18, 2003.
The complete administrative record, including comments and materials received, as well as supporting documentation, used in the preparation of this final rule are available for public inspection, by appointment, during normal business hours at the Panama City Field Office, U.S. Fish and Wildlife Service, 1601 Balboa Avenue, Panama City, Florida 32405. Copies of the final rule, economic analysis, and information regarding this critical habitat designation are available on the Internet at
Gail Carmody, Field Supervisor, Panama City Field Office (see
The Gulf sturgeon (
Historically, the Gulf sturgeon occurred from the Mississippi River east to Tampa Bay. Its present range extends from Lake Pontchartrain and the Pearl River system in Louisiana and Mississippi east to the Suwannee River in Florida. Sporadic occurrences have been recorded as far west as the Rio Grande River between Texas and Mexico, and as far east and south as Florida Bay (Wooley and Crateau, 1985; and Reynolds, 1993).
In the late 19th century and early 20th century, the Gulf sturgeon supported an important commercial fishery, providing eggs for caviar, flesh for smoked fish, and swim bladders for isinglass, a gelatin used in food products and glues (Huff, 1975; and Carr, 1983). Gulf sturgeon numbers declined due to overfishing throughout most of the 20th century. The decline was exacerbated by habitat loss associated with the construction of water control structures, such as dams and sills (submerged ridge or vertical wall of relatively shallow depth separating two bodies of water), mostly after 1950. In several rivers throughout the species' range, dams have severely restricted sturgeon access to historic migration routes and spawning areas (Boschung, 1976; Wooley and Crateau, 1985; and McDowall, 1988).
On September 30, 1991, we listed the Gulf sturgeon as a threatened species under the Act (16 U.S.C. 1531
The Gulf Sturgeon Recovery/Management Plan (FWS
Gulf sturgeon feeding habits in freshwater vary depending on the fish's life history stage (
Many reports indicate that adult and subadult Gulf sturgeon lose a substantial percentage of their body weight while in freshwater (Wooley and Crateau, 1985; Mason and Clugston, 1993; and Clugston
Once subadult and adult Gulf sturgeon leave the river, having spent at least 6 months in the river fasting, we presume that they immediately begin feeding. Upon exiting the rivers, Gulf sturgeon are found in high concentrations near their natal river mouths. Lakes and bays at the mouths of the river systems where Gulf sturgeon occur are important because they offer the first opportunity for Gulf sturgeon exiting their natal rivers to forage. Gulf sturgeon must be able to consume sufficient quantities of prey while in estuarine and marine waters to regain the weight they lose while in the river system and to maintain positive growth on a yearly basis. In addition, reproductively active Gulf sturgeon require additional food resources to obtain sufficient energy necessary for reproduction (Fox
Adult and subadult Gulf sturgeon, while in marine and estuarine habitat, are thought to forage opportunistically (Huff, 1975), primarily on benthic (bottom dwelling) invertebrates. Gut content analyses have indicated that the Gulf sturgeon's diet is predominantly amphipods, lancelets, polychaetes, gastropods, shrimp, isopods, molluscs, and crustaceans (Huff, 1975; Mason and Clugston, 1993; Carr
Gulf sturgeon are long-lived, with some individuals reaching at least 42 years in age (Huff, 1975). Age at sexual maturity for females ranges from 8 to 17 years, and for males from 7 to 21 years (Huff, 1975). Gulf sturgeon eggs are demersal (they are heavy and sink to the bottom), adhesive, and vary in color from gray to brown to black (Vladykov and Greeley, 1963; Huff, 1975; and Parauka
Sulak and Clugston (1999) suggested that sturgeon spawning activity in the Suwannee River is related to the phase
Atlantic sturgeon (
In the spring (March to May), most adult and subadult Gulf sturgeon return to their natal river, where sexually mature sturgeon spawn, and the population spends until October or November (6 to 8 months) in freshwater (Odenkirk, 1989; Foster, 1993; Clugston
Adult Gulf sturgeon spawn in upper river reaches. On some river systems such as the Pascagoula River and Apalachicola River, some adult and subadult Gulf sturgeon remain near the spawning grounds throughout the summer months (Wooley and Crateau, 1985; and Ross
River flow may serve as an environmental cue that governs both sturgeon migration and spawning (Chapman and Carr, 1995; and Ross
Gulf sturgeon require large areas of diverse habitat that have natural variations in water flow, velocity, temperature, and turbidity (FWS
In comparison to other fish species, sturgeon have a limited behavioral and physiological capacity to respond to hypoxia (insufficient oxygen levels) (Secor and Niklitschek, 2001). Basal metabolism, growth, consumption, and survival are sensitive to changes in oxygen levels (Secor and Niklitschek, 2001). In laboratory experiments, young shortnose sturgeon (
Most subadult and adult Gulf sturgeon spend cool months (October or November through March or April) in estuarine areas, bays, or in the Gulf of Mexico (Odenkirk, 1989; Foster, 1993; Clugston
Research in Choctawhatchee Bay indicates that subadult Gulf sturgeon show a preference for sandy shoreline habitats with water depths less than 3.5 m (11.5 ft) and salinity less than 6.3 parts per thousand (Parauka
Craft
Habitats used by Gulf sturgeon in the vicinity of the Mississippi Sound barrier islands tend to have a sand substrate and an average depth of 1.9 to 5.9 m (6.2 to 19.4 ft). Preliminary data from bottom samples taken in these barrier island areas show that all samples contain lancelets (
Estuary and bay unvegetated habitats have a preponderance of sandy substrates that support burrowing crustaceans, such as ghost shrimp, small crabs, various polychaete worms, and small bivalve mollusks (Menzel, 1971; Abele and Kim, 1986; American Fisheries Society, 1989; and Brim, pers. comm. 2002). Gulf sturgeon are often located in these areas, and because their known prey items are present, it is assumed that Gulf sturgeon are foraging.
Migratory behavior of the Gulf sturgeon seems influenced by sex, reproductive status, water temperature, and possibly river flow. Carr
Downstream migration from fresh to saltwater begins in September (at about 23°C (73.4°F)) and continues through November (Huff, 1975; Wooley and Crateau,1985; and Foster and Clugston, 1997). During the fall migration from fresh to saltwater, Gulf sturgeon may require a period of physiological acclimation to changing salinity levels, referred to as osmoregulation or staging (Wooley and Crateau, 1985). This period may be short (Fox
Sturgeon ages 1 through 6 remain in the mouth of the Suwannee River over winter. In late January through early February, young-of-the-year Gulf sturgeon migrate down river for the first time (Sulak and Clugston, 1999). Huff (1975) noted that juvenile Gulf sturgeon in the Suwannee River most likely participated in pre- and post-spawning migrations, along with the adults.
Findeis (1997) described sturgeon (Acipenseridae) as exhibiting evolutionary traits adapted for benthic cruising. Tracking observations by Sulak and Clugston (1999), Fox
When temperature drops occur that are associated with major cold fronts, researchers of the Escambia, Yellow, and Suwannee Rivers subpopulations have been unable to locate adult Gulf sturgeon within the bays (Craft
Sulak and Clugston (1999) described two hypotheses regarding areas adult Gulf sturgeon may overwinter in the Gulf of Mexico in order to find abundant prey. The first hypothesis is that Gulf sturgeon spread along the coast in nearshore waters in depths less than 10 m (33 ft). The alternative hypothesis is that they migrate far offshore to the broad sedimentary plateau in deep water (40 to 100 m (131 to 328 ft)) west of the Florida Middle Grounds, where over twenty species of bottom-feeding fish congregate in the winter (Darnell and Kleypas, 1987). Available data support the first hypothesis. Evaluation of tagging data has identified several nearshore Gulf of Mexico feeding migrations, but no offshore Gulf of Mexico feeding migrations or areas. Telemetry data document that Gulf sturgeon from the Pearl River and Pascagoula River subpopulations migrate from their natal bay systems to Mississippi Sound and move along the barrier islands, with relocation of tagged individuals greatest in the passes between islands (Ross
Stabile
Tagging studies suggest that Gulf sturgeon exhibit a high degree of river fidelity (Carr, 1983). From 1981 to 1993, 4,100 fish were tagged in the Apalachicola and Suwannee Rivers. Of these, 868 total fish were recaptured (FWS
To date, biologists have documented a total of 22 Gulf sturgeon making inter-river movements from natal rivers. They are as follows: Apalachicola River to Suwannee River, six Gulf sturgeon (Carr
Tallman and Healey (1994) noted that observed straying rates between rivers were not the same as actual gene flow rates,
Federal action on the Gulf sturgeon began in 1982, when the fish was included as a Category 2 candidate species for listing in the FWS's vertebrate notices of review dated December 30, 1982 (47 FR 58454) and September 18, 1985 (50 FR 37958), and in the animal notice of review dated January 6, 1989 (54 FR 554). At that time, the FWS gave Category 2 designation to species for which listing as threatened or endangered was possibly appropriate, but for which additional biological information was needed to support a proposed rule. A status report on the Gulf sturgeon (Hollowell, 1980) had concluded that the fish had been reduced to a small population due to overfishing and habitat loss. In 1988, the FWS completed a report on the conservation status of the Gulf sturgeon, which recommended listing it as a threatened species (Barkuloo, 1988).
The Services jointly proposed the Gulf sturgeon for listing as a threatened species on May 2, 1990 (55 FR 18357). In that proposed rule, we stated that designation of critical habitat was not prudent due to the species” broad range and the lack of knowledge about specific areas used by the species. We published the final rule on September 30, 1991 (56 FR 49653) to add Gulf sturgeon to the list of threatened species, and included a special rule under section 4(d) of the Act to allow the take of Gulf sturgeon, in accordance with applicable State fish and wildlife conservation laws and regulations, for educational and scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes.
Section 4(a)(3)(A) of the Act requires that critical habitat be designated concurrently with a determination that a species is endangered or threatened, to the maximum extent prudent and determinable. When such a designation is not determinable at the time of final listing of a species, or if a prompt determination of endangered or threatened status is essential to the conservation of the species, section 4(b)(6)(C) of the Act provides for an additional year to promulgate a final critical habitat designation. In the final rule listing Gulf sturgeon as a threatened species, we found that a critical habitat designation may be prudent but was not determinable. We found that prompt determination of threatened status was essential to the conservation of the species and stated that we would make a final decision on designation of critical habitat by May 2, 1992. This decision, however, was not made.
On August 11, 1994, the Sierra Club Legal Defense Fund, Inc. (Fund), on behalf of the Orleans Audubon Society and Florida Wildlife Federation, gave written notice of their intent to file suit against the Department of the Interior for failure to designate critical habitat for the Gulf sturgeon within the statutory time limits established under
On September 22, 1995, the Services and the Gulf States Marine Fisheries Commission approved the Gulf Sturgeon Recovery/Management Plan (FWS
On August 12, 1996, the plaintiffs filed a motion to add the Department of Commerce as a defendant in the lawsuit. The Fund amended their complaint to challenge the August 1995 “not prudent” determination. On October 30, 1997, the court granted the plaintiffs' motion for summary judgment, with relief restricted to a remand of the “not prudent” determination to the Services, requiring that the Services publish a determination on designation of critical habitat, based on the best scientific information available. On February 27, 1998, we published a notice of decision (63 FR 9967) on critical habitat designation for the Gulf sturgeon. We again determined that lack of additional conservation benefit from critical habitat designation for this species made such designation not prudent.
On December 18, 1998, the Sierra Club sued the Services challenging the new determination not to designate critical habitat for the Gulf sturgeon (
On June 6, 2002, we published a proposed rule in the
We contacted appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposal to designate critical habitat for the Gulf sturgeon. In addition, we published newspaper notices inviting public comment on the proposed rule and the draft economic analysis, and announced the public meetings and hearings in the following newspapers:
We held four public meetings and four public hearings on the proposed rule (see “Previous Federal Action” section for dates and locations). Transcripts of these hearings are available for inspection (
We received written letters or e-mails from a total of 126 parties which included 2 congressional representatives from Georgia, 10 Federal agencies, 13 State agencies, 5 county governments, 93 groups or individuals, and 3 peer reviewers. Of the 128 total responses, 29 supported the proposed rule, 2 opposed it, and the rest were neutral.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from six knowledgeable individuals having expertise either with the species, with the geographic region where the species occurs, and/or familiarity with the principles of conservation biology. Three of these experts provided a written response generally supporting the designation and provided additional information that we have incorporated into the rule as appropriate. We appreciate the responses of these peer reviewers, and believe their input has improved the content of this rule.
We reviewed all comments received for substantive issues and new data regarding critical habitat and Gulf sturgeon. Some comments resulted in changes between the proposed and final designations, and those comments are discussed in the “Summary of Changes From the Proposed Rule” section of this document. Written comments and oral statements presented at the public hearings and received during the comment period are addressed in the following summary. For readers' convenience we have assigned comments to major issue categories. We have combined similar comments into single comments and responses.
Also, twenty eight commenters recommended that additional areas be included as critical habitat, with some stating that the areas contain the primary constituent elements. Others requested inclusion based on historic use or potential use by the Gulf sturgeon in these areas. Other commenters expressed concerns that the proposed designation did not include all of the current range of the Gulf sturgeon. The areas requested for inclusion were the Ochlockonee River, Withlacoochee
The definition of critical habitat in section 3(5)(A) of the Act includes “(I) specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.” By definition, essential critical habitat generally describes a subset of the area potentially containing primary constituent elements for a species. As discussed in the methods section of the proposed and this final rule, to determine areas essential for the conservation of the Gulf sturgeon, we used the best scientific data available pertaining to known habitat requirements of the species. Areas designated as critical habitat for the Gulf sturgeon are within the current known range of the species and contain one or more primary constituent elements essential for the conservation of the species. In our proposed and final designation of critical habitat, we selected essential habitat areas that currently contain populations or provide habitat components essential to the conservation of the species. During this analysis, it was determined that some areas containing one or more primary constituent elements did not represent suitable habitat or were otherwise not essential to the conservation of the species.
In their analysis of Gulf sturgeon subpopulations from eight drainages along the Gulf of Mexico for genetic diversity, Stabile
All five genetic stocks are represented by the seven subpopulations occupying the critical habitat units. The number, distribution, and range of the seven Gulf sturgeon subpopulations included in these units are necessary to protect and support the extent and diversity of the species' genetic integrity and can provide a rescue effect, if needed (see “Methods” section). We believe that these seven river systems, with their associated estuarine and marine environments, represent habitat that is essential for the conservation of the Gulf sturgeon.
In addition, we note that Federal actions that might adversely affect critical habitat are not necessarily prohibited. Many Federal actions may adversely affect critical habitat without the effect rising to the level of destruction or adverse modification of the critical habitat. In those cases where we find that a Federal project would destroy or adversely modify critical habitat, we must identify reasonable and prudent alternatives (RPAs) to the project that would avoid the destruction or adverse modification (see “Effects of Critical Habitat Designation” section). The RPAs must be capable of being implemented in a manner consistent with the intended purpose of the action, be consistent with the action agency's legal authority and jurisdiction, and be economically and technically feasible.
The GIWW requires periodic dredging by the USACE to maintain safe and adequate passage. As stated in the proposed rule (67 FR 39125), dredging is an action that may destroy or adversely modify Gulf sturgeon critical habitat. We will work closely with the USACE to identify appropriate measures to reduce dredging impacts to Gulf sturgeon critical habitat while allowing maintenance dredging to continue in the GIWW without interruption.
Specific references used for making our determination are cited throughout the “Background” and “Critical Habitat Unit Descriptions” sections of the proposed and final rules. A complete list of all references cited is presented in the “References Cited” section of this final rule.
While the MOU does not contain specifics on jurisdictional boundaries for critical habitat, the Services have applied the standard set for listing species to this critical habitat rule—that is, NMFS will have jurisdictional responsibility for marine waters and the FWS for fresh water. In estuarine waters, the Services will consult based on their respective expertise as described in the proposed rule. Under this arrangement, the FWS will consult with the EPA since it has expertise in water quality issues, and the NMFS will consult with the USACE to maximize efficiency for the action agency when other federally protected species may be present (
Possible flow-related limitations to spawning habitat in the Apalachicola River were not recognized until the spring of 2002, when project operations and unusually low basin runoff entering the fourth year of a regional drought exposed limestone outcroppings and other hard-bottom portions of the main channel. These hard-bottom areas, which likely support spawning by the small Apalachicola sub-population, are inundated during the spring months of most years by the combination of unregulated basin runoff and the USACEs' operations of the ACF reservoirs for project purposes other than the conservation of species and habitats protected under the Act. On May 2, 2002, FWS personnel surveyed a site near where sturgeon larvae were collected in 1977 (Wooley
If flow rates between 424 cms (14,970 cfs) and 612 cms (21,610 cfs) are sufficient for successful sturgeon spawning on the Apalachicola River, any adjustments to reservoir operations that appear reasonable and prudent for sturgeon conservation would occur relatively infrequently, during the occasional years when spring-time hydrologic conditions and operations for other project purposes do not provide flows in this range. However, this flow range is based on one set of measurements at one site and relies upon the minimum depth at which eggs have been previously collected (4.6 feet); other sites with different hydrologic characteristics may support spawning and depths less than 4.6 feet may allow for successful spawning. Annual monitoring of the Apalachicola sturgeon population by net sampling shows year classes represented for all years from 1986 to 1998. In none of these years were all days in the March 15 to May 15 time frame greater than 612 cms (21,610 cfs), but all of these years had at least 11 days greater than 612 cms (21,610 cfs). In 2002, no days from March 15 to May 15 had flow greater than 612 cms (21,610 cfs). We will not know for 3 years, when year class 2002 individuals would become large enough to sample with the nets used in annual monitoring, whether the unusually low spring flows of 2002 resulted in a lost year class.
The USACE and FWS have initiated a study of sturgeon spawning habitat in the Apalachicola River that will provide a more complete relationship between flow and habitat availability than the single site measured by FWS in May 2002. The USACE will use the results of this study and other information in a biological assessment of the effects of its current operations on the sturgeon, its proposed critical habitat, and other federally-protected species. This assessment will determine whether current operations may adversely affect federally-protected species and their habitats and if so, serve to initiate formal consultation with the FWS. Until this consultation is completed, it is premature to make estimates of its economic impact, which is dependent on the results of studies that are still underway and on USACE decisions relative to reservoir operations that will weigh its responsibilities under the Act with other statutory responsibilities.
After identifying and evaluating the activities likely to give rise to section 7 consultations and thus direct costs of critical habitat designation in section 3.2, the economic analysis discusses potential secondary impacts on the regional economy in section 3.4. Past consultations have not resulted in project changes that have affected the regional economy, including the particular activities of concern to the commenters, and no comments provided specific examples of how future consultations would result in regional economic impacts.
Waterborne commerce is unlikely to be affected by the critical habitat designation because all available evidence indicates that future operations and maintenance navigation projects will proceed without changes to timing and scope. Moreover, the frequently maintained portions of the major shipping channels located within the critical habitat designation are altered to an extent that any primary constituent elements for sturgeon that are still present in the channels are unlikely to be appreciably diminished from their current baseline by Federal actions in the channels. Portions of shipping channels that are not frequently maintained and new dredge material disposal sites likely contain one or more primary constituent elements and therefore have a higher likelihood for project modifications to be recommended.
No limitations to commercial fishing activities are expected to result from section 7 consultations pertaining to Gulf sturgeon (see Section 3.4.3 of the economic analysis).
Past consultations and available evidence do not indicate that county-wide economies or employment will be impacted by this critical habitat designation (see Section 3.4.4 of the economic analysis).
The most likely effect of shrimp trawling on Gulf sturgeon critical habitat would be the disturbance of the benthic environment by trawling gear. This issue is being investigated at the NOAA Fisheries Galveston Laboratory. Until such time as conclusive data becomes available, any correlation between shrimp trawling and a negative effect on Gulf sturgeon critical habitat would be tenuous. While benthic molluscan and crustacean prey items favored by Gulf sturgeon could conceivably be disturbed as the shrimp trawl passes over the bottom, a possible effect of that disturbance would be to make them more susceptible to predation by Gulf sturgeon, possibly enhancing foraging opportunities. Although shrimp trawls may capture Gulf sturgeon, and the benthos within critical habitat may be disturbed, there is little to suggest that shrimp trawling significantly affects the Gulf sturgeon or its critical habitat at this time.
Seven changes have been made from the proposed to the final rule designating Gulf sturgeon critical habitat—calculation of the total area included in designation; inclusion of identical amendments to both 50 CFR parts 17 and 226; verification of bridge
For the proposed rule, river kilometers (and river miles) were measured with USACE mileage tables (USACE, 1985a and b), when available for a particular river reach. When not reported in the USACE mileage tables, several Geographic Information System (GIS) data layers were used to map all units and to calculate mileages, including data from NOAA, Environmental Systems Research Institute, Inc., and USGS. For the final rule, we still relied on the USACE mileage tables (USACE, 1985a and b) to calculate mileages when available for a particular river reach, but the remaining reaches were measured and mapped using the National Hydrography Dataset from the USGS at a scale of 1:100,000 (2001-2002 data set). This data layer, not available to us during the proposed rule, is available for the entire range of the mapped Gulf sturgeon critical habitat and has a higher resolution than the GIS data layers used for the proposed rule maps. Greater resolution results in the ability of the mapper to see and measure more of the rivers natural bends, thereby resulting in higher and more accurate river lengths. This change from using different data layers resulted in an additional river mileage of 259 rkm (161 rmi), which is a more accurate reflection, in reported total river kilometers and miles for all States, with no inclusion of additional areas.
In the proposed rule, we inadvertently provided different amendments to be included in 50 CFR part 17 (FWS) and part 226 (NMFS). For the final rule we are making identical amendments to both Parts. The amendment includes: (1) Maps and textual unit descriptions of all 14 critical habitat units, (2) the primary constituent elements essential for the conservation of Gulf sturgeon, and (3) a description of regulatory jurisdiction.
Below are descriptions of unit-specific changes. The changes stated below do not include those attributed to our more fine-scale mapping from the proposed rule.
On the Bogue Chitto River, Pike County, Mississippi, we reduced critical habitat in this river reach by approximately 3.2 km (2 mi) due to an error in what we believed to be the location of Quinn Bridge. We have documentation of a Gulf sturgeon sighting 1.6 km (1 mi) north of Quinn Bridge. In the proposed rule, we were given information that stated that Quinn Bridge was located on Mississippi (MS) Highway 570. Since the sighting was 1.6 km (1 mi) upstream of Quinn Bridge (MS Highway 570), in the proposed rule we ended the designation upstream of Quinn Bridge at Lazy Creek to encompass the fish location and to boundary at an area easily identifiable. We now know that Quinn Bridge is located along MS Highway 44 (Estes
On the Bouie River, Forrest County, Mississippi, we received more specific information during the comment period on the location of a Gulf sturgeon captured above the gravel pits above Glendale Road in 1977. This fish was located approximately 0.80 rkm (0.50 rmi) above Glendale Road, not further upstream as originally believed. For ease of identification, we have included up to the southern-most road crossing of Interstate 59 in the unit. We have, therefore, reduced this river reach by 14.5 rkm (9.0 rmi).
In the proposed rule, we inadvertently provided different amendments to be included in 50 CFR part 17 (FWS) and part 226 (NMFS). For the final rule we are making identical amendments to both Parts. The amendment includes: (1) Maps and textual unit descriptions of all 14 critical habitat units, (2) the primary constituent elements essential for the conservation of Gulf sturgeon, and (3) a description of regulatory jurisdiction.
The Services are also excluding major shipping channels in this unit, as identified on standard navigation charts and marked by buoys, under Section 4(b)(2).
The Services are excluding major shipping channels, as identified on standard navigation charts and marked by buoys, under Section 4(b)(2).
The Services are excluding major shipping channels, as identified on standard navigation charts and marked by buoys, under Section 4(b)(2).
Critical habitat is defined in section 3(5)(A) of the Act as (I) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” is defined in section 3(3) of the Act as the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which listing under the Act is no longer necessary.
In order for habitat to be included in a critical habitat designation, the habitat features must be “essential to the conservation of the species.”
When we designate critical habitat, we may not have the information necessary to identify all areas which are essential for the conservation of the species. Nevertheless, we are required to designate those areas we know to be critical habitat, using the best information available to us.
Within the geographic area of the species, we have designated only currently known essential areas. We will not speculate about what areas might be found to be essential if better information becomes available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area will not be included in the critical habitat designation. Our regulations state that “the Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species” (50 CFR 424.12(e)). Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat in areas outside the geographic area occupied by the species.
Section 4(b)(2) of the Act requires that we take into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.
As required by section 4(b)(2) of the Act and its implementing regulations (50 CFR 424.12), this final rule is based on the best scientific information available concerning the species' present and historical range, habitat, biology, and threats. In preparing this rule, we reviewed and summarized the current information available on the Gulf sturgeon, including the physical and biological features that are essential for the conservation of the species (see “Primary Constituent Elements” section), and identified the areas containing these features. The information used includes known locations; our own site-specific species and habitat information; State-wide Geographic Information System (GIS) coverages (
In the past, we had assumed, based on the information available at the time, that unoccupied habitat would be necessary for the recovery of the Gulf sturgeon. Since approval of the recovery plan in 1995 and our 1998 not prudent finding, we have collected new biological information on this species. We have analyzed what is necessary for the conservation of the Gulf sturgeon, as described above, and based on the best scientific information available at this time, we have determined that unoccupied habitat is not essential to the conservation of the Gulf sturgeon.
We first evaluated the Gulf sturgeon in the context of its current distribution throughout the historic range to determine what portion of the range must be included to ensure conservation of the species. We considered several factors in this evaluation—(1) maintaining overall genetic integrity and natural rates of inter-river genetic exchange, thereby minimizing the potential for inbreeding, (2) retaining potentially important selective pressure at the margins of the species' range by protecting the eastern- and western-most subpopulations, (3) decreasing the extinction risk of a subpopulation by protecting adjacent subpopulations that can provide a rescue effect, if needed, (4) avoiding the potential for subpopulation extirpation from environmental catastrophes, and (5) protecting sufficient habitat to support conservation of the species.
The historic range of the Gulf sturgeon included nine major rivers and several smaller rivers from the Mississippi River, Louisiana, to the Suwannee River, Florida, and in marine waters of the Central and Eastern Gulf of Mexico, south to Tampa Bay (Wooley and Crateau, 1985; and FWS
The Gulf Sturgeon Recovery/Management Plan (FWS
While telemetry data indicate that Gulf sturgeon from one genetically distinct drainage occasionally enter another river and also mix during the winter months in estuarine and marine habitats, a genetic analysis of tissue samples concluded that Gulf sturgeon exhibit strong natal river fidelity, with stocks exchanging less than one mature female per generation on the average (Waldman and Wirgin, 1998). These low gene flow estimates strongly suggest that natural recolonization of extirpated subpopulations of Gulf sturgeon would proceed slowly (Waldman and Wirgin, 1998). Semi-isolated subpopulations are more vulnerable to the effects of demographic and environmental population fluctuations (Forney and Gilpin, 1989; and Wahlberg
Gene flow estimates are usually higher between adjacent stocks, suggesting that migrants from semi-isolated subpopulations are exchanged primarily with neighboring subpopulations (Waldman and Wirgin, 1998). The loss of any intermediate subpopulations by a single environmental catastrophe could seriously limit a species' recovery (Kautz and Cox, 2001; and Young and Harig, 2001). In light of this, we determined that it is necessary to designate as critical habitat rivers used by subpopulations evenly spaced between the western- and eastern-most limits of the current range. To ensure conservation of the species, subpopulations must be geographically located so that they can serve as sources of sturgeon emigration, albeit at a slow rate (Waldman and Wirgin, 1998), to adjacent rivers and so that they can provide a rescue effect if an adjacent subpopulation is extirpated (Brown and Kodric-Brown, 1977; Hanski and Gyllenberg, 1993; and Young and Harig, 2001).
Designating critical habitat for only a few subpopulation units, or for units not spaced in a manner that allows genetic exchange with other subpopulations, could increase the vulnerability of the species due to isolation of subpopulations. Protection of a single, isolated, minimally viable population risks the extirpation or extinction of a species as a result of harsh environmental conditions, catastrophic events, or genetic deterioration over several generations (Kautz and Cox, 2001). To reduce the risk of extinction through these processes, it is important to establish multiple protected subpopulations across the landscape (Soulé and Simberloff, 1986; and Wiens, 1996).
Because of these considerations, we reached the conclusion that this designation should include critical habitat units within the major river
Once we determined that the proper scale of the critical habitat designation should cover the area occupied by the seven reproducing subpopulations, we evaluated which habitats used by those seven subpopulations are essential to their conservation. To conduct this evaluation, we assessed the critical life history components of Gulf sturgeon as they relate to habitat. Gulf sturgeon use the rivers for spawning, larval and juvenile feeding, adult resting, and staging, and to move between the areas that support these components. Gulf sturgeon use the lower riverine, estuarine, and marine environment during winter months primarily for feeding, and more rarely, for inter-river migrations.
We then investigated what habitat types support these life history components and where these habitat areas are located. We evaluated empirical data, published and unpublished literature, and solicited the views of experts. These habitat components are described in the “Primary Constituent Elements” section of this final rule. We identified known or presumed spawning sites in each of the seven river systems. Some spawning sites have been conclusively identified; others are presumed due to the presence of suitable habitat. We identified known or presumed sites used for resting or staging. We identified areas where subadult and adult Gulf sturgeon occur during winter and are presumed to be feeding. These areas are primarily in the marine or estuarine environment; young-of-the-year and juveniles feed mostly in the riverine environment. As a component of the above identifications, we gathered all available data on locations and habitat use of marked (tagged) fish.
To determine which areas should be designated as critical habitat, we then evaluated where the necessary constituent elements of Gulf sturgeon habitat intersected with areas known to be used by both marked and unmarked fish. Detailed location data, where available, is included with each unit description in the “Critical Habitat Unit Descriptions” section of this final rule. Because most of the sturgeon species' farthest upstream movement is for spawning (Bain, 1997; and J. Hightower, USGS-Biological Resources Division, pers. comm. 2002), we have determined that the designation should include areas as far upstream as the furthest known or presumed spawning site. Therefore, in rivers where spawning sites have been confirmed, critical habitat extends upstream to a geographically identifiable point, such as a river confluence upstream of those sites. In areas where spawning sites are presumed but not confirmed, we have included river reaches that contain the appropriate substrate necessary for spawning, if those areas occur within close proximity of Gulf sturgeon historic and/or current sightings or captures, and if they are still accessible to sturgeon (
We have included riverine habitat from the river mouth upstream to and including spawning grounds in order to provide sufficient habitat necessary for the other riverine life stages of Gulf sturgeon while they reside in the riverine habitats. Habitat necessary for these life stages includes habitat for summer resting or staging areas, juvenile feeding, entire young-of-the-year life cycle, passage throughout the river, and passage into and out of estuarine habitat. All of the selected areas are known to be used by Gulf sturgeon for some portion of their life cycle.
Subadult and adult sturgeon use estuarine and marine areas for feeding and passage between river systems. Designation of critical habitat units encompassing estuaries and bays adjacent to the riverine units discussed above will protect unobstructed passage of sturgeon from feeding areas to spawning grounds. In evaluating the estuarine and marine areas, we first reviewed where Gulf sturgeon from the seven adjacent riverine units have been documented by telemetry relocations and tag returns from incidental captures. We also considered areas for which we have Gulf sturgeon sightings and targeted and incidental capture records. When available, we reviewed habitat data (
Migration and feeding may take place within the GIWW in some of the units. Portions of the GIWW that consist primarily of excavated land cuts and canals have been excluded from this designation because they were not available historically, and, therefore, are not considered to be evolutionarily significant.
This final designation includes a significant portion, but not all, of the species' historic range. The fourteen critical habitat units include riverine main stems and in some cases tributaries, distributaries (a river branch flowing away from the main stem in the floodplain) and adjacent estuarine and marine areas that contain one or more of the primary constituent elements essential for the conservation of the Gulf sturgeon (see “Primary Constituent Elements” section). The omission of some historically occupied river drainages and estuarine and marine areas from this critical habitat designation does not diminish their individual or cumulative importance to the species. Rather, it is our
Although the Mobile River Basin is the largest Gulf of Mexico drainage east of the Mississippi River, it has been extensively impounded and modified for navigation. Further, there have been relatively limited reports of captures and no evidence of reproduction of Gulf sturgeon from that system for many years. Gulf sturgeon have been reported from other river systems. Some of these other systems historically supported a commercial fishery (
The data available to us are insufficient to support a determination that Lake Maurepas, Breton and Chandeleur Sounds, the Mississippi River Delta, St. Louis, Biloxi, Mobile, Perdido, St. Andrews, St. Joseph, Ochlockonee, or Apalachee Bays are essential to the conservation of the species. Records within the majority of these bays are relatively scarce. Although some Gulf sturgeon from the seven subpopulations may occasionally use these bays for winter foraging, there are insufficient data to support these bays' regular winter use or importance and no documented spawning. Therefore, we have not included these bays in our critical habitat designation.
The amount of research and status surveys conducted on many Gulf sturgeon subpopulations is limited. Because of the limited availability of data specific to each river system and specific to the Gulf sturgeon's use of the marine environment, we are aware that habitat other than that identified in this final rule may later be found to be essential to the conservation of Gulf sturgeon. To the extent feasible, we will continue, with the assistance of other Federal, State, and private researchers, to conduct surveys, research, and conservation actions on the species and its habitat in areas designated and not designated as critical habitat. If additional information becomes available on the species' biology, distribution, and threats, we will evaluate the need to designate additional critical habitat, delete or reduce critical habitat, or refine the boundaries of critical habitat. Gulf sturgeon surviving in, or moving to rivers that are not being included as critical habitat will continue to receive protection under the section 7 of the Act including the jeopardy standard and the section 9 of the Act prohibitions on take (see “Critical Habitat” section).
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we are required to base critical habitat determinations on the best scientific data available and to focus on those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. Such requirements include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.
Based on the best available information, primary constituent elements essential for the conservation of the Gulf sturgeon include the following:
(1) Abundant food items, such as detritus, aquatic insects, worms, and/or molluscs, within riverine habitats for larval and juvenile life stages; and abundant prey items, such as amphipods, lancelets, polychaetes, gastropods, ghost shrimp, isopods, molluscs and/or crustaceans, within estuarine and marine habitats and substrates for subadult and adult life stages.
(2) Riverine spawning sites with substrates suitable for egg deposition and development, such as limestone outcrops and cut limestone banks, bedrock, large gravel or cobble beds, marl, soapstone, or hard clay;
(3) Riverine aggregation areas, also referred to as resting, holding, and staging areas, used by adult, subadult, and/or juveniles, generally, but not always, located in holes below normal riverbed depths, believed necessary for minimizing energy expenditures during fresh water residency and possibly for osmoregulatory functions;
(4) A flow regime (
(5) Water quality, including temperature, salinity, pH, hardness, turbidity, oxygen content, and other chemical characteristics, necessary for normal behavior, growth, and viability of all life stages;
(6) Sediment quality, including texture and other chemical characteristics, necessary for normal behavior, growth, and viability of all life stages; and
(7) Safe and unobstructed migratory pathways necessary for passage within and between riverine, estuarine, and marine habitats (
An area designated as critical habitat contains one or more of the primary constituent elements that are essential to the conservation of the species (see “Primary Constituent Elements” section), and that may require special management considerations or protection. Various activities in or adjacent to each of the critical habitat units described in this rule may affect one or more of the primary constituent elements that are found in the unit. These activities include, but are not limited to, those listed in the “Effects of Critical Habitat” section as “Federal Actions That May Affect Critical Habitat and Require Consultation.” For example, riverine spawning sites for Gulf sturgeon must be relatively sediment-free for successful egg development and may need best management practices implemented in the watershed upstream to prevent an excessive accumulation of sediment in these areas. None of the critical habitat units are presently under special management or protection provided by a legally operative plan or agreement for the conservation of the Gulf sturgeon. Therefore, we have determined that all units may require special management or protection.
The areas designated as critical habitat for the Gulf sturgeon provide one or more of the primary constituent elements described above. Tables 1 and 2 summarize the location and extent of the designated critical habitat. All of the designated areas require special management considerations to ensure their contribution to the conservation of the Gulf sturgeon. The boundaries of critical habitat units are described generally below.
The river reaches within units 1 to 7 designated as critical habitat lie within the ordinary high water line. As defined in 33 CFR 329.11, the ordinary high water line on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.
The downstream limit of the riverine units is the mouth of each river. The mouth is defined as rkm 0 (rmi 0). Although the interface of fresh and saltwater, referred to as the saltwater wedge, occurs within the lower-most reach of a river, for ease in delineating critical habitat units, we are defining the boundary between the riverine and estuarine units as rkm 0 (rmi 0).
Regulatory jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water (MHW) (33 CFR 329.12(a)(2)). All bays and estuaries within units 8 to 14, therefore, lie below the MHW lines. Where precise determination of the actual location becomes necessary, it must be established by survey with reference to the available tidal datum, preferably averaged over a period of 18.6 years. Less precise methods, such as observation of the “apparent shoreline,” which is determined by reference to physical markings, lines of vegetation, may be used only where an estimate is needed of the line reached by the mean high water.
The term 72 COLREGS is defined as demarcation lines which delineate those waters upon which mariners shall comply with the International Regulations for Preventing Collisions at Sea, 1972 and those waters upon which mariners shall comply with the Inland Navigation Rules (33 CFR 80.01). The waters inside of these lines are Inland Rules waters and the waters outside the lines are COLREGS waters. These lines are defined in 33 CFR 80, and have been used for identification purposes to delineate boundary lines of the estuarine and marine habitat Units 8, 9, 11, and 12.
Unit 1 includes the Pearl River main stem from the spillway of the Ross Barnett Dam, Hinds and Rankin Counties, Mississippi, downstream to where the main stem river drainage discharges at its mouth joining Lake Borgne, Little Lake, or The Rigolets in Hancock County, Mississippi, and St. Tammany Parish, Louisiana. It includes the main stems of the East Pearl River, West Pearl River, West Middle River, Holmes Bayou, Wilson Slough, downstream to where these main stem river drainages discharge at the mouths of Lake Borgne, Little Lake, or The Rigolets. Unit 1 also includes the Bogue Chitto River main stem, a tributary of the Pearl River, from Mississippi State Highway 570, Pike County, Mississippi, downstream to its confluence with the West Pearl River, St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is the ordinary high water line on each bank of the associated rivers and shorelines.
The majority of recent Gulf sturgeon sightings in the Pearl River drainage have occurred downstream of the Pools Bluff Sill on the Pearl River, near Bogalusa, Washington Parish, Louisiana, and downstream of the Bogue Chitto Sill on the Bogue Chitto River in St. Tammany Parish, Louisiana. Between 1992 and 1996, 257 Gulf sturgeon were captured from the Pearl River system (West Middle River, Bogue Chitto River, East Pearl River, and West Pearl River). The subpopulation was estimated at 292 fish, of which only 2 to 3 percent were adults (Morrow
The presence of juvenile Gulf sturgeon (1 to 4 years old) in the Pearl River system indicates successful spawning at some location in the Pearl River system. It is believed that the only suitable habitat for spawning for the Pearl River subpopulation of Gulf sturgeon occurs above the sills on the Pearl River and the Bogue Chitto River with access to these areas only during high flows (Morrow
The Bogue Chitto Sill, located on the Bogue Chitto River near its confluence with the Pearl River, also hinders movement of Gulf sturgeon upstream of the sill except during high water flows. Suitable spawning habitat occurs within the Bogue Chitto upriver of the sill (W. Slack, pers. comm. 2001; W. Granger, FWS, pers. comm. 2002; and F. Parauka, pers. comm. 2002) and juvenile, adult and subadult Gulf sturgeon have been documented on the Bogue Chitto River as far upstream as one mile north of Quinn Bridge (Mississippi State Highway 44), McComb, Pike County, Mississippi (W. Slack pers. comm. 2001; D. Oge, Louisiana Department of Environmental Quality, pers. comm. 2002; and F. Parauka, pers. comm. 2002). We, therefore, have designated as critical habitat the main stem of the Bogue Chitto River upstream of Quinn Bridge (Mississippi State Highway 44) to Mississippi State Highway 570 for ease of identification.
Unit 2 includes all of the Pascagoula River main stem and its distributaries, portions of the Bouie, Leaf, and Chickasawhay tributaries, and all of the Big Black Creek tributary. It includes the Bouie River main stem beginning on the southern-most road crossing of Interstate 59, Forrest County, Mississippi, downstream to its confluence with the Leaf River, Forrest County, Mississippi. The Leaf River main stem beginning from Mississippi State Highway 588, Jones County, Mississippi, downstream to its confluence with the Chickasawhay River, George County, Mississippi is included. The main stem of the Chickasawhay River from the mouth of Oaky Creek, Clarke County, Mississippi, downstream to its confluence with the Leaf River, George County, Mississippi is included. Unit 2 also includes Big Black Creek main stem from its confluence with Black and Red Creeks, Jackson County, Mississippi, to its confluence with the Pascagoula River, Jackson County, Mississippi. All of the main stem of the Pascagoula River from its confluence with the Leaf and Chickasawhay Rivers, George County, Mississippi, to the discharge of the East and West Pascagoula Rivers into Pascagoula Bay, Jackson County, Mississippi, is included. The lateral extent of Unit 2 is the ordinary high water line on each bank of the associated rivers and shorelines.
Subpopulation estimates, calculated from sturgeon captures in 1999 and 2000 in the summer holding areas on the Pascagoula River, range between 162 and 216 individuals (Heise
Gulf sturgeon spawning on the Bouie River was confirmed via egg collection in 1999 (Slack
Documented sightings of Gulf sturgeon and identified suitable spawning habitat upstream to Mississippi State Highway 588 (Reynolds, 1993; W. Slack, pers. comm. 2002; and F. Parauka, pers. comm. 2002), confirmed use as a migration corridor, and confirmed use by juvenile Gulf sturgeon (W. Slack, pers. comm. 2002) support the inclusion of the Leaf River as critical habitat.
Documented sightings of Gulf sturgeon using the Chickasawhay River (Miranda and Jackson, 1987; Reynolds, 1993; and Ross
Gulf sturgeon use the West and East distributaries of the Pascagoula River during spring and fall migrations (Ross
Unit 3 includes the Conecuh River main stem beginning just downstream of the spillway of Point A Dam, Covington County, Alabama, downstream to the Florida State line, where its name changes to the Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa Counties, Florida. It includes the entire main stem of the Escambia River downstream to its discharge into Escambia Bay and Macky Bay, Escambia and Santa Rosa Counties, Florida. All of the distributaries of the Escambia River including White River, Little White River, Simpson River, and Dead River, Santa Rosa County, Florida are included. The Sepulga River main stem from Alabama County Road 42, Conecuh and Escambia Counties, Alabama, downstream to its confluence with the Conecuh River, Escambia County, Alabama, is also included. The lateral extent of Unit 3 is the ordinary high water line on each bank of the associated lakes, rivers and shorelines.
Sufficient data are not yet available to estimate historic or current subpopulation size of the Escambia River drainage subpopulation. Collection and tagging of Gulf sturgeon, monitoring, and eventual subpopulation estimates are in the initial phases on the Escambia River in Florida and the Conecuh River in Alabama.
Suitable spawning habitat (Parauka and Giorgianni, 2002) and a reported larval sighting (N. Craft, Florida Department of Environmental Protection (FDEP), pers. comm. 2001), just below the Point A Dam (221 rkm (137 rmi)) on the Conecuh River support inclusion of critical habitat upstream to the Point A Dam. The Point A Dam prevents sturgeon movement further upstream at all flow conditions. In addition, spawning has been confirmed between rkm 161 and 170 (rmi 100 and 105.6) (Craft
Historic sightings reported from the 1910s and 1920s, and as recently as 1991, have been documented in Escambia County, Alabama, on the Sepulga River (Reynolds, 1993). Estes
We believe it is most likely that Gulf sturgeon use the Escambia River main stem and all the distributaries for exiting and entering the Escambia/Conecuh River. Gulf sturgeon have been documented to use distributaries near the river mouth within other systems (
Unit 4 includes the Yellow River main stem from Alabama State Highway 55, Covington County, Alabama, downstream to its discharge at Blackwater Bay, Santa Rosa County, Florida. All Yellow River distributaries (including Weaver River and Skim Lake) discharging into Blackwater Bay are included. The Shoal River main stem, a Yellow River tributary, from Florida Highway 85, Okaloosa County, Florida, to its confluence with the Yellow River, is included. The Blackwater River from its confluence with Big Coldwater Creek, Santa Rosa County, Florida, downstream to its discharge into Blackwater Bay is included. Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater River are included. The lateral extent of Unit 4 is the ordinary high water line on each bank of the associated lakes, rivers and shorelines.
The USGS conducted a subpopulation study in the Yellow River system during the spring (May to July) and fall (October) of 2001. Based on the capture of 98 fish in the spring and the capture/recapture of 94 fish that fall, the USGS estimated the subpopulation to consist of 580 Gulf sturgeon of 1 m (3.3 ft) or greater in size (M. Randall, USGS, pers. comm. 2001). This estimate excludes fish younger than 3 to 4 years of age.
Five distinct limestone outcrops have been documented as possible spawning sites on the Yellow River, between rkm 43 and 134 (rmi 26.7 and 83.3) (Parauka and Giorgianni, 2002). Several sites consist of brittle marl and limestone, and others of porous limestone. The lowest downstream site (rkm 43 (rmi 26.7)) is a primitive rock revetment, a manmade structure with a fair amount of rock substrate (Craft
The inclusion of the Shoal River, from the Yellow River confluence upstream to the Florida Highway 85 bridge (13 rkm (8 rmi)), is supported as critical habitat because it is a confirmed summer resting area (Lorio 2000). The potential for distributaries Weaver River and Skim Lake to be used for migration to and from the Yellow River system (Craft
Unit 5 includes the Choctawhatchee River main stem from its confluence with the west and east fork of the Choctawhatchee River, Dale County, Alabama, downstream to its discharge at Choctawhatchee Bay, Walton County, Florida. The distributaries discharging into Choctawhatchee Bay known as Mitchell River, Indian River, Cypress River, and Bells Leg are included. The Boynton Cutoff, Washington County, Florida, which joins the Choctawhatchee River main stem, and Holmes Creek, Washington County, Florida, are included. The section of Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek, Washington County, Florida, is included. The Pea River main stem, a Choctawhatchee River tributary, from the Elba Dam, Coffee County, Alabama, to its confluence with the Choctawhatchee River, Geneva County, Alabama, is included. The lateral extent of Unit 5 is the ordinary high water line on each bank of the associated rivers and shorelines.
Preliminary estimates of the size of the Gulf sturgeon subpopulation in the Choctawhatchee River system are 2,000 to 3,000 fish over 61 cm (24 inches (in)) total length (F. Parauka, pers. comm. 2001).
Biologists have located Gulf sturgeon within 0.8 rkm (0.5 rmi) downstream of the Elba Dam, Coffee County, Alabama, on the Pea River (Lorio, 2000) and have identified suitable spawning habitat from the Elba Dam to the Pea River mouth (Parauka and Giorgianni, 2002; and Hightower
Five spawning sites and seven resting areas have been identified on the Choctawhatchee River main stem between the river mouth (0 rkm (0 rmi)) and upstream to 150 rkm (93 rmi) (Hightower
No sturgeon have been documented within Holmes Creek, except for the section that connects the Choctawhatchee River and Boynton Cutoff, north and south. We have included this river section of Holmes Creek because it acts as part of the Choctawhatchee River main stem. In 1994, Gulf sturgeon were captured during March and April at the mouths of Indian River, Cypress River, and Bells Leg, indicating that sturgeon probably use these distributaries as migratory corridors to and from the Choctawhatchee River main stem. All distributaries, including the Indian River, Cypress River, Bells Leg, and Mitchell River, are included as critical habitat.
Unit 6 includes the Apalachicola River mainstem, beginning from the Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida, downstream to its discharge at East Bay or Apalachicola Bay, Franklin County, Florida. All Apalachicola River distributaries, including the East River, Little St. Marks River, St. Marks River, Franklin County, Florida, to their discharge into East Bay and/or Apalachicola Bay are included. The entire main stem of the Brothers River, Franklin and Gulf Counties, Florida, a tributary of the Apalachicola River, is included. The lateral extent of Unit 6 is the ordinary high water line on each bank of the associated rivers and shorelines.
Based on mark/recapture studies conducted in 1998 and 1999 in the Apalachicola River downstream of Jim Woodruff Lock and Dam, the summer subpopulation of subadult and adult Gulf sturgeon was estimated to be between 270 and 321 individuals (FWS, 1998; and FWS, 1999). Seventy-one sturgeon were collected in the upper Brothers River, upstream of the Brickyard Cutoff and downstream of Bearman Creek between June and September 1999 (FWS, 1999; and Lorio, 2000). Gulf sturgeon captured on the Brothers River have not been included in the Apalachicola River subpopulation size estimate although they are believed to be part of the subpopulation.
The Gulf sturgeon became restricted to the portion of the Apalachicola River downstream of the Jim Woodruff Lock and Dam upon the construction of the dam in the 1950s. Wooley
The entire main stem of the Brothers River, a major tributary of the Apalachicola River, is also included as critical habitat. Spawning has not been documented within this tributary, but an important resting area is located in the uppermost section of the Brothers River between Brickyard Cutoff and Bearman Creek (FWS, 1999; and Lorio, 2000). Sturgeon use the lower Brothers River as a resting and possible osmoregulation area (staging) before migrating into the estuarine and marine habitats for winter feeding (Wooley and Crateau, 1985). The Apalachicola River distributaries, including the East River, St. Marks River and Little St. Marks River, are included, based on information derived from other systems. Gulf sturgeon tend to use more than just the main stem for migration into and out of the river systems (
Unit 7 includes the Suwannee River main stem, beginning from its confluence with Long Branch Creek, Hamilton County, Florida, downstream to the mouth of the Suwannee River. It includes all the Suwannee River distributaries, including the East Pass, West Pass, Wadley Pass, and Alligator Pass, Dixie and Levy Counties, Florida, to their discharge into the Suwannee Sound or the Gulf of Mexico. The Withlacoochee River main stem from Florida State Road 6, Madison and Hamilton Counties, Florida, to its confluence with the Suwannee River is included. The lateral extent of Unit 7 is the ordinary high water line on each bank of the associated rivers and shorelines.
The Suwannee River supports the largest Gulf sturgeon subpopulation among the coastal rivers of the Gulf of Mexico (Huff, 1975; and Gilbert, 1992). Sulak and Clugston (1999) reported 5,344 uniquely tagged Suwannee River sturgeons from 1986 to 1998. Multiple models using various age classes have been used to estimate the subpopulation size of Gulf sturgeon on the Suwannee River system. Chapman
Marchant and Shutters (1996) collected two Gulf sturgeon eggs from the Suwannee River in April 1993. These were the first Gulf sturgeon eggs collected in the wild. Between 1993 and 1998, three spawning sites were confirmed with the collection of Gulf sturgeon eggs on artificial substrate samplers (Marchant and Shutters, 1996; and Sulak and Clugston, 1999). Young-of-the-year have been documented using the river between rkm 10 to the confluence with Roaring Creek at approximately rkm 285 (177 rmi) on the Suwannee River main stem (Carr
Adult Gulf sturgeon sightings and suitable spawning habitat on the lower Withlacoochee River near Florida State Road 141, Hamilton and Madison Counties, Florida, support the inclusion of this area as critical habitat. We have included shoals (5 rkm (3 rmi)) located just upstream of where sturgeon have been observed as possible spawning habitat, and have stopped at Florida State Road 6 (14 rkm (9 rmi)), upstream from the shoals, for ease of identification.
The Suwannee River branches near its mouth into the East Pass and West Pass. Gulf sturgeon adults use the East Pass and West Pass for emigration and immigration (Mason and Clugston, 1993; and Edwards
Unit 8 encompasses Lake Pontchartrain east of the Lake Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St. Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound. Critical habitat follows the shorelines around the perimeters of each included lake. The Mississippi Sound includes adjacent open bays including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy Bay, and barrier island passes, including Ship Island Pass, Dog Keys Pass, Horn Island Pass, and Petit Bois Pass. The northern boundary of the Mississippi Sound is the shoreline of the mainland between Heron Bay Point, Mississippi and Point aux Pins, Alabama. Critical habitat excludes St. Louis Bay, north of the railroad bridge across its mouth; Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of Biloxi. The southern boundary follows along the broken shoreline of Lake Borgne created by low swamp islands from Malheureux Point to Isle au Pitre. From the northeast point of Isle au Pitre, the boundary continues in a straight north-northeast line to the point 1 nautical mile (nm) (1.9 km) seaward of the western most extremity of Cat Island (30°13′N, 89°10′W). The southern boundary continues 1 nm (1.9 km) offshore of the barrier islands and offshore of the 72 COLREGS lines at barrier island passes (defined at 33 CFR 80.815 ©)), (d) and (e)) to the eastern boundary. Between Cat Island and Ship Island there is no 72 COLREGS line. We, therefore, have defined that section of the unit southern boundary as 1 nm (1.9 km) offshore of a straight line drawn from the southern tip of Cat Island to the western tip of Ship Island. The eastern boundary is the line of longitude 88°18.8′W from its intersection with the shore (Point aux Pins) to its intersection with the southern boundary. The lateral
The Pearl River and its distributaries flow into The Rigolets, Little Lake, and Lake Borgne, the western extension of Mississippi Sound. The Rigolets connect Lake Pontchartrain and Lake St. Catherine with Little Lake and Lake Borgne. The Pascagoula River and its distributaries flow into Pascagoula Bay and Mississippi Sound.
This unit provides juvenile, subadult and adult feeding, resting, and passage habitat for Gulf sturgeon from the Pascagoula and the Pearl River subpopulations. One or both of these subpopulations have been documented by tagging data, historic sightings, and incidental captures as using Pascagoula Bay, The Rigolets, the eastern half of Lake Pontchartrain, Little Lake, Lake St. Catherine, Lake Borgne, Mississippi Sound, within 1 nm (1.9 km) of the nearshore Gulf of Mexico adjacent to the barrier islands and within the passes (Davis
The Rigolets is an 11.3 km (7 mi) long and about 0.6 km (0.4 mi) wide passage connecting Lake Pontchartrain and Lake Borgne (U.S. Department of Commerce (USDOC), 2002). This brackish water area is used by adult Gulf sturgeon as a staging area for osmoregulation and for passage to and from wintering areas (Rogillio
Rogillio (1990) and Morrow
Lake Pontchartrain connects by The Rigolets with Lake Borgne. Lake Borgne, the western extension of Mississippi Sound, is partly separated from Mississippi Sound by Grassy Island, Half Moon (Grand) Island and Le Petit Pass Island. Lake Borgne is approximately 14.3 km (23 mi) in length, 3 to 6 km (5 to 10 mi) in width and 1.8 to 3 m (6 to 10 ft) in depth (USDOC, 2002). Most of Lake Borgne sediment is clay and silt (Barrett, 1971). Many Gulf sturgeon were anecdotally reported as taken incidentally in shrimp trawls in Lake Borgne 0.6 to 1.2 km (1 to 2 mi) south of the Pearl River between August and October from the 1950s through the 1980s (Reynolds, 1993). There are twenty-two additional records of Gulf sturgeon in Lake Borgne (D. Walther, FWS, pers. comm. 2002). Known locations are spread out around the perimeter of the Lake, including at the mouth of The Rigolets, Violet Canal, Bayou Bienvenue, Polebe, Alligator Point, and at Half Moon Island (Reynolds, 1993). We have included all of Lake Borgne as critical habitat.
The Mississippi Sound is separated from the Gulf of Mexico by a chain of barrier islands, including Cat, Ship, Horn, and Petit Bois Islands. Natural depths of 3.7-5.5 m (12 to 18 ft) are found throughout the Sound and a channel 3.7 m (12 ft) deep has been dredged where necessary from Mobile Bay to New Orleans (USDOC, 2002). Incidental captures and recent studies confirm that both Pearl River and Pascagoula River adult Gulf sturgeon winter in the Mississippi Sound, particularly around barrier islands and barrier islands passes (Reynolds, 1993; Ross
Unit 9 includes Pensacola Bay and its adjacent main bays and coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and Catfish Basin. All other bays, bayous, creeks, and rivers are excluded at their mouths. The western boundary is the Florida State Highway 292 Bridge crossing Big Lagoon to Perdido Key. The southern boundary is the 72 COLREGS line between Perdido Key and Santa
The Pensacola Bay system includes five interconnected bays, including Escambia Bay, Pensacola Bay, Blackwater Bay, East Bay, and the Santa Rosa Sound. The Santa Rosa Sound is addressed separately in unit 10. The Escambia River and its distributaries (Little White River, Dead River, and Simpson River) empty into Escambia Bay, including Bass Hole Cove, Saultsmar Cove, and Macky Bay. The Yellow River empties into Blackwater Bay. The entire system discharges into the Gulf of Mexico, primarily through a narrow pass at the mouth of Pensacola Bay.
The Pensacola Bay system provides winter feeding and migration habitat for Gulf sturgeon from the Escambia River and Yellow River subpopulations. Over the past four years, FDEP researchers have conducted tracking studies in the Pensacola Bay system to observe Gulf sturgeon winter migrations. They have identified specific areas in the bays where Escambia River and Yellow River Gulf sturgeon collect, or migrate through, during the fall and winter season. These studies also identified two main habitat types where Gulf sturgeon concentrate during winter months. Movement is generally along the shoreline area of Pensacola Bay. Gulf sturgeon showed a preference for several areas in the bay, including Redfish Point, Fort Dickens, and Escribano Point, near Catfish Basin (FWS, 1998; and Craft
Unit 10 includes the Santa Rosa Sound, bounded on the west by the Florida State Highway 399 bridge in Gulf Breeze, Florida and the east by U.S. Highway 98 bridge in Fort Walton Beach, Florida. The northern and southern boundaries of unit 10 are formed by the shorelines to the MHW line or by the entrance to rivers, bayous, and creeks.
The Santa Rosa Sound is a lagoon between the mainland and Santa Rosa Island that connects Pensacola Bay in the west with Choctawhatchee Bay in the east. The Sound extends east to west approximately 57.9 km (35.9 mi) and varies in width between 0.32 and 3.5 km (0.2 to 2.2 mi) (FDEP, 1993). The Intracoastal Waterway transects the sound. The Santa Rosa Sound is designated as critical habitat because we believe it provides one continuous migratory pathway between Choctawhatchee Bay, Pensacola Bay, and the Gulf of Mexico for feeding and genetic interchange. Within the last 3,000 years, periodic shoaling closed the opening of Choctawhatchee Bay to the Gulf of Mexico. For many years, the Santa Rosa Sound provided the only way for Choctawhatchee River Gulf sturgeon to migrate to the Gulf of Mexico (Wakeford, 2001). Recent locations of subadult and adult Gulf sturgeon within the Santa Rosa Sound confirm its present use by the Choctawhatchee River subpopulations (Fox
Unit 11 includes a portion of the Gulf of Mexico as defined by the following boundaries. The western boundary is the line of longitude 87°20.0′W (approximately 1 nm (1.9 km) west of Pensacola Pass) from its intersection with the shore to its intersection with the southern boundary. The northern boundary is the MHW of the mainland shoreline and the 72 COLREGS lines at passes as defined at 30 CFR 80.810 (a-g). The southern boundary of the unit is 1 nm (1.9 km) offshore of the northern boundary; the eastern boundary is the line of longitude 85°17.0′W from its intersection with the shore (near Money Bayou between Cape San Blas and Indian Peninsula) to its intersection with the southern boundary.
Unit 11 includes winter feeding and migration habitat for Gulf sturgeon from the Yellow River, Choctawhatchee River, and Apalachicola River subpopulations. Telemetry relocation data suggest that these subpopulations feed in nearshore Gulf of Mexico waters between their natal river systems (Fox
Unit 12 includes the main body of Choctawhatchee Bay, Hogtown Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous, creeks, and rivers are excluded at their mouths/entrances. The western unit boundary is the U.S. Highway 98 bridge at Fort Walton Beach, Florida; the southern boundary is the 72 COLREGS line across East (Destin) Pass as defined at 33 CFR 80.810 (f). The lateral extent of unit 12 is the MHW line on each shoreline of the included water bodies.
Choctawhatchee Bay provides important habitat for maintaining the health of subadult and adult Gulf sturgeon as evidenced by a large number of Gulf sturgeon overwintering in the system (FWS, 1997; FWS 1998; and Parauka
Unit 13 includes the main body of Apalachicola Bay and its adjacent sounds, bays, and the nearshore waters of the Gulf of Mexico. These consist of St. Vincent Sound, including Indian Lagoon; Apalachicola Bay including Horseshoe Cove and All Tides Cove; East Bay including Little Bay and Big Bay; and St George Sound, including Rattlesnake Cove and East Cove. Barrier Island passes (Indian Pass, West Pass, and East Pass) are also included. Sike's Cut is excluded from the lighted buoys on the Gulf of Mexico side to the day boards on the bay side. The southern unit boundary includes water extending into the Gulf of Mexico 1 nm (1.9 km) from the MHW line of the barrier islands and from 72 COLREGS lines between the barrier islands (defined at 33 CFR 80.805 (e-h)); the western boundary is the line of longitude 85°17.0′W from its intersection with the shore (near Money Bayou between Cape San Blas and Indian Peninsula) to its intersection with the southern boundary. The eastern boundary of the unit is formed by a straight line drawn from the shoreline of Lanark Village at 29°53.1′N, 84°35.0′W to a point that is 1 nm (1.9 km) offshore from the northeastern extremity of Dog Island at 29°49.6'N, 84°33.2'W. The lateral extent of unit 13 is the MHW line on each shoreline of the included water bodies or the entrance of excluded rivers, bayous, and creeks.
The Apalachicola River empties into Apalachicola Bay near Little Bay and Big Bay. The Apalachicola Bay system, a highly productive lagoon-and-barrier-island complex, consists of the bay proper, East Bay, St. George Sound, Indian Lagoon, and St. Vincent Sound (Wakeford, 2001). It is relatively shallow, averaging 2 to 3 m (6.6 to 9.8 ft) in depth (Livingston, 1980). The benthic habitat type most often found in Apalachicola Bay system is soft sediment, comprising approximately 70 percent of the estuarine area (Livingston, 1980). Its composition of sand, clay, and silt varies considerably depending on the location in the bay. The Apalachicola Bay connects with the Gulf of Mexico through several passes, including Indian Pass, West Pass, East Pass, and Sike's Cut, a man-made opening established in the mid 1950s (Odenkirk, 1989).
Unit 13 provides winter feeding migration habitat for the Apalachicola River Gulf sturgeon subpopulation. Gulf sturgeon have been documented by sightings, incidental captures, and telemetry studies throughout Apalachicola Bay, East Bay, St. George Sound, St. Vincent Sound, and Indian Lagoon (Swift
Tag return data from incidental captures and recent relocation data document Gulf sturgeon south of the Apalachicola barrier islands, generally within a mile of the shoreline (Odenkirk, 1989; and FWS, 2000). On June 8, 1992, a commercial shrimp fisherman provided anecdotal information that he and other shrimp fishermen, had caught hundreds of Gulf sturgeon, with estimated weights generally between 22.7 to 27.2 kg (50 to 60 lbs), in the same location, each spring (April, May, and June), for the past thirty years (1962 to 1992) (F. Parauka, pers. comm. 2002). The fishermen described the location as south of St. George Island, within a few hundred yards of the beach. He described the capture areas as being adjacent to a shoal extending approximately 3.2 km (2 mi) offshore. Examination of bathymetric data shows that there are several shoals in that general vicinity. Since we are unable to confirm the specific location of the area described by this fisherman, we are extending this critical habitat unit only 1 nm (1.9 km) offshore of the barrier islands bordering Apalachicola Bay and Cape San Blas, a distance for which we have supporting telemetry data. In doing so, we will capture some of the shallow shoals extending south of the barrier islands, which we believe provide important foraging substrate.
Unit 14 includes Suwannee Sound and a portion of adjacent Gulf of Mexico waters extending 9 nm from shore (16.7 km) out to the State territorial water boundary. Its northern boundary is formed by a straight line from the northern tip of Big Pine Island (at approximately 29°23′N, 83°12′W) to the Federal-State boundary at 29°17′N, 83°21′W; the southern boundary is formed by a straight line from the southern tip of Richards Island (at approximately 29°11′N, 83°04′W) to the Federal-State boundary at 29°04′N, 83°15′W. The lateral extent of unit 14 is the MHW line along the shorelines and the mouths of the Suwannee River (East and West Pass), its distributaries and other rivers, creeks, or water bodies.
The Suwannee River system is unique among Gulf sturgeon river systems in that the river flows directly into the Suwannee Sound and Gulf of Mexico without any intervening barrier islands. Suwannee Sound is a shallow (typically less than 2 m (6.6 ft)), estuarine basin, a little less than 10 nm (8 km) long and a little over 4 nm (8 km) wide at its widest point. It is enclosed on its seaward side by Suwannee Reef, an approximately 14.6 nm (27 km) long arc of oyster reefs and shoals (Edwards
Telemetry data confirm that subadult and adult Gulf sturgeon leave the river during October and November and enter Suwannee Sound and the nearshore Gulf of Mexico (Carr
Gulf sturgeon tracking and relocation data were used to delineate the boundaries of this critical habitat unit. In 1998, 18 out of 19 sonic-tagged Gulf sturgeon were consistently relocated and found to be concentrated in a relatively small area (115 km
Although Gulf sturgeon have been relocated both north and south of this critical habitat area (Reynolds, 1993; F. Chapman, pers. comm. 2002; and Edwards
Upon statehood in 1811 for Louisiana, 1817 for Mississippi, 1819 for Alabama, and 1845 for Florida, these States were granted ownership of lands beneath tidally influenced and navigable waters up to the high water mark (
Section 7(a)(2) of the Act requires Federal agencies, including us, to insure that their actions are not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. The regulatory effects of a critical habitat designation under the Act are triggered through the provisions of section 7, which applies to all activities conducted, authorized, or funded by a Federal agency (Federal actions). Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat if their actions occur on Federal lands, require Federal authorization, or involve Federal funding.
If a Federal action may affect a listed species or its designated critical habitat, the action agency must initiate consultation with us (50 CFR 402.14). Through this consultation, we would advise the agency whether the action would likely jeopardize the continued existence of the species or destroy or adversely modify its critical habitat, or both.
When we issue a biological opinion that concludes that an action is likely to result in the destruction or adverse modification of critical habitat, we must provide reasonable and prudent alternatives to the action, if any are identifiable. Reasonable and prudent alternatives are actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the proposed action, are consistent with the scope of the action agency's authority and jurisdiction, are economically and technologically feasible, and would likely avoid the destruction or adverse modification of critical habitat (50 CFR 402.02).
Following designation of critical habitat, regulations at 50 CFR 402.16 require a Federal agency to reinitiate consultation for previously reviewed actions that may affect critical habitat and over which the agency has retained discretionary involvement or control.
Section 4(b)(8) of the Act requires us, in any proposed or final rule designating critical habitat, to briefly describe and evaluate those activities that may adversely modify such habitat, or that may be affected by such designation, to the maximum extent practicable. Activities that may destroy or adversely modify critical habitat for the Gulf sturgeon, or that may be affected by such designation, include, but are not limited to the following actions when authorized, funded or carried out by a Federal agency:
(1) Actions that would appreciably reduce the abundance of riverine prey for larval and juvenile sturgeon, or of estuarine and marine prey for juvenile and adult Gulf sturgeon, within a designated critical habitat unit, such as dredging; dredged material disposal; channelization; in-stream mining; and land uses that cause excessive turbidity or sedimentation.
(2) Actions that would appreciably reduce the suitability of Gulf sturgeon spawning sites for egg deposition and development within a designated critical habitat unit, such as impoundment; hard-bottom removal for navigation channel deepening; dredged material disposal; in-stream mining; and land uses that cause excessive sedimentation.
(3) Actions that would appreciably reduce the suitability of Gulf sturgeon riverine aggregation areas, also referred to as resting, holding, and staging areas, used by adult, subadult, and/or juveniles, believed necessary for minimizing energy expenditures and possibly for osmoregulatory functions, such as dredged material disposal upstream or directly within such areas; and other land uses that cause excessive sedimentation.
(4) Actions that would alter the flow regime (the magnitude, frequency, duration, seasonality, and rate-of-change of fresh water discharge over time) of a riverine critical habitat unit such that it is appreciably impaired for the purposes of Gulf sturgeon migration, resting, staging, breeding site selection, courtship, egg fertilization, egg deposition, and egg development, such as impoundment; water diversion; and dam operations.
(5) Actions that would alter water quality within a designated critical
(6) Actions that would alter sediment quality within a designated critical habitat unit such that it is appreciably impaired for normal Gulf sturgeon behavior, reproduction, growth, or viability, such as dredged material disposal; channelization; impoundment; in-stream mining; land uses that cause excessive sedimentation; and release of chemical or biological pollutants that accumulate in sediments.
(7) Actions that would obstruct migratory pathways within and between adjacent riverine, estuarine, and marine critical habitat units, such as dams, dredging, point-source-pollutant discharges, and other physical or chemical alterations of channels and passes that restrict Gulf sturgeon movement.
Many section 7 consultations for Federal actions affecting the Gulf sturgeon and its habitat have preceded this critical habitat designation. The action agencies have included the USACE, other DOD agencies, the U.S. Coast Guard, the National Park Service, the Federal Highway Administration, the Minerals Management Service (MMS), the Federal Energy Regulatory Commission, and others. We have also conducted intra-service section 7 consultations on our own actions.
Since listing, the FWS has conducted 320 informal and 14 formal consultations, and NMFS has conducted 70 informal and 4 formal consultations involving Gulf sturgeon. The informal consultations, all of which concluded with a finding that the Federal action would not affect or would not likely adversely affect the Gulf sturgeon, addressed a wide range of actions including navigation, beach nourishment, Gulf of Mexico fishery management planning, oil and gas leases, power plants, bridges, pipelines, breakwaters, rip-rap, levees and other flood-protection structures, piers, bulkheads, jetties, military actions, and in-stream gravel mining. The formal consultations, which followed a finding that the Federal action may affect Gulf sturgeon, have dealt exclusively with navigation projects, oil and gas leases, pipelines, review of water quality standards, and disaster recovery activities, and have resulted in biological opinions. Also, the Gulf sturgeon was mentioned in several biological opinions that were triggered by may-affect determinations for other listed species. To date, none of our opinions have concluded that a proposed Federal action would jeopardize the continued existence of the Gulf sturgeon.
Previous biological opinions for the Gulf sturgeon have included discretionary conservation recommendations to the action agency. Conservation recommendations are activities that would avoid or minimize the adverse effects of a proposed action on a listed species or its critical habitat, help implement recovery plans, or develop information useful to the species' conservation.
Previous biological opinions for the Gulf sturgeon also have included non-discretionary reasonable and prudent measures, with implementing terms and conditions, which are designed to minimize the proposed action's incidental take of Gulf sturgeon. Section 3(18) of the Act defines the term take as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.”
The conservation recommendations and reasonable and prudent measures provided in previous Gulf sturgeon biological opinions have included enforcement of marine debris and trash regulations; avoidance of dredging and disposal in deeper portions of the channel; monitoring and reporting of “take” events during project construction; operation of equipment so as to avoid or minimize take; monitoring of post-project habitat conditions; monitoring of project-area Gulf sturgeon subpopulations; limiting of dredging to the minimum dimensions necessary; limiting of the depth of dredged material placed in disposal areas; arrangement of the sequence of areas for dredging to minimize potential harm; screening of intake structures; avoidance of riverine dredging during spawning months; limiting of tow times of trawl nets for hurricane debris cleanup; addition of specific measures for species protection to oil spill contingency plans; and funding of research useful for Gulf sturgeon conservation.
The designation of critical habitat will only impact those private landowner activities that require Federal funding or permits. Designation of critical habitat is applicable to all activities approved, funded, or carried out by Federal agencies.
When the Gulf sturgeon was listed on September 30, 1991 (56 FR 49653), the Services had not resolved jurisdictional responsibilities for the management of the Gulf sturgeon. Both Services signed the listing rule in agreement that the species required protection. The final listing rule stated that until the jurisdictional issue was resolved, the FWS would be responsible for the species once the listing became effective. Although the issue has never been formally resolved, we have been operating under a verbal agreement in which the FWS maintains the lead for recovery actions. Consultation responsibilities were divided, with the FWS performing consultation review for projects impacting the Gulf sturgeon in the riverine and estuarine habitats, and NMFS performing consultation review for projects affecting the species in marine habitats.
We formalize here Gulf sturgeon jurisdictional responsibilities. In order to enhance consultation coordination efficiency for the action agencies, the following structure is adopted. The FWS will maintain primary responsibility for recovery actions in fresh water and the NMFS will assist in and continue to fund recovery actions pertaining to estuarine and marine habitats. In riverine units, the FWS will be responsible for all consultations regarding Gulf sturgeon and critical habitat. In estuarine units, we will divide responsibility based on the action agency involved. The FWS will consult with the Department of Transportation, EPA, the U.S. Coast Guard, and the Federal Emergency Management Agency. NMFS will consult with the DOD, USACE, MMS, and any other Federal agencies not mentioned here explicitly. In marine units, NMFS will be responsible for all consultations regarding Gulf sturgeon and critical habitat. For any Federal projects that extend into the jurisdiction of both the Services, as defined above, FWS will be the lead consulting agency, and coordinate internally with NMFS. Each agency will conduct its own intra-agency consultations as necessary.
Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider
Following the publication of the proposed critical habitat designation, a draft economic analysis was conducted to estimate the potential economic impact of the designation, in accordance with the recent decision in the
Our draft economic analysis evaluated the potential future section 7 effects, including indirect effects, associated with designating critical habitat for the Gulf Sturgeon. The categories of potential costs considered in the analysis included the costs associated with: (1) Conducting section 7 consultations associated with the listing or with the designation of critical habitat, including incremental consultations and technical assistance; (2) modifications to projects, activities, or land uses resulting from the section 7 consultations; (3) indirect economic impacts on local industries and enterprises resulting from the physical changes to habitat areas that may be associated with project modifications (
Following the close of the comment period on the draft economic analysis, a final analysis was completed that incorporated public comments on the draft analysis and made other changes in the draft. Based on the draft and final economic analyses, and in consideration of all other relevant impacts of the designation, the Services are excluding under Section 4(b)(2) major shipping channels, as identified on standard navigation charts and marked by buoys, in the following three units:
(1)
(2)
(3)
The Services have decided to exclude these areas after balancing the benefits of excluding against the benefits of including such areas as critical habitat. In the absence of other relevant factors, if excluding an area from a critical habitat designation will relieve a negative economic impact, and at the same time including the area fails to confer a counter-balancing positive benefit to the species, then the benefits of excluding the area from critical habitat outweigh the benefits of including it. The results of this type of evaluation will vary significantly depending on the landowners, geographic areas, and species involved.
The benefits of including these areas in the critical habitat designation is low. While Units 2, 8, and 9 are essential to the conservation of the Gulf sturgeon, the navigation channels contained within each of these units constitutes a small proportion of the individual unit. In areas that are frequently maintained by dredging (
In Unit 2, Gulf sturgeon use the West and East distributaries of the Pascagoula River during spring and fall migrations (Ross
Unit 8 provides juvenile, subadult and adult feeding, resting, and passage habitat for Gulf sturgeon from the Pascagoula and the Pearl River subpopulations. The Mississippi Sound is separated from the Gulf of Mexico by a chain of barrier islands, including Cat, Ship, Horn, and Petit Bois Islands. Natural depths of 3.7 to 5.5 m (12 to 18 ft) are found throughout the Sound and a channel 3.7 m (12 ft) deep has been dredged where necessary from Mobile Bay to New Orleans (USDOC, 2002). Incidental captures and recent studies confirm that both Pearl River and Pascagoula River adult Gulf sturgeon winter in the Mississippi Sound, particularly around barrier islands and barrier islands passes (Reynolds, 1993; Ross
Unit 9 includes Pensacola Bay and its adjacent main bays and coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and Catfish Basin. All other bays, bayous, creeks, and rivers are excluded at their mouths. The Pensacola Bay system includes five interconnected bays, including Escambia Bay, Pensacola Bay, Blackwater Bay, East Bay, and the Santa Rosa Sound. The Escambia River and its distributaries (Little White River, Dead River, and Simpson River) empty into Escambia Bay, including Bass Hole Cove, Saultsmar Cove, and Macky Bay. The Yellow River empties into Blackwater Bay. The entire system discharges into the Gulf of Mexico, primarily through a narrow pass at the mouth of Pensacola Bay. The major shipping channel in this unit is the GIWW and extends to the Port of Pensacola and Pensacola Naval Air Station.
The Pensacola Bay system provides winter feeding and migration habitat for
In sum, the Services believe that a critical habitat designation for the Gulf sturgeon would provide a relatively low level of additional regulatory conservation benefit to the species.
A major economic impact identified in the draft economic analysis was on dredging projects of the USACE. USACE plans the location and timing of dredging projects to ensure that channel reliability is always maintained. Frequency of dredging varies widely, from almost annual maintenance dredging to once every ten or twenty years, depending on the level of use of the waterway for shipping and the natural rate of sediment deposition. The major navigation channels must be maintained to Congressionally authorized depths and widths to allow shippers to enter ports. Failure to maintain the navigation channels accordingly greatly affects shippers who may be forced to use smaller vessels, light load (
The major risks of dredging projects to sturgeon are entrainment in dredges, prevention of migratory passage through channels and inlets due to blockage by large dredges, elevated turbidity causing increased siltation on feeding or spawning areas, and possible removal of food prey. Numerous formal and informal consultations on dredging activities are anticipated in the proposed critical habitat units over the next ten years.
Potential project modifications specific to dredging and disposal projects, and for which we have concerns regarding their potential implications, include:
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•
•
It is possible that critical habitat could influence the Services to be more likely to impose one or more of these measures to prevent habitat modification.
If dredging windows and other measures are required in consultation, the present value of expected direct costs of implementation of section 7 for these activities that may affect the sturgeon or its habitat over the next ten years would exceed the projected $22.7 million cost of consultations on operation and maintenance of navigation projects set forth in the final economic analysis. This section 4(b)(2) analysis also considered the possibility that the greater costs projected in the draft economic analysis may be incurred. Forecast costs are associated with expected administrative requirements and project modifications that may be recommended by the Services during the consultation process. To the extent that project modifications due to a critical habitat designation may result in delays or a reduction in channel capacity, the secondary economic effects may be high.
Based on the above considerations, and consistent with the direction provided in section 4(b)(2) of the Act, we have determined that the benefits of excluding major shipping channels as critical habitat outweigh the benefits of including them as critical habitat for the Gulf sturgeon. This conclusion is based on the following factors: The benefits of designating critical habitat in the major shipping channels of these units is low because the areal extent of the shipping channels is a very small proportion of the entire unit. In addition the frequently maintained portions of the major shipping channels are altered to an extent that any primary constituent elements for sturgeon that are still present in the channels are unlikely to be appreciably diminished from their current baseline by Federal actions in the channels. The benefits of excluding these areas may be high if critical habitat designation were to increase the frequency of modifications to dredging practices or result in delays in maintaining channel depth. Therefore, the Services believe that the benefits of exclusion outweigh the benefits of including these areas as critical habitat.
These exclusions will not cause the extinction of the Gulf sturgeon. Although the shipping channels may provide food resources needed in the winter months, other large areas of prey and corridors for migration are available in the remainder of the units to prevent the extinction of the species.
Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific information available, and to consider the economic
Following the publication of the proposed critical habitat designation, a draft economic analysis was conducted to estimate the potential economic effect of the proposed designation. The draft analysis was made publicly available for review on August 8, 2002. We accepted comments on the draft analysis until October 7, 2002. Our draft economic analysis evaluated potential future effects associated with the listing of the Gulf sturgeon as a threatened species under the Act, as well as any potential effect of the critical habitat designation above and beyond those regulatory and economic impacts associated with listing. The categories of potential costs considered in the analysis included the costs associated with (1) conducting section 7 consultations associated with the listing or with the critical habitat, including incremental consultations, reinitiated consultations, and technical assistance; (2) modifications to projects, activities, or land uses resulting from the section 7 consultations; (3) uncertainty and perceived impacts on markets resulting from the designation of critical habitat and (4) potential offsetting beneficial costs associated with critical habitat.
The majority of consultations resulting from the critical habitat designation for Gulf sturgeon are likely to address dredging and sediment disposal activities to support navigation, shoreline stabilization, water quality standards, military actions, road and bridge construction, oil and gas leases in Federal waters and permitting of oil and gas pipelines. As described in the draft economic analysis, all areas included in the designated critical habitat are occupied, with the fish also occurring in areas not included in the critical habitat designation.
Following the close of the comment period on the draft economic analysis, a final revision was completed which incorporated public comments on the draft analysis. Based on comments, the cost of consultations was revised. Subsequently, the revised economic analysis concluded that the designation may result in approximately $3,310,000 to $4,953,000 per year in potential economic impact due to the total effects of critical habitat, including those effects resulting co-extensively from listing the species. Given the uncertainty regarding the implementation of project modifications for predicted projects concerning dredging and disposal modifications, a probability of adoption ratio was used in the final economic analysis based on the rate that the Services recommended various modifications in past formal and informal consultations where the proposed action would have impacted the sturgeon as well as its habitat.
Only those areas essential to the conservation of the Gulf sturgeon have been included in the critical habitat designation; the designation does not encompass the entire area currently occupied or utilized by the species, nor does it include any currently unoccupied areas. The economic analysis documents that the costs of including any particular unit range from $1,300 to $380,000 annually in administrative costs of consultation over 10 years (the low value represents the lowest per unit estimate of costs attributable solely to critical habitat designation and the high value represents the highest per unit estimates of costs attributable co-extensively with listing). Total co-extensive administrative cost across all units over 10 years range between $705,600 and $2,348,600 per year. Project modification costs for this analysis could not be attributed to any one unit, given the nature of the projects. However, total co-extensive costs of project modifications across all units over 10 years are estimated to be $2,604,000 annually; if the approximate one-to-one ratio of total administrative costs to total project modification costs reflects the per unit ratio of these costs, then the highest upper-bound per unit estimate of critical habitat designation would be approximately $700,000 per year over 10 years. Sixty-five percent of the total upper-bound costs estimated to be attributable to critical habitat designation are expected to consist of federal agency costs.
As required by Executive Order 12866, we have provided a copy of the rule, which describes the need for this action and how the designation meets that need, and the economic analysis, which assesses the costs and benefits of this critical habitat designation, to the Office of Management and Budget (OMB) for review. The OMB determined that this rule may raise novel legal or policy issues and found it to be a significant rule.
Under the Regulatory Flexibility Act (5 U.S.C. 601
SBREFA amended the Regulatory Flexibility Act (RFA) to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. SBREFA also amended the RFA to require a certification statement. We are hereby certifying that this rule designating critical habitat for the Gulf sturgeon will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale for this certification.
Small entities include small organizations, such as independent non-profit organizations, small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the rule would affect a substantial number of small entities, we consider the number of small
The vast majority of the designated critical habitat for the Gulf sturgeon, with few exceptions, is public land involving river, stream, estuary, or marine habitat. Activities with Federal involvement that may require consultation regarding Gulf sturgeon and its critical habitat include: activities regulated under the Clean Water Act, the Rivers and Harbors Act of 1899, and/or various Coast Guard authorities. Small entity economic activities that may require Federal authorization or permits include energy-related activities such as pipelines, harbors, and platforms; residential development including docks, piers, bridges, and shoreline protection; boating-related projects of small communities; private port operation including maintenance dredging and docks; small water supply or hydropower projects; and high speed marine events.
As required under section 4(b)(2) of the Act, we conducted an analysis of the potential economic impacts of this critical habitat designation. In the draft analysis, we found that the future section 7 consultations resulting from the listing of the Gulf sturgeon and the proposed designation of critical habitat could potentially impose total economic costs for consultations and modifications to projects to range between approximately $43.4 million to $57.2 million over the next 10-year period. Public comment on the draft economic analysis led to a revision of third party cost estimates that would result from section 7 consultations. The changes in cost estimates are discussed and reflected in the revised final Economic Analysis of Critical Habitat Designation for the Gulf Sturgeon (Industrial Economics, Inc. 2003), where we found that the future section 7 consultations resulting from the listing of the Gulf sturgeon and the proposed critical habitat could potentially impose total economic costs for consultations and modifications to projects in the range of between $33.1 million to $49.5 million over the next 10-year period.
In considering whether this critical habitat designation would have a significant economic impact on a substantial number of small entities, we examined the total estimated section 7 costs calculated in earlier sections of this report, including those impacts that may be “attributable co-extensively”with the listing of the species. This results in a conservative estimate (
OMB's Office of Information and Regulatory Affairs has determined that this rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. In the draft economic analysis and the final economic analysis, we determined that designation of critical habitat would not cause (a) any annual effect on the economy of $100 million or more, (b) any increases in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (c) any significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Refer to the final economic analysis (Industrial Economics, Inc., 2003) for a complete discussion of the effects of this determination.
On May 18, 2001, the President issued Executive Order 13211, which applies to “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” In order to ensure that Federal agencies “appropriately weigh and consider the effects of the Federal government's regulations on the supply, distribution, and use of energy,” the President has directed agencies to prepare and submit to the OMB's Office of Information and Regulatory Affairs a “Statement of Energy Effects” for their “significant energy actions.” The OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared with the regulatory action under consideration:
(1) Reductions in crude oil supply in excess of 10,000 barrels per day;
(2) Reductions in fuel production in excess of 4,000 barrels per day;
(3) Reductions in coal production in excess of 5 million tons per year;
(4) Reductions in natural gas production in excess of 25 million mcf;
(5) Reductions in electricity production in excess of 1 billion kilowatts per year or in excess of 500 megawatts of installed capacity;
(6) Increases in energy use required by the regulatory action that exceed the thresholds above;
(7) Increases in the cost of energy production in excess of one percent;
(8) Increases in the cost of energy distribution in excess of one percent; or
(9) Other similarly adverse outcomes.
There is one hydropower project located upstream of critical habitat Unit 6. Accordingly, we assessed the potential for a significant effect to energy supply, distribution, or use as relevant to this analysis in the final addendum to the economic analysis, reductions in electricity production in excess of 1 billion kilowatts per year or in excess of 500 megawatts of installed capacity.
The Gulf region derives a very small portion of its overall power supply from hydropower. Electricity supply and capacity data are collected and reported by the North American Reliability Council (NERC). Of its ten regional councils, the Southeastern Electrical Reliability Council (SERC) is the most contiguous with areas potentially affected by critical habitat for the Gulf sturgeon. The geographic area covered by the Southern section of SERC includes most of Alabama and Georgia, southeastern Mississippi, and the Florida panhandle. Another section of SERC, Entergy, covers southwestern Mississippi, the Gulf coast Louisiana, and portions of other States. Peninsular Florida is not covered by SERC, but by the Florida Reliability Coordinating Council (FRCC). Peak summer demand reached 43,736 megawatts for the Southern region and 25,747 megawatts for the Entergy region in 2001.
Only one dam located upstream and adjacent to the critical habitat Unit 6 supplies hydropower. Located near the Florida-Georgia border in Chattahoochee, Florida, the Jim Woodruff Dam is one of 23 hydropower sites operated by the USACE that generate power. The electric power and energy generated at Jim Woodruff Dam is marketed by the Federal Southeastern Power Administration for the wholesale energy market. Of the total installed
In 2001, Florida had a summer peak demand of 38,285 megawatts out of a total summer peak capacity of 42,609 megawatts. Coal, natural gas, oil, and nuclear sources fuel most of the State's energy needs. Electricity derived from hydropower from the Jim Woodruff Dam can account for only a small fraction of Florida's statewide capacity.
The maximum installed capacity for Jim Woodruff Dam is 30 MW (30,000 KW). Therefore, even when viewed in the context of a worst-case scenario, in which implementation of section 7 of the Act results in significant operational changes, however unlikely, to this hydropower project, the total capacity is 30 MW (30,000 KW) of hydroelectricity, so the impact on these hydropower facilities could not exceed the 500 MW (500,000 KW) threshold.
Therefore, even in the worst case scenario, implementation of section 7 for the Gulf sturgeon will not result in a “reduction in electricity production in excess of 500 megawatts of installed capacity” or an “increase in the cost of energy production in excess of one percent.” Consequently, this rule will not have a “significant adverse effect” on the supply, distribution, or use of energy, and no “Statement of Energy Effects” is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that Federal agencies funding, permitting, or authorizing other activities must ensure that their actions will not adversely affect the critical habitat.
(b) For the reasons described in the economic analysis and this final rule, this rule will not produce a Federal mandate on State, local, or tribal governments of $100 million or greater in any year. The designation of critical habitat imposes no obligations on State or local governments. Therefore, it is not a “significant regulatory action”' under the Unfunded Mandates Reform Act.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), this rule does not have significant takings implications. A takings implication assessment is not required. As discussed above, the designation of critical habitat affects only Federal agency actions. Since the critical habitat includes only aquatic areas that are generally held in public trust, we believe that little or no private property is included in the designation. Based on current public knowledge of the species protection and the prohibition against take of the species both within and outside of the designated areas, we do not anticipate that property values will be affected by the critical habitat designation. Additionally, critical habitat designation does not preclude development of habitat conservation plans and issuance of incidental take permits.
In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policies, we requested information from, and coordinated development of both the listing and the proposal to designate critical habitat with, appropriate State resource agencies in Louisiana, Mississippi, Alabama, and Florida. The designation of critical habitat for the Gulf sturgeon imposes no restrictions in addition to those currently in place, and, therefore, has little additional impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the conservation of the species are specifically identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning, rather than waiting for case-by-case section 7 consultations to occur.
In accordance with Executive Order 12988, the Office of the Solicitor of the Department of the Interior has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs that are essential for the conservation of the Gulf sturgeon. We have made every effort to ensure that the final determination contains no drafting errors, provides clear standards, simplifies procedures, reduces burdens, and is clearly written, such that the risk of litigation is minimized.
This rule does not contain new or revised information collection for which Office of Management and Budget approval is required under the Paperwork Reduction Act. Information collections associated with permits under the Act are covered by an existing OMB approval, and are assigned clearance No. 1018-0094, with an expiration date of July 31, 2004. Detailed information for Endangered Species Act documentation appears at 50 CFR 17. 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 FWS has determined that it does not need to prepare an Environmental Assessment or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted under section 4(a) of the Act. The FWS published a notice outlining its reasons for this determination in the
The proposed rule stated that NMFS had determined that this action is categorically excluded from NEPA requirements. However, NMFS had not at that time finalized its NEPA analysis for this rule. In response to comments received on the proposed rule (see comment 16), and based on additional research and deliberation, NMFS has concluded that the FWS position is
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no tribal lands essential for the conservation of the Gulf sturgeon. Therefore, designation of critical habitat for the Gulf sturgeon has not been designated on Tribal lands.
A list of references is available upon request (see
The primary authors of this document are Patty Kelly, FWS, (850/769-0552, extension 228); and Stephania Bolden and Jennifer Lee, NMFS, (727/570-5312) (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Endangered and threatened species.
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
(h) * * *
3. Amend § 17.95(e) by adding critical habitat for the Gulf sturgeon (
(e) Fishes. * * *
(1) Critical habitat units are depicted for Louisiana, Mississippi, Alabama, and Florida on the maps below.
(2) The primary constituent elements essential for the conservation of Gulf sturgeon are those habitat components that support feeding, resting, and sheltering, reproduction, migration, and physical features necessary for maintaining the natural processes that support these habitat components. The primary constituent elements include:
(i) Abundant prey items within riverine habitats for larval and juvenile life stages, and within estuarine and marine habitats and substrates for juvenile, subadult, and adult life stages;
(ii) Riverine spawning sites with substrates suitable for egg deposition and development, such as limestone outcrops and cut limestone banks, bedrock, large gravel or cobble beds, marl, soapstone or hard clay;
(iii) Riverine aggregation areas, also referred to as resting, holding, and staging areas, used by adult, subadult, and/or juveniles, generally, but not always, located in holes below normal riverbed depths, believed necessary for minimizing energy expenditures during fresh water residency and possibly for osmoregulatory functions;
(iv) A flow regime (
(v) Water quality, including temperature, salinity, pH, hardness, turbidity, oxygen content, and other chemical characteristics, necessary for normal behavior, growth, and viability of all life stages;
(vi) Sediment quality, including texture and other chemical characteristics, necessary for normal behavior, growth, and viability of all life stages; and
(vii) Safe and unobstructed migratory pathways necessary for passage within and between riverine, estuarine, and marine habitats (
(3) Gulf sturgeon is under the joint jurisdiction of the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). The FWS will maintain primary responsibility for recovery actions and NMFS will assist in and continue to fund recovery actions pertaining to estuarine and marine habitats. In riverine units, the FWS will be
(4) The textual unit descriptions below are the definitive source for determining the critical habitat boundaries. General location maps by unit are provided at the end of each unit description and are provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.
(5)
(i) Unit 1 includes the Pearl River main stem from the spillway of the Ross Barnett Dam, Hinds and Rankin Counties, Mississippi, downstream to where the main stem river drainage discharges at its mouth joining Lake Borgne, Little Lake, or The Rigolets in Hancock County, Mississippi, and St. Tammany Parish, Louisiana. It includes the main stems of the East Pearl River, West Pearl River, West Middle River, Holmes Bayou, Wilson Slough, downstream to where these main stem river drainages discharge at the mouths of Lake Borgne, Little Lake, or The Rigolets. Unit 1 also includes the Bogue Chitto River main stem, a tributary of the Pearl River, from Mississippi State Highway 570, Pike County, Mississippi, downstream to its confluence with the West Pearl River, St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is the ordinary high water line on each bank of the associated rivers and shorelines.
(ii) Maps of Unit 1 follow:
(6)
(i) Unit 2 includes all of the Pascagoula River main stem and its distributaries, portions of the Bouie, Leaf, and Chickasawhay tributaries, and all of the Big Black Creek tributary. It includes the Bouie River main stem beginning on the southern-most road crossing of Interstate 59, Forrest County, Mississippi, downstream to its confluence with the Leaf River, Forrest County, Mississippi. The Leaf River main stem beginning from Mississippi State Highway 588, Jones County, Mississippi, downstream to its confluence with the Chickasawhay River, George County, Mississippi is included. The main stem of the Chickasawhay River from the mouth of Oaky Creek, Clarke County, Mississippi, downstream to its confluence with the Leaf River, George County, Mississippi is included. Unit 2 also includes Big Black Creek main stem from its confluence with Black and Red Creeks, Jackson County, Mississippi, to its confluence with the Pascagoula River, Jackson County, Mississippi. All of the main stem of the Pascagoula River from its confluence with the Leaf and Chickasawhay Rivers, George County, Mississippi, to the discharge of the East and West Pascagoula Rivers into Pascagoula Bay, Jackson County, Mississippi, is included. The lateral extent of Unit 2 is the ordinary high water line on each bank of the associated rivers and shorelines.
(ii) Major shipping channels in this unit are excluded under section 4(b)(2) of the Act.
(iii) Maps of Unit 2 follow:
(7)
(i) Unit 3 includes the Conecuh River main stem beginning just downstream of the spillway of Point A Dam, Covington County, Alabama, downstream to the Florida State line, where its name changes to the Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa Counties, Florida. It includes the entire main stem of the Escambia River downstream to its discharge into Escambia Bay and Macky Bay, Escambia and Santa Rosa Counties, Florida. All of the distributaries of the Escambia River including White River, Little White River, Simpson River, and Dead River, Santa Rosa County, Florida are included. The Sepulga River main stem from Alabama County Road 42, Conecuh and Escambia Counties, Alabama, downstream to its confluence with the Conecuh River, Escambia County, Alabama, is also included. The lateral extent of Unit 3 is the ordinary high water line on each bank of the associated lakes, rivers, and shorelines.
(ii) Maps of Unit 3 follow:
(8)
(i) Unit 4 includes the Yellow River main stem from Alabama State Highway 55, Covington County, Alabama, downstream to its discharge at Blackwater Bay, Santa Rosa County, Florida. All Yellow River distributaries (including Weaver River and Skim Lake) discharging into Blackwater Bay are included. The Shoal River main stem, a Yellow River tributary, from Florida Highway 85, Okaloosa County, Florida, to its confluence with the Yellow River, is included. The Blackwater River from its confluence with Big Coldwater Creek, Santa Rosa County, Florida, downstream to its discharge into Blackwater Bay is included. Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater River are included. The lateral extent of Unit 4 is the ordinary high water line on each bank of the associated lakes, rivers, and shorelines.
(ii) Maps of Unit 4 follow:
(9)
(i) Unit 5 includes the Choctawhatchee River main stem from its confluence with the west and east fork of the Choctawhatchee River, Dale County, Alabama, downstream to its discharge at Choctawhatchee Bay, Walton County, Florida. The distributaries discharging into Choctawhatchee Bay known as Mitchell River, Indian River, Cypress River, and Bells Leg are included. The Boynton Cutoff, Washington County, Florida, which joins the Choctawhatchee River main stem, and Holmes Creek, Washington County, Florida, are included. The section of Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek, Washington County, Florida, is included. The Pea River main stem, a Choctawhatchee River tributary, from the Elba Dam, Coffee County, Alabama, to its confluence with the Choctawhatchee River, Geneva County, Alabama, is included. The lateral extent of Unit 5 is the ordinary high water line on each bank of the associated rivers and shorelines.
(ii) Maps of Unit 5 follow:
(10)
(i) Unit 6 includes the Apalachicola River mainstem, beginning from the Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida, downstream to its discharge at East Bay or Apalachicola Bay, Franklin County, Florida. All Apalachicola River distributaries, including the East River, Little St. Marks River, St. Marks River, Franklin County, Florida, to their discharge into East Bay and/or Apalachicola Bay are included. The entire main stem of the Brothers River, Franklin and Gulf Counties, Florida, a tributary of the Apalachicola River, is included. The lateral extent of Unit 6 is the ordinary high water line on each bank of the associated rivers and shorelines.
(ii) Maps of Unit 6 follow:
(11)
(i) Unit 7 includes the Suwannee River main stem, beginning from its confluence with Long Branch Creek, Hamilton County, Florida, downstream to the mouth of the Suwannee River. It includes all the Suwannee River distributaries, including the East Pass, West Pass, Wadley Pass, and Alligator Pass, Dixie and Levy Counties, Florida, to their discharge into the Suwannee Sound or the Gulf of Mexico. The Withlacoochee River main stem from Florida State Road 6, Madison and Hamilton Counties, Florida, to its confluence with the Suwannee River is included. The lateral extent of Unit 7 is the ordinary high water line on each bank of the associated rivers and shorelines.
(ii) Maps of Unit 7 follow:
(12)
(i) Unit 8 encompasses Lake Pontchartrain east of the Lake Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St. Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound. Critical habitat follows the shorelines around the perimeters of each included lake. The Mississippi Sound includes adjacent open bays including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy Bay, and barrier island passes, including Ship Island Pass, Dog Keys Pass, Horn Island Pass, and Petit Bois Pass. The northern boundary of the Mississippi Sound is the shorelines of the mainland between Heron Bay Point, Mississippi and Point aux Pins, Alabama. Critical habitat excludes St. Louis Bay, north of the railroad bridge across its mouth; Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of Biloxi. The southern boundary follows along the broken shoreline of Lake Borgne created by low swampy islands from Malheureux Point to Isle au Pitre. From the northeast point of Isle au Pitre, the boundary continues in a straight north-northeast line to the point 1 nautical mile (nm) (1.9 kilometers (km)) seaward of the western most extremity of Cat Island (30°13′N, 89°10′W). The southern boundary continues 1 nm (1.9 km) offshore of the barrier islands and offshore of the 72 COLREGS lines at barrier island passes (defined at 33 CFR 80.815 (c), (d) and (e)) to the eastern boundary. Between Cat Island and Ship Island there is no 72 COLREGS line. We therefore, have defined that section of the southern boundary as 1 nm (1.9 km) offshore of a straight line drawn from the southern tip of Cat Island to the western tip of Ship Island. The eastern boundary is the line of longitude 88°18.8′W from its intersection with the shore (Point aux Pins) to its intersection with the southern boundary. The lateral extent of Unit 8 is the mean (average) high water (MHW) line on each shoreline of the included water bodies or the entrance to rivers, bayous, and creeks.
(ii) Major shipping channels in this unit, as identified on standard navigation charts and marked by buoys, are excluded under section 4(b)(2) of the Act.
(iii) Maps of Unit 8 follow:
(13)
(i) Unit 9 includes Pensacola Bay and its adjacent main bays and coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and Catfish Basin. All other bays, bayous, creeks, and rivers are excluded at their mouths. The western boundary is the Florida State Highway 292 Bridge crossing Big Lagoon to Perdido Key. The southern boundary is the 72 COLREGS line between Perdido Key and Santa Rosa Island (defined at 33 CFR 80.810 (g)). The eastern boundary is the Florida State Highway 399 Bridge at Gulf Breeze, Florida. The lateral extent of Unit 9 is the MHW line on each included bay's shoreline.
(ii) Major shipping channels in this unit, as identified on standard navigation charts and marked by buoys, are excluded under section 4(b)(2) of the Act.
(iii) A Map of Unit 9 follows:
(14)
(i) Unit 10 includes the Santa Rosa Sound, bounded on the west by the Florida State Highway 399 bridge in Gulf Breeze, Florida. The eastern boundary is the U.S. Highway 98 bridge in Fort Walton Beach, Florida. The northern and southern boundaries of Unit 10 are formed by the shorelines to the MHW line or by the entrance to rivers, bayous, and creeks.
(ii) A Map of Unit 10 follows:
(15)
(i) Unit 11 includes a portion of the Gulf of Mexico as defined by the following boundaries. The western boundary is the line of longitude 87°20.0′W (approximately 1 nm (1.9 km) west of Pensacola Pass) from its intersection with the shore to its intersection with the southern boundary. The northern boundary is the MHW of the mainland shoreline and the 72 COLREGS lines at passes as defined at 30 CFR 80.810 (a-g). The southern boundary is 1 nm (1.9 km) offshore of the northern boundary. The eastern boundary is the line of longitude 85°17.0′W from its intersection with the shore (near Money Bayou between Cape San Blas and Indian Peninsula) to its intersection with the southern boundary.
(ii) A Map of Unit 11 follows:
(16)
(i) Unit 12 includes the main body of Choctawhatchee Bay, Hogtown Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous, creeks, rivers are excluded at their mouths/entrances. The western boundary is the U.S. Highway 98 bridge at Fort Walton Beach, Florida. The southern boundary is the 72 COLREGS line across East (Destin) Pass as defined at 33 CFR 80.810 (f). The lateral extent of Unit 12 is the MHW line on each shoreline of the included water bodies.
(ii) A Map of Unit 12 follows:
(17)
(i) Unit 13 includes the main body of Apalachicola Bay and its adjacent
(ii) A Map of Unit 13 follows:
(18)
(i) Unit 14 includes Suwannee Sound and a portion of adjacent Gulf of Mexico waters extending 9 nm from shore (16.7 km) out to the State territorial water boundary. Its northern boundary is formed by a straight line from the northern tip of Big Pine Island (at approximately 29°23′N, 83°12′W) to the Federal-State boundary at 29°17′N, 83°21′W. The southern boundary is formed by a straight line from the southern tip of Richards Island (at approximately 83°04′W, 29°11′N) to the Federal-State boundary at 83°15′W, 29°04′N. The lateral extent of Unit 14 is the MHW line along the shorelines and the mouths of the Suwannee River (East and West Pass), its distributaries, and other rivers, creeks, or water bodies.
(ii) A Map of Unit 14 follows:
(19)(i) The river reaches within Units 1 to 7 as critical habitat lie within the ordinary high water line. As defined in 33 CFR 32.911, the ordinary high water
(ii) The downstream limit of the riverine units is the mouth of each river. The mouth is defined as rkm 0 (rmi 0). Although the interface of fresh and saltwater, referred to as the saltwater wedge, occurs within the lower-most reach of a river, for ease in delineating critical habitat units, we are defining the boundary between the riverine and estuarine units as rkm 0 (rmi 0).
(iii) Regulatory jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water (MHW) (33 CFR 329.12(a)(2)). All bays and estuaries within Units 8 to 14 therefore, lie below the MHW lines. Where precise determination of the actual location becomes necessary, it must be established by survey with reference to the available tidal datum, preferably averaged over a period of 18.6 years. Less precise methods, such as observation of the “apparent shoreline” which is determined by reference to physical markings, lines of vegetation, may be used only where an estimate is needed of the line reached by the mean high water.
(iv) The term 72 COLREGS is defined as demarcation lines which delineate those waters upon which mariners shall comply with the International Regulations for Preventing Collisions at Sea, 1972 and those waters upon which mariners shall comply with the Inland Navigation Rules (33 CFR 80.01). The waters inside of these lines are Inland Rules waters and the waters outside the lines are COLREGS waters. These lines are defined in 33 CFR 80, and have been used for identification purposes to delineate boundary lines of the estuarine and marine habitat Units 8, 9, 11, and 12.
(20) Critical habitat does not include existing developed sites such as dams, piers, marinas, bridges, boat ramps, exposed oil and gas pipelines, oil rigs, and similar structures or designated public swimming areas.
16 U.S.C. 1533.
Gulf sturgeon is under the joint jurisdiction of the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). The FWS will maintain primary responsibility for recovery actions and NMFS will assist in and continue to fund recovery actions pertaining to estuarine and marine habitats. In riverine units, the FWS will be responsible for all consultations regarding Gulf sturgeon and critical habitat. In estuarine units, we will divide responsibility based on the action agency involved. The FWS will consult with the Department of Transportation, the Environmental Protection Agency, the U.S. Coast Guard, and the Federal Emergency Management Agency. NMFS will consult with the Department of Defense, U.S. Army Corps of Engineers, Minerals Management Service and any other Federal agencies not mentioned here explicitly. In marine units, NMFS will be responsible for all consultations regarding Gulf sturgeon and critical habitat. Any Federal projects that extend into the jurisdiction of both the Services will be consulted on by the FWS with internal coordination with NMFS. Each agency will conduct its own intra-agency consultations as necessary.
The primary constituent elements essential for the conservation of Gulf sturgeon are those habitat components that support feeding, resting, and sheltering, reproduction, migration, and physical features necessary for maintaining the natural processes that support these habitat components. The primary constituent elements include: abundant prey items within riverine habitats for larval and juvenile life stages, and within estuarine and marine habitats and substrates for juvenile, subadult, and adult life stages; riverine spawning sites with substrates suitable for egg deposition and development, such as limestone outcrops and cut limestone banks, bedrock, large gravel or cobble beds, marl, soapstone or hard clay; riverine aggregation areas, also referred to as resting, holding, and staging areas, used by adult, subadult, and/or juveniles, generally, but not always, located in holes below normal riverbed depths, believed necessary for minimizing energy expenditures during fresh water residency and possibly for osmoregulatory functions; a flow regime (
The river reaches within Units 1 to 7 as critical habitat lie within the ordinary high water line. As defined in 33 CFR 329.11, the ordinary high water line on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.
The downstream limit of the riverine units is the mouth of each river. The mouth is defined as rkm 0 (rmi 0). Although the interface of fresh and saltwater, referred to as the saltwater wedge, occurs within the lower-most reach of a river, for ease in delineating critical habitat units, we are defining the boundary between the riverine and estuarine units as rkm 0 (rmi 0).
Regulatory jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water (MHW) (33 CFR 329.12(a)(2)). All bays and estuaries within Units 8 to 14, therefore, lie below the MHW lines. Where precise determination of the actual location becomes necessary, it must be established by survey with reference to the available tidal datum, preferably averaged over a period of 18.6 years. Less precise methods, such as observation of the “apparent shoreline” which is determined by reference to physical markings, lines of vegetation, may be used only where an estimate is needed of the line reached by the mean high water.
The term 72 COLREGS is defined as demarcation lines which delineate those
Critical habitat does not include existing developed sites such as dams, piers, marinas, bridges, boat ramps, exposed oil and gas pipelines, oil rigs, and similar structures or designated public swimming areas.
Critical habitat units are depicted for Louisiana, Mississippi, Alabama and Florida on the maps below. The textual unit descriptions below are definitive sources for determining the critical habitat boundaries. General location maps by unit are provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.
(a)
(1) Unit 1 includes the Pearl River main stem from the spillway of the Ross Barnett Dam, Hinds and Rankin Counties, Mississippi, downstream to where the main stem river drainage discharges at its mouth joining Lake Borgne, Little Lake, or The Rigolets in Hancock County, Mississippi, and St. Tammany Parish, Louisiana. It includes the main stems of the East Pearl River, West Pearl River, West Middle River, Holmes Bayou, Wilson Slough, downstream to where these main stem river drainages discharge at the mouths of Lake Borgne, Little Lake, or The Rigolets. Unit 1 also includes the Bogue Chitto River main stem, a tributary of the Pearl River, from Mississippi State Highway 570, Pike County, Mississippi, downstream to its confluence with the West Pearl River, St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is the ordinary high water line on each bank of the associated rivers and shorelines.
(2) Maps of Unit 1 follow:
(b)
(1) Unit 2 includes all of the Pascagoula River main stem and its distributaries, portions of the Bouie, Leaf, and Chickasawhay tributaries, and all of the Big Black Creek tributary. It includes the Bouie River main stem beginning on the southern-most road crossing of Interstate 59, Forrest County, Mississippi, downstream to its confluence with the Leaf River, Forrest County, Mississippi. The Leaf River main stem beginning from Mississippi State Highway 588, Jones County, Mississippi, downstream to its confluence with the Chickasawhay River, George County, Mississippi is included. The main stem of the Chickasawhay River from the mouth of Oaky Creek, Clarke County, Mississippi, downstream to its confluence with the Leaf River, George County, Mississippi is included. Unit 2 also includes Big Black Creek main stem from its confluence with Black and Red Creeks, Jackson County, Mississippi, to its confluence with the Pascagoula River, Jackson County, Mississippi. All of the main stem of the Pascagoula River from its confluence with the Leaf and Chickasawhay Rivers, George County, Mississippi, to the discharge of the East and West Pascagoula Rivers into Pascagoula Bay, Jackson County, Mississippi, is included. The lateral extent of Unit 2 is the ordinary high water line on each bank of the associated rivers and shorelines.
(2) Major shipping channels in this unit are excluded under section 4(b)(2) of the Act.
(3) Maps of Unit 2 follow:
(c)
(1) Unit 3 includes the Conecuh River main stem beginning just downstream of the spillway of Point A Dam, Covington County, Alabama, downstream to the Florida State line, where its name changes to the Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa Counties, Florida. It includes the entire main stem of the Escambia River downstream to its discharge into Escambia Bay and Macky Bay, Escambia and Santa Rosa Counties, Florida. All of the distributaries of the Escambia River including White River, Little White River, Simpson River, and Dead River, Santa Rosa County, Florida are included. The Sepulga River main stem from Alabama County Road 42, Conecuh and Escambia Counties, Alabama, downstream to its confluence with the Conecuh River, Escambia County, Alabama, is also included. The lateral extent of Unit 3 is the ordinary high water line on each bank of the associated lakes, rivers, and shorelines.
(2) Maps of Unit 3 follow:
(d)
(1) Unit 4 includes the Yellow River main stem from Alabama State Highway 55, Covington County, Alabama, downstream to its discharge at Blackwater Bay, Santa Rosa County, Florida. All Yellow River distributaries (including Weaver River and Skim Lake) discharging into Blackwater Bay are included. The Shoal River main stem, a Yellow River tributary, from Florida Highway 85, Okaloosa County, Florida, to its confluence with the Yellow River, is included. The Blackwater River from its confluence with Big Coldwater Creek, Santa Rosa County, Florida, downstream to its discharge into Blackwater Bay is included. Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater River are included. The lateral extent of Unit 4 is the ordinary high water line on each bank of the associated lakes, rivers, and shorelines.
(2) Maps of Unit 4 follow:
(e)
(1) Unit 5 includes the Choctawhatchee River main stem from its confluence with the west and east fork of the Choctawhatchee River, Dale County, Alabama, downstream to its discharge at Choctawhatchee Bay, Walton County, Florida. The distributaries discharging into Choctawhatchee Bay known as Mitchell River, Indian River, Cypress River, and Bells Leg are included. The Boynton Cutoff, Washington County, Florida, which joins the Choctawhatchee River main stem, and Holmes Creek, Washington County, Florida, are included. The section of Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek, Washington County, Florida, is included. The Pea River main stem, a Choctawhatchee River tributary, from the Elba Dam, Coffee County, Alabama, to its confluence with the Choctawhatchee River, Geneva County, Alabama, is included. The lateral extent of Unit 5 is the ordinary high water line on each bank of the associated rivers and shorelines.
(2) Maps of Unit 5 follow:
(f)
(1) Unit 6 includes the Apalachicola River mainstem, beginning from the Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida, downstream to its discharge at East Bay or Apalachicola Bay, Franklin County, Florida. All Apalachicola River distributaries, including the East River, Little St. Marks River, St. Marks River, Franklin County, Florida, to their discharge into East Bay and/or Apalachicola Bay are included. The entire main stem of the Brothers River, Franklin and Gulf Counties, Florida, a tributary of the Apalachicola River, is included. The lateral extent of Unit 6 is the ordinary high water line on each bank of the associated rivers and shorelines.
(2) Maps of Unit 6 follow:
(g)
(1) Unit 7 includes the Suwannee River main stem, beginning from its confluence with Long Branch Creek, Hamilton County, Florida, downstream to the mouth of the Suwannee River. It includes all the Suwannee River distributaries, including the East Pass, West Pass, Wadley Pass, and Alligator Pass, Dixie and Levy Counties, Florida, to their discharge into the Suwannee Sound or the Gulf of Mexico. The Withlacoochee River main stem from Florida State Road 6, Madison and Hamilton Counties, Florida, to its confluence with the Suwannee River is included. The lateral extent of Unit 7 is the ordinary high water line on each bank of the associated rivers and shorelines.
(2) Maps of Unit 7 follow:
(h)
(1) Unit 8 encompasses Lake Pontchartrain east of the Lake Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St. Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound. Critical habitat follows the shorelines around the perimeters of each included lake. The Mississippi Sound includes adjacent open bays including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy Bay, and barrier island passes, including Ship Island Pass, Dog Keys Pass, Horn Island Pass, and Petit Bois Pass. The northern boundary of the Mississippi Sound is the shorelines of the mainland between Heron Bay Point, MS and Point aux Pins, AL. Designated critical habitat excludes St. Louis Bay, north of the railroad bridge across its mouth; Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of Biloxi. The southern boundary follows along the broken shoreline of Lake Borgne created by low swampy islands from Malheureux Point to Isle au Pitre. From the northeast point of Isle au Pitre, the boundary continues in a straight north-northeast line to the point 1 nm (1.9 km) seaward of the western most extremity of Cat Island (30°13″N, 89°10″W). The southern boundary continues 1 nm (1.9 km) offshore of the barrier islands and offshore of the 72 COLREGS lines at barrier island passes (defined at 33 CFR 80.815 (c)), (d) and (e) to the eastern boundary. Between Cat Island and Ship Island there is no 72 COLREGS line. We therefore, have defined that section of the southern boundary as 1 nm (1.9 km) offshore of a straight line drawn from the southern tip of Cat Island to the western tip of Ship Island. The eastern boundary is the line of longitude 88°18.8″W from its intersection with the shore (Point aux Pins) to its intersection with the southern boundary. The lateral extent of Unit 8 is the MHW line on each shoreline of the included water bodies or the entrance to rivers, bayous, and creeks.
(2) Major shipping channels in this unit, as identified on standard navigation charts and marked by buoys, are excluded under section 4(b)(2) of the Act.
(3) Maps of Unit 8 follow:
(i)
(1) Unit 9 includes Pensacola Bay and its adjacent main bays and coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and Catfish Basin. All other bays, bayous, creeks, and rivers are excluded at their mouths. The western boundary is the Florida State Highway 292 Bridge crossing Big Lagoon to Perdido Key. The southern boundary is the 72 COLREGS line between Perdido Key and Santa Rosa Island (defined at 33 CFR 80.810(g)). The eastern boundary is the Florida State Highway 399 Bridge at Gulf Breeze, FL. The lateral extent of Unit 9 is the MHW line on each included bay's shoreline.
(2) Major shipping channels in this unit, as identified on standard navigation charts and marked by buoys, are excluded under section 4(b)(2) of the Act.
(3) A Map of Unit 9 follows:
(j)
(1) Unit 10 includes the Santa Rosa Sound, bounded on the west by the Florida State Highway 399 bridge in Gulf Breeze, FL. The eastern boundary is the U.S. Highway 98 bridge in Fort Walton Beach, FL. The northern and southern boundaries of Unit 10 are formed by the shorelines to the MHW line or by the entrance to rivers, bayous, and creeks.
(2) A Map of Unit 10 follows:
(k)
(1) Unit 11 includes a portion of the Gulf of Mexico as defined by the following boundaries. The western boundary is the line of longitude 87°20.0′W (approximately 1 nm (1.9 km) west of Pensacola Pass) from its intersection with the shore to its intersection with the southern boundary. The northern boundary is the MHW of the mainland shoreline and the 72 COLREGS lines at passes as defined at 30 CFR 80.810 (a-g). The southern boundary is 1 nm (1.9 km) offshore of the northern boundary. The eastern boundary is the line of longitude 85°17.0′W from its intersection with the shore (near Money Bayou between Cape San Blas and Indian Peninsula) to its intersection with the southern boundary.
(2) A Map of Unit 11 follows:
(l)
(1) Unit 12 includes the main body of Choctawhatchee Bay, Hogtown Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous, creeks, rivers are excluded at their mouths/entrances. The western boundary is the U.S. Highway 98 bridge at Fort Walton Beach, FL. The southern boundary is the 72 COLREGS line across East (Destin) Pass as defined at 33 CFR 80.810(f). The lateral extent of Unit 12 is the MHW line on each shoreline of the included water bodies.
(2) A Map of Unit 12 follows:
(m)
(1) Unit 13 includes the main body of Apalachicola Bay and its adjacent sounds, bays, and the nearshore waters of the Gulf of Mexico. These consist of St. Vincent Sound, including Indian Lagoon; Apalachicola Bay including Horseshoe Cove and All Tides Cove; East Bay including Little Bay and Big Bay; and St George Sound, including Rattlesnake Cove and East Cove. Barrier Island passes (Indian Pass, West Pass, and East Pass) are also included. Sike's cut is excluded from the lighted buoys on the Gulf of Mexico side to the day boards on the bay side. The southern boundary includes water extending into the Gulf of Mexico 1 nm (1.9 km) from the MHW line of the barrier islands and from 72 COLREGS lines between the barrier islands (defined at 33 CFR 80.805 (e-h)). The western boundary is the line of longitude 85°17.0′W from its intersection with the shore (near Money Bayou between Cape San Blas and Indian Peninsula) to its intersection with the southern boundary. The eastern boundary is formed by a straight line drawn from the shoreline of Lanark Village at 29°53.1′N, 84°35.0′W to a point that is 1 nm (1.9 km) offshore from the northeastern extremity of Dog Island at 29°49.6′N, 84°33.2′W. The lateral extent of Unit 13 is the MHW line on each shoreline of the included water bodies or the entrance of excluded rivers, bayous, and creeks.
(2) A Map of Unit 13 follows:
(n)
(1) Unit 14 includes Suwannee Sound and a portion of adjacent Gulf of Mexico waters extending 9 nm from shore (16.7 km) out to the State territorial water boundary. Its northern boundary is formed by a straight line from the northern tip of Big Pine Island (at approximately 29°23′N, 83°12′W) to the Federal-State boundary at 29°17′N, 83°21′W. The southern boundary is formed by a straight line from the southern tip of Richards Island (at approximately 83°04′W, 29°11′N) to the Federal-State boundary at 83°15′W, 29°04′N. The lateral extent of Unit 14 is the MHW line along the shorelines and the mouths of the Suwannee River (East and West Pass), its distributaries, and other rivers, creeks, or water bodies.
(2) A Map of Unit 14 follows:
Fish and Wildlife Service, Interior.
Final rule.
We, the Fish and Wildlife Service (Service), determine endangered status for the Sonoma County distinct population segment (DPS) of the California tiger salamander (
This rule is effective on March 19, 2003.
The complete file for this final rule is available for inspection, by appointment, during normal business hours at the Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 95825.
David E. Wooten, Susan Moore, or Chris Nagano, Sacramento Fish and Wildlife Office, at the address listed above (telephone 916/414-6600; facsimile 916/414-6713).
The California tiger salamander was first described as
The California tiger salamander is a large, stocky, terrestrial salamander with small eyes and a broad, rounded snout. Adults may reach a total length of 208 millimeters (mm) (8.2 inches (in)), with males generally averaging about 203 mm (8 in) in total length and females averaging about 173 mm (6.8 in) in total length. For both sexes, the average snout-vent length is approximately 91 mm (3.6 in). The small eyes have black irises and protrude from the head. Coloration consists of white or pale yellow spots or bars on a black background on the back and sides. The belly varies from almost uniform white or pale yellow to a variegated pattern of white or pale yellow and black. Males can be distinguished from females, especially during the breeding season, by their swollen cloacae (a common chamber into which the intestinal, urinary, and reproductive canals discharge), more developed tail fins, and larger overall size (Stebbins 1962; Loredo and Van Vuren 1996).
California tiger salamanders are restricted to vernal pools and seasonal ponds in grassland and oak savannah plant communities from sea level to about 460 meters (m) (1,500 feet (ft)) (Stebbins 1989; Shaffer
The California tiger salamander in Sonoma County inhabits low-elevation (below 60 m (200 ft)) vernal pools and seasonal ponds, associated grassland, and oak savannah plant communities. The historic range of the species also may have included the Petaluma River watershed, as there is one historic record of a specimen from the vicinity of Petaluma from the mid-1800s (Borland 1856, as cited in Storer 1925).
California tiger salamanders found in the Santa Rosa Plain in Sonoma County are geographically separated from other California tiger salamander populations. The closest California tiger salamander populations to Sonoma County are located in Contra Costa, Yolo, and Solano counties, which are separated from the Sonoma County population by the Coast Range, Napa River, and the Carquinez Straits, a distance of about 72 kilometers (km) (45 miles (mi)).
Subadult and adult California tiger salamanders spend the dry summer and fall months of the year estivating (a state of dormancy or inactivity in response to hot, dry weather) in the burrows of small mammals, such as California ground squirrels (
Occurrence of California tiger salamanders in Sonoma County is significantly associated with occurrence
Adult California tiger salamanders may migrate up to 2 km (1 mi) from their estivation sites to the breeding ponds (S. Sweet, University of California, Santa Barbara,
The adults mate in the ponds and the females lay their eggs in the water (Twitty 1941; Shaffer
Salamander eggs hatch in 10 to 14 days with newly hatched salamanders (larvae) ranging from 11.5 to 14.2 mm (0.45 to 0.55 in) in total length (Petranka 1998). The larvae are aquatic. They are yellowish gray in color and have broad fat heads, possess large, feathery external gills, and broad dorsal fins that extend well onto their back. The larvae feed on zooplankton, small crustaceans, and aquatic insects for about 6 weeks after hatching, after which they switch to larger prey (J. Anderson 1968). Larger larvae have been known to consume smaller tadpoles of Pacific treefrogs (
The larval stage of the California tiger salamander usually lasts 3 to 6 months, as most seasonal ponds and pools dry up during the summer (Petranka 1998). Amphibian larvae must grow to a critical minimum body size before they can metamorphose (change into a different physical form) to the terrestrial stage (Wilbur and Collins 1973). Individuals collected near Stockton in the Central Valley during April varied from 47 to 58 mm (1.85 to 2.3 in) in length (Storer 1925). Feaver (1971) found that larvae metamorphosed and left the breeding pools 60 to 94 days after the eggs had been laid, with larvae developing faster in smaller, more rapidly drying pools. The longer the ponding duration, the larger the larvae and metamorphosed juveniles are able to grow, and the more likely they are to survive and reproduce (Pechmann
When the metamorphosed juveniles leave their ponds in the late spring or early summer, before the ponds dry completely, they settle in small mammal burrows at the end of their nightly movements (Zeiner
An estimated 83 percent of the salamanders rely on rodent burrows for shelter (Petranka 1998). Mortality of juveniles during their first summer exceeds 50 percent (Trenham 1998b). Emergence from estivation in hot dry weather occasionally results in mass mortality of juveniles (Holland
Lifetime reproductive success for California and other tiger salamanders is low. Trenham
The total number of individual California tiger salamanders in Sonoma County is not known. The difficulty of estimating total California tiger salamander population size has been discussed by a number of biologists (Shaffer
The life history and ecology of the California tiger salamander on the Santa Rosa Plain in Sonoma County make it likely that this population has a metapopulation structure (Hanski and Gilpin 1991). A metapopulation is a set of local populations or breeding sites within an area, where typically migration from one local population or breeding site to other areas containing suitable habitat is possible, but not routine. Movement between areas containing suitable habitat (
We believe habitat loss has reduced the sizes and connectivity between patches of suitable and occupied salamander habitat on the Santa Rosa Plain. The reduction in the extent and amount of suitable water bodies, grasslands, and other suitable upland habitats likely has eliminated connectivity among most of the known breeding sites, making recolonization of some sites more difficult following local extinction. In addition, the reduction of habitat below a certain size threshold has the effect of reducing the quality of the remaining habitat by reducing the size of habitat boundaries, and making effects of other factors such as amount of food, availability of rodent burrows, pesticide use, mortality from vehicles, and predators more pronounced given the smaller area now exposed to such impacts. We do not have enough data to determine what the size threshold for habitat might be, whereby any further reduction would lower the quality of the remaining habitat. The acreage is probably dependent on factors such as the type of building occurring along habitat boundaries (
Under the Act, we must consider for listing any species, subspecies, or, for vertebrates, a DPS of these taxa, if there is sufficient information to indicate that such action may be warranted. To implement the measures prescribed by the Act and its Congressional guidance, we, along with the National Marine Fisheries Service, developed policy that addresses the recognition of DPSs for potential listing actions (61 FR 4722). The policy allows for a more refined application of the Act that better reflects the biological needs of the taxon being considered, and avoids the inclusion of entities that do not require its protective measures. Under our DPS policy, we use two elements to assess whether a population segment under consideration for listing may be recognized as a DPS. The elements are: (1) The population segment's discreteness from the remainder of the species to which it belongs; and (2) the significance of the population segment to the species to which it belongs. If we determine that a population segment being considered for listing represents a DPS, then the level of threat to that population segment is evaluated based on the five listing factors established by the Act to determine if listing it as either threatened or endangered is warranted.
A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following two conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.); or (2) it is delimited by international governmental boundaries within which significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist.
The Sonoma County California tiger salamander is discrete in relation to the remainder of the species. The population is geographically isolated and separate from other California tiger salamanders. The Sonoma County population is widely separated geographically from the closest populations, which are located in Contra Costa, Yolo, and Solano counties. These populations are separated from the Sonoma County population by the Coast Range, Napa River, and the Carquinez Straits, at a minimum distance of about 72 km (45 mi). There are no known records of the California tiger salamander in the intervening areas (D. Warenycia, CDFG, pers. comm., 2002). We have no evidence of natural interchange of individuals between the Sonoma County population and other California tiger salamander populations. As detailed below, this finding is supported by an evaluation of the genetic variability of the species.
Dr. H. Bradley Shaffer has analyzed the population genetics of the California tiger salamander (Shaffer
In the proposed rule we relied on the 2 percent divergence value as evidence that the Sonoma County California tiger salamander population is discrete. At the time, we were using the best available information (Shaffer
Under our DPS policy, once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. This consideration may include, but is not limited to, evidence of the persistence of the discrete population segment in an ecological setting that is unique for the taxon; evidence that loss of the population segment would result in a significant gap in the range of the taxon; evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. We have found substantial evidence that two of these significance factors are met by the population of the California tiger salamander that occurs on the Santa Rosa Plain in Sonoma County.
The extinction of the Sonoma County population would result in the loss of a significant genetic entity and the curtailment of the range of the species. As discussed above, the Sonoma County population is genetically distinct from other populations of California tiger salamanders. Loss of the Sonoma County population would also eliminate the most northern coastal extent of the range of the species. The Sonoma County population is geographically isolated. Genetic analysis of the species supports the hypothesis that no natural interchange of the Sonoma County population occurs with other California tiger salamander populations.
We evaluated the Sonoma County population, addressing the two elements which our policy requires us to consider in deciding whether a vertebrate population may be recognized as a DPS and considered for listing under the Act. We conclude that the Sonoma County population is discrete, as per our policy, based on its geographic separation and genetic divergence from the rest of the California tiger salamander populations. We conclude that the Sonoma County population of the California tiger salamander is significant because the loss of the species from the Santa Rosa Plain in Sonoma County would result in a significant reduction in the species' range and would constitute loss of a genetically divergent portion of the species. Because the population segment meets both the discreteness and significance criteria of our DPS policy, the Sonoma County population of the California tiger salamander constitutes a DPS which qualifies for consideration for listing. An evaluation of the level of threat to the DPS based on the five listing factors established by the Act follows.
On September 18, 1985, we published the Vertebrate Notice of Review (NOR) (50 FR 37958), which included the California tiger salamander as a category 2 candidate species for possible future listing as threatened or endangered. Category 2 candidates were those taxa for which information contained in our files indicated that listing may be appropriate but for which additional data were needed to support a listing proposal. The January 6, 1989, and November 21, 1991, NORs (54 FR 554 and 56 FR 58804, respectively) also included the California tiger salamander as a category 2 candidate, soliciting information on the status of the species.
On February 21, 1992, we received a petition from Dr. H. Bradley Shaffer of the University of California, Davis (UCD), to list the California tiger salamander as an endangered species. We published a 90-day petition finding on November 19, 1992 (57 FR 54545), concluding that the petition presented substantial information indicating that listing may be warranted. On April 18, 1994, we published a 12-month petition finding (59 FR 18353) that the listing of the California tiger salamander was warranted but precluded by higher priority listing actions. We elevated the species to category 1 status at that time, which was reflected in the November 15, 1994, NOR (59 FR 58982). Category 1 candidates were those taxa for which we had on file sufficient information on biological vulnerability and threats to support preparation of listing proposals.
We discontinued the use of different categories of candidates in the February 28, 1996, NOR (61 FR 7596), and defined “candidate species” as those meeting the definition of former category 1. We maintained the California tiger salamander as a candidate species in that NOR, as well
On June 12, 2001, we received a petition dated June 11, 2001, from the Center for Biological Diversity (CBD) and Citizens for a Sustainable Cotati to emergency list the Sonoma County population of the California tiger salamander as an endangered species and to designate critical habitat. On February 27, 2002, CBD filed a complaint for our failure to emergency list the Sonoma County population of the California tiger salamander as endangered (
On July 22, 2002, we published in the
As required by section 4(b)(1) of the Act, our decision to list the Sonoma County population of the California tiger salamander is based upon the best available information at this time. We note that the petition and subsequent emergency listing of this population has led to increased interest in this population by a variety of parties, and thus to an acceleration of the rate at which new information is becoming available. We expect this trend to continue subsequent to this final listing determination. The settlement agreement discussed above requires that we submit to the
In the July 22, 2002, proposed rule (67 FR 47758), we requested all interested parties submit factual reports, information, and comments that might contribute to development of a final determination. We contacted appropriate Federal agencies, State agencies, county and city governments, scientific organizations, affected landowners and other interested parties requesting comments. We published legal notices in the Santa Rosa Press Democrat on July 29, 2002, and September 3, 2002, and the Sonoma Index-Tribune on July 30, 2002, and September 27, 2002, notifying the public of the comment period on the proposed and emergency rule and the public hearing, respectively. We requested 12 peer reviewers to comment on the proposed rule in compliance with our policy, published in the
During both public comment periods, we received 111 comment letters from public agencies, individuals, businesses, and organizations, with several commenters submitting more than one set of comments during the subsequent extensions of the comment period. We received oral comments from 49 people at the public hearing. Ninety-nine commenters opposed the listing, 60 supported the listing, and one was neutral. The breakdown of the comments included none from Federal agencies, 2 from State agencies, 8 from Sonoma County and city agencies, 49 from organizations or corporations, and 99 from individuals. One hundred and twenty people attended the hearing, with 31 individuals and 18 representatives of organizations providing oral comments. In total, 39 commenters at the hearing were opposed to the listing, 9 supported the listing, and 1 was neutral. Several comments were received after the comment period closed.
We updated the final rule to reflect comments and information we received during the comment periods. We address substantive comments concerning the rule below. Comments of a similar nature are grouped together (referred to as “Issues” for the purpose of this summary).
Restricting listings to full taxonomic species would render the Act's definition of species, which explicitly includes subspecies and DPS's of vertebrates, superfluous.
We did note in our emergency rule that Dr. Shaffer and his colleagues believe the divergence of Sonoma County California tiger salamanders justifies separate species recognition (Shaffer
The Sonoma County population of California tiger salamanders is the most divergent of any population of the species. This finding is supported by the original mitochondrial DNA (mtDNA) work of Shaffer
Shaffer and McKnight (1996) do not mention whether the divergence of Sonoma County California tiger salamanders justifies separate species recognition. They make no statements about the taxonomic status of Sonoma County California tiger salamanders in their paper. In the Discreteness section of the emergency rule, we incorrectly attributed the statement that Sonoma County California tiger salamanders warrant separate taxonomic recognition to the 1996 publication. In fact, no Sonoma County California tiger salamanders were sampled in the study (Appendix 1 of Shaffer and McKnight 1996). The paper examined evolutionary relationships among tiger salamander species and subspecies and did not include a formal taxonomic treatment of the tiger salamander complex. Therefore, it is not surprising that the authors did not specifically note whether or not the divergence of Sonoma County California tiger salamanders justifies species status.
As explained above, we believe the available mtDNA data (Shaffer
Allozymes are proteins which are used as genetic markers because DNA contains information that is used by cells to build protein. Allozymes have been used to assess genetic variation for many years. Allozyme studies have the advantage of being relatively inexpensive and straightforward, once the basic technique is developed for a group. However, drawbacks of using allozymes include the limited number of proteins that can be screened (Parker
Molecular techniques, such as mtDNA, allow biologists to examine variation in DNA directly, rather than looking at the product derived from DNA (
Of the 155 remaining water bodies, 53 were characterized as “man-made long” and “natural long” ponds/wetlands, which hold water for too long and /or harbor aquatic predators, and were eliminated as potential habitat for the California tiger salamander. Another set of water bodies were “man-made short” and “natural short” ponds/wetland (12 in total) which do not hold water long enough to be a source of potential habitat for the California tiger salamander. Consequently only “man-made moderate” and “natural moderate” mapped water bodies were considered potential suitable habitat (90 in total).
Of the “man-made moderate” and “natural moderate” mapped water bodies, four were formerly known breeding sites that have been eliminated and eight are currently identified as existing breeding sites. Some of the mapped water bodies are anticipated to have aquatic predators given their location on the Laguna de Santa Rosa floodplain, which would limit California tiger salamander utilization. Others contain habitat with sightings near the ponds, but these ponds have been repeatedly surveyed by experts, with results indicating they do not support breeding populations of California tiger salamanders.
The determination that some of the mapped water bodies contain potential habitat is solely based on aerial photographs; however, the majority of these are on private property and inaccessible to surveying without landowner permission. Several recognized salamander biologists have conducted repeated road surveys in Sonoma County along areas where the California tiger salamander is known to exist or where suitable habitat appears to exist (D. Cook, The Wildlife Society, pers. comm., 2002; P. Northen, California State University, Sonoma, pers. comm., 2002; J. Seifers, Santa Rosa, California, per. comm., 2002; H. B. Shaffer, pers. comm., 2002; P. C. Trenham, UCD, pers. comm., 2002). Night driving is a standard technique for surveying for reptiles and amphibians (Shaffer and Juterbock 1994; Parris 1999). The locations where these biologists found breeding sites, migrating adult salamanders, subadults, larvae, and egg masses in roadside ditches were entered into the CNDDB. This data is considered essential (D. McGriff, CDFG, pers. comm., 2002) and the data was utilized in our analysis of the status of the California tiger salamander in Sonoma County. Several of the experts indicated that there are likely to be a few small breeding sites or potential habitat for California tiger salamanders on private lands containing grassland areas and suitable soils on the Santa Rosa Plain, including stock ponds (P. Northen, pers. comm., 2002; H. B. Shaffer, pers. comm., 2002; P. C. Trenham, pers. comm., 2002); however, these private lands were inaccessible during their survey efforts.
The Hartunian Preserve is approximately 14 hectares (ha) (34 acres (ac)) in size and has one shallow swale that could support successful breeding during a rainy season of above-average rainfall. This preserve was not listed in the emergency rule and has not been included in the final rule because breeding by the species is not likely to occur during years of low to average rainfall.
Upon review of all information available, we have concluded that the Engel Bank does meet the biological requirements for California tiger salamander breeding and we have included this site as an eighth breeding site. Engel Bank is a 16-ha (40-ac) preserve that contains approximately 7-ha (18-ac) of wetlands and has documented records of the species. However, California tiger salamanders require a fairly large upland component. Approximately 9 ha (22 ac) of protected uplands are available at this site. Therefore, due to the limited upland habitat protected within the Engel Bank, a sustainable population at this site is dependent on the activities occurring on the surrounding private property.
At least 12 surveys are ongoing in Sonoma County in three areas not previously known to have California tiger salamander occurrences, and to date, there have been no detections of the animal. We agree that additional survey information is valuable. However, the Service has not had the flexibility to wait until surveys are finished because an order, issued by the district court in
Out of 126 citations appearing in the emergency rule, 52 have been published within the past 5 years (41 percent) and 83 citations have been published within the past 10 years (66 percent). The initial report on the population genetics of the California tiger salamander by Shaffer
A recent case pertinent to this issue,
Burrowing mammals also could be increasingly subject to control actions given the proximity of developed areas to any remaining estivation habitats. One proposed development project at the Air Center could fill two wetlands that make up one of the eight known breeding sites. Surveys of this site over the past 2 years have found breeding California tiger salamanders. Construction on the runway itself and extension of Fresno Avenue could result in total isolation of the FEMA/Broadmore North Preserves, a known Sonoma County California tiger salamander breeding site. We have determined that Roseland Creek Channel is not likely to be a barrier to salamander migration. Flows in the channel are minimal, except during the heaviest of rain events.
In accordance with our July 1, 1994, Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities (59 FR 34270), we solicited the expert opinions of 12 independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population status, and supporting biological and ecological information for the California tiger salamander in Sonoma County. The purpose of such review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists. Information and suggestions provided by the reviewers were incorporated or addressed as applicable.
We received peer reviews from five of the experts. All of them agreed the Sonoma County California tiger salamander is imperiled throughout all or a portion of its range. One reviewer provided references on threats from disease the reviewer believed relevant to our final rule decision. This peer reviewer also stated that threats from disease are much more severe for small populations. Another peer reviewer recommended a number of editorial clarifications in the emergency and proposed rules. The third peer reviewer stated that the California tiger salamander should be listed throughout its range. A fourth peer reviewer provided additional information on the California tiger salamander, and the fifth peer reviewer, based on years of field work, agreed that the Sonoma County California tiger salamander is endangered.
Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act describe the procedures for adding species to the Federal list. We may determine a species to be endangered or threatened due to one or more of the five factors described in section 4(a)(1). These factors, and their application to the Sonoma County California tiger salamander, are as follows:
The Sonoma County California tiger salamander population, as well as the population in Santa Barbara County, which we listed as endangered (65 FR 57242, September 21, 2000), are considered to be the most vulnerable of the six populations of the California tiger salamander (LSA Associates, Inc. 2001; Shaffer and Trenham 2002). Urban development is the primary threat to the Sonoma County California tiger salamander. The DPS now occurs in scattered, and increasingly isolated, breeding sites within a small portion of its historic range on the Santa Rosa Plain in Sonoma County. Five known breeding sites of this DPS have been destroyed in the last 2 years. All of the eight known remaining breeding sites are distributed in the City of Santa Rosa and immediate associated unincorporated areas, an area approximately 8 km (5 mi) long by 6 km (4 mi) wide. Within this area and south to the Cotati area, there are scattered records of adult salamanders crossing roads during the fall and winter rains, and also sporadic instances of breeding in roadside ditches and low-quality pools. However, these roadside ditches and low-quality pools likely do not represent viable breeding sites because they either do not have sufficient ponding duration and/or associated uplands for estivation.
The eight known breeding sites are imperiled by the construction of high-density housing, office buildings, roads, and other development. The survival and viability of the Sonoma County California tiger salamander is directly related to availability of breeding pools with hydrological and other factors conducive to the salamander's reproduction. There also must be adequate upland acreage, with associated small mammal burrows, in the vicinity of the Sonoma County California tiger salamander breeding pools to accommodate estivation. The Santa Rosa Plain once contained extensive valley oak woods, native grasslands, riparian, and vernal pools (1942 aerial photographs on file with Dr. Phil Northen at California State University at Sonoma). Vernal pools and seasonal wetlands likely were extensive, due to the flat terrain, clay soils, and relatively high rainfall (CH2M Hill 1995). Based on the topography and habitat type of the lands that have been converted to urban development and agriculture on the Santa Rosa Plain, the number of breeding ponds, the extent of upland habitats, and the quality of the remaining habitats has been greatly reduced since Europeans first settled the region.
The extent of the historic range of the California tiger salamander within the Santa Rosa Plain in Sonoma County is uncertain due to limited information collected on this population prior to the 1990s (Shaffer
A 1990 study of the Santa Rosa Plain found that 25 percent of an 11,300-ha (28,000-ac) study area had been converted to subdivisions, “ranchettes,” golf courses, and commercial buildings (Waaland
Urban development poses a significant threat to all of the known breeding sites of the Sonoma County California tiger salamander. Six of these
Urban development of the Santa Rosa area is proceeding rapidly. Demographic data obtained from the City of Santa Rosa Housing and Community Development Commission indicate that, since 1980, Santa Rosa has experienced a greater than 53 percent increase in its population. From 1980 until 1997, the number of housing units grew by 66 percent from 35,403 units in 1980 to 53,558 units by January 1, 1997 (M. Enright, pers. comm., 2001).
Five known breeding sites were lost within the past 2 years, two of which were lost due to commercial development with another lost to urban development/housing. In June 2002, a fourth breeding site near Cotati was destroyed when the pond was filled for unknown reasons (D. Cook,
California tiger salamanders require a large amount of barrier-free landscape for successful migration (Shaffer
All the pools at the known extant Sonoma County California tiger salamander breeding sites are within 450 m (1,476 ft) of roads of various sizes. Findlay and Houlahan (1996) found that roads within 2,000 m (1.2 mi) of wetlands adversely affected the number of amphibian species. At this time, it is still possible for salamanders at breeding sites associated with the Air Center to migrate to the FEMA/Broadmore North Preserves. A proposed through-street and high-density housing will eliminate this migration corridor, leading to fragmentation and further isolation of remaining breeding sites. If this planned through-street and accompanying high-density housing are completed, only three breeding sites will remain where salamanders can access more than one breeding pool without crossing roads.
Large numbers of California tiger salamanders at some locations in the Central Valley, up to 15 or 20 per mile of road (J. Medeiros, Sierra College, pers. comm., 1993), have been killed as they crossed roads on breeding migrations (Hansen and Tremper 1993; S. Sweet,
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Except for the Hall Road Preserve, all of the known breeding sites of the Sonoma County California tiger salamander are found on small locations in areas being rapidly converted from low-intensity farming, cattle grazing, and low-density housing, to high-density housing and office buildings. Only three breeding sites (the Hall Road Preserve, FEMA/Broadmore North Preserve, and Engel Preserve) have hydrologic regimes adequate to provide recruitment for Sonoma County California tiger salamanders in normal to dry years. Five of the breeding sites are on private property. Two of the breeding sites on private lands are on agricultural lands where access for salamander surveys has not been allowed in recent years. Thus, it is unknown if these two breeding sites still have Sonoma County California tiger salamanders, or if they retain hydrological features required for successful salamander breeding. Four of the breeding locations associated with the old airfield in southwest Santa Rosa are slated for development, which will disrupt the hydrology of the surrounding uplands by altering natural runoff. If plans for the development of the area in the vicinity of these four breeding sites are completed, there will be no migratory corridors remaining between any of the currently extant breeding locales.
Maintenance of tracts of habitat between breeding sites will likely play a pivotal role in maintenance of the Sonoma County California tiger salamander metapopulation dynamics. If breeding sites are eliminated and the metapopulation becomes so fragmented that individuals are unable to disperse between suitable patches of habitat, the probability of natural recolonization will not offset the probability of extinction. Some of the salamander breeding sites, such as the FEMA Preserve/ Broadmore North Preserve and the pools associated with the Air Center, are linked to each other by suitable habitat. If movements through these linkages are disrupted or precluded (
In the past, the larvae of non-native tiger salamanders could legally be used as bait by fishermen in California. The extent of the use of the Sonoma County California tiger salamander is unknown. The California Code of Regulations (2002) now specifies that no salamander may be used as bait and excludes the California tiger salamander from a list of salamanders, newts, toads, and frogs that may legally be taken and possessed under authority of a sportfishing license. The success of these present regulations in avoiding or reducing recreational harvest of the California tiger salamander is unknown.
Tiger salamanders are generally thought to make good pets by amateur herpetologists (Porras 2002). The Sonoma County California tiger salamander does not appear to be particularly popular among amphibian and reptile collectors. However, Federal listing could raise the value of the species within wildlife trade markets, and increase the threat of unauthorized collections above current levels (K. McCloud, Special Agent, Service, pers. comm., 2002). Even limited interest in the species could pose a serious threat to the DPS.
Relatively little is known about the diseases of wild amphibians (Alford and Richards 1999). The specific effects of disease on the Sonoma County California tiger salamander are not known and the risks to the animal have not been determined. However, it is known that mass mortalities of amphibians from disease are not uncommon, and may be either a natural phenomenon of the biology of species or induced by anthropogenic agents (Corn 1994). In California, large numbers of dead and dying California tiger salamanders were observed in a pond in the Los Alamos Valley in Santa Barbara County, but the cause was not determined (S. Sweet, pers. comm., 1998).
Worthylake and Hovingh (1989) described repeated die-offs of tiger salamanders (
Lefcort
Viruses associated with die-offs of tiger and spotted salamanders in Maine and North Dakota have been isolated (B. McLean, National Wildlife Health Center,
Ranaviruses are often highly virulent and cause systemic infections in amphibians. Epizootiology (science that deals with the character, ecology, and causes of outbreaks of animal diseases) of ranaviral disease in amphibians is poorly understood, but dissemination may be partly due to the virus's ability to remain infectious under adverse conditions and for prolonged periods. Likely modes of spread of amphibian ranaviruses may include use of fishing gear, including boats, and through artificial stocking of ponds for recreational fishing. Also, water birds have the potential to mechanically transfer the virus on their feathers, feet, or bills, or by regurgitation of ingested infected material. Some outbreaks of ranaviral disease in tiger salamanders have been associated with altered habitats and artificial ponds. Due to their highly virulent nature, ranaviruses should be considered a potential threat to amphibian populations, especially those isolated from previous disease outbreaks (and thus lacking specific immunity) and species with low fecundity (Daszak
Kiesecker
Pathogen outbreaks have not been documented in Sonoma County California tiger salamanders. Nevertheless, disease must be considered a potential future population threat because of the relatively small, fragmented remaining Sonoma County California tiger salamander breeding sites, the many stresses on these sites due to habitat losses and alterations, and the many other potential disease-enhancing anthropogenic changes which have occurred both inside and outside of the range of this DPS. An amphibian pathogen could eliminate one or more breeding sites of this animal.
Predation and competition by introduced or non-native species potentially affect all of the known Sonoma County California tiger salamander breeding sites. Bullfrogs prey on California tiger salamanders (P. Anderson 1968; Lawler
Because bullfrogs are known to travel at least 2.6 km (1.6 mi) from one pond to another (Bury and Whelan 1984), they have the potential to naturally colonize new areas where they do not currently exist, including ponds where Sonoma County California tiger salamanders occur. In one study of the eastern San Joaquin Valley, 22 of 23 (96 percent) ponds with California tiger salamanders were within the bullfrogs' potential dispersal range (Seymour and Westphal 1994). In addition, because bullfrogs are still sought within California for sport and food, and may be taken without limit under a fishing license, the threat of transport for intentional establishment in new locations where California tiger salamanders exist or could exist is significant.
One of the pools at the Hall Road breeding site, and two of the pools contained at the FEMA/Broadmore North preserves, are located within 46 m (150 ft) of ditches or creek channels known to contain bullfrogs or crayfish. Bullfrogs likely occur in Roseland Creek, which is near the FEMA/Broadmore North preserve and breeding sites associated with the Air Center (D. Cook, pers. comm., 2002). Bullfrogs are likely present in ditches that cross the Hall Road Preserve (D. Cook, pers. comm., 2002). The direct and indirect evidence thus indicates that non-native bullfrogs represent a continuing significant threat to the persistence of the Sonoma County California tiger salamander.
Western mosquitofish (
Salamanders may be especially vulnerable to western mosquitofish predation due to their fluttering external gills, which may attract these visual predators (Graf and Allen-Diaz 1993). Loredo-Prendeville
Other non-native fish have either been directly implicated in predation of California tiger salamanders or appear to have the potential for such. For example, introductions of sunfish species (
Non-native fish introductions may be responsible for the declines of frog species in western North America (Hayes and Jennings 1986). Such introduced fish may be a problem for California raids because of their specialization for preying on aquatic life (including eggs and larvae), and because the affected amphibians may have evolved under conditions of limited fish predation, which now increases the impacts of such introductions (Hayes and Jennings 1986). We believe the same threat applies to the California tiger salamander. Thus, potential introduction of such non-native fish species in Sonoma County California tiger salamander breeding habitat should be considered a threat to the persistence of this DPS.
The degree to which predation from native fish have affected the Sonoma County California tiger salamanders is unknown. For example, sticklebacks (
Non-native and native crayfish (
California tiger salamanders are also likely preyed on by many native species of fish and wildlife. In healthy salamander populations, such predation is probably not a significant threat. But when combined with other impacts,
The primary cause of the decline of the Sonoma County California tiger salamander is the loss, degradation, and fragmentation of habitat due to human activities. Federal, State, and local laws have been insufficient to prevent past and ongoing losses of the limited habitat of the Sonoma County California tiger salamander.
Recent court cases may further limit the Corps' ability to utilize the CWA to regulate the fill or discharge of fill or dredged material into the aquatic environment within the current range of the Sonoma County California tiger salamander (
When on- or off-site mitigation is required by the Corps as a condition of a section 404 permit to fill certain wetlands, there is often low probability that affected Sonoma County California tiger salamander habitat values, if any, would actually be compensated and replaced by the ensuing mitigation action(s). A 1994 Service study of selected wetlands re-creation projects in California authorized through the section 404 program found deficiencies in both compliance and performance of the re-created wetlands (Santa Rosa Plain Vernal Pool Ecosystem Preservation Plan 1995). There was evidence that, of all the proposed mitigation, half of the sites were meeting less than 75 percent of the mitigation conditions and our goal for “in-kind” replacement was not being met (DeWeese 1994). Other recent studies have produced similar results. In addition, most wetland re-creation efforts in California to date have been directed at the wetlands themselves and have not adequately addressed the upland and other related needs of California tiger salamanders.
Semlitsch (1998) examined published literature for six species of pond-breeding ambystomatid salamanders from five States and concluded that a buffer zone encompassing 95 percent of a given population would need to extend 263 m (534 ft) from a wetland's edge into surrounding terrestrial habitat in order to give adequate protection. More recently, Trenham (2001), although cautioning that essential terrestrial habitats and buffer requirements are still relatively poorly understood, concluded that plans to maintain local populations of California tiger salamanders should include pond(s) surrounded by buffers at least 173 m (567 ft) wide of terrestrial habitat occupied by burrowing mammals. Management plans that focus only on preserving ponds or wetlands—without consideration for associated terrestrial habitat—are likely to fail to maintain viable amphibian populations (Marsh and Trenham 2001). However, even with inclusion of terrestrial habitat buffers, recent studies have demonstrated that restored wetlands are often still only partially successful in recolonization by the full amphibian assemblages being targeted for restoration (Lehtinen and Galatowitsch 2001; Pechmann
Three federally endangered plants, Sonoma sunshine (
We conclude that regulation of wetlands filling by the Corps under section 404 of the CWA is inadequate to protect the Sonoma County California tiger salamander from further decline. Section 404 implementation fails to prevent losses of numerous small wetlands in California that may support California tiger salamander breeding. Section 404 does not regulate the continuing losses of California tiger salamander terrestrial habitat (except to the extent certain agricultural activities may be regulated). When authorized fills under section 404 do result in compensatory mitigation for wetlands losses, it is unlikely that California tiger salamander habitat losses at specific fill sites can, and will be, fully and successfully mitigated.
Since 1994, the CDFG recognizes the California tiger salamander as a “species of special concern” by the CDFG. More recently, the California tiger salamander has been placed on the State's list of protected amphibians, which means that it cannot be taken without a special permit issued for scientific collecting or research. Also, as stated earlier, the California Code of Regulations (2002) specifies California tiger salamanders can no longer be taken, possessed, or used for fishing bait. However, any more stringent protection of California tiger salamanders or their habitat, as would be provided under a CESA listing or designation as a Fully Protected species by CDFG, is lacking.
CDFG recognizes the importance of California tiger salamander conservation at the local population level, and routinely considers and recommends actions to mitigate potential adverse effects to the species during its review of development proposals. However, CDFG's primary regulatory venue is under CEQA (Public Resources Code Sec. 21000-21177). CEQA has been a variable, and apparently inadequate, regulatory mechanism for providing protection to the California tiger salamander and its habitat.
The California Environmental Quality Act (CEQA) (Public Resources Code Sec. 21000-21177) requires a full disclosure of the potential environmental impacts of proposed projects. The public agency with primary authority or jurisdiction over a project for which it has discretion is designated as the lead agency and is responsible for conducting a review of the project and consulting with the other agencies concerned with the resources affected by the project. Section 15065 of the CEQA Guidelines, as amended, requires a finding of significance if a project has the potential to “reduce the number or restrict the range of a rare or endangered plant or animal.” Once significant effects are identified, the lead agency has the option of requiring mitigation for effects through changes in the project or to decide that overriding considerations make mitigation infeasible (CEQA Sec. 21002). In the latter case, projects may be approved that cause significant environmental damage, such as destruction of listed endangered species and/or their habitat. Protection of listed species through CEQA is, therefore, dependent upon the discretion of the lead agency involved, although “overriding considerations” are infrequently found.
However, neither CEQA nor CDFG provide completely effective regulatory mechanisms for reducing or eliminating the introduction of non-native fish into Sonoma County California tiger salamander habitat. For example, there is no State regulation of non-native fish stocking into ponds and waters occupied by Sonoma County California tiger salamanders. Agencies and individuals may purchase fish from CDFG-licensed breeders and stock into such waters an array of non-native sunfish, catfish, and other fish for recreational fishing. Similarly, there is no State regulation of western mosquitofish stocking into Sonoma County California tiger salamander breeding ponds and waters. In addition, lethal control of small mammals in places where small mammal burrows occur may affect the survival of the California tiger salamander because the practice is not State-regulated, and is still widely and commonly practiced throughout the California tiger salamander's range. The burrows of these small mammals are used by California tiger salamanders to estivate during the summer and fall months of the year.
We are not aware of any specific county or city ordinances or regulations that provide protection for the Sonoma County California tiger salamander. Sonoma County recently has begun applying regulatory oversight to conversions to vineyards, which may indirectly benefit the species. This oversight is resulting in requirements for full-scale environmental analyses, restrictions on the steepness of slopes onto which vineyards may be established, and requirements for erosion control plans and measures. However, it is unclear if the restriction on planting vineyards on steep slopes will result in more pressures to cultivate flat areas that contain habitat for the Sonoma tiger salamander.
Several other factors, including contaminants, ground squirrel and gopher control, mosquito control, hybridization with non-native salamanders, competition with introduced species, and decreased population viability may have negative effects on California tiger salamanders and their aquatic and upland habitats.
Like most amphibians, California tiger salamanders inhabit both aquatic and terrestrial habitats at different stages in their life cycle, and are likely exposed to a variety of pesticides and other chemicals throughout their range. They are extremely sensitive to these pollutants due to their highly permeable skin, which can rapidly absorb pollutant substances (Blaustein and Wake 1990). Toxins at lower than lethal levels may still have adverse effects, such as causing abnormalities in larva and behavioral anomalies in adults, both of which could eventually lead to lethal effects (Hall and Henry 1992; Blaustein and Johnson 2003).
California tiger salamanders also could die from starvation by the loss of their prey-base. Hydrocarbon and other contaminants from oil production and road runoff; the application of numerous chemicals for agricultural production; roadside maintenance activities; urban/suburban landscaping applications; and rodent and vector control programs may all have negative effects on tiger salamander populations, as detailed below.
Road mortality is not the only risk factor associated with roads, as oil and other contaminants in runoff have been
Hatch and Burton (1998) and Monson
In Sonoma County, there are a number of records of California tiger salamanders using roadside ditches. Many are in areas where there are no known breeding ponds, and these animals are utilizing the only marginal habitat remaining. Also, many pools in these areas have likely been destroyed, leaving these marginal sites as the only option for breeding. In light of this increased urbanization occurring in Sonoma County, along with concurrent increases in traffic, the risk factor associated with contaminants in runoff likely will increase in both roadside ditches and across the general landscape.
In Sonoma County, over 1.4 million kilograms (3.1 million pounds) of agricultural chemicals were used in 2000 on grapes, apples, rights of way, structural pest control, and landscape maintenance (California Department of Pesticide Regulation 2000, Internet Website). Chemical use occurring on or near tiger salamander breeding sites in Sonoma County is primarily associated with rights of way, structural pest control, and landscape maintenance. These chemicals included metam-sodium, methyl bromide, mancozeb, petroleum oil, phosmet, chlorpyrifos, pendimethalin, parathion, paraquat dichloride, fosetyl-aluminum, acephate, cryolite, and malathion, some of which are extremely toxic to aquatic organisms, such as amphibians and the organisms on which they prey.
Even if toxic or detectable amounts of pesticides are not found in breeding ponds or groundwater, salamanders may still be affected, particularly when chemicals are applied during the migration and dispersal seasons. All but one of the remaining eight documented salamander breeding sites in Sonoma County may be directly or indirectly affected by toxic landscaping chemicals due to the presence of housing developments within their drainage basins. Sparling
California tiger salamanders spend much of their lives estivating in underground retreats, typically in the burrows of ground squirrels and gophers (Loredo
Legal methods of pocket gopher control include trapping, strychnine-treated grain bait, and anticoagulant baits. Poisoned grains (anticoagulant baits) are the most common method used to control ground squirrels around homes and other areas where children, pets, and poultry are present (UCIPM internet website 2002; Jon Shelgrin, California Department of Pesticide Regulation, pers. comm., 2002). Zinc phosphide is highly toxic to freshwater fish and to non-target mammals (Extension Toxicology Network (EXOTONET) 1996). Zinc phosphide, a rodenticide and restricted material, turns into phosgene gas, which is toxic to the rodents once ingested. There is little risk of California tiger salamanders ingesting any of these baits; however, the use of these grains may impact the California tiger salamanders indirectly if washed into burrows or ponds used by the species.
Two of the most commonly used rodenticides, chlorophacinone and diphacinone, are anticoagulants that cause animals to bleed to death. These chemicals can be absorbed through the skin and are considered toxic to fish and wildlife (U. S. Environmental Protection Agency 1985; EXOTONET 1996). These two chemicals, along with strychnine, are used in Sonoma County to control rodents (R. Thompson, Science Applications International Corporation,
In addition to possible direct effects of rodent control chemicals, control programs probably have an adverse indirect effect on California tiger salamander populations. Control of ground-burrowing rodents could significantly reduce the number of burrows available for use by the Sonoma County California tiger salamander (Loredo-Prendeville
In addition to the use of western mosquitofish, a common chemical method of mosquito control in California involves the use of methoprene. Methoprene is an insect hormone mimic that increases the level of juvenile hormone in insect larvae and disrupts the molting process. Lawrenz (1984, 1985) found that methoprene (Altosoid SR-10) retarded the development of selected crustacea that had the same molting hormones (
In more recent studies, methoprene did not cause increased mortality of gray treefrog (
Although no systematic studies road-crossing mortality of the Sonoma County California tiger salamander have been conducted, it is known that significant numbers of California tiger salamanders in other portions of the species' range are killed by vehicular traffic while crossing roads (Hansen and Tremper 1993; S. Sweet,
Hybrids between the California tiger salamander and the non-native tiger salamander (
Light-to-moderate livestock grazing is generally thought to be compatible with California tiger salamanders, provided the grazed areas do not also have intensive burrowing rodent control efforts (T. Jones, University of Michigan,
Reduction in water quality caused by livestock excrement may negatively affect the California tiger salamander by increasing nitrogen and silt levels. High nitrogen levels associated with bacterial blooms, lowered dissolved oxygen (Worthylake and Hovingh 1989), and silt have been associated with fatal fungal infections (Lefcort
However, grazing generally is compatible with the continued use of rangelands by the California tiger salamander as long as intensive control programs for burrowing rodents are not implemented on such areas, and grazing is not excessive (T. Jones,
The low numbers of Sonoma County California tiger salamander make it vulnerable to risks associated with small, restricted populations. The elements of risk that are amplified in very small populations include: (1) The impact of high death rates or low birth rates; (2) the effects of genetic drift (random fluctuations in gene frequencies) and inbreeding (mating among close relatives); and (3) deterioration in environmental quality
In making this determination, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Sonoma County California tiger salamander. As discussed in the Summary of Factors Affecting the Species above, this DPS faces a number of threats. The most overwhelming threat is from continuing habitat destruction, degradation, and fragmentation. Secondary threats exist from predation and competition from introduced exotic species; possible commercial overutilization; disease; hybridization with non-native salamanders; various chemical contaminants; road-crossing mortality; rodent control operations, and the species' small remaining population. The various primary and secondary threats are not currently being offset by existing Federal, State, or local regulatory mechanisms. The Sonoma County California tiger salamander also is vulnerable to chance environmental or demographic events, to which small populations are particularly vulnerable. The combination of its biology and specific habitat requirements makes the animal highly susceptible to random events, such as drought, disease, and other occurrences. Such events are not usually a concern until the number of breeding/estivation sites or geographic distribution become severely limited, as is the case with the Sonoma County California tiger salamander.
Because the Sonoma County DPS of the California tiger salamander has been reduced to only eight known breeding sites, and all of them are subject to various immediate, ongoing, and future threats as outlined above, we find that the species is in imminent danger of extinction throughout all or a significant portion of its range and warrants immediate protection under the Act. The survival of this DPS now depends on protecting as many breeding sites and their associated upland habitats from further degradation and destruction as possible. The remaining breeding sites are vulnerable to loss from random natural or human-caused events unless sufficient habitat can be protected and the metapopulations increased in size.
Critical habitat is defined in section 3 of the Act as the—(i) specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species, and (II) that may require special management considerations or protection, and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.
Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary of the Interior (Secretary) designate critical habitat at the time the species is determined to be endangered or threatened. Our implementing regulations (50 CFR 424.12(a)) state that critical habitat is not determinable if information sufficient to perform the required analysis of impacts of the designation is lacking, or if the biological needs of the species are not sufficiently well known to allow identification of an area as critical habitat. Section 4(b)(2) of the Act requires us to consider economic and other relevant impacts of designating a particular area as critical habitat on the basis of the best scientific data available. The Secretary may exclude any area from critical habitat if she determines that the benefits of such exclusion outweigh the conservation benefits, unless to do so would result in the extinction of the species. In the absence of a finding that critical habitat would increase threats to a species, if any benefits would derive from critical habitat designation, then a prudent finding is warranted. In the case of this species, designation of critical habitat may provide some benefits.
The primary regulatory effect of critical habitat is the section 7 requirement that agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. Designating critical habitat may also produce some educational or informational benefits. Therefore, designation of critical habitat for the Sonoma County California tiger salamander is prudent.
However, our budget for listing activities is currently insufficient to allow us to immediately complete all the listing actions required by the Act. Not designating critical habitat at this time allows us to provide the necessary protections needed for the conservation of the species without further delay. This is consistent with section 4(b)(6)(C)(i) of the Act, which states that final listing decisions may be issued without critical habitat designations when it is essential that such determinations be promptly published. The legislative history of the 1982 Act amendments also emphasized this point: “The Committee feels strongly, however, that, where biology relating to the status of the species is clear, it should not be denied the protection of the Act because of the inability of the Secretary to complete the work necessary to designate critical habitat * * * . The committee expects the agencies to make the strongest attempt possible to determine critical habitat within the time period designated for listing, but stresses that the listing of species is not to be delayed in any instance past the time period allocated for such listing if the biological data is clear but the habitat designation process is not complete” (H.R. Rep. No. 97-567 at 20 (1982)). We will prepare a critical habitat designation in the future when our available resources allow.
We will protect the Sonoma County California tiger salamander and its habitat through section 7 consultations to determine whether Federal actions are likely to jeopardize the continued existence of the species, through the recovery process, through enforcement of take prohibitions under section 9 of the Act, and through the section 10 process for activities on non-Federal lands with no Federal nexus.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices.
Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed to be listed or is listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Federal agencies are required to confer with us informally on any action that is likely to jeopardize the continued existence of a proposed species, or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal agency action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with us. Federal agency actions that may affect the Sonoma County California tiger salamanders and may require consultation with us include, but are not limited to, those within the jurisdiction of the Corps, and Federal Highway Administration (FHA).
We believe that protection and recovery of the Sonoma County California tiger salamander will require reduction of the threats from destruction and degradation of wetland and associated upland habitats due to urban development, exotic predators, unnecessary ground squirrel and gopher control, and road construction. Threats from collection and pesticide drift also must be reduced. These threats should be considered when management actions are taken in habitats currently and potentially occupied by the Sonoma County California tiger salamander, and areas deemed important for dispersal and connectivity or corridors between known locations of this species. Monitoring also should be undertaken for any management actions or scientific investigations designed to address these threats or their impacts.
Listing the Sonoma County California tiger salamander provides for the development and implementation of a recovery plan for the DPS. This plan will bring together Federal, State, and regional agency efforts for the conservation of the DPS. A recovery plan will establish a framework for agencies to coordinate their recovery efforts. The plan will set recovery priorities and estimate the costs of the tasks necessary to accomplish the priorities. It also will describe the site-specific actions necessary to achieve conservation and survival of the DPS.
Listing also will require us to review any actions that may affect the Sonoma County California tiger salamander for lands and activities under Federal jurisdiction, State plans developed pursuant to section 6 of the Act, scientific investigations of efforts to enhance the propagation or survival of the animal, pursuant to section 10(a)(1)(A) of the Act, and habitat conservation plans prepared for non-Federal lands and activities pursuant to section 10(a)(1)(B) of the Act.
Federal agencies with management responsibility for the Sonoma County California tiger salamander include the Service, in relation to the issuance of section 10(a)(1)(A and B) permits for habitat conservation plans and other programs. Occurrences of this species could potentially be affected by projects requiring a permit from the Corps under section 404 of the CWA. The Corps is required to consult with us on applications they receive for projects that may affect listed species. Highway construction and maintenance projects that receive funding from the FHA would be subject to review under section 7 of the Act. In addition, activities that are authorized, funded, or administered by Federal agencies on non-Federal lands will be subject to section 7 review.
The Act and implementing regulations found at 50 CFR 17.21 set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. These prohibitions, codified at 50 CFR 17.21, in part make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt any such conduct), import, export, transport in interstate or foreign commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to our agents and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 and 17.23. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
It is our policy, as published in the
(1) Possession, delivery, including interstate transport and import or export from the United States, involving no commercial activity, of Sonoma County California tiger salamanders that were collected prior to the date of publication of the emergency listing rule in the
(2) Any actions that may affect the Sonoma County California tiger salamander that are authorized, funded, or carried out by a Federal agency, when the action is conducted in accordance with the consultation requirements for listed species pursuant to section 7 of the Act;
(3) Any action taken for scientific research carried out under a recovery permit issued by us pursuant to section 10(a)(1)(A) of the Act;
(4) Land actions or management carried out under a habitat conservation plan approved by us pursuant to section 10(a)(1)(B) of the Act, or an approved conservation agreement; and
(5) Grazing management practices that do not result in the degradation or elimination of suitable California tiger salamander habitat.
Activities that we believe could potentially result in a violation of section 9 of the Act include, but are not limited to:
(1) Unauthorized possession, collecting, trapping, capturing, killing, harassing, sale, delivery, or movement, including intrastate, interstate, and foreign commerce, or harming, or attempting any of these actions, of Sonoma County California tiger salamanders. Research activities where
(2) Activities authorized, funded, or carried out by Federal agencies that may affect the Sonoma County California tiger salamander, or its habitat, when such activities are not conducted in accordance with the consultation for listed species under section 7 of the Act;
(3) Discharges or dumping of toxic chemicals, silt, or other pollutants into, or other alteration of the quality of waters supporting Sonoma County California tiger salamanders that results in death or injury of the species or that results in degradation of their occupied habitat;
(4) Release of exotic species (including, but not limited to, bullfrogs, tiger salamanders, mosquito fish, bass, sunfish, bullhead, catfish, crayfish) into Sonoma County California tiger salamander breeding habitat;
(5) Destruction or alteration of uplands associated with seasonal pools used by Sonoma County California tiger salamanders during estivation and dispersal, or modification of migration routes such that migration and dispersal are reduced or precluded; and
(6) Activities (
Questions regarding whether specific activities will constitute a violation of section 9 should be directed to the Field Supervisor of the Sacramento Fish and Wildlife Office (see
We published the emergency rule listing the Sonoma County DPS of the California tiger salamander as endangered on July 22, 2002 (67 FR 47726). The emergency rule set forth a 240-day period temporarily adding this species to the List of Threatened and Endangered Wildlife, and that period expires on March 19, 2003. This final rule must be published on or before this date to prevent Federal protection for the Sonoma County California tiger salamander from expiring. In addition, as part of the June 6, 2002, settlement with the CBD, we are required to make a final determination on this listing action on or before March 19, 2003. Because of these reasons, we find that good cause exists for this rule to take effect immediately upon publication in accordance with 5 U.S.C. 553(d)(3).
We have determined that an Environmental Assessment and Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act as amended. We published a notice outlining our reasons for this determination in the
This rule does not contain any new collections of information other than those already approved by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501
On May 18, 2001, the President issued an Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
A complete list of all references cited in this rulemaking is available upon request from the Sacramento Fish and Wildlife Office (see
The primary author of this rule is David E. Wooten, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
(h) * * *
Environmental Protection Agency (EPA).
Proposed rule; Notice of data availability.
On April 9, 2002, EPA published proposed standards for cooling water intake structures at Phase II existing facilities as part of implementing section 316(b) of the Clean Water Act (CWA). This notice presents a summary of significant data EPA received or collected since proposal, a discussion of how EPA is considering using these data in revised analyses supporting the rule, a discussion of some refinements that EPA is considering for the proposed regulatory requirements, and additional information regarding data quality. This notice also provides new information on a broader suite of technology options that may be appropriate for compliance at specific sites. EPA solicits public comment on the information presented in this notice and the record supporting this notice.
Comments on this notice of data availability and all aspects of the April 9, 2002, proposal must be received or postmarked on or before midnight June 2, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Mail comments to the Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OW-2002-0049. Follow the detailed instructions as provided in Section I.B. of the
For additional technical information contact Debra D. Hart at (202) 566-6379. For additional economic information contact Lynne Tudor, Ph.D. at (202) 566-1043. For additional biological information contact Dana A. Thomas, Ph.D. at (202) 566-1046. The e-mail address for the above contacts is
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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
Certain types of information will not be placed in EPA Dockets. Information claimed as confidential business information (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.A1. 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 on paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and
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. Please submit with your comments any references cited in your comments. To ensure proper receipt by EPA, identify the appropriate docket identification 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, however, late comments may be considered if time permits. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.C. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Send information claimed as CBI by mail only to the following address, Office of Science and Technology, Mailcode 4303T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention: Debbi Hart/Docket ID No. OW-2002-0049. 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 identified in the
On April 9, 2002, EPA published proposed standards for cooling water intake structures at Phase II existing facilities (67 FR 17122). EPA received voluminous comments and data submissions during the 120-day public comment period on the proposal. However, many commenters, including both industry and environmental groups, requested additional time to review the proposal and the supporting record and to prepare further comments. Therefore, EPA is reopening the comment period on all aspects of the April 9, 2002, proposal. In addition, following publication of the proposal, EPA collected more data and revised several methodologies related to costing and benefits estimations. This notice makes these new data available for comment and discusses the relevance of these data to the analyses conducted by EPA. Thus, EPA also solicits public comment on the information presented
EPA notes that all options and issues discussed in its proposal are still under consideration for the final rule. This notice merely makes new information available for public review that the Agency will consider in making decisions for the final rule.
The proposed rule would implement section 316(b) of the Clean Water Act (CWA) for certain existing power producing facilities that employ a cooling water intake structure and that withdraw 50 million gallons per day (MGD) or more of water from rivers, streams, lakes, reservoirs, estuaries, oceans, or other waters of the U.S. for cooling purposes. The proposed rule constitutes Phase II in EPA's development of section 316(b) regulations and would establish national requirements applicable to the location, design, construction, and capacity of cooling water intake structures at these facilities. The proposed national requirements, which would be implemented through National Pollutant Discharge Elimination System (NPDES) permits, would minimize the adverse environmental impact associated with the use of these structures.
The proposed rule would establish location, design, construction, and capacity requirements that reflect the best technology available for minimizing adverse environmental impact from the cooling water intake structure based on waterbody type and the amount of water withdrawn by a facility. The Environmental Protection Agency (EPA) proposed to group surface water into five categories—freshwater rivers and streams, lakes and reservoirs, Great Lakes, estuaries and tidal rivers, and oceans—and establish requirements for cooling water intake structures located in distinct waterbody types. In general, the more sensitive or biologically productive the waterbody type, the more stringent the requirements proposed as reflecting the best technology available for minimizing adverse environmental impact. Proposed requirements also vary according to the percentage of the source waterbody withdrawn and facility utilization rate.
A facility may choose one of three options for meeting best technology available requirements under the proposed rule. These options are (1) demonstrating that the facility's existing design and construction technology, operational measures, and/or restoration currently meets specified performance standards; (2) selecting and implementing design and construction technologies, operational measures, or restoration measures that meet specified performance standards; or (3) demonstrating that the facility qualifies for a site-specific determination of best technology available because its costs of compliance are significantly greater than either (1) the costs considered by the Agency during the development of the rule, or (2) a site-specific determination of the benefits of compliance with the proposed performance standards. The proposed rule also provides that facilities may use restoration measures in addition to or in lieu of other technology measures to meet the performance standards established in the rule or on a site-specific basis.
EPA expects that the proposed regulation would minimize adverse environmental impact, including substantially reducing the harmful effects of impingement (organisms trapped against intake screens or other barriers at the entrance of cooling water intake structures) and entrainment (organisms drawn into a cooling water intake structure), at existing facilities over the next 20 years. As a result, the Agency anticipates that the proposed rule would help protect ecosystems in proximity to cooling water intake structures. The proposal would help preserve aquatic organisms, including threatened and endangered species, and the ecosystems they inhabit in waters used for cooling purposes by existing power producing facilities. EPA considered the potential benefits of the proposed rule and discussed these benefits in both quantitative and non-quantitative terms. Benefits, among other factors, are based on a decrease in expected mortality or injury to aquatic organisms that would otherwise be subject to entrainment into cooling water systems or impingement against screens or other devices at the entrance of cooling water intake structures. Benefits may also accrue at multiple ecological scales including population, community, or ecosystem levels.
In addition to the proposed regulatory requirements, EPA also invited comments on a number of other regulatory alternatives. The Agency will continue to consider all of these regulatory alternatives when making decisions on a final rule.
Based on comments received, additional information made available, and the results of subsequent analyses, EPA is considering a number of revisions to the assumptions that were used in developing the engineering costs, the information collection costs, the economic analyses, and the benefits analyses. These new assumptions are presented below and were used in the current analyses, the results of which are presented in this Notice of Data Availability (NODA). EPA requests comment on each of these revised assumptions.
Since proposal, EPA verified design flow information for facilities that had been classified as either Phase II or Phase III facilities. This verification resulted in the following changes: five facilities that were classified as Phase II facilities at proposal have been reclassified as Phase III facilities. Conversely, six facilities that were classified as Phase III facilities at proposal have been reclassified as Phase II facilities. As a result, the overall number of Phase II facilities increased from 539 to 540 facilities.
EPA used new information to revise the capital and operation and maintenance (O&M) costs for several compliance technologies, including those used as the primary basis for the proposed regulatory option. Overall, the cost updates resulted in the following changes. For the preferred option (discussed above at Section II), total capital costs increased by 66 percent and total O&M costs increased by 48 percent. For the waterbody/capacity-based option, which would set performance standards for impingement mortality and entrainment reduction based on closed-cycle, recirculating cooling for some facilities and technologies such as fine-mesh screens and fish-return systems for others, total capital costs increased by 40 percent (net of existing condenser cost savings), while total O&M costs decreased by 13 percent. These comparisons are based on the raw costs, adjusted to year-2002 dollars, which have not been discounted or annualized.
The revised costing assumptions are discussed in detail below. EPA notes that the proposed rule includes a compliance option that allows site-specific flexibility in cases where compliance costs for a particular facility significantly exceed those estimated in the analysis for the final rule. EPA is currently considering whether the final rule should provide additional guidance on how to conduct this comparison, including how best to use the costing information in the rule record. EPA requests comment on its costing methodology; its relationship to the proposed site-specific, cost-cost comparison provisions; and what additional guidance, if any, EPA should provide on implementation of these provisions.
At proposal, the single most costly permitting activity was the “Impingement Mortality and Entrainment Characterization Study,” a required element of the “Comprehensive Demonstration Study.”
In the analysis for the proposed rule, EPA made the assumption that compliance technologies other than recirculating cooling towers would not require facility downtime for installation. EPA has since revised this assumption. EPA expects additional unscheduled downtimes of between two and eight weeks for the installation of the various non-recirculating compliance technologies.
To support the proposed Phase II rule, EPA assumed that each projected cooling system conversion would require a net downtime of four weeks. This estimate was based on information that had been previously available to EPA on the downtime needed for fossil-fuel and nuclear power plants. Just prior to proposal, EPA received additional technical information on the amount of operational downtime needed during cooling system conversions from once through to closed-cycle, recirculating with cooling towers at nuclear power plants (
For non-nuclear power plants, EPA's cost estimates at proposal assumed four weeks downtime for the retrofit of wet cooling towers at existing power plants. The Agency requests comment on whether more or less downtime may be required at some plants due to site-specific factors and, if so, whether EPA should use a different estimate of downtime in analyzing the costs of this regulatory option.
For the proposed Phase II rule, the average annual energy penalty, by region and fuel type, was applied to each facility upgrading to a closed-cycle, recirculating cooling system. Based on comments received, EPA has changed the energy penalty assumption to attempt to account for seasonal, peak effects. For the new analyses, the energy penalty applied is the greater of the peak-summer penalty or the average annual penalty for each facility projected to convert their cooling systems to a closed-cycle, recirculating cooling system. EPA notes that the approach used at proposal might have understated potential impacts of the energy penalty on generating capacity. Conversely, using the greater of the peak summer penalty and the average annual penalty might overestimate potential impacts of the energy penalty on generating capacity. EPA has adopted the latter approach in order to ensure that impacts are not underestimated.
For the proposed Phase II rule, the 15 percent capacity utilization determination was based on the generation and capacity of the entire facility, including steam electric and non-steam generators. EPA believes that utilization of the steam electric part of a facility better reflects a facility's potential for adverse environmental impact because only the steam electric generators use cooling water. As discussed at Section XI below, EPA is considering refining its regulatory definition for “capacity utilization rate” at the proposed § 125.93 to reflect use of the steam electric part of a facility. For the NODA, EPA is using the capacity utilization of only the steam electric generators at Phase II facilities so that its updated economic analyses include this potential refinement.
In addition, at proposal, EPA used the average capacity utilization based on EIA data for 1995 to 1999. This utilization rate was often different from the rate based on the “IPM base case results” EPA used to support its estimates of the economic impacts of the rule (see section V for additional description of EPA's economic analysis methodology. For the NODA analyses, EPA used projected capacity utilization rates for 2008 (the first model-run year in EPA's economic analysis), in order to ensure internal consistency in the analysis. For many facilities, this resulted in a lower capacity utilization rate in the baseline. As a result, the compliance requirements and compliance costs for these facilities may be lower, depending on the waterbody type from which they withdraw and the impingement mortality and entrainment technologies they already have in place in the baseline. Facilities with lower projected compliance costs than under the previous assumption may also have lower projected impacts in the analysis, depending on the magnitude of the cost differential and the facilities' operating characteristics in the baseline (
At the time of proposal, promulgation of the final section 316(b) Phase II rule was scheduled for August 28, 2003. As a result, EPA assumed that facilities would come into compliance with the preferred option between 2004 and 2008 as their existing NPDES permits expired and were reviewed. For regulatory options based on the reductions in impingement and entrainment achievable using a closed-cycle recirculating system, EPA further assumed that facilities costed with a cooling tower would come into compliance between 2005 and 2012. Since proposal, the section 316(b) regulatory development schedule has changed. Promulgation of the final rule is now scheduled for February 16, 2004,
For the proposed Phase II rule, EPA estimated that 51 model facilities would upgrade their cooling systems from once-through to closed-cycle, recirculating cooling systems under the waterbody/capacity-based option. EPA estimates for these analyses that 44 model facilities would upgrade cooling systems for the same option. The requirements of the regulatory alternative have not changed. The change in number of facilities that would be required to upgrade their cooling system is due to: (1) EPA's effort to update, correct, and verify facility design intake flows and (2) the fact that EPA no longer needs to use a statistical methodology to determine the number of short technical questionnaire facilities that withdraw more than one percent of the mean tidal excursion. EPA has updated design intake flows for a number of in-scope facilities. In a few cases, these database flow changes have impacted the determination of whether a facility is projected to upgrade its cooling system because the requirements for the waterbody/capacity-based option, in some instances, hinge on intake flow. Since proposal, EPA has identified those short technical questionnaire facilities whose design intake flow exceeds one percent of the mean tidal excursion. This information was not available for the analyses supporting the proposal, and as such, EPA utilized a statistical method to project which facilities would meet these criteria. For these current analyses, EPA has utilized the actual data in lieu of the statistical method. As a result, a number of changes have been made to the list of short-technical questionnaire model facilities projected to upgrade their cooling systems.
In order to ensure the accuracy and quality of the data used for the costing effort, the Agency revisited its database of facility and intake design flows. Flow is an important factor in calculating costs. The Agency first screened the flow data in order to identify facilities with potentially inaccurate flow information. From this first set of facilities, the Agency attempted to identify errors by inspecting the original questionnaires on which the flows were reported. Through this effort, the Agency was able to correct a few flow values by identifying survey reporting errors (such as unit conversion inconsistencies). The remainder of the potentially inaccurate flow data set required outreach to 25 facilities to solve the identified discrepancies. In many cases, the original reported flows were correct. In others, incorrect initial reporting had led to incorrect calculations of design flow rates. The Agency corrected these flows for the master database used to support analyses presented in this Notice of Data Availability (
The Agency developed a new approach to developing compliance costs that includes a broader range of compliance technologies than it used for calculating compliance costs for the proposed rule requirements. In order to do so, the Agency sought to evaluate new and/or additional costs for a wider range of intake technologies identified as having the potential to meet the proposed regulation requirements without the expense and energy penalty associated with capacity-reduction technologies such as cooling towers. In selecting among available technologies, EPA revised its traditional least cost approach, and instead assigned costs based on the projected performance of available technologies on a site-specific basis. This approach is discussed in more detail in section IV.C. below.
The revised and new technology modules analyzed by the Agency include the following:
—Addition of fish handling and return system to an existing traveling screen system,
—Addition of fine-mesh screens (both with and without a fish handling and return system) to an existing traveling screen system,
—Addition of a new, larger intake in front of an existing intake screen system,
—Addition of passive fine-mesh screen system (cylindrical wedgewire) near shoreline,
—Addition of a fish net barrier system,
—Addition of an aquatic filter barrier system,
—Relocation of an existing intake to a submerged offshore location (with velocity cap inlet, passive fine-mesh screen inlet, or onshore traveling screens),
—Addition of a velocity cap inlet to an existing offshore intake,
—Addition of passive fine-mesh screen to an existing offshore intake,
—Addition or modification of a shoreline-based traveling screen for an offshore intake system, and
—Addition of dual-entry, single-exit traveling screens (with fine-mesh) to a shoreline intake system.
The explanation and derivation of each of these modules is discussed in the public record (
At proposal, EPA based its cost analysis primarily on the addition of fine-mesh traveling screens with fish handling systems. EPA recognized at proposal that some facilities would need to add larger intakes, move intakes, or modify offshore intakes, and included an approximate adjustment factor in its cost estimates to account for these types of modifications, but lacked sufficient data to model them explicitly. In the NODA analysis, EPA has added explicit cost modules for each of these activities. As a result, the per facility costs for adding traveling screens with fish handling systems have gone down significantly, but a significant number of facilities (about 40% of the in-scope universe) have been costed for other technologies, which are significantly more expensive than traveling screens. To help commenters better understand the impacts of these revisions, EPA has placed a summary document in the record that shows modeled costs for a range of flows for each major technology module used at proposal and in this NODA, broken out by salt water versus freshwater and nuclear facility versus non-nuclear facility (see “Comparison of Capital and Net O & M Compliance Costs for Technologies Costed in Proposed Rule and NODA”). As discussed in section III above, EPA also modified its estimate of facility downtime potentially necessary to install these technologies, as well as
EPA has not yet examined other new information suggesting that site-specific factors may affect the costs of retrofitting wet towers at existing power plants. For example, in October 2002, the Department of Energy (DOE) provided EPA with a study analyzing the costs of retrofitting wet cooling towers at four facilities (
In order to implement the revised costing approach (see section IV.B. above), the Agency necessarily changed its approach to developing costs at the model facility level. This approach focuses as much as possible on site-specific characteristics for which the Agency obtained data through the 316(b) questionnaire. In addition, EPA utilized available geographic information, including detailed topographic mapping and overhead satellite imagery, to better utilize site-specific characteristics of each model facility's intake(s) to inform decisions on the proper costing modules projected for compliance. “Technology Costing Module Applications for Model Facilities,” provides the background and explanation of the Agency's approach to model facility level costing.
EPA's approach to model facility-level costing may be described as follows. In order to project upgrades to technologies as a result of compliance with the proposed rule, the Agency utilizes as much information as is available about the characteristics of the hundreds of facilities within the scope of the proposed rule. By incorporating as many site-specific features as possible into the design and implementation of its costing approach the Agency has been able to capture a representative range of compliance costs at what it deems “model facilities.” However, the Agency did not have and will never have the opportunity to visit and study in detail all of the engineering aspects of each facility complying with this rule (over 400 facilities could incur technology-related compliance costs as a result of this rule). Therefore, although the Agency has developed costs that represent EPA's best effort to develop a site-specific engineering assessment for a particular facility, this assessment does not incorporate certain peculiarities that only long-term study of each facility would bear out. Hence, the Agency refers to its approach as a “model” facility approach.
In selecting technology modules for each model facility, EPA departed from its traditional least cost approach. This is because, while the Agency is confident that the suite of available technologies can achieve compliance with the proposed performance generally (60-90% reduction in entrainment and 80-95% reduction in impingement relative to the calculation baseline) EPA lacks sufficient data to determine the performance of each technology on a site-specific basis. The Agency thus selected the best performing technology (rather than the least costly technology) that was suitable for each site, in order to ensure that the technology on which costs were based would in fact achieve compliance at that site. EPA recognizes that this approach may entail a greater degree of cost conservatism than is typical in regulatory analyses, and that this may have implications for the cost-cost comparison provisions in the proposed rule. EPA requests comment on its revised approach for selecting model facility cost modules.
EPA believes that its modular approach to deriving costs of technologies and the costs to install and operate technologies incorporates sufficient flexibility to derive costs that reflect a broad range of applications. To ensure that the Agency does not underestimate the costs of the rule, EPA has approached the compliance costing effort with great conservatism. When there is uncertainty or the data are inconclusive, EPA has favored conservative approaches to costs (that is, higher than average). Therefore, the Agency is confident that the compliance costs represented in the analyses accompanying this Notice of Data Availability represent conservative estimates for the range of model facilities represented. However, for a particular facility, the costs may be higher or may be lower than would actually be realized.
At proposal, the Agency utilized a statistical methodology based on linear regression to assess the design intake flow information for facilities that responded to the short technical questionnaire. Because the Agency initially asked short technical respondents for only their actual annual intake flow for the reporting year, it was necessary to obtain design intake flow information for the purpose of accurately assessing compliance costs. The Agency did not include the statistical methodology for estimating design intake flows for short technical questionnaire facilities and its results in the record for the proposed rule. The Agency continues to use this methodology for this Notice of Data Availability and hereby includes the supporting information in the record (see DCN 5-2501).
At proposal, EPA used an electricity market model, the Integrated Planning Model 2000 (IPM
Since publication of the proposed rule, EPA has made several changes to its IPM analysis. The following sections present a discussion of these changes and the results of the re-analysis of the preferred option and the waterbody/capacity-based option. EPA would use the same methodology as described in Chapter B3 of the EBA (as amended in this NODA) to analyze other options presented at proposal but not explicitly analyzed for this NODA if they were chosen for promulgation.
This section presents the changes to the IPM assumptions and modeling procedures used at proposal. This section also describes modifications EPA made to the analyses to correct errors that were discovered after publication of the proposed rule.
For the proposal, EPA did not explicitly analyze the preferred option because of time constraints. Rather, EPA conducted an electricity market model analyses of two alternative options that had higher costs than those of the preferred option. To assess the expected economic impacts of the preferred option at proposal, EPA adopted an indirect approach.
At proposal, the steam electric generators of the 530 Phase II facilities that are modeled by the IPM were disaggregated from the existing IPM model plants (as used in the standard IPM base case used for other EPA regulations, the EPA Base Case 2000) and “run” as individual facilities along with the other existing model plants. This change increased the total number of model plants from 1,390 under the EPA Base Case 2000 to 1,777 under the 316(b) Proposal Base Case.
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Because changes in model aggregation can result in changes to the base case results, EPA compared the base case results generated for the proposal and NODA analyses. This comparison identified little difference in the base case results caused by the modification in the model aggregation: Base case total production costs (capital, O&M, and fuel) using the revised NODA specifications are lower by 0.2% to 0.3% in the years 2008, 2010, and 2020. Early retirements of base case oil and gas steam capacity under the NODA specifications decreased by 1,258 MW. Early retirements of base case nuclear and coal capacity remained constant. In addition, the revised model specifications result in changes in base case coal and gas fuel use by less than 1.0 percent.
Under the preferred option and the alternative regulatory options considered at proposal, facilities with a capacity utilization rate of less than 15 percent may be subject to less stringent compliance requirements than facilities with a utilization rate of 15 percent or more, depending on the water body from which they withdraw and the technologies they already have in place. EPA made the following changes to the determination of the capacity utilization of Phase II facilities for the economic analysis:
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The IPM models the electric power market over the 26-year period 2005 to 2030. Due to the data-intensive processing procedures, the model is run for a limited number of years only. Run years are selected based on analytical requirements and the necessity to maintain a balanced choice of run years throughout the modeled time horizon. EPA selected the following run years for the Section 316(b) analyses: 2008, 2010, 2013, 2020, and 2026.
There are different options of accounting for downtimes. At proposal, EPA decided to model the downtime for each facility in its estimated year of compliance. Since 2005 through 2009 are all mapped into 2008, a facility that had downtime in 2008 was modeled as if it also had downtimes in 2005, 2006, 2007, and 2009. This may have understated the net present value (NPV) of the facility's operations and therefore overestimated its closure decision. Conversely, a facility that had a downtime in a non-model run year was modeled as if it had no downtime at all. This may have overestimated its NPV and therefore understated its closure decision. While this approach potentially affected the facility-level analysis, it provided for a realistic snapshot of the market effect of downtimes in the model run year.
For the NODA analysis, EPA decided to change the representation of downtimes to an average over the years that are mapped into each model run year. For example, a facility with a downtime in 2008 was modeled as if 1/5th of its downtime occurred in each year between 2005 and 2009. This approach more closely models potential facility-level impacts as it accounts for the correct total amount of downtime for each facility. The potential drawback of this approach is that the snapshot of the market-level effect of downtimes during the model run year is the average effect; this approach does not model potential worst-case effects of above-average amounts of capacity being down in one NERC region during a specific year.
EPA corrected two IPM input errors that were discovered after publication of the proposed rule: (1) At proposal, the capital costs of compliance were erroneously considered sunk and were not taken into account in making early retirement decisions; (2) The energy penalty was omitted for a few facilities costed with a recirculating system (one out of 49 facilities under the waterbody/capacity-based option and nine out of 408 facilities under the all closed-cycle option). These errors may have led the IPM to understate the modeled economic impacts at these facilities.
In addition to the modeling changes described above, a number of other changes affect the results presented below. These changes are outlined in Section III above and include the following: an increase in the estimated number of in-scope Phase II facilities from 550 to 551 (as a result, the number of Phase II facilities modeled by the IPM increased from 530 to 531); revisions of technology and permitting/monitoring costs; changes to the assumption of construction downtimes of recirculating cooling towers and other compliance technologies; an adjustment of energy penalties; changes in the estimation of the capacity utilization threshold; and adjustments to the compliance schedule.
EPA also notes that in 2010, non-dispatched capacity in the IPM base case (based on EPA's electricity demand growth assumption) is approximately 12 percent of total capacity, which is consistent with historical rates to ensure system reliability. (Non-dispatched facilities are those that operate on a stand-by basis throughout the year but are not called upon to generate and dispatch electricity.) Most of this capacity is oil/gas steam capacity (66 percent) and gas turbines (27 percent). Overall, 11 percent of steam electric capacity and 15 percent of non-steam capacity are modeled to be on stand-by. A large portion of the non-dispatched steam electric capacity is subject to Phase II regulation. In total, approximately 12 percent of Phase II steam electric capacity is not dispatched in the base case. This number is higher than historical data for these facilities. The main reason for this difference is that over time, existing capacity, especially oil/gas steam capacity, is expected to become less competitive relative to new capacity additions, especially combined-cycle facilities. Oil and gas steam units generally have (a) higher heat rates, (b) higher fuel costs, (c) higher variable O&M costs, and (d) higher emission rates than other steam electric capacity. As a result, some relatively inefficient oil and gas steam units are modeled to be idle in the IPM.
All Phase II facilities are subject to the requirements of the Phase II regulation, even if they do not generate electricity. Therefore, unless EPA modeled a facility to cease operations and exit the marketplace, EPA assigned compliance costs to non-dispatched facilities. While none of the Phase II units that stand-by in the base case are modeled to be economic closures under the preferred option, it is possible that other economic measures,
EPA requests comment on this part of the analysis.
This section presents the revised impact analysis of the preferred option. The impacts of compliance with the preferred option are defined as the difference between the model output for the base case scenario and the model output for the post-compliance scenario.
The market-level analysis includes results for all generators located in each NERC region including facilities both in scope and out of scope of the proposed Phase II rule. Exhibit 1 below presents five measures used by EPA to assess market-level impacts associated with the preferred option: (1) Incremental capacity closures, calculated as the difference between capacity closures under the preferred option and capacity closures under the base case; (2) incremental capacity closures as a percentage of baseline capacity; (3) post-compliance changes in variable production costs per MWh, calculated as the sum of total fuel and variable O&M costs divided by total generation; (4) post-compliance changes in energy price, where energy prices are defined as the wholesale prices received by facilities for the sale of electric generation; and (5) post-compliance changes in pre-tax income, where pre-tax income is defined as total revenues minus the sum of fixed and variable O&M costs, fuel costs, and capital costs. Additional results are presented in
One of the ten NERC regions modeled, MAIN, would experience economic closures of existing capacity as a result of the preferred option. However, this closure of 434 MW of nuclear capacity represents a relatively small percentage of baseline capacity in the region (0.7 percent). Three NERC regions would experience increases in variable production costs per MWh, although the largest increase would not exceed 1.0 percent. In addition, three NERC regions would experience an increase in energy price under the preferred option. Of these, only ERCOT would experience an increase of more than 1.0 percent (6.1 percent). Pre-tax incomes would decrease in all but one region, but the majority of these changes would be on the order of 1.0 percent or less. ERCOT would experience the largest decrease in pre-tax income (−6.0 percent). Only one region, NPCC, would experience an increase in market-level pre-tax income (0.8 percent).
The results from model run year 2010 were used to analyze two potential facility-level impacts associated with the preferred option: (1) Potential changes in the economic and operational characteristics of the group
Similar to the market level results, MAIN is the only region that would experience incremental capacity closures at Phase II facilities under this regulatory option: A total of 434 MW, or 1.2 percent of all Phase II capacity in this region, would be retired. Total capacity closures in MAIN are a net estimate (
Results for the group of Phase II facilities as a whole may mask shifts in economic performance among individual facilities subject to this rule. To assess potential distributional effects, EPA analyzed facility-specific changes in capacity utilization (defined as generation divided by capacity times 8,760 hours), generation, revenue, variable production costs per MWh (defined as variable O&M cost plus fuel cost divided by generation), and pre-tax income.
Exhibit 3 presents the total number of Phase II facilities with different degrees of change in each of these measures. This exhibit excludes 18 in-scope facilities with significant status changes (10 facilities are baseline closures, one facility is a policy closure, and seven facilities changed their repowering decision between the base case and the policy case). These facilities are either not operating at all in either the base case or the post-compliance case, or they experience fundamental changes in the type of units they operate; therefore, the measures presented below would not be meaningful for these facilities. In addition, the change in variable production cost per MWh of generation could not be developed for 57 facilities with zero generation in either the base case or post-compliance scenario. For these facilities, the change in variable production cost per MWh is indicated as “n/a.”
Exhibit 3 indicates that the majority of Phase II facilities would not experience changes in capacity utilization or generation due to compliance with the preferred option. Of those facilities with changes in post-compliance capacity
This section presents the revised impact analysis of the alternative waterbody/capacity-based option. Under this option, facilities that withdraw water from an estuary, tidal river, or ocean and that meet certain intake flow requirements, would generally be required to meet performance standards for reducing impingement mortality and entrainment based on a level that can be attained by using a closed-cycle, recirculating cooling system. These facilities would have the choice to comply with Track I or Track II requirements. Facilities that choose to comply with Track I would be required to reduce their intake flow to a level commensurate with that which can be attained by a closed-cycle, recirculating system. Facilities that choose to comply with Track II would have to demonstrate that alternative technologies would reduce impingement and entrainment to comparable levels that would be achieved with a closed-cycle recirculating system (see section VI.B.2 of the proposal preamble for a discussion of Track I and Track II under this option). Other facilities would be required to reduce impingement mortality or impingement mortality and entrainment based on the performance of technologies such as fine-mesh screens and fish-return systems.
EPA's estimation of impacts associated with the alternative waterbody/capacity-based option is based on an electricity market model analysis that assumes that all facilities required to reduce impingement mortality and entrainment based on the performance of a closed-cycle recirculating cooling system would choose to comply with the requirements of Track I. This analysis further assumes that such facilities would install a recirculating wet cooling tower. These requirements would be met by the end of the term of the first permit after promulgation of the final rule (2005 to 2013), depending on when a permittee's first NPDES permit after promulgation expires. The impacts of compliance with the waterbody/capacity-based option are defined as the difference between the model output for the base case scenario and the model output for the post-compliance scenario.
EPA analyzed impacts using IPM output from model run year 2013. 2013 was chosen to represent the effects of the waterbody/capacity-based option for a typical year in which all facilities are in compliance (compliance years for the waterbody/capacity-based option are 2005 to 2013; however, for the purposes of this analysis, all facilities are modeled to comply by 2012).
The market-level analysis includes results for all generators located in each NERC region including facilities both in scope and out of scope of Phase II regulation. Exhibit 4 below presents the same five measures as discussed for the preferred option: (1) Incremental capacity closures, calculated as the difference between capacity closures under the waterbody/capacity-based option and capacity closures under the base case; (2) incremental capacity closures as a percentage of baseline capacity; (3) post-compliance changes in variable production costs per MWh, calculated as the sum of total fuel and variable O&M costs divided by total generation; (4) post-compliance changes in energy price, where energy prices are defined as the prices received by facilities for the sale of electric generation; and (5) post-compliance changes in pre-tax income, where pre-tax income is defined as total revenues minus the sum of fixed and variable O&M costs, fuel costs, and capital costs. Additional results are presented in Chapter B8 (Section B8-2) of the EBA, as updated for this NODA analysis. Chapter B8 also presents a more detailed interpretation of the results of the market-level analysis.
Two of the ten NERC regions modeled, MAIN and WSCC, would experience economic closures of facilities as a result of this option. The capacity closures in MAIN and WSCC represent 1.5 percent and 1.2 percent, respectively, of baseline capacity in these regions and 0.3 percent of total baseline capacity for all regions taken as a whole. Variable production costs per MWh and energy prices would increase in all NERC regions. The increases in variable production costs would exceed 1.0 percent in six NERC regions, and two regions, MAIN and WSCC, would experience increases of more than 2.0 percent. Energy prices would increase by more than 1.0 percent in nine of the ten regions modeled, with FRCC experiencing the largest increase (3.8 percent). Half of the regions would experience a reduction in pre-tax income, while the other half would experience increases in this measure. The majority of these changes would be less than 2.0 percent. FRCC, MAAC, and NPCC would experience the largest decrease in pre-tax income (-5.4, -4.1, and -3.3 percent, respectively), while the largest increase would occur in MAPP (2.0 percent).
The results from model run year 2013 were used to analyze two potential facility-level impacts associated with the preferred option: (1) Potential changes in the economic and operational characteristics of the group of in-scope Phase II facilities and (2) potential changes to individual facilities within the group of Phase II facilities. EPA analyzed the same measures as discussed for the preferred option to assess impacts to the group of Phase II facilities resulting from the waterbody/capacity-based option: economic closures, changes in variable production costs per MWh of generation, total generation, and pre-tax income. Exhibit 5 below presents the results from this analysis, by NERC region.
Similar to the results of the broader market-level analysis, MAIN and WSCC are the only regions that would experience incremental capacity closures at Phase II facilities under this regulatory option. In MAIN, 1,012 MW, or 2.9 percent of baseline Phase II capacity, would retire; in WSCC, 2,150 MW, or 7.7 percent of baseline Phase II capacity, would retire. In aggregate, these closures of 3,162 MW represents less than 1.0 percent of total baseline Phase II capacity. Phase II facilities in only one region, MAIN, would experience an increase in excess of 1.0 percent in variable production cost per MWh. Phase II facilities in seven NERC regions would experience a decrease in generation. Of these, three regions would see reductions in excess of 2.0 percent with the largest decrease occurring in WSCC (-29.2 percent), partially because of the post-compliance closures. Similar to the market level, FRCC, MAAC, and NPCC would experience relatively large reductions in pre-tax income (-10.5, -7.7, and -9.2 percent, respectively). However, the highest reduction would be seen in WSCC (-30.7 percent), where the compliance costs per MW of Phase II capacity is relatively high, and where only a relatively small portion of the overall capacity is regulated under the Phase II rule.
To assess potential shifts in economic performance among individual facilities subject to this rule, EPA analyzed the same facility-specific changes as for the preferred option: changes in capacity utilization (defined as generation divided by capacity times 8,760 hours), generation, revenue, variable production costs per MWh (defined as variable O&M cost plus fuel cost divided by generation), and pre-tax income.
Exhibit 6 presents the total number of Phase II facilities with different degrees of change in each of these measures. This exhibit excludes 30 in-scope facilities with significant status changes (nine facilities are baseline closures, three facilities are policy closures, and 18 facilities changed their repowering decision between the base case and the policy case). These facilities are either not operating at all in either the base case or the post-compliance case, or they experience fundamental changes in the type of units they operate; therefore,
Exhibit 6 indicates that the majority of Phase II facilities would not experience changes in capacity utilization or generation due to compliance with the waterbody/capacity-based option. Of facilities with post-compliance changes in capacity utilization and/or generation, the majority would experience a decrease in these measures. Exhibit 6 also indicates that the majority of Phase II facilities would experience increases in both revenues and variable production costs of between 0.0 and 3.0 percent. Similarly, almost all Phase II facilities would experience a change in pre-tax income, with a slight majority seeing a reduction in this measure.
EPA updated several of its other economic analyses conducted at proposal to determine the effect of changes made to the assumptions for this NODA on steam electric generating facilities. For more detailed information on these analyses, refer to the memo entitled “Supporting Documentation of Changes to Economic Impacts in Support of the Section 316(b) Phase II NODA” (DCN 5-3004). This section and the supporting memo discuss changes made to EPA's methodology and assumptions as well as the updated results. For a discussion of the original methodology used by EPA for the proposal analysis, refer to the chapters in Part B of the Economic and Benefits Analysis (EBA) document in support of the proposed rule at
It should be noted that the measures presented in this section are provided in addition to the impact measures based on the Integrated Planning Model (IPM®) analyses (see Section V of this Notice). The following measures are used to assess the magnitude of compliance costs; they are not used to predict closures or other types of economic impacts on facilities subject to Phase II regulation.
It should also be noted that the results of the preferred option and the waterbody/capacity-based option cannot be directly compared to each other. EPA used two different demand growth assumptions for the IPM base cases of the preferred option (EPA electricity demand assumption) and the waterbody/capacity-based option (AEO electricity demand assumption, upon request by the Department of Energy). Since EPA is using IPM base case data in its estimate of the cost of installation downtime, the cost of the energy penalty, and revenues, the results presented in this section could vary between the two options, even for facilities or NERC regions with identical compliance requirements under the two options.
Based on the NODA analysis, EPA estimates that facilities subject to the preferred option would incur annualized post-tax compliance costs of approximately $265 million (at proposal, this estimate was $178 million). These costs include one-time technology costs of complying with the rule, a one-time cost of installation downtime,
EPA also updated the estimated total national annualized post-tax cost of compliance for the alternative waterbody/capacity-based option. Costs for this option include the same components as the estimate for the preferred option (one-time technology costs, cost of downtime, annual operating and maintenance costs, and permitting costs) but also include the cost of the energy penalty incurred by facilities estimated to upgrade to a recirculating cooling tower system. For the NODA analysis, the estimated total annualized post-tax cost of compliance for the waterbody/capacity-based option is approximately $793 million (at proposal, this estimate was $585 million). This increase reflects a number
Exhibit 7 below summarizes the changes between the proposal and NODA analyses for the preferred option and the waterbody/capacity-based option.
EPA examined the annualized post-tax compliance costs of the preferred option and the waterbody/capacity-based option as a percentage of baseline annual revenues, for each of the 551 facilities subject to Phase II of the Section 316(b) regulation. This measure allows for a comparison of compliance costs incurred by each facility with its revenues in the absence of Phase II regulation. The revenue estimates are facility-specific baseline projections from the IPM base case for 2008 (see Section V of this Notice for a discussion of EPA's analyses using the IPM).
Similar to the findings at proposal, the results of this analysis show that the vast majority of facilities subject to the preferred option, 404 out of 551 (73 percent), would incur annualized costs of less than one percent of revenues. Of these, 292 facilities would incur compliance costs of less than 0.5 percent of revenues. Ninety-seven facilities (18 percent) would incur costs of between one and three percent of revenues, and 41 facilities (seven percent) would incur costs of greater than three percent. Eight facilities are estimated to be baseline closures, and for one facility, revenues are unknown.
Exhibit 9 below presents the same information for the waterbody/capacity-based option.
The
Since proposal, EPA has not updated the parent firm determination for Phase II facilities. However, EPA updated the average Form EIA-861 data used for this analysis from 1996 to 1998 (used at proposal) to 1997 to 1999 (used for the NODA). In addition, EPA made one modification to the data sources used: At proposal, EPA used Dun and Bradstreet (D&B) data for any parent entity listed in the database. If D&B data were not available, EPA used the EIA database or the Section 316(b) Survey. For the NODA analysis, EPA used the D&B database for privately-owned entities only. For other entities, EPA used the EIA database.
For the preferred option, EPA estimates that of the 128 unique entities, only two entities would incur compliance costs of greater than three percent of revenues; 11 entities would incur compliance costs of between one and three percent of revenues; eight entities would incur compliance costs of between 0.5 and one percent of revenues; and the remaining 107 entities would incur compliance costs of less than 0.5 percent of revenues. The highest estimated cost-to-revenue ratio for this NODA analysis is 7.4 percent of the entities' annual sales revenue (at proposal this value was 5.3 percent). Exhibit 10 below summarizes these findings and also presents the ratios estimated at proposal.
Exhibit 11 below presents the same information for the waterbody/capacity-based option.
EPA also conducted an analysis that evaluates the potential cost per household, if Phase II facilities were able to pass compliance costs on to their customers. This analysis estimates the average compliance cost per household for each North American Electricity Reliability Council (NERC) region,
The results of this analysis show that the average annual cost per residential household would range from $0.55 (in ASCC) to $5.69 (in HI) for the preferred option and from $0.55 (in ASCC) to $20.41 (in HI) for the waterbody/capacity-based option. Exhibit 12 below presents the values for each NERC region for the preferred option and the waterbody/capacity-based option. The exhibit also presents the values for the preferred option at proposal.
EPA also considered potential effects of the proposed Phase II rule on electricity prices. EPA used three data inputs in this analysis: (1) Total pre-tax compliance cost incurred by facilities subject to Phase II regulation, (2) total electricity sales, based on the Annual Energy Outlook (AEO) 2002, and (3) prices by end use sector (residential, commercial, industrial, and transportation), also from the AEO 2002. All three data elements were calculated by NERC region.
The results of the NODA analysis show that the annualized costs of complying (in cents per KWh sales) range from 0.007 cents in SPP to 0.020 cents in NPCC for the preferred option, and from 0.007 cents in SPP to 0.096 cents in MAAC for the waterbody/capacity-based option.
To determine potential effects of these compliance costs on electricity prices, EPA compared the per KWh compliance cost to baseline electricity prices by end use sector and for the average of the sectors. This analysis shows that the average increase in electricity prices would be 0.17 percent under the preferred option and 0.51 percent under the waterbody/capacity-based option. (At proposal, the estimated increase in electricity prices for the preferred option was 0.11 percent.)
Exhibit 13 below presents the values for each NERC region for the preferred option and the waterbody/capacity-based option. The exhibit also presents the values for the preferred option at proposal.
In the proposed rule, EPA set up a framework that would require facilities that did not reduce their intake capacity commensurate with a closed-cycle recirculating cooling system to meet certain other performance standards for reducing impingement mortality and entrainment based on technologies such as fine-mesh screens and fish-return systems. These other performance standards were based on the source water body type where the cooling water intake structure is located, the facility's capacity utilization rate, and the proportion or volume of the water body that is withdrawn by the facility. In general, most facilities would be required to implement control technologies that reduce impingement mortality by 80 to 95 percent and/or entrainment by 60 to 90 percent unless they demonstrate the need for a site-specific determination of best technology available. (See proposed § 125.94 and Chapter VI. Best Technology Available for Minimizing Adverse Environmental Impact at Phase II Existing Facilities (67 FR 17140)).
In an effort to document and further assess the performance of various technologies and operational measures designed to minimize the impacts of cooling water withdrawals, EPA compiled a database of documents that analyzes the efficacy of a specific technology or suite of technologies. The database contains materials that range from brief journal articles to more intensive analyses found in historical section 316(b) demonstration reports and technology evaluations. At this time, EPA is assembling as much documentation as possible to support future Agency decisions. Information entered into the database includes some notation of the limitations the individual studies may have for use in further analyses (
EPA's intent in assembling this information is four-fold. First, EPA seeks to develop a categorized database containing a comprehensive collection of available literature regarding technology performance that will serve as a more rigorous compilation of data supporting the determination that the proposed performance standards are best technology available. Second, EPA expects to use the data to demonstrate that the technologies chosen as compliance technologies for costing purposes are reasonable and can meet the performance standards. Third, the availability of a user-friendly database would allow EPA, State permit writers, and the public to more easily evaluate potential compliance options, facility compliance with performance standards, and data pertaining to the streamlined option described in this NODA (see section VII.B below). Fourth, EPA has attempted to evaluate the technology efficacy data against objective criteria in order to assess the general quality and thoroughness of each study. This may assist in further analysis of conclusions made using the data.
Basic information from each document is recorded in the database (
For those documents that refer to a specific facility (or facilities), basic technical information is included to enable EPA to classify facilities according to general categories. EPA collected locational data (
Information on the type of study and any study results, is recorded in the second portion of the database. EPA identifies whether the study evaluates the technology with respect to impingement mortality reduction (or avoidance), entrainment survival, or entrainment exclusion (or avoidance). Some studies address more than one area of concern and are noted accordingly. If provided, EPA records basic biological data used to evaluate the technology. These include target or commercially/recreationally valuable species, species type, life history stage, size, sample size, and raw numbers of impinged and/or entrained organisms. Finally, EPA records any overall conclusions reached by the study, usually presented as a percentage reduction or increase, depending on the area of focus. Identifying this information for each document allows EPA and others to more readily locate
Each document is reviewed according to five areas of data quality where possible: (1) Applicability and utility, (2) soundness, (3) clarity and completeness, (4) uncertainty and variability, and (5) evaluation and review. Because the literature in question comes from many different sources and was developed under widely varying standards, EPA was not able to evaluate all of these criteria for all documents contained in the database.
To date, EPA has collected 148 documents for inclusion in the database. EPA did not exclude any document that addressed technology performance in relation to impingement and entrainment, regardless of the overall quality of the data. Sample questions are included in Exhibit 1 below. The proposed technology database is available in the record (See the document “Technology Efficacy Database” in the docket).
EPA is seeking comment on the applicability, quality, and quantity of the information and analyses in this database upon which EPA is relying. More specifically, EPA requests comment on whether these data are of sufficient quantity and quality to support the determination that the proposed performance standards are best technology available and that the existing facilities can meet these standards by implementing design and construction technologies either singly or in conjunction with other design and construction technologies (including operational and restoration measures). In addition, EPA requests comment on limitations of the data and identification of other relevant information available to be included in this database. Based on a preliminary review of the available data, the Agency continues to believe that an 80-95% reduction in impingement mortality and a 60-90% reduction in entrainment are achievable.
EPA received a number of comments expressing concern that the proposed Comprehensive Demonstration Study requirements at § 125.95(b) would impose a significant burden on permit applicants. As proposed, the Comprehensive Demonstration Study would have as many as seven different components: (1) A Proposal for Information Collection, (2) Source Waterbody Flow Information; (3) an Impingement Mortality and Entrainment Characterization Study; (4) a Design and Construction Technology Plan; (5) Information to Support any Proposed Restoration Measures; (6) Information to Support Site-Specific Determination of Best Technology Available for Minimizing Adverse Environmental Impact; and (7) a Verification Monitoring Plan.
Some commenters suggested that EPA provide an additional, more streamlined compliance option under which a facility could implement certain specified technologies that are deemed highly protective in exchange for not having to perform, or greatly reducing the scope of, the proposed Comprehensive Demonstration Study required at § 125.95(b). In response to these comments EPA is considering, and invites the public to comment on two variations of a streamlined compliance option that would reduce the information collection burden imposed on permit applicants.
Under the first variation, EPA would evaluate the effectiveness of specific technologies using the impingement mortality and entrainment performance standards specified in the proposed rule as assessment criteria. Specifically, EPA would require that the demonstrated efficacy of the control technology would at least reduce impingement mortality by 80 to 95 percent for fish and shellfish. If it was also to be used by facilities with an additional requirement to reduce entrainment by 60 to 90 percent for all life stages of fish and shellfish, then EPA would ensure that the technology would also satisfy this requirement. Evaluation of the level of impingement mortality or entrainment reduction would be based on review and analysis of available data, studies, and literature. The Agency also would assess the conditions where such technologies are effective (
EPA is in the process of assessing this option and has not completed a comprehensive review of control technology efficacy data for the purpose of identifying and delineating technologies that might qualify under this option. However, the efficacy data
Use of submerged wedge-wire screens where the cooling water intake structure is located in a freshwater river or stream, sustained countercurrents exist to promote cleaning of the screen face, and the design intake velocity is 0.5 feet per second (ft/s) or less.
EPA believes that sufficient data exist in the record to demonstrate that all facilities that meet the criteria (
At a minimum, the permitting authority would require each facility applying to use this technology to provide documentation that the facility's cooling water intake meets the applicability conditions specified for the technology and that, once installed, the facility will properly operate and maintain the technology. In addition, at a minimum, monitoring would be required as necessary to verify that the technology is in fact achieving an acceptable level of performance.
Under the second variation of this option, the Phase II regulations would establish the criteria and process for approving cooling water intake structure control technologies, but would allow the approval process to be carried out by the Director, perhaps with EPA oversight or approval. Under this option, the rule would define the criteria that a control technology must meet to be approved, and the process for approval. The criteria would focus on reducing impingement mortality and/or entrainment levels consistent with the proposed performance standards (see § 125.94), as appropriate under specified conditions. This option would also specify the data requirements and process required to have a control technology approved. Under the option, the requisite data would be submitted to the Director who would determine whether the technology satisfied the applicable performance criteria. If so, the technology would be approved for use by any eligible facility (
The two variations are not mutually exclusive. If EPA implemented both, it might adopt regulatory language similar to that provided below as a new § 125.94(a)(4). Note that 4(i) corresponds to the first approach and 4(ii) to the second.
(4)(i) You may demonstrate to the Director that your Phase II existing facility meets the conditions in (A), (B) and (C), and you will properly install, operate, and maintain submerged wedge-wire screen technology;
(A) Your cooling water intake structure is located in a freshwater river or stream;
(B) Your cooling water intake structure is situated such that sufficient ambient counter currents exist to promote cleaning of the screen face; and
(C) Your design intake velocity is 0.5 ft/s or less.
(ii) Any interested person may submit a request that a technology be approved for use under the compliance option in § 125.94(a)(4). If the Director approves, the technology may be used with compliance option § 125.94(a)(4) by all facilities under their jurisdiction. Requests for alternative technologies for compliance under § 125.94(a)(4) must be submitted to the Director and include the information in paragraphs (A), (B), and (C) below:
(A) A detailed description of the technology;
(B) A list of design criteria for the technology and site characteristics and conditions that each facility must posses in order to ensure that the technology can consistently meet the appropriate impingement mortality and entrainment performance standards in § 125.94(b); and
(C) Information and data sufficient to demonstrate that all facilities under the jurisdiction of the Director can meet the applicable impingement mortality and entrainment performance standards in § 125.94(b) if the applicable design criteria and site characteristics and conditions are present at the facility.
Another paragraph could be added as § 125.95(c) that would establish the streamlined information collection requirements for the new compliance option at § 125.94(a)(4). The language might read as follows:
(c) You must submit to the director the application information required by 40 CFR 122.21(r)(2), (3), and (5) and the Verification Monitoring Plan in 125.95(b)(7).
Both options discussed above pose several implementation issues. There is the question of how, and on what basis, should technology effectiveness be assessed? Because each control technology is being assessed in a general context (
EPA requests comment on both variations of this option for Phase II section 316(b) compliance. The Agency is interested in comments on the overall approach, as well as on the specific issues each option presents, as discussed above. In addition, EPA is
Under the proposed rule, a facility may choose a site-specific alternative to demonstrate use of best technology available for minimizing adverse environmental impact at its site. If a facility chooses this alternative, the facility must demonstrate to the Director that the costs of compliance with the applicable performance standards would be “significantly greater” than the costs considered by the Administrator when establishing the performance standards, or that costs would be “significantly greater” than the benefits of complying with the applicable performance standards at its site. As discussed in the proposed rule, EPA's new facility rule required costs to be “wholly out of proportion” to the costs EPA considered when establishing the requirement at issue rather than “significantly greater” as proposed for existing facilities (see 67 FR 17146). This difference in standards for new and existing facilities is based on (1) the greater flexibility available to new facilities for selecting the location of their intakes and installing technologies at lower costs relative to the costs associated with retrofitting existing facilities and (2) the desire to avoid economically impracticable impacts on energy prices, production costs, and energy production that could occur if large numbers of Phase II existing facilities incurred costs that were more than “significantly greater” than but not “wholly out of proportion” to the costs in EPA's record. At proposal, EPA invited comment on whether a “significantly greater” cost test was appropriate for evaluating requests for alternative requirements by Phase II existing facilities but did not specify what degree of difference in cost or cost as compared to benefit is “significant”. Many commenters requested that “significantly” be explicitly defined for the purposes of this rulemaking.
At this time, EPA requests comment on whether the Agency should adopt a quantitative definition of “significantly greater,” and if so, what specific ratio would be appropriate.
Following publication of the proposed rule, EPA reviewed an additional 23 facility reports that evaluated entrainment survival. To date, EPA has reviewed a total of 36 entrainment survival studies. The additional facility studies examined by EPA after publication of the proposed rule include studies from the following facilities: Anclote Power Plant, Bergum Power Station, Bowline Point Generating Station, Connecticut Yankee Atomic Power Company, Contra Costa Power Plant, Danskammer Point Generating Station, Fort Calhoun Nuclear Station, Ginna Generating Station, Indian Point Generating Station, Muskingum River Plant, Northport Generating Station, Pittsburg Power Plant, and Roseton Generating Station.
Based on its review, EPA believes that the entrainment survival studies support the use of a default assumption of zero percent survival in the benefits assessment. The studies reviewed are characterized by significant uncertainty and variability which complicates efforts to synthesize the various results in a manner that would provide useful generalizations of the results or application to other particular facilities. The primary issue with regard to these studies is whether the results can support a defensible estimate of survival substantially different from the value of zero percent survival assumed by EPA. The review of the studies has shown that while some individual organisms may be alive in the discharge samples, the proportion of the organisms that are alive in the samples is highly variable and unpredictable. The current state of knowledge would not support reliable predictions of entrainment survival for the range of species, life stages, regions, and facilities involved in EPA's national benefits estimates. Therefore, EPA believes that the reported results do not provide a clear indication as to the extent of entrainment survival above zero percent to be used as a defensible assumption to calculate national benefits for this rule. EPA requests comment on this issue.
The revised version of Chapter A7: Entrainment Survival from the Case Study Analysis for the Section 316(b) Phase II Existing Facilities Rule provides more detailed information on the scientific basis for this position and has been added to the docket. EPA plans to conduct a formal, external peer review of this document prior to the final rule, and results from the peer review will be added to the docket when complete.
As at proposal, EPA notes that the proposed rule language does not preclude the use of estimates of entrainment mortality and survival when presenting a fair estimation of the monetary benefits achieved through the installation of the best technology available, instead of assuming 100 percent entrainment mortality. In EPA's view, estimates of entrainment mortality and survival used for this purpose should be based on sound scientific studies. EPA believes such studies should address times of both full facility capacity and peak abundance of entrained organisms. EPA requests comment on whether it is appropriate to allow consideration of entrainment mortality and survival in benefit estimates, and if so, should EPA set minimum data quality objectives and standards for a study of entrainment mortality and survival used to support a site-specific determination of best technology available for minimizing adverse environmental impact. EPA also requests comment on how an applicant can design and implement an entrainment mortality and survival study to properly account for those organisms which may disintegrate upon passage through a facility. EPA may decide to specify data quality objectives and standards either in the final rule language or through guidance.
Restoration projects, when successful, can recreate otherwise lost natural resources. The Agency proposed in § 125.94(d) (67 FR 17221) that a facility may implement restoration measures in lieu of or in combination with reductions in impingement mortality and entrainment upon demonstration to the Director that such efforts will maintain fish and shellfish in the waterbody, including the community structure and function, at a level comparable to that which would be achieved through compliance with standards proposed in §§ 125.94(b) and (c) (67 FR 17221).
The Agency believes restoration projects have the potential to mitigate harm to fish and shellfish from cooling water intake structures. However, careful execution of these projects is vital to their successful use (see “Note to Docket on Restoration Information Sources.”) Use of good practices drawn from historical experiences with restoration increases the probability of restoration project success, and therefore, reduces environmental and compliance costs associated with project failure. Therefore, EPA is considering requiring the following
A clear and thorough documentation of the sources and nature of uncertainty in predictions of a project's ability to meet performance targets is vital to fully evaluating the capabilities of a project and subsequently taking, as necessary, the appropriate steps to prevent or compensate for potential performance shortfalls. Restoration projects in particular require careful documentation because of the uncertainties found in the current state of the art. Documentation of uncertainty must be quantitative wherever possible, qualitative otherwise, and make use of sound statistical techniques. The Agency is considering requiring permittees to submit documentation of uncertainty as part of the information required under proposed § 125.95(b)(5).
Because of the complexity and evolving nature of restoration projects as an environmental management tool, most will have several areas of uncertainty in descriptions of their performance. These areas may include project organism productivity, time lag before full productivity, and comparison of compensatory project performance with adverse environmental impact measurements, among others. The Agency solicits comment on these and other areas of uncertainty in restoration projects and on appropriate methods for their characterization. Sample regulatory language is offered below (new language is in italic):
Add to Section 125.95(b)(5):
(ii) A quantification of the combined benefits from implementing design and construction technologies, operational measures and/or restoration measures and the proportion of the benefits that can be attributed to each. This quantification must include: the percent reduction in impingement mortality and entrainment that would be achieved through the use of any design and construction technologies or operational measures you have selected (i.e., the benefits you would achieve through impingement and entrainment reduction); a demonstration of the benefits that could be attributed to the restoration measures you have selected; a demonstration that the combined benefits of design and construction technologies, operational measures, and/or restoration measures will maintain fish and shellfish at a level comparable to that which would be achieved under § 125.94. If it is not possible to demonstrate quantitatively that restoration measures such as creation of new habitats to serve as spawning or nursery areas or establishment of riparian buffers will achieve comparable performance, you may make a qualitative demonstration that such measures will maintain fish and shellfish in the waterbody at a level substantially similar to that which would be achieved under § 125.94.
Under adaptive management, an approach is chosen to address a problem and its effectiveness monitored during its implementation. Information from this monitoring is then used to make adjustments, as necessary, to the approach. Adaptive management is a particularly useful method when the outcome of a chosen approach is uncertain. Because of the uncertainty and evolving nature of restoration projects as an environmental management tool, the Agency is considering requiring permittees who choose to utilize restoration projects to create and implement an adaptive management plan. Permittees would submit this plan to the Director as part of the information required under § 125.95(b)(5).
The adaptive management plan would outline, to the extent possible, the actions a permittee would take should monitoring of project performance indicate deviation of performance from acceptable levels. The plan would describe, quantitatively where possible, the performance levels at which project adjustment would be necessary.
The adaptive management process relies heavily on adequate performance measurement methods and metrics to alert project managers to project deviations from expected performance levels or to indicate that a project is meeting performance goals. It is important for these reasons that project planners choose performance metrics that reflect attainment of project goals (i.e., maintenance of fish and shellfish levels in a waterbody) as accurately and directly as possible. Proxy measurement methods should be used with adequate caution. Project planners should also, where feasible, monitor for information useful for making corrections, as needed, in a project's performance. The Agency is considering requiring that permittees would stipulate performance measurement methods and metrics in their monitoring plan. (See proposed § 125.95(b)(7) (67 FR 17178, 17224)). Sample regulatory language is offered below (new language is in italic):
Add to § 125.95(b)(5):
(iii) A plan
EPA requests comment on requiring an adaptive management plan for restoration projects.
One challenge of successful restoration planning is the coordination of information from a large number of scientific disciplines, particularly hydrology, landscape ecology, and organismal biology. The Agency believes a thorough, multi-disciplinary review of restoration proposals would help to ensure their quality and therefore maximize the probability of project success. The Agency is concerned, however, that thorough review of restoration proposals may place a significant additional burden on the review capacities of permit writers, the majority of whom are trained primarily in the engineering sciences. To aid permit writers in their review of restoration proposals and to aid permittees in ensuring that the full range of pertinent expertise is brought to bear upon project plans, the Agency is considering requiring that the information a facility develops under proposed §§ 125.95(b)(5) and (7) in support of its restoration plan undergo an independent peer review prior to the plan's submission to the Director. EPA is considering whether a facility should be required to choose the members of the peer review panel in consultation with Federal, State, and Tribal fish and wildlife management agencies with responsibility for fish and shellfish potentially affected by the facility cooling water intake structure. The peer reviewers would be scientists who are otherwise independent of the permitting process for the facility and who, as a panel, have the appropriate multi-disciplinary expertise for the review of the restoration proposal. Peer reviewers would be charged with evaluating specific elements of each restoration proposal (
Add to Section 125.95(b)(5):
(vi) The final report from an independent peer review of the items you submit under (b)(5)(I), (ii), (iii), (iv), (v), and (b)(7) of this section. You must choose the peer reviewers in consultation with Federal, State, and Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by your cooling water intake structure.
EPA requests comment on adding such a requirement.
EPA solicits data on additional impingement and entrainment at facilities withdrawing cooling water from surface waters of the U.S. Facilities responding to EPA's questionnaire surveys reported studies of impingement or entrainment at the following water sources: estuary or tidal river, 98 facilities; freshwater stream or river, 201 facilities; the Great Lakes, 20 facilities; lake or reservoir, 74 facilities; ocean, 21 facilities. Despite the large number of facilities reporting studies in freshwater, EPA has received relatively few such studies. To date, EPA has received approximately 20 studies from inland facilities. Thus, EPA especially requests recent impingement and entrainment studies and data for freshwater sources (streams, rivers, lakes, and reservoirs). Please see the section entitled
EPA had numerous lengthy telephone conferences with industry and environmental groups to respond to questions on the cost-benefit analysis presented at proposal. EPA also provided detailed written responses to these questions in a series of memoranda provided to commenters during the summer of 2002. These materials are entitled: “Appendix 2: Summary of CBI and Non-CBI Facilities from Questionnaires,” “Response to UWAG Questions Re: Phase II Proposal Record, Revised December 2, 2002,” “Appendix 1: Additional Detail on Extrapolation,” “Appendix 3: Tables 1-4,” “Response to Riverkeeper Questions Regarding Phase II Proposal Record, Revised July 31, 2002,” “Example calculations for national extrapolation,” “Responses to Riverkeeper Questions on § 316(b) Phase II Case Study Benefits Analyses,” “Responses to PG&E Questions about the § 316(b) Phase II Brayton Point Case Study,” “Responses to Riverkeeper Follow-Up Questions on § 316(b) Phase II Case Study Benefits Analyses,” “Responses to Riverkeeper Questions on § 316(b) Phase II Case Study Benefits Analyses,” and “Responses to Riverkeeper Questions About the § 316(b) Phase II Case Study I&E Analyses.” The memorandum entitled “Analytical and Clerical Errors in the § 316(b) Phase II Case Study Document, Preamble, and Economic and Benefits Analysis” is an additional memorandum that corrects any clerical or analytical errors that were identified subsequent to proposal.
In its analysis for section 316(b) Phase II proposal, EPA relied on nine case studies to estimate the potential economic benefits of reduced impingement and entrainment. EPA extrapolated facility-specific estimates to other facilities located on the same waterbody type and summed the results for all waterbody types to obtain national estimates. A number of commenters expressed concern about this method of extrapolation, noting that even within the same water body type, there are important ecological and socioeconomic differences among different regions of the country. For example, commercial and recreational fisheries of Atlantic Coast estuaries are substantially different from those of Pacific Coast estuaries.
To address this concern, EPA has revised the design of its analysis to examine cooling water intake structure impacts at the regional-scale. The regional approach to developing national benefits estimates involves evaluating changes in impingement and entrainment losses and the associated monetary values for improved recreational and commercial catch and nonuse value of these changes in impingement and entrainment, at the regional level. The estimated benefits will then be aggregated across all regions to yield the national benefit estimate. For this analysis, coastal regions are fisheries regions defined by National Oceanic and Atmospheric Administration (NOAA) National Marine Fisheries Service (NMFS). Freshwater facilities are grouped into either the Great Lakes region or the interior region of the U.S. (The regional approach is further discussed in the document entitled “Regional Methodology Used in the section 316(b) Phase II Notice of Data Availability.”) EPA believes that these regional definitions are both ecologically and economically meaningful, and offer a better scale of resolution upon which to base estimates of national impacts and benefits.
EPA is proposing this regional analytical approach for this national rulemaking effort, but is not advocating this approach for impact and/or benefits analyses that might be conducted for individual National Pollution Discharge Elimination System (NPDES) permits. At the individual permit level it should be generally necessary to conduct a more detailed, site-specific analysis of the environmental ramifications of the cooling water intake structures governed by the permit in question than is necessary or feasible for this national-level rulemaking analysis. Such a site-specific analysis to support a permit might, for example, consider detailed, species specific information on impingement mortality and entrainment, different factors, or use different approaches in estimating total benefits.
In addition, EPA received a number of comments on the valuation approaches applied to evaluate the proposed rule. In estimating benefits of the proposed rule for each case study, the Agency used several valuation approaches that are the focus of this NODA: (1) Commercial fishery benefits were valued using market data; (2) recreational fishery benefits were valued using both primary research and benefit transfer from other nonmarket valuation studies; (3) nonuse benefits were estimated based on benefits transfer using the “50 percent rule” (i.e., 50 percent of use value).
Several commenters posed questions or expressed concern with how the Agency at proposal attempted to convert projected changes in commercial landings into suitable measures of producer and consumer surplus. Most commenters agreed that properly executed benefits transfer is an
EPA notes that there are advantages and disadvantages associated with using stated preference studies to value non-use benefits. On the one hand, there are no other generally accepted methods available for identifying and measuring non-use benefits for a non-market good or service. Benefit transfer methods used for estimating non-use benefits must ultimately rely on stated preference studies that independently assess non-use benefits. On the other hand, there is evidence that stated preference methods can over-estimate or misrepresent values because of a number of difficulties linked to the hypothetical nature of the survey instrument. These difficulties include (1) the absence of a real budget constraint (though survey respondents are often requested to think about their income constraints and purchases prior to stating their preferences), and (2) a frequent focus in the survey instrument on a limited number of resources or amenities to the exclusion of others. However, substantial research has been conducted to show that potential bias associated with hypothetical bids, lack of income constraint consideration, complex amenities, and whole/part complications is often manageable through careful survey design and pretesting, and/or may be accounted for through adjustments to utility-theoretic values derived from stated preference studies (see,
In order to address some of the sources of bias in stated preference studies, a number of “best practices” for conducting stated preferences surveys and using them in policy analysis have evolved over the past decade. In 1992, the National Oceanic and Atmospheric Administration convened a panel of economic and survey research experts, who had no vested interest in stated preference methods, to conduct hearings on the validity of the contingent valuation (CV) method (form of stated preference) (FR 58:19, 4601-14, 1993). This panel issued proposed guidelines, consisting of a number of recommendations about survey design and implementation, “compliance with which would define an ideal CV survey.”
The panel's general guidelines address the following issues: Sample type and size; minimizing nonresponses; use of personal interviews; pretesting for interviewer effects; reporting; careful pretesting of a CV questionnaire; conservative design; elicitation format; referendum format; accurate description of the program or policy; pretesting of photographs; reminder of undamaged substitute commodities; adequate time lapse from the accident; temporal averaging; “no-answer” option; yes/no follow-ups; cross-tabulations; checks on understanding and acceptance; alternative expenditure possibilities; deflection of transaction value; steady state or interim losses; present value calculations of interim losses; advance approval; burden of proof; and reliable reference surveys.
The NOAA panel concluded that (1) non-use (referred to by the panel as passive-use) losses are a meaningful component of environmental damages; (2) it is plausible that the results of CV surveys may be variable, sensitive to details of the survey instrument used, and vulnerable to upward bias; (3) under the suggested guidelines and conditions, CV studies convey reliable information—“the more closely the guidelines are followed, the more reliable the result will be. It is not necessary, however, that every single injunction be completely obeyed;” (4) “To the extent that the design of CV instruments makes conservative choices * * *, this intrinsic [upward] bias may be offset or even over-corrected;” and (5) a well-conducted CV survey “contains information that judges will wish to use, in combination with other evidence, including the testimony of expert witnesses.”
In addition to the guidelines generated by the NOAA panel, The Office of Management and Budget (OMB), in its recent Draft 2003 Report to Congress on the Costs and Benefits of Federal Regulations (68 FR 5492, Feb. 3, 2003), comments on the use of stated preference studies as it relates to policy/regulatory analysis. OMB notes that “the contingent valuation instrument must portray a realistic choice situation for respondents—where the hypothetical choice situation corresponds closely with the policy context to which estimates will be applied.” (68 Fed. 5519.) OMB also provides specific guidelines for sampling, survey design, transparency and replicability of results, and benefit transfer.
In response to comments, EPA made the following changes to the analysis: (1) Developed original or used available region-specific recreational angler behavior models to estimate recreational fishing benefits from reduced impingement and entrainment; (2) refined its commercial fishery analysis; and (3) developed a revised benefit transfer approach to estimate total value (including nonuse values) of impingement and entrainment losses for commercial, recreational, and forage species. In addition, EPA also carefully examined available evidence concerning total benefits, including use and nonuse values from the surface water valuation studies that are potentially applicable to the section 316(b) regulation. Section E.2 of today's notice summarizes EPA's findings from the review of the surface water valuation studies and outlines further steps in developing an approach for analyzing nonuse value of the aquatic resources affected by impingement and entrainment for the final rule analysis.
In this NODA, EPA presents its regional methodology and use benefits estimates for two regions, Northern California and the North Atlantic. Regional definitions are provided in the following section, followed by a summary of methods and results for commercial and recreational fishing. Discussion of a possible methodology for estimating nonuse benefits and some preliminary results are presented in Section E.
The Agency identified eight study regions based on similarities in the physical characteristics of the affected water bodies, aquatic species present in the area, and characteristics of commercial and recreational fishing activities in the area. EPA used NMFS definitions of marine fishery regions to define the six coastal regions. Table X-1 presents these geographic areas and the number of facilities included in each marine fishery region. A total of 124 Phase II facilities are withdrawing water from the nation's estuaries and oceans. Facilities in the Great Lakes region include all those that withdraw water from Lakes Ontario, Erie, Michigan, Huron, and Superior or are located on a waterway with open passage of Great Lakes fishery species to a Great Lake and within 30 miles of the lake. There
The analysis of direct use benefits for each region proceeds in three steps: (1) Estimating regional impingement and entrainment losses; (2) estimating benefits to recreational anglers from improved fishing opportunities due to reduced impingement and entrainment based on a region-specific valuation function; and (3) estimating benefits from improved commercial fishery yield. The following sections discuss each of these steps in detail.
For the case studies presented at proposal, EPA conducted species-specific analyses of impingement and entrainment on a facility-specific basis. For the new regional studies, EPA is evaluating species groups comprised of species with similar life histories. Groups are based on family groups or groups used by NMFS for landings data. For example, bay goby, blackeye goby, yellowfin goby, and other gobies are grouped together as “gobies.” For the regional studies, EPA evaluated impingement and entrainment rates for such species groups and developed a regional total impingement and entrainment estimate by summing results for each group. An exception was made for species of exceptionally high commercial or recreational value (
Aggregation of species into groups of similar species facilitated parameterization of the fisheries models used by EPA to evaluate facility impingement and entrainment monitoring data. As noted by many commenters and by EPA in the section 316(b) Phase II Case Study Document, life history data are very limited for many of the species that are impinged and entrained. As a result, there are many data gaps for individual species. To overcome this limitation, in its new studies EPA used the available life history data for closely related species to construct a single representative life history for a given species group. For previously completed case studies, EPA used the species-specific life history information that was previously developed and then aggregated impingement and entrainment results for the species within a given group to obtain a group estimate. The document, “Regional Methodology Used in the section 316(b) Phase II Notice of Data Availability,” summarizes the regional methodology. The documents, “Appendix 1: Life History Parameter Values Used to Evaluate I and E in the North Atlantic Region,” and “Appendix 2: Life History Parameter Values Used to Evaluate I and E in the Northern California Region,” provide tables of all of the life history data and data sources used by EPA for the two regional analyses presented in this NODA.
EPA believes that the species group approach is appropriate for the national rulemaking given the many data limitations associated with our lack of knowledge of specific fish life histories, particularly the growth and mortality rates of early life stages. At the individual permit level, more detailed information should be available based on the data collected to support a permit application (see, for example, the proposed permit application requirements at § 122.21 (r) and § 125.95).
EPA evaluated facility impingement and entrainment monitoring data for all individual fish species with losses over one percent of the facility total. EPA converted annual impingement and entrainment losses for each species group into (1) age 1 equivalents, (2) fishery yield, and (3) biomass production foregone using standard fishery modeling techniques (Ricker, 1975; Hilborn and Walters, 1992; Quinn and Deriso, 1999). Details of these methods are provided in Chapter A5 of Part A of the section 316(b) Phase II Case Study Document, except for the corrections given in the preceding section “Case Study Corrections and Clarifications” and the changes noted below. Section A5-4 of Chapter A5 discusses data uncertainties. For all analyses, EPA assumed 100% entrainment mortality based on the analysis of entrainment survival studies presented in Chapter A7 of Part A of the section 316(b) Phase II Case Study Document
As several commenters pointed out, the equation for yield presented in Chapter A5 of the section 316(b) Phase II Case Study Document, contains a typographical error. The correct equation is:
EPA would like to note that it verified that the correct equation was used for the case study analyses. The error was only in the transcription of the equation in Chapter A5.
For the case studies submitted at proposal, EPA used a simple model of trophic structure and trophic transfer efficiency to estimate the yield of harvested species that is lost because of the loss of forage species to impingement and entrainment (see Chapter A5 of Part A of the section 316(b) Phase II Case Study Document for details). The net trophic transfer efficiency in that model was 2.5 percent. Based on additional review of the scientific literature, EPA has modified the model so that the net trophic transfer efficiency is 20 percent. This transfer efficiency is used in natural resource damage assessments involving injuries to fish, as discussed in Reed
To obtain regional impingement and entrainment estimates, EPA extrapolated losses from facilities with impingement and entrainment data to facilities without data. These results were then summed to obtain a regional total. This analysis was done separately within each region for different water body types (estuaries/tidal rivers, oceans, Great Lakes, inland freshwater rivers and lakes).
Average annual results for facilities with impingement and entrainment data were averaged and extrapolated on the basis of operational flow, in millions of gallons per day (MGD), to facilities without data. The extrapolation method used, by region, is:
(Total losses at case study facilities/Flow at case study facilities) * Total flow in the region
The flow values used in this calculation have been weighted (weighted flow = average daily flow * weight) using the same facility weights applied in the cost analysis. The purpose of this weighting is to calculate costs and benefits for all 551 in-scope facilities, based on surveys received from 540 facilities.
The regional analyses incorporated data for many more facilities than were evaluated for proposal, and thus improved the basis for EPA's national benefits estimates.
In the case studies prepared for proposal, EPA determined that all impinged fish are age 1 because of a lack of data on the actual ages of impinged fish. As several commenters pointed out, this biases estimates low because impinged fish may include older individuals that are closer to harvestable age. This is confirmed by data on the ages of impinged fish presented in studies conducted at Salem (PSEG, 1999) and Millstone (Northeast Utilities Environmental Laboratory, 1992). To address this concern, the current studies relax the assumption that all impinged fish are age 1, and assume instead that the ages of impinged fish are 1 and older, and follow an age distribution that is implied by the associated survival rates. This approach takes into consideration the common observation that relatively few older, larger fish are impinged. The effect of this adjustment is that a higher proportion of impinged fish are assumed to survive until harvest. As a result of this adjustment, the estimate of foregone yield associated with impingement increases by a factor ranging from about three to ten, depending on a species‘ age-specific survival rates.
For the final rule analysis, EPA's analysis of recreational fishing benefits from reduced impingement and entrainment will be based on region-specific models of recreational anglers' behavior for seven of the eight study regions: North Atlantic, Mid-Atlantic, South Atlantic, Gulf of Mexico, Northern California, Southern California, and Great Lakes. EPA's analysis of benefits for the interior U.S. region will combine an original random utility model (RUM) for the Ohio River and a benefit transfer approach for other rivers, lakes, and reservoirs affected by impingement and entrainment. Additional detail on the methods EPA will use throughout the recreational benefits analysis are provided in DCN 5-1008 and DCN 5-1009. These methods are similar to the methods used for the Delaware Bay, Tampa Bay, and Ohio River case study analyses, but EPA developed the travel coast models at the regional levels.
For the NODA, EPA developed recreational anglers' behavior models for three of the six coastal regions including Northern and Southern California and the Mid-Atlantic. Today's notice presents results only for the Northern California Region because impingement and entrainment data are not available for the Mid-Atlantic and Southern California regions at this time. For the final rule analysis, the Agency intends to expand the Tampa Bay case study used in the proposed rule analysis to include the whole Gulf of Mexico region and to develop an original travel coast model for the Great Lakes region. For the South Atlantic EPA is considering using the recreational anglers' behavior models developed by NMFS. The NMFS model is appropriate for benefit function transfer for the North Atlantic region, because it estimates region-specific values for the most important species affected by impingement and entrainment (
The regional recreational fishing studies use information on recreational anglers' behavior to infer anglers' economic value for the quality of fishing in the case study areas. The model's main assumption is that anglers will get greater satisfaction, and thus greater economic value, from sites where the catch rate is higher due to reduced impingement and entrainment, all else being equal. This benefit may occur in two ways: First, an angler may get greater enjoyment from a given fishing trip when catch rates are higher, and thus get a greater value per trip; second, anglers may take more fishing trips when catch rates are higher, resulting in greater overall value for fishing in the region.
EPA will rely on the following primary data sources in the regional analyses of recreational fishing benefits:
• For the six coastal regions, EPA intends to use the NMFS Marine Recreational Fishing Statistics Survey (MRFSS) combined with the Add-On MRFSS Economic Survey (AMES) (NMFS, 1994; 1997; 2000);
• For the Great Lakes region the Agency is considering using the 1995 Michigan Recreational Anglers survey to develop a RUM model. The Agency will
• For the interior U.S. region, the Agency is also considering using the 2000 National Survey of Recreation and Environment and the National Survey of Fishing, Hunting and Wildlife-Associated Recreation (U.S. Fish and Wildlife Service, 1996; 2001) to estimate the value of recreational fishery losses from impingement and entrainment at cooling water intake structures located on rivers, lakes, and reservoirs. DCN 5-1310 and DCN 5-1311 provide further information on these data sources.
These data sets provide information on where anglers fish, what fish they catch, and their personal characteristics. When anglers choose among fishing sites they reveal information about their preferences.
The Agency uses standard assumptions and specifications of the RUM model that are readily available in the recreation demand literature. Among these assumptions are that anglers choose a fishing mode and then the site at which to fish; and that anglers' choice of target species is exogenous to the model. EPA modeled an angler's decision to visit a site as a function of site-specific cost, fishing trip quality, and additional site attributes such as presence of boat launching facilities at the site.
The Agency uses the 5-year historical catch rates per hour of fishing as a measure of fishing quality in the case studies. Catch rate is one of the most important attributes of a fishing site from the angler's perspective. This attribute is also a policy variable of concern because catch rate is a function of fish abundance, which may be affected by fish mortality caused by impingement and entrainment.
The Agency uses the estimated model coefficients in conjunction with the estimated impingement and entrainment losses at the cooling water intake structures located in the relevant region to estimate per trip welfare losses from impingement and entrainment to recreational anglers.
The random utility models generate welfare measures for changes in catch rates on a per trip basis. To capture the effect of changes in catch rates on the number of fishing trips taken per recreational season, EPA will combine regional RUM models and a trip frequency model.
To estimate the economic value to recreational anglers of changes in catch rates resulting from changes in impingement and entrainment in a given region, EPA combines fishing participation estimates for a given region with the estimated per trip welfare gain (loss) under each policy scenario. The welfare estimates presented in the following sections are based on the estimates of baseline recreational fishing participation provided by NMFS. Thus, welfare estimates presented in today's notice do not account for changes in recreational fishing participation due to improved quality of the fishing sites, but these changes are likely to be small.
EPA will estimate the commercial fishing benefits expected under the final Phase II regulation for each region in the final analysis: the North Atlantic, Mid-Atlantic, South Atlantic, Gulf of Mexico, Northern California, Southern California, and Great Lakes. Additional detail on the regions is provided above. Additional detail on the methods EPA uses for this NODA and additional methods EPA is considering are provided in “Chapter A13: Methods For Estimating Commercial Fishing Benefits” that accompanies this NODA. These methods are similar to the methods used for the analysis for the proposed rule, but EPA has made some changes and clarification to these methods as indicated in the following steps.
1.
2.
3.
3a.
EPA will continue to review this approach for the final analysis. In particular, EPA believes this is a conservative approach to estimating producer surplus when there are no anticipated price changes, because it does not account for shifts in marginal cost curves. If greater abundance of fish is assumed to imply that the same quantity of fish can be caught (
3b.
EPA anticipates that the net change in producer surplus result can be added to consumer and post-harvest surplus estimated in the manner outlined by Bishop and Holt (2003). The work to date by Dr. Richard Bishop of the University of Wisconsin-Madison and Dr. Matthew Holt of North Carolina State University suggests that for the fishery markets they have studied, the percent change in consumer and post-harvest surplus roughly equals the percent change in gross revenue (as estimated in step 2), and this result may be refined in light of their recommendations and future work by EPA. EPA recognizes, however, that it would not be appropriate to add this change to an independently estimated change in producer surplus that already captures part or all of potential consumer surplus.
EPA will continue to review this approach for the final analysis, and in particular is examining and soliciting comment on using empirical information from the literature to (1) estimate price change for revenue calculations and netting out surplus transfers, (2) adjust existing estimates of normal profit so that they might better reflect the more suitable measure of producer surplus, (3) model changes in harvest cost that may result from increased stock size.
In conjunction with this NODA, EPA is asking for comment on the issues and approaches discussed above and as discussed in further detail in “Chapter A13: Methods For Estimating Commercial Fishing Benefits” that accompanies this NODA. Specific input is sought regarding assumptions and approaches including: (1) The likelihood that supply curves will shift, thereby creating the context for generating greater net surplus; (2) how best to incorporate fishery management regimes into the analysis; (3) estimates of normal profit and how to interpret them to estimate a more suitable measure of producer surplus; and (4) the likelihood and magnitude of price changes that may result from increased harvest.
Discounting refers to the economic conversion of future benefits and costs to their present values, accounting for the fact that individuals tend to value future outcomes less than comparable near-term outcomes. Discounting is important when benefits and costs may occur in different years, and enables a comparison of benefits to costs across time periods.
For the section 316(b) rulemaking, discounting arises because some fishery benefits are realized a year or more after costs are borne. The issue of time lags between implementation of BTA and resulting increased fishery yields stems from the fact that one or more years may pass between the time an organism is spared impingement and entrainment, and the time of its ultimate harvest. For example, a larval fish spared from entrainment (in effect, at age 0) may be caught by a recreational angler at age 3, meaning that a 3-year time lag arises between the incurred cost of BTA and the realization of the estimated recreational benefit. Likewise, if a 1 year old fish is spared from impingement and is then harvested by a commercial waterman at age 2, there is a 1-year lag between the incurred BTA cost and the subsequent commercial fishery benefit.
At proposal, EPA did not apply any discounting to the beneficial fishery impacts from the reduced impingement and entrainment attributed to regulatory options, and instead assumed a steady state scenario (in effect, applying a discount rate of zero). The Agency approach at proposal was limited by the lack of age-specific monitoring data provided by the industry and the complexity of estimating appropriate species-specific and facility-specific discounting. As discussed above, the Agency also assumed at proposal that all impinged organisms were age 1, which decreased the fishery yield impacts estimated at proposal. For the new regional analysis, EPA will apply discounting by species groups in each regional study, as described below.
Two key factors determine how much the discounting will affect the benefit-cost results: the range of ages at which different types of fish are typically landed by commercial or recreational anglers, and the discount rate applied in the analysis. EPA uses the best available estimates of commercial fishing mortality rates to estimate the proportion of each species group, by age, that is caught annually following
EPA recognizes that, by addressing species groups rather than individual species, potentially important species-specific differences cannot be accounted for. However, the lack of life history data, fishing mortality rates, and other information necessary to calculate foregone yield and other endpoints of interest at the regional and national level makes it necessary to group species in this way.
Commercial and recreational fisheries of the North Atlantic Region are managed by the New England Fisheries Management Council (NEFMC) according to Fishery Management Plans (FMP's) developed by NEFMC (NMFS, 2002). The NMFS Northeast Fisheries Science Center provides scientific and technical support for management, conservation, and fisheries development.
The multispecies groundfish fishery is the most valuable commercial fishery of the North Atlantic region, followed by American lobster (Homarus americanus) (NMFS, 1999a). Important groundfish species include Atlantic cod (Gadus morhua), haddock (Melanogrammus aeglefinus), yellowtail flounder (Pleuronectes ferrugineus), windowpane flounder (Scophthalmus aquosus), and winter flounder (Pleuronectes americanus). Atlantic pelagic fisheries are dominated by Atlantic mackerel (Scomber scombrus), Atlantic herring (Clupea harengus), bluefish (Pomatomus saltatrix), and butterfish (Peprilus triacanthus) (NMFS, 1999a). Important recreational fisheries of the region include Atlantic cod, winter flounder, Atlantic mackerel, striped bass (Morone saxatilis), bluefish, and bluefin tuna (Thunnus thynnus) (NMFS, 1999a).
Fifteen groundfish species making up 25 stocks are managed under the Northeast Multispecies FMP of the NEFMC (NMFS, 2002). Table X-2 summarizes the stock status of these species, indicating which stocks are subject to overfishing (the harvest rate exceeds threshold) and which stocks are overfished (stock size is below threshold). Overfishing refers to a level of fishing mortality that jeopardizes the long term capacity of the stock to produce the potential maximum sustainable yield on a continuing basis. In some cases, heavy fishing in the past may have reduced a stock to low abundance, so that it is now considered overfished even though the stock is not currently subject to overfishing.
As indicated in Table X-2, seven of the stocks managed under the Northeast Multispecies FMP are classified as overfished, including redfish (Sebastes spp.), the southern New England and Middle Atlantic stocks of yellowtail flounder, white hake (Urophycis tenuis), ocean pout (Macrozoarces americanus), Atlantic halibut (Hippoglossus hippoglossus), and the Southern Georges Bank stock of silver hake (Merluccius bilinearis). Other stocks are in the process of being rebuilt from levels below the maximum sustainable yield, including the Gulf of Maine and Georges Bank stocks of Atlantic cod and haddock, the Cape Cod stock of yellowtail flounder, the Georges Bank stock of winter flounder, and the Gulf of Maine/Northern Georges Bank stock of silver hake (NMFS, 2002).
Stocks of another 12 North Atlantic species are under the jurisdiction of the Atlantic States Marine Fisheries Commission (ASMFC) and are not included in federal FMPs. These stocks and their status are given in Table X-3.
Offshore fisheries for crustaceans and molluscs, particularly American lobster (Homarus americanus) and sea scallop (Placopecten magellanicus), are among the most valuable fisheries in the Northeast (NMFS, 1999a). Surfclams (Spisula solidissima), ocean quahogs (Arctica islandica), squids (Loligo pealeii and Illex illecebrosus), northern shrimp (Pandalus borealis), and red crab (Chaceon quinquedens) also provide important invertebrate fisheries.
The Northeast lobster fishery is second in commercial value after the multispecies groundfish fishery. The most recent comprehensive stock assessment, completed in 1996, indicated that lobster fishing mortality rates for both inshore and offshore populations greatly exceed the levels needed to provide maximum yields (NMFS, 1999a). Lobster fishing mortality in the Gulf of Maine was almost double the overfishing level. Inshore from Cape Cod through Long Island Sound fishing mortality was three times the overfishing level.
2. Impingement and Entrainment Results
Table X-4 provides a list of impinged and entrained species for the North Atlantic region that EPA was able to evaluate at the time of the NODA. The life history data used in EPA's analysis and associated data sources are provided in “Appendix 1: Life History Parameter Values Used to Evaluate I & E in the North Atlantic Region.”
Sixteen of a total of 67 distinct species (24%) that are known to be impinged and entrained by facilities of the North Atlantic region are harvested species for which some stock assessment has been conducted. These include several stocks that are currently overfished, stocks that have been overfished and are rebuilding, or stocks that are approaching an overfished condition (Atlantic cod, haddock, silver hake, windowpane flounder, and winter flounder) and stocks for which stock size is uncertain (American lobster, spot, and tautog). Table X-5 summarizes the stock status of the 16 impinged and entrained species of the North Atlantic that are harvested. Note that status is uncertain for nearly half of the stocks listed.
At the outset, it should be noted that many of the species for which impingement and entrainment estimates are provided are presently at or near historic low levels of abundance. As a result, EPA's estimates of impingement and entrainment may reflect lower totals than would be produced by healthy populations. With ongoing fisheries management efforts by federal and state government and fisheries management councils designed to increase fish populations, impingement and entrainment numbers may increase in the future. For example, NMFS has spent approximately $150 million in the New England fishing vessel buy-back program to reduce fishing pressure on groundfish stocks. In addition, extensive fishing restrictions, habitat restoration projects, and other efforts are also being carried out to help rebuild groundfish stocks.
Table X-6 provides EPA's estimate of the annual age 1 equivalents, foregone fishery yield, and production foregone resulting from the impingement of aquatic species at facilities located on estuaries/tidal rivers in the North Atlantic Region. Table X-7 displays this information for entrainment. Table X-8 provides EPA's estimate of the annual age 1 equivalents, foregone fishery yield, and biological production foregone resulting from the impingement of aquatic species at ocean facilities in the North Atlantic Region.
Table X-9 displays this information for entrainment. In these tables, “total yield” includes direct losses of harvested species as well as the yield of harvested species that is lost due to losses of forage species. As discussed in detail in Chapter A5 of Part A of the section 316(b) Phase II Case Study Document, EPA used a simple model of trophic structure and trophic transfer efficiency to estimate the yield of harvested species that is lost because of the loss of forage to impingement and entrainment. The conversion of forage to yield contributes only a very small fraction to total yield.
As noted above, anglers will get greater satisfaction, and thus greater economic value, from sites where the catch rate is higher, all else being equal. Recreational fishery losses due to impingement and entrainment may reduce recreational catch rates and thus negatively impact angler welfare. To estimate welfare losses to recreational anglers in the North Atlantic region from impingement and entrainment at cooling water intake structures in North Atlantic, the Agency used a model developed by R. Hicks
To estimate per trip welfare losses to recreational anglers from impingement and entrainment in the North Atlantic region, the Agency combined the Hicks' model coefficients with the estimated impingement and entrainment losses at cooling water intake structures located in the North Atlantic and NMFS data on recreational landings. The Hicks' model includes three fishing modes—boat, shore, and charter boat—and five species groups—big game, small game, flatfish, bottom fish, and “no target catch”. The “no target catch” group includes all species caught by anglers not targeting any specific fish species. For details on species groupings, see Table 1.3 in the “The Economic value of New England and Mid-Atlantic Sportfishing in 1994” report provided in DCN 5-1271. EPA used Hicks' definition of species groups to estimate changes in the average historical catch rate from eliminating impingement and entrainment.
Table X-10 shows the total average recreational landings for each species group, the number of fish impinged and entrained, and the estimated percent change in recreational landings if impingement and entrainment effects are eliminated. Eliminating impingement and entrainment would increase flatfish catch rates by 12.5%; small game catch rates by 0.01%; bottom fish catch rates by 1.05%; and no target catch rates by 1.45%. Table X-10 also shows the reductions in impingement and entrainment losses that would result from installation of the preferred option at each facility in the North Atlantic region, as well as the resulting increases in catch rates. Reductions in baseline impingement and entrainment losses due to the preferred option will result in a 3.64% increase in catch rates for flounders; a 0.23% increase in bottom fish catch rate; and a 0.4% increase in catch rate for no target anglers.
Table X-11 presents the willingness to pay (WTP) values for anglers, regardless of fishing mode, for catching an additional fish per trip. Table X-11 also presents the estimated per trip welfare losses from the baseline impingement and entrainment levels at cooling water intake structures in the North Atlantic region, and the estimated welfare gain from the post-compliance impingement and entrainment reduction. The estimated per trip welfare losses from baseline impingement and entrainment at the cooling water intake structures are $0.34, $0.02, and $0.02 for flatfish, bottom fish, and no target catch, respectively (all in 2002$). Per trip welfare gains from the preferred option are $0.10, $0.005, and $0.004 for flatfish, bottom fish, and no target catch, respectively (all in 2002$). As shown in Table X-11, the greatest welfare gain from reducing impingement and entrainment losses at cooling water intake structures in the North Atlantic region results from improved opportunity for catching flatfish (
EPA combined these estimates of per trip welfare change with fishing participation estimates from NMFS to estimate the annual value to recreational anglers of improved catch rates resulting from post-compliance reductions in impingement and entrainment at cooling water intake structures in the North Atlantic. Table X-12 provides the total number of angler days in the North Atlantic.
EPA calculated total recreational losses to North Atlantic anglers by multiplying the estimated per trip welfare loss from baseline impingement and entrainment for a given species group by the number of recreational fishing trips in 2001. Table X-13 summarizes the results of this calculation. The total value of recreational losses for all species impinged and entrained at the cooling water intake structures in the North Atlantic is $3.1 million per year (2002$), for all anglers before discounting. Discounting the baseline losses at three percent and seven percent yields total recreational losses of $2.6 million, and $2.3 million, respectively, for all anglers (2002$). Table X-13 also presents estimates of the total welfare gain to recreational anglers from the post-compliance impingement and entrainment reduction. The estimated welfare gain from reduction in baseline losses resulting from the preferred option is $0.88 million, before discounting, for all anglers (2002$). Applying the discount factors for three and seven percent yield total losses of $0.76 million and $0.65 million, respectively (2002$).
Table X-14 provides EPA's estimate of the value of gross revenues lost in commercial fisheries resulting from the impingement of aquatic species in the North Atlantic region. Table X-15 displays this information for entrainment. As described above, EPA estimates that 0 to 40% of these revenue losses represent surplus losses to producers, assuming no change in prices or fishing costs. EPA will refine these assumptions for the final rule.
Table X-16 presents EPA's estimates of total baseline recreational and commercial fishing losses from impingement and entrainment at cooling water intake structures in the North Atlantic region. Total commercial and recreational fishing losses are $3.3 million per year for all species and fishing modes, before discounting. Discounting these total baseline welfare losses by three and seven percent yield total losses of $2.8 million and $2.4 million, respectively.
Table X-17 presents EPA's estimates of the gain from the post-compliance reduction in impingement and entrainment at cooling water intake structures in the North Atlantic region. The total reduction in commercial and recreational fishing is $ 0.96 million per year for all species and fishing modes, before discounting. Discounting these total reduced welfare losses by three and seven percent yields total losses of $0.83 million and $0.70 million, respectively. These numbers may change for final if additional impingement and entrainment data become available.
The Northern California NMFS region extends from Point Conception north to the Oregon border. The oceanic transition zone off Point Conception creates a natural ecological separation between northern and southern California. North of Point Conception, coastal waters are cold and oceanic conditions are harsh, whereas to the south waters are warmer and conditions are moderate. As a result, the fish species composition differs between the two regions (Leet
There are 83 species of groundfish included under PFMC's Groundfish FMP, including nearly 50 species of rockfish (Sebastes spp.) (Table 3 in NMFS, 2002). Pacific whiting (Merluccius productus) dominates the commercial catch, accounting for 78% of Pacific Coast landings (NMFS, 1999a). During the 1990's a major fishery developed for nearshore species, including rockfishes, cabezon, and sheephead (Leet
There are five species of anadromous Pacific salmon supporting coastal and freshwater commercial and recreational fisheries along the Pacific Coast, including chinook (Oncorhynchus tshawytscha), coho (O. kisutch), sockeye (O. nerka), pink (O. gorbuscha), and chum (O. keta) salmon (NMFS, 1999a).
Since 1991, NMFS has listed 20 Evolutionary Significant Units (ESU's)
Ocean fisheries for chinook and coho salmon are managed by the PFMC under the Pacific Coast Salmon FMP. In Puget Sound and the Columbia River, chinook and coho fisheries are managed by the states and tribal fishery agencies. Declines in chinook and coho salmon coast-wide have led to reductions and closures of ocean fisheries in recent years (NMFS, 1999a).
The Pacific Salmon FMP contains no fishery management objectives for sockeye, chum, even-year pink, and steelhead stocks because fishery impacts are considered inconsequential (Table 3 in NMFS, 2002). Pink, chum, and sockeye salmon are managed jointly by the Pacific Salmon Commission, Washington state, and tribal agencies (NMFS, 1999a).
Pacific Coast pelagic species managed by the PFMC include Pacific mackerel (Scomber japonicus), jack mackerel (Trachurus symmetricus), Pacific sardine (Sardinops sagax), northern anchovy (Engraulis mordax), and California market squid (Loligo opalescens) (NMFS, 2002). These species typically fluctuate widely in abundance, and currently most stocks are low relative to historical levels (NMFS, 1999a). Pacific mackerel and Pacific sardine are not overfished, but the stock size of the other species governed by the Coastal Pelagic FMP is unknown (Table 3 in NMFS, 2002). Due to increases in abundance in recent years, Pacific mackerel now accounts for over half of recent landings of Pacific Coast pelagic species (NMFS, 1999a).
Pacific Coast shellfish resources are important both commercially and recreationally (NMFS, 1999a). Shrimps, crabs, abalones, and clams command high prices and contribute substantially to the value of Pacific Coast fisheries, even though landings are small.
Table X-18 provides a list of impingement and entrainment species in the Northern California region and the species groups that were evaluated in EPA's analysis of regional impingement and entrainment. The life history data used in EPA's analysis and associated data sources are provided in “Appendix 2: Life History Parameter Values Used to Evaluate I & E in the Northern California Region.”
Available impingement and entrainment data indicate that 20 of a total of 92 distinct species that are impinged and entrained by northern California facilities are harvested species subject to FMP's developed by the PFMC. Table X-19 summarizes information on the stock status of these species. Note that stock status is known for only 4 of these species. Most of the species listed are rockfish species. Northern anchovy falls under the
Table X-20 provides EPA's estimate of the annual age 1 equivalents, foregone fishery yield, and production foregone resulting from the impingement of aquatic species at facilities located on estuaries/tidal rivers in the Northern California Region. Table X-21 displays this information for entrainment. Table X-22 provides EPA's estimate of the annual age 1 equivalents, foregone fishery yield, and production foregone resulting from the impingement of aquatic species at ocean facilities in the Northern California Region. Table X-23 displays this information for entrainment.
This notice presents results for the Northern California regional analysis, including benefits calculations for this region. Details of the Northern California study are presented in DCN 5-1009. As noted above, the Northern California region is defined based on NMFS regional boundaries. Northern California includes all northern counties to, and including, San Luis Obispo County. EPA included anglers and sites from the counties on each regional border in the model, to allow anglers to travel to substitute sites in the bordering region. For example, EPA added Santa Barbara County from the Southern California region to allow anglers from Northern California to travel to all substitute sites located within a one day travel distance limit.
The Northern California model focuses on the following species and species groups: salmon, sturgeon, flounders, small game fish, big game fish, bottom fish, and other species. The flounder category includes flounders and halibut; the small game group includes striped bass and small tuna and mackerel; the big game category includes large tuna, sharks, marlin, and dolphin fish; the bottom fish category includes greenlings, sculpins, surfperches, croakers, rockfishes and other bottom species; and the other species category includes only anchovies, smelts, silversides and herrings. Approximately 20 percent of anglers fishing from boats and 47 percent of anglers fishing from shore target no particular species. These anglers (hereafter, no-target anglers) caught fish in all species groups. Therefore, EPA used average catch rates for all species caught by no-target anglers to define fishing site quality for no-target anglers.
The methodology used in the Northern California study follows closely that of McConnell and Strand (1994) and Hicks (1999) work for NMFS. EPA maintained most important aspects of the methodologies used in the previous recreational NMFS studies. The Agency, however, estimated separate models for boat and shore anglers for the Northern California region. The Agency attempted to estimate a nested RUM model for Northern California, including both boat and shore anglers. However, preliminary model results indicated that nesting was not appropriate for the data. The Agency did not estimate a model for the charter boat mode for the NODA, however, because charter boat trips represent only thirteen percent of the total angling trips in this region. For the NODA analysis, the welfare gain from improved catch rates to charter boat anglers is approximated based on the regression coefficients developed for boat anglers.
The Agency combined the estimated model coefficients with the estimated impingement and entrainment losses at the cooling water intake structures in the Northern California Region to estimate per trip welfare losses from impingement and entrainment. Table X-24 shows the total average recreational landings for each species group, the number of fish impinged and entrained, and the estimated percent change in recreational landings from impingement and entrainment elimination. Eliminating impingement and entrainment is expected to increase flounders catch rates by 0.58%; small game catch rates by 56.02%; bottom fish catch rates by 6.6%; and other species catch rates by 5.5%.
Table X-25 shows the impingement and entrainment reductions that would result from installation of the preferred option at each facility in Northern California, as well as the resulting increases in catch rates. The preferred option will result in a 0.32% reduction in impingement and entrainment losses for flounders; a 14.9% reduction in losses for small game fish; a 5% reduction in losses for bottom fish; and a 4.4% reduction in losses for other species.
The willingness to pay values for boat and shore anglers for an additional fish per trip, and for the expected benefits from reducing impingement and entrainment at cooling water intake structures in the Northern California region are shown in Table X-26. Table X-26 shows that boat anglers value most highly the improvements in catch rates for sturgeon and salmon, followed by flounder and big game fish. Boat and shore anglers show a few notable differences in values. For example, the value for flounders is higher for boat anglers. This can be explained by the fact that most boat anglers target and catch halibut, a larger species; most shore anglers catch the smaller flounders. The value for flounders is also higher for boat anglers. This can be explained by the fact that most boat anglers target and catch halibut, a larger species; most shore anglers catch the smaller flounders.
As shown in Table X-26, the estimated welfare gains from impingement and entrainment reduction are $0.02, $0.32, and $0.24 per trip for boat anglers targeting flounders, small game and bottom fish, respectively; and $0.01, $0.96, $0.08, and $0.46 per trip for shore anglers targeting flounders, small game, bottom fish and other specie, respectively (all in 2002$). Anglers targeting small game are expected to experience the greatest welfare gain from reducing impingement and entrainment at cooling water intake structures in Northern California.
EPA then combined the estimated per trip welfare gain from eliminating impingement and entrainment at Northern California cooling water intake structures with NMFS fishing participation estimates to estimate the annual value to recreational anglers of improved catch rates resulting from reduced impingement and entrainment in the Northern California region. Table X-27 provides the total number of angler days in Northern California by fishing mode and targeted species.
EPA calculated total baseline recreational losses to Northern California anglers by multiplying the estimated per trip welfare gain from impingement and entrainment elimination for a given species group by the relevant number of recreational fishing trips in 2001. Similarly, EPA calculated the total gains resulting from the preferred technology. Table X-28 summarizes results of these calculations. The total value of baseline recreational losses for all species impinged and entrained is $1,432,645 per year (2002$), for boat, shore, and charter anglers. The total annual value of reduced recreational losses with the preferred option is $790,560 per year (2002$), for boat, shore, and charter anglers. Table X-28 also presents the discounted values, using EPA's preferred 3% discount rate and OMB's 7% discount rate.
Table X-29 provides EPA's estimate of the value of gross revenues lost in commercial fisheries resulting from the impingement of aquatic species in the Northern California region. Table X-30 displays this information for entrainment. As described above, EPA estimates that 0 to 40% of these revenue losses represent surplus losses to producers, assuming no change in prices or fishing costs. EPA will refine these assumptions for the final rule.
Table X-31 presents EPA's estimates of total baseline welfare losses from impingement and entrainment at cooling water intake structures in the Northern California region. Total commercial and recreational fishing losses are 1.5 million per year for all species and fishing modes, before discounting. Discounting these total baseline welfare losses by 3% and 7% yields total losses of $1.3 million and $1.1 million, respectively.
Table X-32 presents EPA's estimates of total welfare gain from post-compliance impingement and entrainment reduction at cooling water intake structures in the Northern California region. Total commercial and recreational fishing gains are $0.85 million per year for all species and fishing modes, before discounting. Discounting the estimated welfare gain by 3% and 7% yields total losses of $0.71 million and $0.64 million, respectively.
Reducing impingement and entrainment losses of fish and shellfish results in both use and nonuse benefits. Impingement and entrainment losses to commercial and recreational fish that are harvested by fishermen can be valued as direct use benefits. Methodologies for estimating use values for recreational and commercial species are well developed, and some of these species have been extensively studied. As a result, these values are relatively easy to estimate. The portion of impingement and entrainment losses consisting of fish that are recreationally and commercially landed, however, represented only approximately 0.15 percent of the total age one equivalent impingement and entrainment losses at five estuary/tidal river and ocean case study facilities evaluated for the section 316(b) Phase II proposal (See Appendix 4 of Estimating Total and Nonuse Values for Fish, Based on Habitat Values for Coastal Wetlands and Eelgrass (SAV) DCN 5-1010.)
• Unharvested recreational and commercial fish represent 0.77 percent of the total age one equivalent impingement and entrainment losses,
• Forage fish represent 99.08 percent of the total age one equivalent loss.
Neither forage species nor the unlanded portion of recreational and commercial species have direct uses; therefore, they do not have direct use values. The lack of use values for the unlanded fish means that EPA did not directly value approximately 99.85 percent of the total age one equivalent impingement and entrainment losses at the five cooling water intake structures discussed above.
Given that aquatic species without any direct uses account for the majority of cooling water intake structure losses, it is important to try to account for nonuse values in the benefits analysis. Stated preference methods, or benefit transfers based on stated preference studies, are the only generally accepted techniques for estimating nonuse values. Stated preference methods rely on surveys, which ask people to state their willingness to pay for particular ecological improvements, such as increased protection of aquatic species or habitats with particular attributes. Benefits transfer involves adapting research conducted for another purpose, from the available literature, to address the policy questions at hand. It is not feasible to conduct a primary stated-preference study for the section 316(b) rule, because of the regulatory schedule and the time and significant resources
For the proposed rule analysis, EPA used a “50 percent” rule to estimate nonuse benefits from reducing impingement and entrainment losses (see the proposed rule Case Study Analysis for detail, available at
In response to public comments, EPA has developed a revised analysis of nonuse benefits and is requesting comment in the NODA on this revised methodology. First, the Agency developed a benefit transfer approach that combines an estimate of the amount of habitat required to offset impingement and entrainment losses (including forage species and the unlanded portion of commercial and recreational species) by means of wild fish production with a benefits transfer estimate of WTP for aquatic habitat preservation/restoration. The following section briefly summarizes this approach. Second, EPA reviewed available evidence concerning total benefits (including use and nonuse values) from the surface water valuation studies that are potentially applicable to the section 316(b) regulation. Section E.2 below discusses EPA's review of these studies and outlines further steps in analyzing nonuse and use benefits from available economic literature.
The methodology used in this analysis uses values that survey respondents indicated for preservation/restoration of eelgrass (submerged aquatic vegetation, SAV), and wetlands to evaluate losses of fishery resources. Because one of the results of aquatic habitat preservation/restoration is increased production of fish and shellfish, it may be appropriate to use valuation of habitat restoration as a proxy for the value of the fish and shellfish lost due to impingement and entrainment. The method used by EPA in this NODA for such indirect valuation first assesses respondents' values for habitats that play a significant role in the production of fish or shellfish, and then estimates the quantity of such habitat required to replace fish and shellfish lost to impingement and entrainment. These data are then combined to yield an indirect estimate of household values for fish and shellfish. Survey respondents were asked to value acres of habitat (
EPA's approach to estimating values for fish and shellfish habitats needed to offset impingement and entrainment losses of fish involves three general steps:
• Estimate the amount of wetland and eelgrass habitat needed to produce organisms to the level necessary to offset impingement and entrainment losses for the subset of species for which production information is available;
• Develop willingness to pay (WTP) values for the fish production services of the relevant habitat types; and
• Estimate the value of impingement and entrainment losses, based on values for the restored habitat required to offset impingement and entrainment losses, by multiplying the WTP values for the fish and shellfish production services per acre of restored eelgrass and wetland habitat by the required number of restored acres of each habitat type.
The Agency solicits comments on whether this approach provides a more comprehensive value that addresses all impingement and entrainment losses.
The following NODA sections briefly summarize this benefits transfer approach and its application to estimating the value of the fish habitat required to offset impingement and entrainment losses in the North Atlantic Region. Additional detail on the methods and data EPA will use throughout this analysis are provided in “Estimating Total and Nonuse Values for Fish, Based on Habitat Values for Coastal Wetlands and Eelgrass” (DCN 5-1010) that accompanies this NODA.
The first step in the analysis involves calculating the area of SAV or wetland habitat needed to offset impingement and entrainment losses, for the subset of species for which restoration of these habitats was identified by local experts as the preferred restoration alternative, and for which production information is available;
Table X-33 presents lower and upper bound estimates of the total wetland and SAV restoration required to offset North Atlantic impingement and entrainment. These estimates reflect the acreage needed for the species requiring the maximum quantity of habitat restoration to offset its impingement and entrainment losses. The amount of tidal wetland restoration in the North Atlantic region is based on the acreage required for winter flounder. The lower bound estimate is winter flounder restoration estimate derived for Brayton Point and the upper bound estimate is the estimate for Pilgrim. The lower bound estimate for regional SAV restoration is based on the acreage needed for northern pipefish at Pilgrim and the upper bound estimate is based on the acreage needed for scup at Brayton Point.
These estimates are derived from abundance data for these species in wetland and SAV habitats. Abundance data were used because estimates of production rates in these habitats are not available for the species of interest. Individuals were counted within subsampling areas of the habitats (
For the North Atlantic Region, EPA based the benefit transfer of both total and nonuse values for fish habitat provided by eelgrass and wetlands on a site-specific study of the Peconic Estuary, located on the East End of Long Island, New York (Johnston
Both eelgrass and wetlands located in the Peconic Estuary support aquatic species that are found throughout the North Atlantic region and that are likely to be affected by impingement and entrainment (
EPA re-estimated the Peconic model with separate coefficients for users and nonusers of fishery resources in order to separate out nonuse values. The Agency defined users as those who stated that they either fish or shellfish. These individuals have both nonuse and indirect use values from the fish habitat services of eelgrass and wetlands. EPA estimated nonuse values only for those who do not fish or shellfish.
Because coastal wetlands provide a number of services (
Briefly, the Johnston
The Peconic survey described eelgrass specifically as fish and shellfish habitat. EPA is not aware of other direct uses of eelgrass. Based on focus groups during survey development and pretesting, the authors concluded that individuals were aware of eelgrass and its importance for fish and shellfish production. Thus, EPA assigned all of the estimated WTP for SAV restoration to fish and shellfish production services. Based on these same focus groups and pretests the authors also concluded that, individuals were aware of and valued a number of functions of wetlands, including fish and other wildlife habitat, storm buffering, and aesthetics. Therefore, EPA assigned only a portion of the estimated WTP for wetlands restoration to fish habitat services, based on results from the Johnston
EPA estimated the value of saltwater wetlands associated with fish and shellfish habitat services by multiplying the proportions presented above by the total wetland values from the Peconic Estuary study. Table X-35 presents the final per household values for an acre of wetlands that were ascribed to fish and shellfish habitat services. Because the overall values of Peconic Estuary residents for eelgrass and wetlands are similar, once adjustments are made to wetlands values to ascribe a portion to fish habitat services, the values for fish and shellfish habitat of eelgrass are estimated as four times higher than those for fish habitat only for wetlands. EPA requests comments on whether such adjustments are appropriate and whether further adjustments are needed for eelgrass values.
The SAV and wetland values from the Peconic study presented in Table X-34 and Table X-35 are per household values for individuals residing in towns bordering the Peconic Estuary. Estimating the total value per acre of SAV and wetlands requires defining and using the affected population for the study area. The Peconic study defined the affected population as the total number of households (both year-round and seasonal) in the towns bordering the Peconic Estuary. Similarly, EPA defines the affected population as households residing in the counties that abut the water bodies in the North Atlantic Region. These households are likely to value gains of fish or shellfish in the nearby water body due to their close proximity to the affected resource.
Analysis of data from the Rhode Island Salt Marsh Restoration Survey (Johnston
Additionally, EPA notes that a study by Pate and Loomis (1997) found that respondents outside the political jurisdiction in which a study site is located were also willing to ascribe stated preference values to the amenity being studied. The study was designed to determine the effect of distance on WTP for public goods with large nonuse values. Specifically, the study evaluated environmental programs designed to improve wetlands habitat and wildlife in the San Joaquin Valley. It compared WTP values for households residing in the San Joaquin Valley, California, to values for California households outside the Valley, and to households in Washington State, Oregon, and Nevada. The study found that WTP values for California residents outside the Valley were 97.7 percent of the WTP of the Valley residents. WTP values for Oregon residents were approximately 27 percent of the WTP of the Valley residents. As with the Rhode Island study, care should be taken in interpreting these results.
In this analysis, EPA calculated per acre WTP values using two different definitions of affected populations: (1) The average number of households residing in counties abutting the affected water body and (2) the average number of households living within the 32.4 mile radius of each affected water body in the region. Average per acre values for SAV and wetlands were calculated based on these estimates of the average affected population for each facility. The average number of affected households in counties abutting affected water bodies is 210,357 and the average number of households within a 32.4 mile radius of each facility is 737,711. Detailed information used in calculating the average number of affected households in counties abutting affected water bodies and the average number of households within a 32.4 mile radius of each facility is provided in DCN 5-1008.
Table X-36 presents an average value per acre per year for restored SAV for households in the counties abutting the affected water bodies and for households within the larger radius (32.4 miles), for the North Atlantic Region. The total annual value per acre for eelgrass (SAV) for households living in counties abutting the region's affected water bodies is $13,341 for all residents; and the total nonuse only value is $10,993. The table also shows two estimates of the values for households living within the larger area. EPA calculated these values based on the findings of Pate and Loomis (1997), as shown below. EPA assigned the value per household from the Peconic study to the average number of households residing in the counties abutting the affected water bodies in the North Atlantic Region (210,357 households). For households beyond these coastal counties (an additional 527,354 households), EPA multiplied the Peconic values by 97.7 percent and 27 percent to provide a range of WTP values.
Table X-37 presents the values per acre per year for the fish and shellfish habitat services of wetlands for the total affected population for the regional study area. For the counties abutting the affected water bodies, the total annual value per acre for fish habitat services provided by wetlands is $3,017 for all households, whereas the total nonuse only value is $2,891. For the larger area, the total annual value per acre for fish habitat services provided by wetlands ranges from $5,059 to $10,390 for all households, whereas the total nonuse only value ranges from $4,848 to $9,958.
The table also shows the corresponding values if the estimated WTP share for “shellfish production services” rather than the WTP for “fish production services” is used.
EPA multiplied the estimated number of acres of SAV and wetlands needed to offset impingement and entrainment losses for the North Atlantic region by the estimated per acre values of SAV and wetlands to assess the value of baseline impingement and entrainment losses. As discussed above, EPA performed this analysis on the SAV—and wetlands-dependent species requiring the maximum restoration acres among these for which productivity estimates are available.
Table X-38 presents the estimated values for SAV restoration for the North Atlantic Region. EPA estimated that between 151 and 1,204 acres of revegetated SAV (eelgrass) is required to offset average annual impingement and entrainment losses of scup and northern pipefish, depending on whether Brayton Point or Pilgrim is used for the productivity estimates. Based on the estimated value per acre to residents of counties abutting the affected water bodies, the total value of restoring 151 acres of eelgrass is $2,014,450. Nonuse only value is $1,659,930. The estimated total value to all households residing within 32.43 miles from the affected water bodies, ranges from $3,377,982 to $6,938,316 per year. Nonuse only value ranges from $2,783,496 to $5,717,253. Figures are given in 2002 dollars.
Table X-39 presents the estimated values for wetlands restoration for the North Atlantic Region. EPA estimated that between 25,589 and 43,813 acres of restored tidal wetlands is required to offset average annual impingement and entrainment losses to winter flounder. Based on the estimated value per acre to residents of counties abutting affected water bodies, the total value of restoring 25,589 acres of coastal wetlands (after adjusting for the estimated portion attributable to fish production services) is $77 million per year, whereas nonuse only value is $74 million. For all households residing within 32.43 miles of affected water bodies, the total value of restoring 25,589 acres of coastal wetlands ranges from $129 million to $266 million per year, whereas the nonuse only value ranges from $124 million to $254 million for fish habitat only. Figures are given in 2002 dollars.
Based on the estimated value per acre to residents of counties abutting affected water bodies, the total value of restoring 43,813 acres of coastal wetlands is $132 million per year, whereas nonuse only value is $127 million, adjusted to fish production services only. For all households residing within 32.43 miles of affected water bodies, the total value of restoring 43,813 acres of coastal wetlands ranges from $222 to $455 million per year, whereas the nonuse only value ranges from $212 to $436 million, adjusted to fish production services only. Figures are given in 2002 dollars. This analysis does not include fish or shellfish losses caused by thermal discharges which are covered under section 316(a).
EPA estimated the total WTP value for the amount of habitat required to offset baseline impingement and entrainment losses in the North Atlantic region by adding the SAV and wetland values presented in Table X-38 and Table X-39. Based on the estimated value per acre to residents of counties abutting the affected water bodies, the total value of habitat required to offset impingement and entrainment losses in the North Atlantic region ranges from $79 million to $511 million per year, whereas nonuse only value ranges from $76 million to $482 million.
The values in Table X-39 do not account for all species lost to impingement and entrainment in the North Atlantic Region (
Table X-40 shows the percent reduction in impingement and entrainment losses for each of the affected species included in this analysis. The preferred option is expected to reduce impingement and entrainment losses by 18.4 to 23.8 percent, depending on species. EPA applied the percent reduction for the species that determined the number of acres of restoration required. For tidal wetlands, winter flounder required the largest number of acres of restoration. Accordingly, EPA used the 18.73% reduction in impingement and entrainment for winter flounder to calculate the benefits of the preferred technology. Similarly, EPA used the 18.97% reduction for northern pipefish to estimate benefits of the lower bound estimate of SAV restoration, and the 23.75% reduction for scup to estimate upper bound benefits for SAV.
Table X-41 gives the range of WTP values for the preferred option for the North Atlantic region. Summing the values for wetlands and SAV restoration, the total benefits of the preferred option for the six species identified above range from $15 to $98 million (2002$). Nonuse value only ranges from $14 to $92 million (2002$).
Another way of presenting these results is to calculate the implied per household WTP for households residing in the two different definitions of the study area. Table X-42 presents results of these calculations. A total of 3.65 million households live in the counties abutting affected water bodies while 4.2 million households live within a 32.4 mile radius of affected water bodies. This implies a total WTP to eliminate all I&E losses of $21.70 to $40.62 and non-use WTP of $20.73 to $33.97 per household residing in the counties abutting affected water bodies.
If a 32.4 mile radius is used in these calculations, the implied WTP values to reduce all I&E losses range from $31.62 to $121.57 and non-use WTP range $29.92 to $113.68 per household residing in the 32.4 mile-radius area. All values are given in 2002$.
This calculation implies a total WTP to reduce impingement and entrainment losses of $4.07 to $7.83 and non-use WTP of $3.44 to $6.52 per household residing in the counties abutting affected water bodies. If a 32.4 mile radius is used in these calculations, the implied WTP values to reduce all I&E losses range from $5.63 to $23.43 and non-use WTP range from $5.61 to $21.83 per household residing in the 32.4 mile-radius area. All values are provided in 2002$.
In addition to the nonuse valuation approach summarized in the preceding sections, EPA is also exploring and soliciting comment on alternative methodologies for estimating nonuse benefits for the Final rule.
In response to public comments regarding the analysis of non-use values in the proposed rule, the Agency continues to review and summarize surface water valuation studies that estimate non-use and total use values for water resources. The purpose of this review is to report on the range of nonuse values for water resources in the economic literature, to compare estimates of use and nonuse values for users and nonusers, and explore the feasibility of deriving nonuse values based on these comparisons.
Based on comments received, EPA is re-evaluating past studies and their applicability to this rule. These studies summarized and compared nonuse and use values (
EPA is also identifying a set of new studies that may contain information about the relative magnitude of use and nonuse values for aquatic resources affected by this rule. As of the publication of this NODA, EPA is reviewing 18 surface water valuation studies that meet a set of criteria for suitability and reliability (
These 18 valuation studies provide 27 observations of use and non-use values associated with various aquatic habitat improvements, because six studies generated more than one nonuse value estimate. A list of the studies being considered by EPA is provided in Table X-43; Appendix A in the document “Comparison of Nonuse and Use Values from Surface Water Valuation Studies” (See DCN 5-1011)” that accompanies this NODA presents key information from each study compiled by EPA.
The Agency is considering applying the results of this type of review and analysis to estimate nonuse value for aquatic resources potentially affected by impingement and entrainment for the final rule analysis, and recognizes that this approach requires careful accounting of factors that are likely to affect nonuse values of aquatic resources such as the geographic scale of environmental improvements, regional or national importance of the affected resources, and the magnitude of environmental quality changes. The Agency seeks comment on this general approach as well as the applicability and feasibility of estimating nonuse values that are based on (1) a percent or fraction of use values per household (see Section X B 4 of this preamble for summary of methods for assessing recreational use values) and/or (2) specific user and nonuser populations for this rule. The agency also solicits feedback about the studies reviewed by EPA as well as other studies that might be suitable.
In addition to simply reviewing available information about the relative magnitudes of nonuse and use values, EPA is also considering regression-based meta-analysis of nonuse WTP for water resources. Depending on the suitability of available data, a meta-analysis can provide information on the relative influence of various study, economic, and natural resource characteristics on nonuse willingness to pay. Economic literature characterize meta analysis as a rigorous alternative to the more casual, narrative discussion of research studies which typify many attempts to summarize available information about environmental values. The primary advantage of a regression-based approach is that it may account for differences among study sites that may contribute to changes in nonuse values, to the extent permitted by available data. The following discussion briefly summarizes EPA's approach to this analysis. DCN 5-1011 provides further detail.
The dependent variable in the regression-based meta-analysis may be either the estimated nonuse value or the total value (including use and nonuse value) of aquatic habitat improvements. The total value can be modeled as a function of explanatory variables that include (1) core economic variables and (2) study design effects variables. The core economic variables are used to characterize specifics of the resource(s) valued (
EPA also notes potential limitations of this approach. Limitations of the regression analysis approach specifically stem from the number of studies that meet criteria for inclusion, the number of variables that could be included in the regression analysis (which depends on the number of and information available from the original studies), as well as degrees of freedom and statistical significance. For example, study differences often prevent the use of a single measure of the degree of environmental quality improvements. Prior meta-analyses of this type, including Woodward and Wui (2000) and Poe
EPA seeks comments on appropriateness of the meta-analysis approach for calculating nonuse values for aquatic habitat improvements associated with reduced impingement and entrainment in this rule.
This section presents EPA's estimates of the total monetary value of the baseline impingement and entrainment losses at cooling water intake structures located in the North Atlantic and Northern California study regions. A comprehensive estimate of the value of the resource should include both use
Table X-44 presents EPA's estimates of the total value of baseline impingement and entrainment losses at cooling water intake structures in the North Atlantic region. The estimated nonuse value of fishery resources lost to impingement and entrainment ranges from $75.64 million to $139.92 million per year (2002$). Note that EPA has provided two different estimates of total value in Table X-44. The first total value is the sum of aggregate use value and the nonuse component of restoration-based value. The second total value (
Table X-45 presents the total annual costs of the preferred regulatory option for the North Atlantic region. The estimated pre-tax cost for facilities located on estuaries or tidal rivers is $17.58 million and, for ocean-located facilities, $0.57 million. The total annual cost is $18.15 million.
Table X-46 presents EPA's estimates of the total benefits from impingement and entrainment reduction in the North Atlantic region under the preferred option. The estimated impingement and entrainment reduction benefits under the preferred option range from $14.84 to $28.57 million per year (2002$).
Combining the estimated cost and benefit values, the estimated net benefits of installing the preferred option range from negative $3.31 million to positive $10.42 million (2002$).
Table X-47 presents EPA's estimates of the monetary value of baseline impingement and entrainment losses at cooling water intake structures in the Northern California region. As noted above, EPA did not estimate nonuse values of impingement and entrainment losses for the Northern California region analysis; data aren't available to support use of the restoration-based approach for the North California region. The estimated use value of fishery resources lost to impingement and entrainment in the Northern California region ranges from $1.1 million to $1.49 million per year (2002$).
Table X-48 presents the total annual costs of the preferred regulatory option for the Northern California region. The estimated pre-tax cost for facilities located on estuaries or tidal rivers is $6.6 million and, for ocean-located facilities, $13.5 million. The total annualized cost is $20.1 million.
Table X-49 presents EPA's estimates of the total use benefits from impingement and entrainment reduction at cooling water intake structures in the Northern California region under the preferred option. The estimated use benefits of impingement and entrainment reduction under the preferred option range from $0.62 to $0.81 million per year (2002$), depending on the factor for discounting the use value of lost resources. EPA did not estimate net benefits in CA due to the lack of information on nonuse.
Estimating nonuse values is an extremely challenging and uncertain exercise, particularly when primary research using stated preference methods is not a feasible option (as is the case for this rulemaking). In the preceding section, EPA described possible alternative approaches for developing nonuse benefit estimates based on benefits transfer and associated methods. Due to the uncertainties of providing estimates of the magnitude of nonuse values associated with the regulation, this section provides an alternative context with which to consider the potential magnitude of nonuse values. The approach used here applies a “break-even” analysis to identify what nonuse values would have to be in order for the proposed option to have benefits that are equal to costs.
The break-even approach uses EPA's estimated commercial and recreational use benefits for the rule and subtracts them from the estimated annual costs. The resulting “net cost” enables one to work backwards to estimate what nonuse values would need to be (in terms of willingness to pay per household per year) in order for total annual benefits to equal annualized costs. Table X-50 provides such an assessment for the marine resources impacted in the two regions for which commercial and recreational benefit estimates are available to date. The table shows the values using a seven percent discount rate.
As shown in Table X-50, nonuse values per household for the affected marine resources in the region would have to amount to at least $4.78 per year to residents in the North Atlantic region—if assuming that only households in abutting counties have nonuse values for the affected marine resources—in order for the proposed option to have total benefits (annual use plus nonuse values) that would equal or exceed the estimated annual compliance costs for the proposed option. For households within 32.4 miles of the impacted resources, nonuse values would have to equal $4.15 per year to have total benefits equal the costs of the proposed option. If nonuse values are considered for all households in the coastal states of the region (CT, ME, MA, NH, and RI), then the break-even nonuse value would need to be only $3.39 per household.
For the Northern California region, the “break-even” nonuse willingness to pay (WTP) per household would need to be $8.18, based solely on households in coast-abutting counties only. For households within 32.4 miles of the impacted resources, nonuse values would have to equal $7.78 per year to have total benefits equal the costs of the proposed option. This level of break-even nonuse value would decline to $3.90 if all households in the northern part of California are considered, and declines further to $1.69 per household per year if the costs are spread over all households statewide.
While this approach of backing out the “breakeven” nonuse value per household does not directly answer the question of what nonuse values might actually be worth for the 316b rulemaking, these results do frame the question with a useful perspective that appeals to common sense and facilitates policy-making decisions. The break-even approach poses the question: “are the implicit non-use WTP estimates per household at plausible levels, given empirical evidence available from the existing body of empirical research?”. EPA requests comment on whether these values are plausible as an average across all households in the target area, and data or research that addresses this question.
EPA received a number of comments on the definition and methods associated with the calculation baseline during the comment period for the proposed Phase II rule. This calculation baseline sets a hypothetical baseline against which compliance with the proposed technology-based performance standards in § 125.94 is determined (see 67 FR 17176). The calculation provides facilities a consistent basis for determining compliance and allows them to take credit for fish protection technologies already in place at their facility. EPA proposed in § 125.93 (see 67 FR 17221) that the “
• Baseline cooling water intake structure is located at, and the screen face is parallel to, the shoreline. EPA is considering that it may be appropriate to allow credit in reducing impingement mortality from screen configurations that employ angling of the screen face and currents to guide organisms away from the structure before they are impinged.
• Baseline cooling water intake structure opening is located at or near the surface of the source waterbody. This may be appropriate to allow credit in reducing impingement mortality or entrainment due to placement of the opening in the water column.
• Baseline cooling water intake structure has a traveling screen with the standard
• Baseline practices and procedures are those that the facility would maintain in the absence of any operational controls implemented in whole or in part for the purpose of reducing impingement mortality and entrainment. This would recognize and provide credit for any operational measures, including flow or velocity
If all of the above specifications are determined to be appropriate for the baseline cooling water intake structure that is used to determine the calculation baseline, EPA would modify the regulatory definition at proposed § 125.93 to read as follows:
EPA also considered whether basing the calculation baseline on a shoreline intake would penalize facilities with constructed waterways such as intake canals or intake bays, if these configurations had a higher potential for impingement and entrainment than a “shoreline” intake located on the open waterbody. Basing calculations on this hypothetical open waterbody intake could potentially result in such facilities having to reduce impingement and entrainment by more than the specified performance ranges. This is not EPA's intent. Rather, facilities should demonstrate they have (or will) reduce impingement mortality or entrainment by the percentages established in the proposed performance ranges when compared to an intake at which no measures have been taken to reduce impingement mortality and entrainment. In the case of an intake located on the “shoreline” of an intake canal or intake bay, EPA would consider the intake's location on the constructed waterway to be the shoreline for purposes of the calculation baseline.
EPA solicits comment on these design specifications for inclusion or exclusion in the definition of the calculation baseline. In particular, EPA is interested in whether it would be redundant to include all of the hypothetical design criteria. EPA requests comments on any other design criteria that may be appropriate to set a consistent and reproducible baseline upon which to determine compliance with the proposed performance standards. EPA also requests comment on whether these design criteria will provide the intended credit in the compliance analyses to those facilities which have implemented technologies or operational measures that reduce impingement mortality and/or entrainment, without creating unintended consequences such as the opportunity to seek credit for hypothetical “reductions” from unreasonable claims regarding baseline operational measures.
One commenter suggested that determination of the calculation baseline for entrainment be supplemented with an optional alternative, “As Built” approach. Under this approach, a facility would determine the baseline for calculating entrainment reduction by either: (1) Using actual historical measurements of entrained organisms before installation of the new intake technology; or (2) sampling immediately in front of the new technology and enumerating organisms of a size that will pass through a standard
Potential benefits cited for using this alternative “As Built” approach for estimating compliance with performance included that (1) the facility would demonstrate entrainment reductions directly in an easily verifiable manner that does not rely on hypothetical calculations; (2) facilities could install new technologies sooner than they would under the other calculation baseline approach, because pre-deployment studies would not be necessary; and (3) the baseline numbers would be actual samples of entrained or entrainable organisms. EPA requests comments on providing this approach as an optional alternative for determining the calculation baseline for entrainment.
It should be noted that the commenter states that the “As Built ” approach for determining the calculation baseline would not be appropriate for impingement as it is highly species-specific and life-stage specific with no reliable way to measure “impingeable” organisms outside of the cooling water intake structure. The commenter suggests that to determine the calculation baseline for impingement mortality the only valid approach would be to collect samples before the new intake technology is deployed so that the baseline impingement (pre-deployment) can be compared to the post-deployment impingement to estimate the percent reduction in impingement mortality attributable to the technology. EPA requests additional comment on the applicability of an “As Built” approach to estimate the calculation baseline for impingement mortality.
The proposed Phase II preamble language (see 67 FR 17176) stated that the calculation baseline could be estimated by evaluating existing data from a nearby facility. Some commenters requested that the calculation baseline be allowed to be estimated using data from facilities that are not located nearby or that are located on another waterbody as long as the two facilities had closely comparable environmental conditions including similar locations and similar species that would be impinged and entrained. These same commenters also requested that the proposed rule retain flexibility for the facility in choosing the location of the hypothetical shoreline intake as long as the location is one where an intake might have been placed in the exercise of sound engineering judgment, without regard for fish protection. Another commenter stated that assessing the mere presence or absence of organisms at a nearby facility or in the same waterbody may not accurately characterize the potential for impingement and entrainment at a future cooling water intake structure. This commenter also indicated that site-specific interactions of organisms with the hydrology of the source waterbody and the cooling water intake structure configuration would confound the assessment and that composition and abundance of impingement of organisms can be very different for two cooling water intake structures located close to one another.
EPA requests additional comment on the appropriateness of allowing facilities to define the calculation baseline using data from other facilities, what types of other facilities might be appropriate for this purpose, and whether the variability introduced due to site-specificity is greater than that due to normal fluctuations in natural systems.
EPA received numerous comments requesting clarification on how compliance with the proposed performance standards for reducing impingement mortality by 80-95% and entrainment by 60-90% would be determined. For both impingement mortality and entrainment, EPA is evaluating two basic methods for
For determining compliance with the impingement mortality and entrainment standards, EPA is considering requiring that all species of fish and shellfish present at the cooling water intake structure and having the potential to be impinged be included in the measurement. Under this approach, the permittee would measure either the total number or the total biomass of the fish and shellfish impinged (without regard to their taxonomic grouping) and use this number to compare to the calculation baseline to determine compliance with the impingement mortality reduction performance standards. This approach would be the simplest conceptually to implement since only the total number or mass of impinged organisms would need to be measured. However, this approach would have the limitation that information on efficacy of the technology related to each species would not be collected, and all species would be treated as equivalent, without regard to their relative ecological, economic, recreational, or cultural importance.
EPA is similarly considering requiring that entrainment losses also be measured by counting the total numbers of organisms entrained. This approach has been commonly used in freshwater rivers and streams and produces either a total number of undifferentiated eggs and larvae entrained, or an identification of the entrained eggs and larvae by species or family. Several commenters emphasized that a permittee should not be required to prove reduced entrainment of every entrained species by at least 60 percent. These commenters also stated that the difficulty and cost of taxonomic classifications makes species-specific monitoring unreasonable, and that classification is not possible for early life stages of some species.
If EPA were to require the use of an approach that considers the total number of all fish and shellfish that have the potential to be impinged or entrained, regardless of species, language similar to the following would be added at proposed § 125.94(b)(5):
(5) Compliance with impingement mortality and entrainment performance standards in paragraphs (b)(1) through (4) above must be determined based on a comparison of the enumeration of all fish and shellfish impinged and killed and entrained with those estimated to be impinged and killed and entrained at the calculation baseline.
For measuring compliance with the entrainment reduction performance standard, several commenters suggested that the entrained biomass could be measured by collecting entrained organisms from the outfall or other appropriate monitoring location where a representative sample can be taken. This mass would then be compared to the mass of eggs and larvae that would have been entrained at the calculation baseline to determine if there is a 60 percent reduction or better. However, EPA is concerned that if a facility uses biomass, the weights may not be substantial enough to yield useable data since most entrained organisms are at the egg or larval stage. EPA requests comment on the feasibility of using biomass for measuring compliance with the entrainment reduction standard.
Another approach to determine compliance with the impingement mortality and entrainment performance standard involves considering a subset of the species that are representative of all species that are susceptible to impingement or entrainment in the waterbody that needs to be protected. This approach would require the permittee to identify representative important/indicator species (RIS), as opposed to considering all species present at the cooling water intake structure, for use in calculating compliance with the performance standards. If this approach were allowed, EPA is considering requiring that the list of RIS be developed by the facility, in consultation with the Director and Federal, State and Tribal fish and wildlife management agencies using available data. EPA might also require the concurrence of the Director.
Historically, the term RIS has been defined in different ways. EPA's 1977 Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P.L. 92-500 uses the concept of “critical aquatic organisms.” This term is used in a manner similar to RIS. The 1977 Guidance states that “critical aquatic organisms” are “those species which would be involved with the intake structure and are: (1) Representative, in terms of their biological requirements, of a balanced, indigenous community of fish, shellfish, and wildlife; (2) commercially or recreationally valuable (
In EPA's section 316(a) regulations, the term “representative important species (RIS)” is used and defined as “species which are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish and wildlife in the body of water into which a discharge of heat is made” (see 40 CFR 125.71). Under these same regulations, the term “balanced, indigenous community” is defined as “a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species and by lack of domination by pollutant tolerant species.”(See 40 CFR 125.71). The section 316(a) regulations require that in selecting RIS, special consideration be given to species mentioned in applicable water quality standards. It further requires that after the discharger submits its detailed plan of study, the Director either approve the plan or specify any necessary revisions to the plan (see 40 CFR 125.72).
Other entities, including some States, use the concept of RIS defined as those species selected by a discharger and
EPA is considering an approach that employs a RIS or “critical aquatic organisms” approach to determine compliance with the impingement mortality performance standards. Facilities would be required to identify all species being impinged (or having the potential to be impinged) by the cooling water intake structure. From that total list of species, the facility would then choose a limited number of organisms based on a definition of “critical aquatic organisms” provided in the regulations. EPA requests comment on whether 10 to 15 species might be an appropriate number to protect the types of species and ecosystem functions discussed in the above discussions of representative indicator species and critical aquatic organisms. EPA is considering using the same term “critical aquatic organisms” since it has been associated with section 316(b) requirements in the past. EPA is concerned that the RIS term, which has been used in other regulatory programs, may have conflicting programmatic issues and definitions associated with it that could not be anticipated. EPA would consider using the portions of the above language from the definition provided in the 1977 Guidance as it provides a reasonable, but flexible, framework for determining a list of fish and shellfish that are representative of all the species that have the potential to be impinged or entrained at cooling water intake structures. Changes to the language above might include modifying criteria number 8 to require the following:
(8) critical aquatic organisms based on 1-7, are developed by the applicant, with the concurrence of the Director and in consultation with Federal, State, and Tribal fish and wildlife management agencies with responsibility for fisheries and wildlife.
Compliance with the impingement mortality and entrainment performance standards could then be measured by either counting the total number of individuals of all the critical aquatic organisms impinged and killed or entrained, or by measuring the total biomass (wet or dry) of the critical aquatic organisms impinged and killed or entrained. This value would then be compared to the calculation baseline to determine compliance with the performance standard.
EPA is also considering two options for making the compliance determination using the critical aquatic organism approach. The first option would be to determine compliance based on a total enumeration of individuals from all of the listed critical aquatic organism species, and the second option would be to base compliance on a separate analysis to determine the reduction in impingement mortality and entrainment for each species. If this critical aquatic organism approach is used, EPA might adopt regulatory language at § 125.94(b)(5) for Option 1 as follows:
(5) Compliance with the applicable impingement mortality and entrainment performance standards in paragraphs (b)(1) through (4) above must be determined based on a comparison of the enumeration of individuals from all of the listed critical aquatic organism species impinged and killed and entrained with the total number of listed critical aquatic organism species estimated to be impinged and killed and entrained at the calculation baseline.
(5) Compliance with the applicable impingement mortality and entrainment performance standards in paragraphs (b)(1) through (4) above must be determined based on a comparison of the enumeration of individuals from each of the listed critical aquatic organism species impinged and killed and entrained with each of those estimated to be impinged and killed and entrained at the calculation baseline.
EPA recognizes that a challenge in determining compliance with both the impingement mortality and entrainment performance standards is how to address the number of moribund or dead fish that wash up against the intake structure or become entrained. Under ideal circumstances, fish that were previously injured or killed from weather-related phenomena, or other episodic fish kills, would be removed from the measurement in order to more accurately determine the control technology performance. To ensure consistency with the use of the term moribund among permittees, EPA is considering adding the following definition of moribund (A Dictionary of Ecology, Evolution, and Systematics, Cambridge University Press, 1982) to § 125.93:
Moribund means dying; close to death.
EPA is considering placing in the regulatory language the ability for a facility to take into account moribund fish and shellfish for determining compliance with the impingement mortality and entrainment performance standard using actual or historical data (if representative of current conditions). If EPA allowed the exclusion of already moribund fish and shell fish in determining compliance with the performance standards, the Agency might adopt regulatory language at § 125.94(b)(5) as follows:
(5) Compliance with the applicable impingement mortality and entrainment performance standards in paragraphs (b)(1) through (4) above must be determined based on a comparison of * * *. The number of moribund organisms that were previously injured or killed prior to encountering the intake structure must be removed from the calculation if data are available.
To calculate the mass of organisms entrained for the calculation baseline
EPA received numerous comments requesting clarification of the averaging period for determining the percent reduction required by the impingement mortality and entrainment performance standards. The commenters stated that due to significant natural temporal and spatial variability in fish abundance and distribution, a short-term averaging period may not be appropriate. Entrainment may be near zero during months when there are no entrainable organisms near the intake. Additionally, the density of aquatic populations varies naturally over the longer term. Some commenters suggested that the averaging period for determining reductions should be two to five years to verify that the technology is achieving reductions within the ranges specified for the performance standards. This could involve measuring the percent reductions over the entire monitoring period. EPA is considering specifying an averaging time for determining compliance with performance standards over 1 year, 3 years, or a running average over the entire permit term (5 years). In addition, EPA is considering requiring the use of basic arithmetic means as the averaging methodology. EPA is requesting comment on the time frames and averaging method discussed above. In addition, EPA requests comment on the appropriate methodology for determining the averaging period. EPA is also considering leaving it to the Director to determine appropriate averaging periods and methodologies, either programmatically or on a site-specific basis, and requests comment on this approach.
The proposed rule states that Phase II existing facilities would have to comply with the proposed rule requirements when a NPDES permit containing requirements consistent with the proposed Subpart J requirements is issued to the facility (see proposed § 125.92). Under existing NPDES program regulations, this would occur following publication of the final rule when an existing NPDES permit is reissued, or when an existing permit is modified, or revoked and reissued. EPA is considering options that would require full compliance with the rule after the effective date, similar to what EPA did in the Concentrated Animal Feeding Operations Rule, to the extent the best technologies will not be available immediately after promulgation of the final rule. As discussed below, the nature of this regulation is such that facilities may need to test and verify the efficacy of the technology option that they choose. ( 68 FR 7176, 7214 Feb. 12, 2003). EPA requests comment on this approach.
Commenters raised numerous issues regarding the proposed implementation and compliance schedules. Key comments include concern that the proposed rule does not provide sufficient time for permittees to develop necessary information, prepare the permit application, and come into compliance; suggestions that each permit renewal need not encompass a complete re-application and re-development of the permit; questions regarding how the proposed requirements will be enforced (
Several commenters indicated that the proposed requirement to submit data associated with the Comprehensive Demonstration Study at least 180 days prior to permit renewal is unrealistic. These commenters indicated that sufficient time is needed to collect data and prepare the permit application, as well as to design and test equipment. Commenters suggested various means by which time could be built into the implementation schedule, including allowing for the use of compliance schedules, phased compliance requirements, and providing a fixed period of time for facilities to evaluate how they will comply and submit an application.
The proposed 180-day requirement is based on the existing NPDES permit program requirement for renewal of existing permits (40 CFR 122.21(d)(2)). EPA proposed this time period, in part, to ensure consistency with the existing NPDES program. The 180-day time period ensures that permit writers have sufficient time to review NPDES permit applications, which for Phase II existing facilities will often be complex and include considerable amounts of information.
Some commenters have suggested EPA allow for the use of compliance schedules for Phase II existing facilities to conform to newly promulgated section 316(b) requirements. NPDES regulations at § 122.47 allow for the use of compliance schedules in NPDES permits by allowing permittees additional time to achieve compliance with the CWA and applicable regulations. Examples of situations where compliance schedules have been used include, but are not limited to, where new or revised effluent limitations guidelines were promulgated prior to 1989, or where new water quality standards are developed. EPA believes that the use of compliance schedules in the context of section 316(b) warrants consideration because such schedules are intended to allow permittees additional time where it clearly is necessary to achieve compliance. Compliance schedules, in association with the proposed Phase II regulations, would allow facilities whose NPDES permit would be reissued within the first few years after promulgation, additional time during the term of the permit to collect the information needed for the analyses required for the permit application, and/or to design, install, and optimize technologies to meet the performance standards. For example, facilities that would be issued a revised NPDES permit six months after the Phase II rule was published may not have provided the Director with information on their cooling water intake structure, and even if they had, it may not have contained the regulation-specific information such as the Impingement Mortality and Entrainment Characterization Study, the Design and Construction Technology Plan, or the Verification Monitoring Plan. In addition, the facility may not have assessed feasibility and certainly would not have begun construction of technologies. Use of compliance schedules under the NPDES permit program would require that the permit writer develop a schedule that is reasonable and that will ensure that the
Some commenters suggested that EPA provide for a delayed or phased compliance date that would allow Phase II existing facilities to have, at least, a specified, minimum period of time to conduct their study and implement appropriate technologies. Commenters questioned whether facilities with permit renewal dates shortly after the Phase II rule becomes final would have sufficient time to conduct the required characterization studies and implement enhanced control technologies. As a result, they suggested that some specified period of time be provided to all Phase II existing facilities under the rule. Generally, suggestions regarding the specific amount of time necessary ranged from two or three years to a full 5-year permit term (
EPA is considering and requests comment on whether the final rule should allow facilities required to apply for a permit renewal shortly after promulgation of the Phase II rule additional time to complete the studies associated with submitting a permit application. EPA is considering the following options: (1) Allowing applicants whose permits must be renewed in the first year after promulgation of the Phase II rule to submit application materials required by the Phase II rule one year after their current permit expires; and (2) allowing a two-year extension in the deadline for submitting Phase II application materials.
Commenters also questioned whether the study and data requirements specified under the proposed Phase II rule will be fully applicable to all subsequent 316(b) permit renewals for a given facility (
EPA did not discuss alternative permit application requirements for permit renewals in the proposed Phase II rule. The proposed Phase II rule specifies that with each permit renewal the Director must review the application materials and monitoring data to determine whether requirements, or additional requirements, for design and construction technologies or operational measures should be included in the permit (see proposed § 125.98(a)(1)). EPA does not generally specify reduced permit application requirements for permit renewals under the NPDES program. Rather, permitted facilities and permit writers normally exchange the information specified in the relevant permit application requirements and the permit writer determines when the application is complete (see 40 CFR 122.21(d)). It is not uncommon, however, that some existing information (
Under the proposed Phase II rule, EPA has identified several categories of permit application data and information requirements. These requirements, which are reasonably general in nature, provide certain flexibility to applicants to update only the key parts of the application that reflect changes in environmental conditions or operations. For example, the proposed rule would allow Phase II existing facilities to submit a proposal for information as the first step in identifying the scope of the Comprehensive Demonstration Study (see proposed § 125.95(b)(1)). This proposed requirement would provide applicants with an opportunity to identify the information in the study that has changed and must be updated, as well as existing information that remains representative of current conditions. In fact, it specifically provides for inclusion of historical studies where relevant. It also provides for the use of historical impingement and entrainment data, provided they are representative of the current operation and biological conditions. The proposed requirements do ensure that the Director retains sufficient flexibility to require Phase II existing facilities to submit data needed to assess source waterbody conditions and design and operational conditions at the facility. EPA is evaluating an additional option that it believes would maintain the Director's ability to obtain the information needed to make informed decisions when writing NPDES permits for existing facilities with cooling water intake structures. The proposed rule requires that facilities submit all of the information required in § 122.21(r) and § 125.95 (as applicable). EPA is considering whether to develop additional regulatory language that would allow the Director to relax the application information requirements if conditions at the facility and in the waterbody remain unchanged since the facility submitted their previous NPDES permit application, such that the information that they would submit would remain unchanged. Should this new regulatory language be implemented, the facility would be required to submit evidence that the conditions remain unchanged. This would serve to lessen the burden for information collection activities on the facility after the initial permit where section 316(b) requirements are placed in the NPDES permit as long as conditions remain unchanged. To demonstrate that operational conditions remain unchanged, the facility may rely upon data collected during the permit term, including facility operational data, monitoring, design information, and other data. To demonstrate that conditions in the waterbody remain unchanged, the facility may rely on monitoring and studies conducted by the facility, or data collected by other sources such as universities, federal, State, or local environmental and resource agencies, or other facilities located in close proximity. Determinations of unchanged conditions may rely upon demonstrations that there is no statistically significant changes in impingement and entrainment at the facility or in the densities of organisms in the vicinity of the cooling water intake structures, for example. If EPA decides to relax application requirements for permit renewals after a facility's initial permit implementing the Phase II regulations, the regulatory language of § 125.95(a) might be revised as follows:
(a)(1)You must submit to the Director the application information required by 40 CFR 122.21(r)(2), (3) and (5) and the Comprehensive Demonstration required by paragraph (b) of this section at least 180 days before your existing permit expires, in accordance with Sec. 122.21(d)(2).
(2) In subsequent permit terms, the Director may approve a request to reduce the information required to be submitted in your permit application on the cooling water intake structure and the source waterbody, if conditions at your facility and in the waterbody remain unchanged since your previous application. You should submit your request for reduced cooling water intake structure and waterbody application
In addition to the concerns discussed above regarding the timing and content of application materials, some commenters also voiced concerns regarding how Directors will determine if a facility is in compliance with the requirements of the proposed rule. These commenters expressed concern that, given the difficulty of predicting the performance of distinct cooling water intake control technologies, it is not reasonable to expect every Phase II existing facility to be able to ensure that it will achieve reductions in impingement and entrainment that are consistent with the proposed performance standards within the first permit term and, therefore, it would be unfair to enforce the proposed standards until each facility has had a reasonable period to achieve compliance. One comment expressed by these groups is that proper design, installation, operation, and maintenance of technologies reasonably likely (based on appropriate characterization and study) to meet the performance standards should satisfy the permit terms and conditions (
(e) If you propose to implement design and construction technologies or operational measures to meet the performance standards in § 125.94(b) or (c), you will have an optimization period of [six months/one year/two years/five years] from the issuance of a permit requiring compliance with § 125.94(b) or (c) after which you must comply with the standards.
At § 125.94(b)(2), the proposed rule would require facilities with a capacity utilization rate of less than 15 percent to meet performance standards for reducing impingement mortality. § 125.94(b)(3) would require facilities with a capacity utilization rate of 15 percent or more to meet performance standards both for reducing impingement mortality and for reducing entrainment. (See 67 FR 17221.) As discussed in Section III above, the proposed Phase II rule defined capacity utilization based on the generation and capacity of the entire facility, including steam electric and non-steam generators. (See the proposed definition of “capacity utilization rate” at § 125.93, 67 FR 17220.) EPA is considering whether, for the purposes of implementing Section 316(b), defining capacity utilization based on the steam electric part of a facility better reflects a facility's potential for adverse environmental impact because only the steam electric generators use cooling water. Thus, EPA is considering refining its regulatory definition for “capacity utilization rate” at the proposed § 125.93 to reflect use of the steam electric part of a facility. If EPA were to make this change, the definition of “capacity utilization rate” in § 125.93 might be revised as follows (new language is underlined):
Capacity utilization rate means the ratio between the average annual net generation of the
EPA received comments concerning the information collection, study, and monitoring costs presented in the supporting Information Collection Request for Cooling Water Intake Structures for the Phase II Existing Facility Proposed Rule (US EPA ICR No. 2060.01) (February 2002). Commenters stated that the format was confusing and the detail provided in the ICR was insufficient to enable them to review and comment on these costs. To assist reviewers, EPA has placed additional information into the record summarizing the general derivation of information collection, study, and monitoring activity costs associated with the Phase II rule. Labor categories, labor rates, monitoring components, and associated costs are outlined and additional cost details are presented in summary tables to facilitate ease of review and understanding.
Commenters also pointed out that EPA had inadvertently transposed the labor figures for statisticians and biological technicians when putting together the summary tables of costs. EPA has recalculated the ICR costs to rectify this error and has determined that costs will not change substantially. Labor costs associated with monitoring activities in the ICR were significantly higher than the labor for writing final reports and studies. Therefore, when the
However, the decrease in facility costs due to the correction to the labor rates was offset by other changes that EPA has made to the ICR costs since proposal. Some commenters stated that the burdens for impingement and entrainment monitoring were too low. EPA has reviewed these burden estimates and has increased the burdens associated with impingement and entrainment monitoring associated with the Impingement Mortality and Entrainment Characterization Study. In addition, EPA has revised capital and O&M costs associated with the pilot-scale studies some facilities may perform to reflect the assumption that only facilities which are projected to install new technologies will perform pilot studies, and to be proportional to the projected capital costs for installing these new technologies to comply with the rule. The following provides a summary of the effects of these corrections and updates on labor costs and overall costs for facilities, as well as total combined costs for States and facilities.
• Facility labor costs increased by 65% from $66,399,819 to $109,346,909 annually.
• Facility capital and O&M costs decreased by 61% from $63,633,640 to $24,801,777 annually.
• Total costs for facilities increased by 3.2% from $130,033,459 to $134,148,685 annually.
• Total facility and State costs increased by 2.8% from $135,990,706 to $139,820,531 annually.
The effects of the recalculation are summarized in more detail in a memorandum placed in the record (see “Updated Information Collection Costs for the 316(b) Phase II Notice of Data Availability, January 31, 2002).
In response to comments received about inaccuracies related to facility-specific impacts caused by impingement and entrainment discussed in EPA's Information Collection Request (ICR), EPA provides the following clarification. Specifically, the ICR for the proposed rule described entrainment losses at San Onofre Nuclear Generating Station (SONGS). EPA received updated information from SONGS facility scientists that clarified actual entrainment losses in normal (non-El Nino) years and described trends in shallow-water and deepwater fish species affected by entrainment. In addition, prior to publication of the proposed rule, EPA concluded that kelp bed losses in proximity to the SONGS intake were attributable to turbidity increases caused by cooling water discharges, not cooling water withdrawals. The updated information for SONGS was placed in the preamble to the proposal (see 67 FR 17138-17139), but was inadvertently omitted from the ICR. The final ICR will reflect the changes described above.
EPA encourages public participation in this rulemaking and requests comments on this notice of availability supporting the proposed rule for cooling water intake structures for existing Phase II facilities. As stated in section II of this NODA, EPA is also reopening the comment period on all aspects of the proposal. EPA invites all parties to coordinate their data collection activities with the Agency to facilitate mutually beneficial and cost-effective data submissions.
Please refer to the
Department of Veterans Affairs.
Interim final rule.
We are revising the regulations concerning the VA Homeless Providers Grant and Per Diem Program in large part to implement the provisions of the Homeless Veterans Comprehensive Assistance Act of 2001 (HVCAA).
We also are establishing provisions in the form of funding priorities to meet a statutory mandate. In addition, to help ensure that program objectives are met by those receiving assistance we are adding provisions to state that to receive assistance under the interim final rule, an entity must not be in default by failing to meet requirements under any previously awarded grant.
Further, we are making changes to provide that each resident of supportive housing may be required to pay rent in an amount determined by the recipient, except that such rent may not exceed 30 percent of the resident's monthly income not including amounts equal to medical expenses, child care expenses, or court ordered payments. This is intended to provide a system that is administratively feasible, that allows for significant help for covering operating expenses, and that would allow veterans to retain sufficient funds to help prepare for a successful transition to independent living.
Effective Date: This interim final rule is effective on March 19, 2003; except for 38 CFR 61.11, 61.14, 61.17, 61.31, 61.41 and, 61.51, which are effective April 3, 2003.
Mail or hand-deliver written comments to: Director, Office of Regulatory Law (02D), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1154, Washington, DC 20420; or fax comments to (202) 273-9289; or e-mail comments to
Roger Casey, VA Homeless Providers Grant and Per Diem Program, Mental Health Strategic Health Care Group (116E), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; (877) 332-0334. (This is a toll-free number.)
The regulations previously established for the VA Homeless Providers Grant and Per Diem Program (38 CFR 17.700 through 17.731) contained a mechanism for providing grants and per diem to public or nonprofit private entities to assist homeless veterans by helping to ensure the availability of supportive housing and service centers to furnish outreach, rehabilitative services, vocational counseling and training, and transitional housing. As discussed below, we are revising the regulations in this interim final rule to implement the provisions of Public Law 107-95, the Homeless Veterans Comprehensive Assistance Act of 2001.
We are transferring the revised regulations to a new part 61 in 38 CFR and are making other changes to provide better organization and clarity.
In the previous regulations the term “grant” concerned construction, renovation, and acquisition of facilities; and also concerned acquisition of vans. In the interim final rule, we have referred to this type of grant as a “capital grant” to distinguish it from the new “special needs grant” and the new “technical assistance grant,” both discussed below.
Public Law 106-117 added authority to allow VA to award capital grants to expand existing programs which was codified by the HVCCA at 38 U.S.C. 2011(a). We made changes to reflect this authority.
The provisions of 38 U.S.C. 2011 authorize recovery of capital grant funds if not used for the intended purpose within 3 years after the grant was awarded. The interim final rule provides that if, after 3 years from the date of award of a capital grant, the grant recipient does not establish the project for which the grant was made or has withdrawn from the VA Homeless Providers Grant and Per Diem Program, the United States would be entitled to recover from the grant recipient all of the grant amounts provided for the project. If thereafter, but prior to the period of time specified in the following chart, the capital grant recipient ceases to provide the services for which the grant was made or withdraws from the VA Homeless Providers Grant and Per Diem Program, the rule provides that the United States would be entitled to recover grant amounts from the grant recipient on a prorated basis. The amount to be recaptured equals the amount of the grant, multiplied by the fraction resulting from using the number of years the recipient was not operational as the numerator, and using the number of years of operation required under the following chart as the denominator.
Grantee A is awarded a grant and does not bring the project to operational status within 3 years from the time of award. Grantee A may be subject to full recapture of the grant award.
Grantee B is awarded a grant in the amount of $300,000 and brings the project to operational status within 3 years from the time of award. Grantee B then provides services to homeless veterans for a period of 6 years from the date the program was operationalized, but now decides to close the program. As the original award was $300,000 and as a condition of receiving the grant funds Grantee B agreed to provide services for 8 years. Therefore, Grantee B would be subject to the prorated recapture of the grant award for the 2-year period not served or in this case
Grantee C is awarded a grant in the amount of $400,000, becomes operational within 1 year of the date of the grant award and ceases operation 1 year later, 2 years after the date of the grant award. After the expiration of the 3-year period beginning on the date of the grant award, Grantee C would be subject to prorated recapture for the 7 years it did not provide service of the required 8 years of operation. The amount
The provisions of 38 U.S.C. 2011 also provide that VA may obligate any recovered funds without fiscal year limitation. We amended the regulations to reflect this authority.
We are establishing a special mechanism for providing certain Life Safety Code capital grants. Public Law 107-95 established 38 U.S.C. 2012(c)(3) to provide grants to renovate facilities that already received a capital grant under section 3 of the Homeless Veterans Comprehensive Service Programs Act of 1992 (Public Law 102-590; 38 U.S.C. 7221
Under the interim final rule, when funds are made available for the Life Safety Code capital grants, VA would publish a Notice of Fund Availability in the
Applicants would be rated based on criteria designed to identify cost-effectiveness and need. Life Safety Code capital grants would be allocated to the highest-ranked applicants in descending order until funds are expended.
The provisions of 38 U.S.C. 2011 and 2012 further require that neither a capital grant nor per diem (with delayed effective dates for grant recipients under the Homeless Veterans Comprehensive Service Program Act of 1992 seeking per diem) may be provided unless the facility for which the assistance is provided meets the fire and safety requirements applicable under the Life Safety Code of the National Fire Protection Association or other comparable requirements. Accordingly, in addition to setting forth procedures specifically to provide Life Safety Code capital grants under 38 U.S.C. 2012(c)(3), the interim final rule provides that entities receiving a capital grant under 38 U.S.C. 2011 or per diem under 38 U.S.C. 2012 (with statutorily imposed delayed effective dates) must comply with the Life Safety Code of the National Fire Protection Association.
Under the interim final rule, the rate of per diem payments for each veteran in supportive housing would be the lesser of:
(i) The daily cost of care estimated by the per diem recipient minus other sources of payments to the per diem recipient for furnishing services to homeless veterans that the per diem recipient certifies to be correct (other sources include payments and grants from other departments and agencies of the United States, from departments of State and local governments, from private entities or organizations, and from program participants), or
(ii) The current VA State Home Program per diem rate for domiciliary care.
Also, the rule provides that the per diem amount for service centers would be
These provisions for calculating per diem reflect requirements imposed by Pub. L. 107-95 that are set forth at 38 U.S.C. 2012.
In addition, to avoid making per diem payments when services are not being rendered while still allowing reasonable absences (such as for visiting family, job searches, or short term medical care), the rule states that VA will not pay per diem for any additional days of absence when a veteran has been already absent for consecutive full days exceeding 72 hours (scheduled or unscheduled).
Moreover, to avoid making per diem payments for services that have limited chance of success, the rule states that VA will not pay per diem payments for supportive housing for any homeless veteran who has had three or more episodes (admission and discharge for each episode) of supportive housing services paid for by VA. However, the rule provides that VA may waive the episode requirement if the services offered are different from those previously provided and may lead to a successful outcome.
We are establishing a mechanism for providing special needs grants. Section 5 of Pub. L. 107-95, codified at 38 U.S.C. 2061 authorizes VA to provide special needs grants to capital grant and per diem recipients under this part to assist with additional operational costs that would not otherwise be incurred but for the fact that the recipient is providing beds or services at supportive housing and service centers for the following homeless veterans:
(1) Women, including women who have care of minor dependents;
(2) Frail elderly;
(3) Terminally ill; or
(4) Chronically mentally ill.
We have defined “terminally ill” to mean a prognosis of 9 months or less to live based on a written medical diagnosis from a physician. We also have defined “chronically mentally ill” to mean a condition of schizophrenia or major affective disorder (including bipolar disorder) or post-traumatic stress disorder (PTSD), based on a diagnosis from a licensed mental health professional, with at least one documented hospitalization for this condition sometime in the last 2 years or with documentation of a formal assessment on a standardized scale of any serious symptomology or serious impairment in the areas of work, family relations, thinking, or mood. In addition, we have defined “frail elderly” to mean 65 years of age or older with one or more chronic health problems and limitations in performing one or more activities of daily living (such as bathing, toileting, transferring from bed to chair, etc.). We believe these definitions constitute a reasonable interpretation of the statutory intent. They are designed to help ensure that those most in need are benefited by the special needs grants.
Under the interim final rule, when funds are made available for special needs grants, VA would publish a Notice of Fund Availability in the
The interim final rule sets forth minimum threshold criteria by limiting special needs grants to those entities that demonstrate that they are eligible for a special needs grant, and would use the funds productively. Those meeting the threshold criteria would then be rated based on criteria designed to identify those who would use the special needs grant to provide the strongest programs. Special needs grants would be allocated to the highest-ranked applicants in descending order until funds are expended. These provisions are designed to help ensure that the special needs grants would be awarded for quality projects and be of sufficient duration to be worthwhile.
We also are establishing a mechanism for providing technical assistance grants. Section 5 of Pub. L. 107-95, codified at 38 U.S.C. 2064 authorizes VA to provide grants to entities or organizations with expertise in preparing grant applications relating to the provision of assistance for homeless veterans. The recipients are to use the grants to provide technical assistance to those nonprofit community-based groups with experience in providing assistance to homeless veterans in order to help such groups apply for grants under 38 CFR part 61 or apply for other grants from any source for addressing the problems of homeless veterans. To meet this mandate VA would provide grants for:
(a) Group or individual seminars providing general instructions concerning grant applications;
(b) Group or individual seminars providing instructions for applying for a specific grant; or
(c) Group or individual instruction for preparing analyses to be included in a grant application.
Under the interim final rule, when funds are made available for technical assistance grants, VA would publish a Notice of Fund Availability in the
The interim final rule sets forth minimum threshold criteria by limiting technical assistance grants to those entities that are eligible for a technical assistance grant and that demonstrate that they would use the grant productively. Those meeting the threshold criteria would then be rated based on criteria designed to identify those who would use the grant to provide the strongest programs. Technical assistance grants would be allocated to the highest-ranked applicants in descending order until funds are expended. These provisions are designed to help ensure that the technical assistance grants would be awarded for quality projects.
The provisions of 38 U.S.C. 2011 also state that only public and nonprofit entities are eligible for assistance under the VA Homeless Providers Grant and Per Diem Program. We are amending the definition of “nonprofit organization” to include the requirement that the organization must be recognized as a nonprofit organization by the United States Internal Revenue Service. This will help ensure that only nonprofit organizations will be recognized as such and should eliminate disputes regarding such status.
The provisions of 38 U.S.C. 2011 state that awards shall not result in the duplication of ongoing services and to the maximum extent practicable shall reflect appropriate geographic dispersion and an appropriate balance between urban and nonurban locations. We are establishing provisions in the form of funding priorities to meet the statutory mandate.
The regulations retain provisions requiring service centers for which assistance is awarded under the VA Homeless Providers Grant and Per Diem Program to provide services to homeless veterans for a minimum of 40 hours per week over a minimum of 5 days per week, as well as provide services on an as-needed, unscheduled basis. However, we are changing the regulations to specifically provide that the calculation of minimum hours would include travel time for mobile service centers. This is necessary because a substantial portion of work time for mobile service centers consists of travel time.
We also are requiring fixed site service centers to prominently post at or near the entrance to the service center their hours of operation and contacts in case of emergencies. Further, we are requiring mobile service centers to take some action reasonably calculated to provide in advance a tentative schedule of visits. This will help ensure that homeless veterans know when and where they can obtain assistance.
We are adding provisions to state that to receive assistance under the interim final rule, an entity must not be in default by failing to meet requirements under any previously awarded grant. This is intended to help ensure that program objectives are met by those receiving assistance.
The regulations previously provided that each resident of supportive housing may be required to pay as rent an amount determined by the recipient, which could not exceed the highest of:
(1) 30 percent of the resident's monthly adjusted income (adjustment factors include the number of relatives in the family residing with the veteran, medical expenses, and child care expenses);
(2) 10 percent of his or her family's monthly income; or
(3) If the family is receiving payments for welfare assistance from a public agency and a part of the payments, adjusted in accordance with the family's actual housing costs, is specifically designated by the agency to meet the family's housing costs, the portion of the payments that is designated.
We have changed the regulations to provide instead that each resident of supportive housing may be required to pay as rent an amount determined by the recipient, except that such rent may not exceed 30 percent of the resident's monthly income after deducting medical expenses, child care expenses, court ordered child support payments, or other court ordered payments. This is intended to provide a system that is administratively feasible, that allows for significant help for covering operating expenses, and that would allow veterans to retain sufficient funds to help prepare for a successful transition to independent living.
We are deleting summaries of certain non-VA federal requirements since the source material should be used to determine those requirements.
OMB assigns a control number for each collection of information it approves. Except for emergency approvals under 44 U.S.C. 3507(j), 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. The interim final rule at §§ 61.11, 61.15, 61.17, 61.20, 61.31, 61.41, 61.51, 61.55 and 61.70 contains collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). Accordingly, under section 3507(d) of the Act, VA has submitted a copy of this rulemaking action to OMB for its review of the collections of information. We have requested OMB to approve the collection of information on an emergency basis by April 3, 2003. If OMB does not approve the collections of information as requested, we will immediately remove §§ 61.11, 61.15, 61.17, 61.20, 61.31, 61.41, 61.51, 61.55 and 61.70 or take such other action as is directed by OMB.
We are also seeking an approval of the information collection on a non-emergency basis. Accordingly, we are also requesting comments on the
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.
Comments on the collections of information should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies mailed or hand-delivered to: Director, Office of Regulatory Law (02D), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1154, Washington, DC 20420. Comments should indicate that they are submitted in response to “RIN 2900-AL30.”
Application provisions for special needs grants.
Application provisions for technical assistance grants.
Compliance reports for technical assistance grants.
Compliance reports for per diem and special needs grants.
The Department considers comments by the public on collections of information in—
• Evaluating whether the collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections of information on those who are to respond, including responses through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
OMB is required to make a decision concerning the collections of information contained in this rule between 30 and 60 days after publication of this document in the
Pursuant to 5 U.S.C. 553, we have found for this rule that notice and public procedure are impracticable, unnecessary, and contrary to the public interest and that we have good cause to dispense with notice and comment on this rule and to dispense with a 30-day delay of its effective date. The Homeless Veterans Comprehensive Assistance Act of 2001 (Pub. L. 107-95) authorizes increases in both the services (3 new grant programs) and the per diem available to homeless veteran providers. These increased services and per diem are critical to properly provide services to the homeless veterans population and meet the Congressional mandates of ending chronic homelessness. Also, a delay in some cases may even lead to the closing of some of our collaborative partners' homeless veteran programs. Therefore, the need to take emergency action is particularly great for those homeless veterans who will benefit from the increased services (grants) and per diem.
This document has been reviewed by the office of Management and Budget under Executive Order 12866.
The Secretary hereby certifies that the interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-602. In all likelihood, only similar entities that are small entities will participate in the Homeless Providers Grant and Per Diem Program. Therefore, pursuant to 5 U.S.C. 605(b), this interim final rule is exempt from the initial and final regulatory flexibility analysis requirement of sections 603 and 604.
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.
The Catalog of Federal Domestic Assistance program number is 64.024.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Day care, Dental health, Drug abuse, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Mental health programs, Per-diem program; Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.
38 U.S.C. 501, 1721, unless otherwise noted.
This part implements the VA Homeless Providers Grant and Per Diem Program which consists of the following components: capital grants, per diem, special needs grants, and technical assistance grants.
For purposes of this part:
(ii) Having a primary nighttime residence that is—
(A) A supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill);
(B) An institution that provides a temporary residence for persons intended to be institutionalized; or
(C) A public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
(2) The term homeless does not include imprisonment or other detainment pursuant to Federal or State law. Imprisonment or other detainment does not include probation, parole or electronic custody.
(1) Have a voluntary board;
(2) Have a functioning accounting system that is operated in accordance with generally accepted accounting principles, or designate an entity that will maintain a functioning accounting system for the organization in accordance with generally accepted accounting principles; and
(3) Practice nondiscrimination in the provision of supportive housing and supportive services assistance.
(1) Administration (including staff salaries; costs associated with accounting for the use of grant funds, preparing reports for submission to VA, obtaining program audits, and securing accreditation; and similar costs related to administering the grant after the award), maintenance, repair and security for the supportive housing;
(2) Van costs or building rent (except under capital leases),
(3) Conducting on-going assessments of supportive services provided for and needed by participants and the availability of such services;
(4) Other costs associated with operating the supportive housing.
(1) A county, municipality, city, town, township, local public authority (including any public and Indian housing agency under the United States Housing Act of 1937), school district, special district, intrastate district, council of governments (whether or not incorporated as a nonprofit corporation under state law), any other regional or interstate government entity, or any agency or instrumentality of a local government, and
(2) The governing body or a governmental agency of any Indian tribe, band, nation, or other organized group or community (including any Native village as defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 688) certified by the Secretary of the Interior as eligible for the special programs and services provided by the Bureau of Indian Affairs.
(1) Transitional housing, or
(2) A part of, a particularly innovative project for, or alternative method of, meeting the immediate and long-term needs of homeless veterans.
(1) Outreach activities;
(2) Providing food, nutritional advice, counseling, health care, mental health treatment, alcohol and other substance abuse services, case management services;
(3) Establishing and operating child care services for dependents of homeless veterans;
(4) Providing supervision and security arrangements necessary for the protection of residents of supportive housing and for homeless veterans using supportive housing or services;
(5) Providing assistance in obtaining permanent housing;
(6) Providing education, employment counseling and assistance, and job training;
(7) Providing assistance in obtaining other Federal, State and local assistance available for such residents including mental health benefits, employment counseling and assistance, veterans' benefits, medical assistance, and income support assistance; and
(8) Providing housing assistance, legal assistance, advocacy, transportation, and other services essential for achieving and maintaining independent living.
(a) VA provides capital grants to public or nonprofit private entities so they can assist homeless veterans by helping to ensure the availability of supportive housing and service centers to furnish outreach, rehabilitative services, vocational counseling and training, and transitional housing. Specifically, VA provides capital grants for up to 65 percent of the cost to:
(1) Construct structures and purchase the underlying land to establish new supportive housing facilities or service centers, or to expand existing supportive housing facilities or service centers;
(2) Acquire structures to establish new supportive housing facilities or service centers, or to expand existing supportive housing facilities or service centers;
(3) Renovate existing structures to establish new supportive housing facilities or service centers, or to expand existing supportive housing facilities or service centers; and
(4) Procure vans (purchase price, sales taxes, and title and licensing fees) to provide transportation or outreach for the purpose of providing supportive services.
(b) Capital grants may not be use for acquiring buildings located on VA-owned property. However, capital grants may be awarded for construction, expansion, or renovation of buildings located on VA-owned property.
(a) To apply for a capital grant, an applicant must obtain from VA a capital grant application package and submit to VA the information called for in the application package within the time period established in the Notice of Fund Availability under § 61.60 of this part.
(b) The capital grant application package includes exhibits to be prepared and submitted as part of the application process, including:
(1) Justification for the capital grant;
(2) Site description, site design, and site cost estimates;
(3) Documentation on eligibility to receive a capital grant under this part;
(4) Documentation on matching funds committed to the project;
(5) Documentation on operating budget and cost sharing;
(6) Documentation on supportive services committed to the project;
(7) Documentation on site control and appropriate zoning, and on the boundaries of the area or community proposed to be served;
(8) If capital grant funds are proposed to be used for acquisition or rehabilitation, documentation demonstrating that the costs associated with acquisition or rehabilitation are less than the costs associated with new construction;
(9) If grant funds are proposed to be used for new construction, documentation demonstrating that the costs associated with new construction are less than the costs associated with rehabilitation of an existing building, that there is a lack of available appropriate units that could be rehabilitated at a cost less than new construction, and that new construction is less costly than acquisition of an existing building, (for purposes of this cost comparison, costs associated with rehabilitation or new construction may include the cost of real property acquisition);
(10) If the proposed construction includes demolition, a demolition plan, including the extent and cost of existing site features to be removed, stored, or relocated and information establishing that the proposed construction is in the same location as the building to be demolished or that the demolition is inextricably linked to the design of the construction project (the cost of demolition of a building cannot be included in the cost of construction unless the proposed construction is in the same location as the building to be demolished or unless the demolition is inextricably linked to the design of the construction project);
(11) Comments or recommendations by appropriate State (and area wide) clearinghouses pursuant to E.O. 12372 (3 CFR, 1982 Comp., p. 197), if the applicant is a State; and
(12) Reasonable assurances with respect to receipt of a capital grant under this part that:
(i) The project will be used principally to furnish to veterans the level of care for which such application is made; that not more than 25 percent of participants at any one time will be nonveterans; and that such services will meet the requirements of this part;
(ii) The recipient will continue to operate the project until the expiration of the period during which VA could seek recovery under § 61.67;
(iii) Title to such site or van will vest solely in the applicant and the applicant will insure vans to the same extent they would insure a van bought with their own funds;
(iv) Adequate financial support will be available for the completion of the project or for the purchase and maintenance, repair, and operation of the van; and
(v) The recipient will keep records and submit reports as VA may reasonably require, within the time frames required; and give VA, upon demand, access to the records upon which such information is based.
(c) Applicants may apply for more than one capital grant.
To be eligible for a capital grant, an applicant must meet the following threshold requirements:
(a) The application was completed in all parts and included the information called for in the application package and was filed within the time period established in the Notice of Fund Availability;
(b) The applicant is a public or nonprofit private entity;
(c) The population proposed to be served is homeless veterans;
(d) The activities for which assistance is requested are eligible for funding under this part;
(e) The applicant has demonstrated that adequate financial support will be available to carry out the project for which the capital grant is sought consistent with the plans, specifications and schedule submitted by the applicant;
(f) The application has demonstrated compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4601-4655);
(g) The applicant has agreed to comply with the requirements of this part and has demonstrated the capacity to do so;
(h) The applicant does not have an outstanding obligation to VA that is in arrears, and does not have an overdue or unsatisfactory response to an audit; and
(i) The applicant is not in default, by failing to meet requirements for any previous assistance from VA under this part.
(a) Applicants that meet the threshold requirements in § 61.12 of this part, will then be rated using the selection criteria listed in this section. To be eligible for a capital grant, an applicant must receive at least 600 points (out of a possible 1,200) and must receive points under criteria in paragraphs (b), (c), (d), (e), and (i) of this section.
(b) Quality of the project. VA will award up to 300 points based on the following:
(1) How program participants will achieve residential stability, including how available supportive services will help participants reach this goal;
(2) How program participants will increase their skill level and/or income, including how available supportive services will help participants reach this goal;
(3) How program participants will be involved in making project decisions that affect their lives so that they achieve greater self-determination, including how they will be involved in selecting supportive services, establishing individual goals and developing plans to achieve these goals;
(4) How permanent affordable housing will be identified and made known to participants upon leaving the transitional housing, and how participants will be provided necessary follow-up services to help them achieve stability in the permanent housing;
(5) How the service needs of participants will be assessed on an ongoing basis;
(6) How the proposed housing, if any, will be managed and operated;
(7) How participants will be assisted in assimilating into the community through access to neighborhood facilities, activities, and services;
(8) How and when the progress of participants toward meeting their individual goals will be monitored, evaluated, and documented;
(9) How and when the effectiveness of the overall project in achieving its goals will be evaluated and documented; and how any needed program modifications will be made based on those evaluations; and how program modifications will be reported to VA; and
(10) How the proposed project will be implemented in a timely fashion.
(c) Targeting to persons on streets and in shelters. VA will award up to 150 points based on:
(1) The extent to which the project is designed to serve homeless veterans living in places not ordinarily meant for human habitation (
(2) The likelihood that proposed plans for outreach and selection of participants will result in these populations being served.
(d) Ability of applicant to develop and operate a project. VA will award up to 200 points based on the extent to which the application demonstrates experience in the following areas:
(1) Engaging the participation of homeless veterans living in places not ordinarily meant for human habitation and in emergency shelters;
(2) Assessing the housing and relevant supportive service needs of homeless veterans;
(3) Accessing housing and relevant supportive service resources;
(4) If applicable, contracting for and/or overseeing the rehabilitation or construction of housing;
(5) If applicable, administering a rental assistance program;
(6) Providing supportive services or supportive housing for homeless veterans;
(7) Monitoring and evaluating the progress of persons toward meeting their individual goals;
(8) Evaluating the overall effectiveness of a program and using evaluation results to make program improvements, as needed; and
(9) Maintaining fiscal solvency as evidenced by providing their last complete yearly financial statements.
(e) Need. VA will award up to 150 points based on the extent to which the applicant demonstrates:
(1) Substantial unmet needs, particularly among the target population living in places not ordinarily meant for human habitation such as the streets, emergency shelters, based on reliable data from surveys of homeless populations or other reports or data gathering mechanisms that directly support claims made; and
(2) An understanding of the homeless population to be served and its unmet housing and supportive service needs.
(f) Innovative quality of the proposal. VA will award up to 50 points based on the innovative quality of the proposal, in terms of:
(1) Helping homeless veterans or homeless veterans with disabilities to reach residential stability, to increase their skill level and/or income, and to increase the influence they have over decisions that affect their lives;
(2) Establishing a clear link between the innovation(s) and its proposed effect(s); and
(3) Establishing usefulness as a model for other projects.
(g) Leveraging. VA will award up to 50 points based on the extent to which the applicant documents resources from other public and private sources, including cash and the value of third party contributions, have been committed to support the project at the time of application.
(h) Cost-effectiveness. VA will award up to 100 points for cost-effectiveness. Projects will be rated based on the cost and number of new supportive housing beds made available or the cost, amount, and types of supportive services made available, when compared to other transitional housing and supportive services projects, and when adjusted for high-cost areas. Cost-effectiveness may include using excess government properties (local, State, Federal), as well as demonstrating site control at the time of application.
(i) Coordination with other programs. VA will award up to 200 points based on the extent to which applicants demonstrate that they have coordinated with Federal, State, local, private and other entities serving homeless persons in the planning and operation of the project. Such entities may include shelter transitional housing, health care, or social service providers; providers funded through Federal initiatives; local planning coalitions or provider associations; or other program providers relevant to the needs of homeless veterans in the local community. Applicants are required to demonstrate that they have coordinated with the VA medical care facility of jurisdiction and VA Regional Offices of jurisdiction in their area. VA will award up to 50 points of the 200 points based on the extent to which commitments to provide supportive services are documented at the time of application. Up to 150 points of the 200 points will be given to the extent applicants demonstrate that:
(1) They are part of an ongoing community-wide planning process within the framework described above which is designed to share information on available resources and reduce duplication among programs that serve homeless veterans;
(2) They have consulted directly with the closest VA Medical Center and other providers within the framework described above regarding coordination of services for project participants; and
(3) They have coordinated with the closest VA Medical Center their plan to assure access to health care, case management, and other care services.
(a) Applicants will first be grouped in categories according to the funding priorities set forth in the NOFA, if any. Applicants will then be ranked, within their respective funding category if applicable. The highest-ranked applications for which funding is available, within highest priority funding category if applicable, will be
(b) In the event of a tie between applicants, VA will use the score from § 61.13(e) of this part to determine the ranking.
(a) Each applicant who has been conditionally selected for a capital grant will be requested by VA to submit additional information, including:
(1) Documentation to show that the project is feasible, including a plan from an architect, contractor, or other building professional that provides estimated costs for the proposed design;
(2) Documentation showing the sources of funding for the project and firm financing commitments for the matching requirements described in § 61.16 of this part;
(3) Documentation establishing site control described in § 61.17 of this part;
(4) Documentation establishing compliance with the National Historic Preservation Act (16 U.S.C. 470);
(5) Information necessary for VA to ensure compliance both with Uniform Federal Accessibility Standards (UFAS) and the Americans with Disabilities Act Accessibility Guidelines;
(6) Documentation establishing compliance with local and state zoning codes;
(7) Documentation in the form of one set of design development (35 percent completion) drawings demonstrating compliance with local codes, state codes, and the Life Safety Code of the National Fire Protection Association.
(8) Information necessary for VA to ensure compliance with the provisions of the National Environmental Policy Act (42 U.S.C. 4321
(9) A site survey performed by a licensed land surveyor; and
(10) Such other documentation as specified by VA in writing to the applicant to confirm or clarify information provided in the application.
(b) The required additional information must be received by VA in acceptable form within the time frame established by VA in a Notice of Fund Availability published in the
(c) Following receipt of the additional information in acceptable form, VA will execute an agreement and make payments to the grant recipient in accordance with § 61.61 of this part and other applicable provisions of this part.
The amount of a capital grant may not exceed 65 percent of the total cost of the project for which the capital grant was awarded. The recipient must, from sources other than grant funds received under this part, match the funds provided by VA to cover the percentage of the total cost of the project not funded by the capital grant. This matching share shall constitute at least 35 percent of the total cost. If the project is for supportive housing, or a service center that would be used for purposes under this part and for other purposes, a capital grant may be awarded only in proportion to the use under this part. Capital grants may include application costs, including site surveys, architectural, and engineering fees, but may not include relocation costs.
(a) As a condition for obtaining a capital grant for supportive housing or a fixed site service center, an applicant must demonstrate site control through a deed, a capital lease, or an executed contract of sale, unless the site is in a building or on land owned by VA. Such site control must be demonstrated within 1 year after execution of an agreement under § 61.61 of this part.
(b) A capital grant recipient may change the site to a new site meeting the requirements of this part subject to VA approval under § 61.62 of this part. However, the recipient is responsible for and must demonstrate ability to provide for any additional costs resulting from the change in site.
(a) This section sets forth provisions for obtaining a Life Safety Code capital grant under 38 U.S.C. 2012(c)(3). To be eligible to receive such a capital grant, an applicant already must have received a grant under section 3 of the Homeless Veterans Comprehensive Service Programs Act of 1992 (Public Law 102-590; 38 U.S.C. 7221 note) for construction, renovation, or acquisition of a facility and must obtain the Life Safety Code capital grant solely for renovations to such facility to comply with the Life Safety Code of the National Fire Protection Association. The following sections of this part apply to the Life Safety Code grants §§ 61.60 through 61.66; and § 61.80 and § 61.82.
(b) To apply for a Life Safety Code capital grant under this section, an applicant must obtain from VA a Life Safety Code capital grant application package and submit to VA the information called for in the application package within the time period established in the Notice of Fund Availability. The Life Safety Code capital grant application package includes exhibits to be prepared and submitted as part of the application process, including:
(1) Justification for the modifications needed to meet the Life Safety Code or such other comparable fire and safety requirements;
(2) Site description, site design, and site cost estimates;
(3) Reasonable assurances with respect to receipt of a Life Safety Code capital grant under this part that:
(i) The project being renovated is being, and will continue to be, used principally to furnish veterans the level of care for which VA awarded the applicant a grant under the Homeless Veterans Comprehensive Service Program Act of 1992; that not more than 25 percent of participants at any one time will be nonveterans; and that such services will meet the requirements of this part;
(ii) The recipient will keep records and submit reports as VA may reasonably require, within the time frames required; and give VA, upon demand, access to the records upon which such information is based;
(iii) The applicant has agreed to comply with the applicable requirements of this part and has demonstrated the capacity to do so;
(iv) The applicant does not have an outstanding obligation to VA that is in arrears, and does not have an overdue or unsatisfactory response to an audit; and
(v) The applicant is not in default, by failing to meet requirements for any previous assistance from VA.
(c)(1) Cost-effectiveness. VA will award up to 300 points for cost-effectiveness with adjustments for high-cost areas. Applicants should address the following:
(i) Estimated cost of the renovation and the type of work to be done;
(ii) Estimated cost of any displacement of program participants or services due to the renovation; and
(iii) Cost-benefit analysis addressing the benefit of renovation to the structure compared to moving program to another site.
(2) Coordination. VA will award up to 200 points for a summary countersigned by the local VAMC Facilities Management of the discussions concerning renovation plans. The summaries should detail the following:
(i) Urgency of the renovation;
(ii) Adequacy of the renovation; and
(iii) Opinion of feasibility and cost benefit.
(d) The highest-ranked applications for the Life Safety Code capital grants for which funding is available will be selected to receive grants in accordance with their ranked order. The amount awarded will be 100 percent of the estimated total cost of the renovation as stated in the Life Safety Code application (this may include application costs, architectural fees, and engineering fees). VA will execute an agreement and make payments to the Life Safety Code capital grant recipient in accordance with § 61.61 of this part and other applicable provisions of this part. In the event of a tie between applicants, VA will use the score from § 61.20(c)(2) of this part to determine the ranking.
(e) Applicants may apply for more than one Life Safety Code capital grant.
(f) The authority to provide Life Safety Code grants expires on December 21, 2006.
VA provides per diem funds to capital grant recipients or to entities eligible to receive a capital grant, which established a program of supportive housing or services after November 10, 1992 so they can assist homeless veterans by helping to offset operating costs to ensure the availability of supportive housing and service centers tasked with furnishing outreach, rehabilitative services, vocational counseling and training, and transitional housing assistance.
(a) To apply for per diem, a capital grant recipient need only indicate the intent to receive per diem on the capital grant application or may separately request per diem by submitting to VA a written statement requesting per diem.
(b) To apply for per diem, a non-capital grant recipient must obtain from VA a non-capital grant application package and submit to VA the information called for in the application package within the time period established in the Notice of Fund Availability. The non-capital grant application package includes exhibits to be prepared and submitted as part of the application process, including:
(1) Justification for per diem;
(2) Documentation on eligibility to receive per diem under this part;
(3) Documentation on operating budget and cost sharing;
(4) Documentation on supportive services committed to the project;
(5) Comments or recommendations by appropriate State (and area wide) clearinghouses pursuant to E.O. 12372 (3 CFR, 1982 Comp., p. 197), if the applicant is a State; and
(6) Reasonable assurances with respect to receipt of per diem under this part that:
(i) The project will be used principally to furnish to veterans the level of care for which such application is made; that not more than 25 percent of participants at any one time will be nonveterans; and that such services will meet the requirements of this part;
(ii) Adequate financial support will be available for the per diem program; and
(iii) The recipient will keep records and submit reports as VA may reasonably require, within the time frames required; and give VA, upon demand, access to the records upon which such information is based.
(a) Applications from non-capital grant recipients in response to a Notice of Fund Availability will be reviewed and grouped in categories according to the funding priorities set forth in the NOFA, if any. Such applications will then be ranked within their respective funding category according to scores achieved only if the applicant scores at least 500 cumulative points from paragraphs (b), (c), (d), (e), and (i) of § 61.13 of this part. The highest-ranked applications for which funding is available, within highest priority funding category if applicable, will be conditionally selected for eligibility to receive per diem payments in accordance with their ranked order. If funding priorities have been established and funds are still available after selection of those applicants in the highest priority group VA will continue to conditionally select applicants in lower priority categories in accordance with the selection method set forth in this paragraph subject to available funding.
(b) In the event of a tie between applicants, VA will use the score from § 61.13(e) of this part to determine the ranking.
(c) All applicants responding to a NOFA for “Per Diem Only” will be subject to the ranking method in paragraph (a) of this section.
Capital grant recipients are not required to be ranked, however, continuation of per diem payments to capital grant recipients will be subject to limitations set forth in § 61.33 of this part.
(a) A capital grant recipient meeting the application requirements as outlined in § 61.31(a) of this part is eligible for per diem subject to a site inspection establishing that the applicant continues to meet the requirements for a capital grant as outlined in the following sections, §§ 61.62, 61.64, 61.65, 61.66, 61.80, 61.81, and 61.82.
(b) For non-capital grant recipients who apply for per diem under this part, funds will be allocated to the highest-ranked applicants in descending order until funds are expended. Payments will be contingent upon verification of application information based on an initial site inspection and other inspections pursuant to § 61.66 of this part and will be made for 3 years or as otherwise specified in the Notice of Fund Availability. Non-capital grant recipients may apply again thereafter only in response to a Notice of Fund Availability.
(c) For those applicants selected to receive per diem, VA will execute an agreement in accordance with § 61.61of this part and make payments to the grant recipient or non-grant recipient for those homeless veterans—
(1) Who VA referred to the grant recipient or non-grant recipient; or
(2) For whom VA authorized the provision of supportive housing or supportive service.
(d)(1) The rate of per diem payments for each veteran in supportive housing shall be the lesser of—
(i) The daily cost of care estimated by the per diem recipient minus other sources of payments to the per diem recipient for furnishing services to homeless veterans that the per diem recipient certifies to be correct (other sources include payments and grants from other departments and agencies of the United States, from departments of State and local governments, from private entities or organizations, and from program participants), or
(ii) The current VA State Home Program per diem rate for domiciliary care.
(2) The per diem amount for service centers shall be 1/8 of the lesser of the amounts in paragraphs (f)(1)(i) and (f)(1)(ii) of this section per hour, not to exceed 8 hours in any day.
(e) Per diem payments may be paid retroactively for services provided not more than 3 days before VA approval is given or, where through no fault of the recipient, per diem payments should have been made but were not made. VA will not pay per diem for any additional days of absence when a veteran has already been absent for more than 72 hours consecutively (scheduled or unscheduled). In addition, VA will not pay per diem payments for supportive housing for any homeless veteran who has had three or more episodes (admission and discharge for each episode) of supportive housing services paid for under this part. VA may waive the episode requirement if the services offered are different from those previously provided and may lead to a successful outcome.
(f) Payment of per diem is subject to availability of funds. When necessary due to funding limitations, VA will reduce the rate of per diem as necessary.
(g) Capital grant recipients and non-capital grant recipients may continue to receive per diem assistance only so long as they continue to meet the minimum eligibility requirements for obtaining a grant. For grant recipients this is the minimum 600 points as provided for in § 61.13(a) of this part. For non-grant recipients this is the minimum 500 points provided for in § 61.32(a) of this part.
(h) Per diem payments will not be paid for both supportive housing and supportive services provided to the same veteran by the same per diem recipient.
(i) For non-capital grant recipients, only those portions of the service center or supportive housing described in the application will be considered for per diem assistance.
(j) At the time of receipt, a per diem recipient must report to VA all other sources of income for the project for which per diem was awarded. The information in this paragraph provides a basis for adjustments to the per diem payment.
(a) VA provides special needs grants to capital grant and per diem recipients under this part to assist with additional operational costs that would not otherwise be incurred but for the fact that the recipient is providing beds or services in supportive housing and at service centers for the following homeless veterans:
(1) Women, including women who have care of minor dependents;
(2) Frail elderly;
(3) Terminally ill; or
(4) Chronically mentally ill.
(b) No part of a special needs grant may be used for any purpose that would change significantly the scope of the project for which a capital grant or per diem was awarded.
(c) The following sections of this part apply to special needs grants: §§ 61.60 through 61.66; and § 61.80; § 61.82.
(a) To apply for a special needs grant, an applicant must obtain from VA a special needs grant application package and submit to VA the information called for in the application package within the time period established in the Notice of Fund Availability.
(b) The special needs grant application package includes exhibits to be prepared and submitted as part of the application process, including:
(1) Justification for the special needs grant;
(2) Documentation on eligibility to receive a special needs grant under this part;
(3) Documentation concerning the estimated operating costs for the needs of the specific population for which the special needs grant is requested;
(4) Documentation concerning supportive services committed to the project;
(5) Comments or recommendations by appropriate State (and area wide) clearinghouses pursuant to E.O. 12372 (3 CFR, 1982 Comp., p. 197), if the applicant is a State; and
(6) Reasonable assurances with respect to receipt of a special needs grant under this part that:
(i) The funds will be used to furnish to veterans the level of care for which such application is made; and that the special needs program will comply with applicable requirements of this part;
(ii) The recipient will keep records and submit reports as VA may reasonably require, within the time frames required; and give VA, upon demand, access to the records upon which such information is based; and
(iii) Adequate financial support will be available for the special needs program.
To be eligible for a special needs grant, an applicant must meet the following threshold requirements:
(a) The application included the information called for in the application package and was filed within the time period established in the Notice of Fund Availability;
(b) The applicant still meets the requirements for receipt of per diem;
(c) The activities for which assistance is requested are eligible for funding under this part;
(d) The applicant has demonstrated that adequate financial support will be available to carry out the project for which the grant is sought consistent with the plans, specifications and schedule submitted by the applicant;
(e) The applicant does not have an outstanding obligation to VA that is in arrears, and does not have an overdue or unsatisfactory response to an audit;
(f) The applicant is not in default, by failing to meet requirements for any previous assistance from VA under this part; and
(g) The applicant has agreed to comply with applicable requirements of this part, to maintain eligibility for special need payments and has demonstrated the capacity to do so.
(a) Applicants that meet the threshold requirements in § 61.42 of this part, will then be rated using the selection criteria listed in paragraphs (b) and (c) of this section. To be eligible for a special needs grant, an applicant must receive at least 300 points (out of a possible 500) and must score points in all areas (paragraphs (b)(1) through (c)(3)).
(b) VA will award up to 200 points based on the extent to which the applicant demonstrates why the service, operation, or personnel for which the special needs grant:
(1) Is needed for the project;
(2) Is integral to the project;
(3) Is appropriate to the population and overall project design; and
(4) Meets the special needs population provided per diem in the previous year.
(c) VA will award up to 300 points based on the extent the applicant's goals, objectives, and measures for the population to be served are:
(1) Appropriate;
(2) Reasonable; and
(3) Measurable.
(d) The information provided under paragraphs (b) and (c) of this section for
(1) Ensure transportation for women and their children, especially for health care and educational needs;
(2) Provide directly or offer referrals for adequate and safe child care;
(3) Ensure children's health care needs are met especially age appropriate wellness visits and immunizations; and
(4) Address safety and security issues including segregation procedures from other program participants if deemed appropriate.
(e) The information provided under paragraphs (b) and (c) of this section for the frail elderly should demonstrate how the program design will:
(1) Ensure the safety of the residents in the facility to include preventing harm and exploitation;
(2) Ensure opportunities to keep residents mentally and physically agile to the fullest extent through the incorporation of structured activities, physical activity, and plans for social engagement within the program and in the community;
(3) Provide opportunities for participants to address life transitional issues and separation and/or loss issues;
(4) Provide access to assistance devices such as walkers, grippers, or other devices necessary for optimal functioning;
(5) Ensure adequate supervision, including supervision of medication and monitoring of medication compliance; and
(6) Provide opportunities for participants either directly or through referral for other services particularly relevant for the frail elderly, including services or programs addressing emotional, social, spiritual, and generative needs.
(f) The information provided under paragraphs (b) and (c) of this section for the terminally ill should demonstrate how the program design will:
(1) Help participants address life-transition and life-end issues;
(2) Ensure that participants are afforded timely access to hospice services;
(3) Provide opportunities for participants to engage in “tasks of dying,” or activities of “getting things in order” or other therapeutic actions that help resolve end of life issues and enable transition and closure;
(4) Ensure adequate supervision including supervision of medication and monitoring of medication compliance; and
(5) Provide opportunities for participants either directly or through referral for other services particularly relevant for terminally ill such as legal counsel and pain management.
(g) The information provided under paragraphs (b) and (c) of this section for the chronically mentally ill should demonstrate how the program design will:
(1) Help participants join in and engage with the community;
(2) Facilitate reintegration with the community and provide services that may optimize reintegration such as life-skills education, recreational activities, and follow up case management;
(3) Ensure that participants have opportunities and services for re-establishing relationships with family;
(4) Ensure adequate supervision, including supervision of medication and monitoring of medication compliance; and
(5) Provide opportunities for participants, either directly or through referral, to obtain other services particularly relevant for a chronically mentally ill population, such as vocational development, benefits management, fiduciary or money management services, medication compliance, and medication education.
(a) Applicants will first be grouped in categories according to the funding priorities set forth in the NOFA, if any. Applicants will then be ranked, within their respective funding category if applicable. The highest-ranked applications for which funding is available, within highest priority funding category if applicable, will be conditionally selected to receive a special needs grant in accordance with their ranked order, as determined under § 61.43 of this part. If funding priorities have been established and funds are still available after selection of those applicants in the highest priority group VA will continue to conditionally select applicants in lower priority categories in accordance with the selection method set forth in this paragraph subject to available funding.
(b) In the event of a tie between applicants, VA will use the score from § 61.43(b) of this part to determine the ranking.
(c) For those applicants selected for a special needs grant, VA will execute an agreement and make payments to the grant recipient in accordance with § 61.61of this part.
(d) The amount of the special needs grant will be the estimated total operational cost of the special need over the life of the special needs grant award as specified in the special needs grant agreement. Payments may be made for no more than 3 years. Recipients may apply again thereafter only in response to a Notice of Fund Availability.
VA provides grants to entities or organizations with expertise in preparing grant applications relating to the provision of assistance for homeless veterans. The recipients are to use the grants to provide technical assistance to those nonprofit community-based groups with experience in providing assistance to homeless veterans in order to help such groups apply for grants under 38 CFR part 61 or apply for other grants from any source for addressing the problems of homeless veterans. This includes:
(a) Group or individual seminars providing general instructions concerning grant applications;
(b) Group or individual seminars providing instructions for applying for a specific grant; or
(c) Group or individual instruction for preparing analyses to be included in a grant application.
(a) To apply for a technical assistance grant under this part, an applicant must obtain from VA a technical assistance grant application package and submit to VA the information called for in the technical assistance grant application package within the time period established in the Notice of Fund Availability.
(b) The technical assistance grant application package includes exhibits to be prepared and submitted as part of the application process, including
(1) Justification for the technical assistance grant;
(2) Documentation on eligibility to receive a technical assistance grant under this part;
(3) Description of type of technical assistance that would be provided (see § 61.50);
(4) Documentation concerning the estimated operating costs and operating budget for the technical assistance program for which a grant is sought;
(5) Documentation concerning expertise in preparing grant applications;
(6) Documentation on resources committed to the provision of technical expertise;
(7) Comments or recommendations by appropriate State (and area wide) clearinghouses pursuant to E.O. 12372 (3 CFR, 1982 Comp., p. 197), if the applicant is a State; and
(8) Reasonable assurances with respect to receipt of a technical assistance grant under this part that:
(i) The recipient will provide adequate financial and administrative support for providing the services set forth in the technical assistance grant application and will actually provide such services; and
(ii) The recipient will keep records and submit reports as VA may reasonably require, within the time frames required; and give VA, upon demand, access to the records upon which such information is based.
To be eligible for a technical assistance grant, an applicant must meet the following threshold requirements:
(a) The application included the information called for in the application package and was filed within the time period established in the Notice of Fund Availability;
(b) The applicant established expertise in preparing grant applications;
(c) The activities for which assistance is requested are eligible for funding under this part;
(d) The applicant has demonstrated that adequate financial support will be available to carry out the project for which the grant is sought consistent with the plans, specifications and schedule submitted by the applicant;
(e) The applicant does not have an outstanding obligation to VA that is in arrears, and does not have an overdue or unsatisfactory response to an audit; and
(f) The applicant is not in default, by failing to meet requirements for any previous assistance from VA under this part.
(a) Applicants that meet the threshold requirements in § 61.52 of this part, will then be rated using the selection criteria listed in paragraphs (b) and (c) of this section. To be eligible for a technical assistance grant, an applicant must receive at least 600 points (out of a possible 800) and must score points under paragraphs (b) and (c) of this section.
(b) Quality of the technical assistance. VA will award up to 400 points based on the following:
(1) How the recipients of technical training will increase their skill level regarding the completion of applications;
(2) How the recipients of technical training will learn to find grant opportunities in a timely manner;
(3) How the technical assistance provided will be monitored and evaluated and changes made, if needed; and
(4) How the proposed technical assistance programs will be implemented in a timely fashion.
(c) Ability of applicant to demonstrate expertise in preparing grant applications develop and operate a technical assistance program. VA will award up to 400 points based on the extent to which the application demonstrates:
(1) Ability to find grants available for addressing the needs of homeless veterans;
(2) Ability to find and offer technical assistance to entities eligible for such assistance;
(3) Ability to administer a technical assistance program;
(4) Ability to provide grant technical assistance; and
(5) Ability to evaluate the overall effectiveness of the technical assistance program and to make adjustments, if necessary, based on those evaluations.
(a) Applicants will first be grouped in categories according to the funding priorities set forth in the NOFA, if any. Applicants will then be ranked, within their respective funding category if applicable. The highest-ranked applications for which funding is available, within highest priority funding category if applicable, will be conditionally selected to receive a technical assistance grant in accordance with their ranked order, as determined under § 61.53 of this part. If funding priorities have been established and funds are still available after selection of those applicants in the highest priority group VA will continue to conditionally select applicants in lower priority categories in accordance with the selection method set forth in this paragraph subject to available funding.
(b) In the event of a tie between applicants, VA will use the score from § 61.53(c) of this part to determine the ranking.
(c) For those applicants selected to receive a technical assistance grant, VA will execute an agreement and make payments to the grant recipient in accordance with § 61.61 of this part.
(d) The amount of the technical assistance grant will be the estimated total operational cost of the technical assistance over the life of the technical assistance grant award as specified in the technical assistance grant agreement. Payments may be made for no more than 3 years. Recipients may apply again thereafter only in response to a Notice of Fund Availability.
(e) The amount of a technical assistance grant under this part may not exceed the cost of the estimated cost of the provision of technical assistance.
(f) VA will not pay for sustenance or lodging under a technical assistance grant.
Each recipient of a technical assistance grant must submit to VA, quarterly, a report describing the activities for which the technical assistance grant funds were awarded, including the type and amount of technical assistance provided and the number of nonprofit community-based groups served.
When funds are made available for capital grants, per diem for non-capital grant recipients, special needs grants, or technical assistance grants, VA will publish a Notice of Fund Availability in the
(a) Give the location for obtaining application packages;
(b) Specify the date, time, and place for submitting completed applications;
(c) State the estimated amount and type of funding available; and
(d) State any priorities for or exclusions from funding to meet the statutory mandate of 38 U.S.C. 2011, to ensure that awards do not result in the duplication of ongoing services and to reflect the maximum extent practicable appropriate geographic dispersion and an appropriate balance between urban and nonurban locations.
(e) Provide other information necessary for the application process.
(a) When an applicant for a capital grant, per diem, a special needs grant, or a technical assistance grant meets all of the requirements under this part for the type of assistance requested and VA has funding for such assistance, VA will incorporate requirements under this part into an agreement to be executed by
(b) Except for increases in the rate of per diem, VA will not make revisions to increase the amount obligated for assistance under this part after the initial obligation of funds.
(c) VA will enforce the obligations under this part through such action as may be appropriate, including temporarily withholding cash payments pending correction of a deficiency.
(d) VA may deobligate all or parts of assistance awarded under this part:
(1) If the actual total costs for assistance is less than the total cost stated in the application, or
(2) If the recipient fails to comply with the requirements of this part.
(e) However, before determining whether to deobligate under paragraph (d)(2) of this section, VA will issue a notice of intent to terminate payments. The recipient will then have 30 days to submit documentation demonstrating why payments should not be terminated. After review of any such documentation, VA will issue a final decision concerning termination of payment.
(f) VA may also seek recovery under § 61.67 of this part where a capital grant recipient fails to provide supportive services and/or supportive housing for the minimum period of operation under § 61.67.
(g) Where a recipient has no control over causes for delays in implementing a project, VA may change the due date, as appropriate.
(h) Grant recipients that concurrently receive per diem and special needs payments shall not be paid more than 100 percent of the cost of the bed per day, product, operation, personnel, or service provided.
(i) No funds provided under this part may be used to replace Federal, State or local funds previously used, or designated for use, to assist homeless veterans.
(j) VA may obligate any recovered funds without fiscal year limitation.
(a) Except as provided in paragraphs (b) through (d) of this section, a recipient may not make any significant changes to a project for which a grant has been awarded without prior VA approval. Significant changes include, but are not limited to, a change in the recipient, a change in the project site (including relocating, adding an annex, a branch, or other expansion), additions or deletions of activities, shifts of funds from one approved type of activity to another, and a change in the category of participants to be served.
(b) Recipients of grants exceeding $100,000 for nonconstruction projects must receive prior VA approval for cumulative transfers among direct cost categories which exceed or are expected to exceed 10 percent of the current total approved budget.
(c) Recipients of grants for projects involving both construction and nonconstruction who are State or local governments must receive prior VA approval for any budget revision which would transfer funds between nonconstruction and construction categories.
(d) Approval for changes is contingent upon the application ranking remaining high enough after the approved change to have been competitively selected for funding in the year the application was selected.
(e) Any changes to an approved program must be fully documented in the recipient's records.
If an application would have been selected but for a procedural error committed by VA, VA will select that application for potential funding when sufficient funds become available if there is no material change in the information that resulted in its selection. A new application will not be required for this purpose.
(a) As a condition for receiving assistance under this part, an organization that is primarily a religious organization must agree to conduct activities for which the assistance is provided in a manner that is free from religious influences and must comply with the following:
(1) It will not discriminate against any employee or applicant for employment on the basis of religion and will not limit employment or give preference in employment to persons on the basis of religion;
(2) It will not discriminate against any person applying for housing or supportive services on the basis of religion and will not limit such housing or services or give preference to persons on the basis of religion; and
(3) It will provide no religious instruction or counseling, conduct no religious worship or services, engage in no religious proselytizing, and exert no other religious influence as a condition of the provision of housing and supportive services.
VA may inspect the facility and any records of an entity applying for or receiving assistance under this part at such times as are deemed necessary to determine compliance with the provisions of this part. The authority to inspect carries with it no authority over the management or control of any entity applying for or receiving assistance under this part.
(a) All recipients shall comply with applicable requirements of the Single Audit Act Amendments of 1996, as implemented by OMB Circular A-133.
(b) All entities receiving assistance under this part must use a financial management system that follows generally accepted accounting principals and provides accounting records, including cost accounting records that are supported by documentation. Such cost accounting must be reflected in the entity's fiscal cycle financial statements to the extent that the actual costs can be determined for the program for which assistance is provided. All entities receiving per diem under this part must monitor the accuracy of the costs used to determine payment amounts per veteran. Entities receiving assistance must meet the applicable requirements of the appropriate OMB Circular for Cost-Principles (A-122 or A-87).
(a) If after 3 years from the date of award of a capital grant, the grant recipient has withdrawn from the VA Homeless Providers Grant and Per Diem Program (Program); does not establish the project for which the grant was made; or has established the project for which the grant was made but has not
(b) Where the grant recipient is not subject to recovery under paragraph (a) of this section, VA will seek recovery of the grant amount on a prorated basis where the grant recipient ceases to provide services for which the grant was made or withdraws from the Program prior to the expiration of the applicable period of operation, which period shall begin on the date of final inspection for which the grant was made. The amount to be recaptured equals the total amount of the grant, multiplied by the fraction resulting from using the number of years the recipient was not operational as the numerator, and using the number of years of operation required under the following chart as the denominator.
Grantee A is awarded a grant and does not bring the project to operational status within 3 years from the time of award. Grantee A may be subject to full recapture of the grant award.
Grantee B is awarded a grant in the amount of $300,000 and brings the project to operational status within 3 years from the time of award. Grantee B then provides services to homeless veterans for a period of 6 years from the date the program was operationalized, but now decides to close the program. As the original award was $300,000 and as a condition of receiving the grant funds Grantee B agreed to provide services for 8 years. Therefore, Grantee B would be subject to the prorated recapture of the grant award for the 2-year period not served or in this case 1/4 of the original grant would be subject to recapture.
Grantee C is awarded a grant in the amount of $400,000, becomes operational within 1 year of the date of the grant award and ceases operation 1 year later, 2 years after the date of the grant award. After the expiration of the 3-year period beginning on the date of the grant award, Grantee C would be subject to prorated recapture for the 7 years it did not provide service of the required 8 years of operation. The amount subject to recapture would thus be 7/8 × $400,000 or $350,000.
(c) VA will seek to recover from the recipient of per diem, a special needs grant, or a technical assistance grant any funds that are not used in accordance with the requirements of this part.
(d) Before VA would take action to recover funds, VA will issue to the recipient a notice of intent to recover funds. The recipient will then have 30 days to submit documentation demonstrating why funds should not be recovered. After review of any such documentation, VA will issue a decision regarding whether action will be taken to recover funds.
(a) Supportive housing and service centers for which assistance is provided under this part must:
(1) Comply with the Life Safety Code of the National Fire Protection Association and all applicable State and local housing codes, licensing requirements, fire and safety requirements, and any other requirements in the jurisdiction in which the project is located regarding the condition of the structure and the operation of the supportive housing or service centers.
(2) Notwithstanding the provisions of paragraph(a)(1) of this section, recipients of grants prior to December 21, 2001, are required to comply with the Life Safety Code of the National Fire Protection Association by December 21, 2006. Such recipients are not excused from meeting the other requirements of paragraph (a)(1) of this section, including State and local fire and safety requirements.
(b) Except for such variations as are proposed by the recipient that would not affect compliance with paragraph (a) of this section and are approved by VA, supportive housing must meet the following requirements:
(1) The structures must be structurally sound so as not to pose any threat to the health and safety of the occupants and so as to protect the residents from the elements;
(2) Entry and exit locations to the structure must be capable of being utilized without unauthorized use of other private properties, and must provide alternate means of egress in case of fire;
(3) Buildings constructed or altered with Federal assistance must also be accessible to the disabled, as required by section 502 of the Americans with Disabilities Act, referred to as the Architectural Barriers Act;
(4) Each resident must be afforded appropriate space and security for themselves and their belongings, including an acceptable place to sleep that is in compliance with all applicable local, state, and federal requirements;
(5) Every room or space must be provided with natural or mechanical ventilation and the structures must be free of pollutants in the air at levels that threaten the health of residents;
(6) The water supply must be free from contamination;
(7) Residents must have access to sufficient sanitary facilities that are in proper operating condition, that may be used in privacy, and that are adequate for personal cleanliness and the disposal of human waste;
(8) The housing must have adequate heating and/ or cooling facilities in proper operating condition;
(9) The housing must have adequate natural or artificial illumination to permit normal indoor activities and to support the health and safety of residents and sufficient electrical sources must be provided to permit use of essential electrical appliances while assuring safety from fire;
(10) All food preparation areas must contain suitable space and equipment to store, prepare, and serve food in a sanitary manner;
(11) The housing and any equipment must be maintained in a sanitary manner;
(12) The residents with disabilities must be provided meals or meal preparation facilities must be available;
(13) Residential supervision from a paid staff member, volunteer, or senior resident participant must be provided 24 hours per day, 7 days per week and for those times that a volunteer or senior resident participant is providing residential supervision a paid staff member must be on call for emergencies 24 hours a day 7 days a week (all supervision must be provided by individuals with sufficient knowledge for the position); and
(14) Residents must be provided a clean and sober (free from illicit drugs) environment and those supportive housing or service centers that provide medical or social detox at the same site as the supportive housing or service must ensure that those residents in detox are clearly separated from the general residential population.
(c) Each recipient of assistance under this part must conduct an ongoing assessment of the supportive services needed by the residents of the project and the availability of such services, and make adjustments as appropriate. The recipient will provide evidence of this ongoing assessment to VA at such times as are deemed necessary, but as a minimum, once annually in the form of a report that addresses the recipient's
(d) A homeless veteran may remain in transitional housing for which assistance is provided under this part for a period no longer than 24 months, except that a veteran may stay longer, if permanent housing for the veteran has not been located or if the veteran requires additional time to prepare for independent living. However, at any given time, no more than one-half of the veterans at such transitional housing facility may have resided at the facility for periods longer than 24 months.
(e) Each recipient of assistance under this part must provide for the consultation and participation of not less than one homeless veteran or formerly homeless veteran on the board of directors or an equivalent policymaking entity of the recipient, to the extent that such entity considers and makes policies and decisions regarding any project provided under this part. This requirement may be waived if an applicant, despite a good faith effort to comply, is unable to meet it and presents a plan, subject to VA approval, to otherwise consult with homeless or formerly homeless veterans in considering and making such policies and decisions.
(f) Each recipient of assistance under this part must, to the maximum extent practicable, involve homeless veterans and families, through employment, volunteer services, or otherwise, in constructing, rehabilitating, maintaining, and operating the project and in providing supportive services for the project.
(g) Each recipient of assistance under this part shall establish procedures for fiscal control and fund accounting to ensure proper disbursement and accounting of assistance received under this part.
(h) The recipient of assistance under this part that provides family violence prevention or treatment services must establish and implement procedures to ensure:
(1) The confidentiality of records pertaining to any individual provided services, and
(2) The confidentially of the address or location where the services are provided.
(i) Each recipient of assistance under this part must maintain the confidentiality of records kept on homeless veterans receiving services.
(j) VA may disapprove use of outpatient health services provided through the recipient if VA determines that such services are of unacceptable quality. Further, VA will not pay per diem where the Department concludes that services furnished by the recipient are unacceptable.
(k) A service center for homeless veterans shall provide services to homeless veterans for a minimum of 40 hours per week over a minimum of 5 days per week, as well as provide services on an as-needed, unscheduled basis. The calculation of average hours shall include travel time for mobile service centers. In addition:
(1) Space in a service center shall be made available as mutually agreeable for use by VA staff and other appropriate agencies and organizations to assist homeless veterans;
(2) A service center shall be equipped to provide, or assist in providing, health care, mental health services, hygiene facilities, benefits and employment counseling, meals, and transportation assistance;
(3) A service center shall provide other services as VA determines necessary based on the need for services otherwise not available in the geographic area; and
(4) A service center may be equipped and staffed to provide, or to assist in providing, job training and job placement services (including job readiness, job counseling, and literacy and skills training), as well as any outreach and case management services that may be necessary to meet the requirements of this paragraph.
(l) Fixed site service centers will prominently post at or near the entrance to the service center their hours of operation and contacts in case of emergencies. Mobile service centers must take some action reasonably calculated to provide in advance a tentative schedule of visits, (
(1) The region of operation;
(2) Times of operation;
(3) Expected services to be provided; and
(4) Contacts for specific information and changes.
Recipients of capital grants and per diem under this part relating to supportive housing or service centers must use their best efforts to ensure that eligible hard-to-reach veterans are found, engaged, and provided assistance. Accordingly, a recipient should search for homeless veterans at places such as shelters, soup kitchens, parks, bus or train stations, and the streets. Outreach particularly should be directed toward veterans who have a nighttime residence that is an emergency shelter or a public or private place not ordinarily used as a regular sleeping accommodation for human beings (
(a) Each resident of supportive housing may be required to pay rent in an amount determined by the recipient, except that such rent may not exceed 30 percent of the resident's monthly income after deducting medical expenses, child care expenses, court ordered child support payments, or other court ordered payments.
(b) Resident rent may be used for costs of operating the supportive housing or to assist supportive housing residents move to permanent housing.
(c) In addition to resident rent, recipients may charge residents reasonable fees for services not covered by VA per diem funds and not otherwise provided by VA.
Environmental Protection Agency.
Final rule.
Today's action withdraws the final rule entitled “Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation (“the July 2000 rule”) published in the
The July 2000 rule amending 40 CFR parts 9, 122, 123, 124 and 130, published on July 13, 2000, at 65 FR 43586, is withdrawn as of April 18, 2003. This rule is considered final for purposes of judicial review as of 1 p.m. eastern time, on April 2, 2003, as provided in 40 CFR 23.2.
The complete record for the final rule, Docket ID No. OW-2002-0037, is available for public viewing at the Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room B-102, 1301 Constitution Ave., NW., Washington, DC.
For information about today's final rule, contact: Francoise M. Brasier, U.S. EPA Office of Wetlands, Oceans and Watersheds (4503T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, phone (202) 566-2385.
Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302, 303, 305, 308, 319, 402, 501, 502, and 603; 33 U.S.C. 1256, 1285(g), 1285(j), 1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362, and 1373.
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 EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether you may be regulated by this action, you should carefully examine the applicability criteria in § 130.20 of title 40 of the Code of Federal Regulations. If you have any questions regarding the applicability of this action to you, consult the person listed in the
EPA has established an official public docket for this action under Docket ID No. OW-2002-0037. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center, EPA West, Room B-102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Water Docket is (202) 566-2426. For access to docket materials, please call ahead to schedule an appointment. 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
On December 27, 2002, EPA proposed to withdraw final regulations affecting the TMDL program (67 FR 79020) that were published in the
The July 2000 rule was controversial from the outset. Both the proposed and final rules generated considerable controversy, as expressed in Congressional action, letters, testimony and public meetings. Even before it was published in the
Stakeholder concerns were also reflected in legal challenges to the July 2000 rule by a broad array of litigants. Ten petitions for review were filed by States, industrial and agricultural groups, and environmental organizations asserting that many of EPA's revisions to the TMDL regulations were either unlawful under the Administrative Procedure Act or exceeded the Agency's authority under the CWA. These petitions, which identified more than 50 alleged legal defects in the July 2000 rule, were ultimately consolidated in
In the December 27, 2002, preamble to the proposed withdrawal rule, EPA explained why it had decided to withdraw the July 2000 rule. EPA said that by continuing to examine the regulatory needs of the TMDL and NPDES programs against the impending April 30, 2003, effective date for the July 2000 rule, the Agency was sending confusing signals to the States and other interested parties about which set of rules they should be prepared to implement. Further, because of the significant controversy, pending litigation and lack of stakeholder consensus on key aspects of the July 2000 rule, the Agency said that the July 2000 rule could not function as the blueprint for an efficient and effective TMDL program without significant revisions. Moreover, the Agency said it needed more time to consider whether and how to revise the currently-effective TMDL rules without concern that those efforts would be adversely affected and distracted by the July 2000 rule's impending effective date. In the preamble to the proposed rule, the Agency also explained why it believes that, given the significant progress States have made during the past four years in developing TMDLs, withdrawal of the July 2000 rule will not compromise continuing efforts to implement section 303(d) of the Clean Water Act. EPA's rationale for proposing the withdrawal of the July 2000 rule is more fully explained in the preamble accompanying the proposal (67 FR 79020).
EPA received approximately 90 separate written comments regarding its proposal to withdraw the July 2000 rule. These comments came from a broad cross-section of stakeholders, including agricultural and forestry groups, business and industry entities and trade associations, State agencies, environmental organizations, professional associations, academic groups and private citizens. An overwhelming majority of the commenters (more than 90 percent) supported EPA's proposed action to withdraw the July 2000 rule. These commenters generally agreed with the Agency's rationale for withdrawing the rule as discussed in the December 27, 2002, preamble. Commenters reiterated EPA's concerns about the potential distraction and confusion caused by the July 2000 rule's impending deadline, as well as the controversy surrounding various provisions of the rule and uncertainty caused by the pending DC Circuit Court litigation. Others stated that the July 2000 rule was no longer needed because of the increased technical guidance that EPA has provided to States to improve the quality of their lists of impaired waters, and the increased funding provided by EPA for developing TMDLs. Many commenters said that States have made significant strides in developing TMDLs since the rule was originally proposed and promulgated and, therefore, the July 2000 rule was not needed. Several commenters stated that allowing the July 2000 rule to go into effect would be disruptive to ongoing TMDL development efforts, and that withdrawing the July 2000 rule would give the Agency additional time to evaluate the need for new TMDL regulations. Some commenters offered additional reasons for supporting withdrawal of the July 2000 rule. Although most of these reasons are consistent with EPA's rationale for withdrawing the July 2000 rule, some are not. For example, some commenters, though supporting EPA's decision to withdraw the July 2000 rule, also questioned the legal soundness of certain provisions of that rule. EPA does not necessarily agree with those comments, and its decision today to withdraw the July 2000 rule should not be understood as an implicit endorsement of those views and comments.
A small minority of commenters (four) disagreed with EPA's proposal to withdraw the July 2000 rule. One commenter asserted that withdrawing the July 2000 rule would “postpone the TMDL program for several more years” and, by removing incentives to reduce pollution, would hinder progress “to implement the TMDL program” and “only make the problem worse.” Another commenter said that not going forward with the July 2000 rule would “undermine the momentum of State programs” that have been “waiting to see Federal guidelines to develop programs of their own.” EPA does not agree with these comments. Indeed, one State in its comments supporting withdrawal said that the July 2000 rule “would undo much of the momentum and success” of the State's ongoing and successful TMDL program. As described in more detail in the December 27, 2002, preamble, in recent years, EPA and the States have made great strides in implementing the existing 303(d) program to list impaired waters and develop and implement TMDLs to restore impaired waters. States have substantially improved their TMDL programs while the Agency has provided the States with significant increases in technical and financial support to expand and strengthen all elements of their programs. From FY 1999 to 2002, EPA has provided the States almost $30 million for TMDL-specific activities and allowed States to use a portion of State grants for water program administration (CWA section 106 grants) and nonpoint source programs (CWA sections 319 grants) for developing and implementing TMDLs. In addition, since 1998, EPA has spent more than $11 million to support development of technical guidance for developing TMDLs and identifying the most appropriate and efficient best management practices for nonpoint
Helped by these programmatic initiatives, States have made considerable progress in developing TMDLs despite the fact that the July 2000 rule never became effective. As stated in the December 27, 2002, proposal, between 1996 and 1999, EPA and the States established approximately 800 TMDLs. Since then, and despite the fact that the July 2000 rule never became effective, EPA and the States have established more than an additional 7,000 TMDLs; and States continue to improve the pace at which TMDLs are established. Given this progress and the States' adoption since 1998 of schedules for TMDL development, EPA anticipates no reduction in the pace of TMDLs being developed and the associated improvement in water quality, even if the July 2000 rule does not take effect.
One commenter objected to withdrawing the July 2000 rule because of provisions contained in the rule for expanded public involvement in the listing and TMDL development process. By not implementing the July 2000 rule, the commenter asserted that the public remains “shut out” of the listing and TMDL development process, which allows the States to develop impaired waters lists and establish TMDLs “without adequate public scrutiny.” EPA disagrees with this comment. While it is true that the July 2000 rule would have clarified, and, in some measure strengthened, the public participation components of EPA's currently-effective TMDL regulations, the current statutory and regulatory provisions (as supplemented by EPA guidance to the States and its Regional Offices) already allow for public scrutiny and participation in the listing and TMDL development process. EPA's existing regulations require that the process for involving the public in a State's listing and TMDL program “shall be clearly described in the State Continuing Planning Process (CPP)” (40 CFR 130.7(a)), and § 130.7(c)(1)(ii) requires that a State's calculations to establish TMDLs be subject to public review, as defined in the State CPP. Additionally, EPA regulations require that when EPA disapproves and establishes a list or a TMDL, EPA must seek public comment (40 CFR 130.7(d)).
EPA's policy has always been that there should be full and meaningful public participation in both the listing and TMDL development process, and EPA has issued guidance in addition to the regulations to support this effort. In EPA's “Guidelines for Reviewing TMDLs Under Existing Regulations Issued in 1992” (May 20, 2002), EPA states that, in addition to the TMDL regulatory requirements, “final TMDLs submitted to EPA for review and approval should describe the State's/tribe's public participation process, including a summary of significant comments and the State's/tribe's responses to those comments.” The guidance also states that “provision of inadequate public participation may be a basis for disapproving a TMDL. If EPA determines that a State/tribe has not provided adequate public participation, EPA may defer its approval action until adequate public participation has been provided for, either by the State/tribe or by EPA.”
EPA's “Integrated Report” guidance to States, tribes and EPA Regions (Integrated Water Quality Monitoring and Assessment Report (November 19, 2001)) states that “States and territories should provide for full public participation in the development of their Integrated Report prior to its submission to EPA. EPA believes that public understanding of how standard attainment determinations are made for all A[sessement] U[nits]s is crucial to the success of water quality programs and encourages active stakeholder participation in the assessment and listing process.... EPA will consider how the State or territory addressed the comments...when approving or disapproving the 303(d) list of AUs (Category 5).”
Most recently, in May 2002, EPA issued guidance to its Regional Offices stating that when reviewing State 303(d) lists, EPA Regions should review how States provided for public participation to ensure that each State carried out its public participation process consistent with the State's public participation requirements (“Recommended Framework for EPA Approval Decisions on 2002 State Section 303(d) List Submission.”) If the Region believes a State has not provided adequate public participation, the guidance provides steps the Region should take in working with a State to provide for additional public participation, and how the State or, if necessary, the Region, should consider and address public comments prior to EPA's approval or disapproval of the list. Finally, it is important to note that nearly all of the States already have public participation requirements under their own State laws for the listing and TMDL development processes, and also provide for public notice.
For all of these reasons, EPA believes that adequate public participation opportunities exist under the currently-effective regulations and that withdrawing the July 2000 rule will not limit meaningful public participation in the listing and TMDL development process.
One commenter stated that, by not implementing the July 2000 rule, States would continue to have inadequate monitoring programs and continue to develop lists of impaired waters based on inadequate data. EPA disagrees. EPA recognizes that no State has a perfect monitoring and listing program. Monitoring and assessment programs are expensive to assemble and implement. While the July 2000 rule would have clarified certain aspects of the existing TMDL regulations regarding listing methodologies, that rule, by itself, would not have provided the additional funding needed by many States to expand their monitoring and assessment programs. Moreover, many of the important listing clarifications and improvements contained in the July 2000 rule have already been provided to, and are currently being implemented by, States, even without the July 2000 rule having gone into effect.
To assist in implementation of the currently-effective TMDL rules, EPA issued the “2002 Integrated Water Quality Monitoring and Assessment Report Guidance” (November 19, 2001) to promote a more integrated and comprehensive system of accounting for the nation's impaired waters. The guidance recommends that States submit an “Integrated Report” that will satisfy CWA requirements for both section 305(b) water quality reports and section 303(d) lists. The objectives of this guidance are to strengthen State monitoring programs, encourage timely monitoring to support decision making, increase numbers of waters monitored, and provide a full accounting of all waters and uses. The guidance encourages a rotating basin approach and strengthened State assessment methodologies, and is intended to improve public confidence in water quality assessments and 303(d) lists. EPA extended the date for submission of 2002 lists by six months (66 FR 53044) to allow States and Territories time to incorporate some or all of the recommendations suggested by EPA in this guidance. Approximately half of the States and Territories have submitted a 2002 report which incorporates some or all of the elements of this guidance. In addition, EPA also held five stakeholder meetings in 2001 and 2002 to review and comment on a best practices guide that EPA was developing for States on consolidated assessment and listing methodologies. This guidance (“Consolidated Listing and Assessment
One commenter stated that withdrawing the July 2000 rule would continue “to make EPA and the States the target of numerous lawsuits—resulting in the courts driving environmental policy, rather than EPA and the States.” EPA does not agree with this comment. EPA does not agree that there are, in the commenter's words, “weaknesses” with the currently-effective TMDL regulations that make the Agency any more vulnerable to litigation than if it did not withdraw the July 2000 rule. Indeed, we believe withdrawing the July 2000 rule will render moot the pending D.C. Circuit Court challenge to that rule. Before July 2000, EPA was named as defendant in over 30 lawsuits challenging State lists and the pace of State TMDL development. Since July 2000, only a few such lawsuits have been filed, even though the July 2000 rule never became effective. Clearly, the number of such suits has declined as the States and EPA have done a better job under the 1985/1992 TMDL rules to establish lists and TMDLs. In addition, to date only a handful of lawsuits have been filed challenging any of the more than 7,000 TMDLs that the States or EPA have established. Given these numbers, the Agency does not believe there is anything inherently litigation-provoking in the currently-effective TMDL rules and, based on this record, EPA does not believe that withdrawing the July 2000 rule will result in increased TMDL litigation.
One commenter objected to withdrawing the July 2000 rule because of concerns regarding the inconsistent implementation of the program under the currently-effective regulations and EPA guidance. EPA does not agree that inconsistent implementation of the TMDL program is a significant problem. Nor, for that matter, would implementation of the July 2000 rule remove all potential for divergent implementation approaches by the different States and EPA Regions. As discussed previously, since publication of the July 2000 rule, EPA has issued numerous detailed policy memoranda, national guidance documents, technical protocol documents, and information on best management practices so that States can improve their methods to monitor and list impaired waters, and develop and implement TMDLs in a consistent, yet flexible way. A complete list of these guidance documents can be found at
EPA has also sponsored numerous TMDL and TMDL-related training sessions and meetings to clarify and provide detailed technical support to the States and Regions to help ensure consistency in listing and TMDL development (
As to the commenter's point that “there are significant differences between the July 2000 rule and the 1985, 1992 rule * * * [that] cannot adequately be addressed through EPA guidance,” EPA notes that its review of the currently-effective TMDL regulations in light of the July 2000 rule is ongoing. EPA has not yet decided what, if any, changes to propose to those regulations. As it continues to consider the need for regulatory changes, EPA will consider the commenter's suggestions regarding which elements belong in regulation and which may be appropriately left to guidance. EPA will also consider the commenter's suggestion that the Agency should allow the public to participate in the development of future program guidance.
One commenter said EPA had not provided enough information to allow it to make a “well-reasoned decision or provide meaningful comment on EPA's proposal to withdraw the July 2000 rule.” Nevertheless, that commenter did oppose EPA's proposed action. EPA disagrees with the claim that it did not provide enough information for the public to provide meaningful comment, and given the number of other comments to the proposal addressing EPA's rationale, EPA believes that it adequately discussed its justification for withdrawing the July 2000 rule in the December 27, 2002, preamble.
One commenter opposed withdrawal of the July 2000 rule because it believed that the rule was “necessary” to “aid in the control of nonpoint source pollution.” EPA disagrees with this comment. EPA notes that there are numerous existing Clean Water Act authorities and programs, supplemented by other Federal and State programs and initiatives, that address nonpoint source pollution.
One commenter opposed withdrawal of the “TMDL program” because it believed “much time went into the planning of this program to protect waterways * * * [and] it needs to be tied into the NPDES permit program and should be customized to fit individual permits.” EPA is not sure it fully understands this comment. To the extent the commenter is opposed to withdrawal of the “TMDL program,” EPA notes that it is only withdrawing the July 2000 rule, which has never become effective, and not the TMDL program itself. EPA agrees that it took much planning to develop the July 2000 rule, but, for the reasons already discussed in this preamble and in the December 27, 2002, preamble, EPA has decided to withdraw that rule, regardless of the effort that went into its development. EPA also notes that the currently-effective TMDL program is “tied into the NPDES permit program” in that, among other things, permit
One State commenter, while supporting withdrawal of the July 2000 rule, recommended that as part of this final rulemaking EPA immediately modify 40 CFR 130.7 to require State 303(d) lists every four (instead of every two) years. As EPA continues to consider whether and how to revise the TMDL program, EPA will consider the commenter's suggestion.
One commenter asked for “an evaluation of potential changes from rule making, implementation and funding of Clean Water Act programs and enforcement relative to the Russian River [California] * * * [and an] assurance that this regulatory shift will not result in degradation of either the quality or quantity of our local resources.” The commenter did not appear to take a position on the proposed withdrawal of the July 2000 rule, and EPA believes this comment is beyond the scope of the proposal and does not require a response.
One electronic comment merely stated as follows: “We strongly oppose any reduction of restrictions on wetland maintenance.” Again, the commenter did not appear to take a position on the proposed withdrawal of the July 2000 rule, and EPA believes this comment is beyond the scope of the proposal and does not require a response.
More than half the commenters requested or encouraged EPA to pursue further rulemaking once the July 2000 rule was withdrawn. Many of these commenters submitted specific recommendations regarding how EPA should structure a new TMDL rule. Some commenters requested that this new rulemaking occur as quickly as possible. One commenter said it “supports EPA's proposed withdrawal of the 2000 rule, assuming that EPA intends to replace that rule in a timely manner with an improved rule now known as the Watershed Rule.” Another commenter said it “will only support withdrawal of the July 2000 rule if EPA moves quickly to propose and promulgate a Watershed Rule that provides a comprehensive framework for the evolving TMDL program.” Three commenters who supported withdrawal of the July 2000 rule advised against a new rulemaking saying that it “would be disruptive and would only derail State momentum to clean up our waterways.” Two other commenters cautioned that a new regulatory proposal “could slow needed progress” and strongly urged the Agency “not to propose any regulatory or other changes that would cripple this vitally important water clean up program.”
In response to these comments regarding the future direction of the TMDL program, EPA restates that it has not yet completed its evaluation regarding whether and how to revise the currently-effective TMDL rules. Nor can EPA commit to how long it will take to complete that process. EPA is committed to structuring a flexible, effective TMDL program that States, territories and authorized tribes can support and implement. EPA will carefully consider all of the past and recently-provided commenters' recommendations as it continues to evaluate whether and how to revise the currently-effective TMDL regulations using new regulatory or non-regulatory approaches. EPA, to the best of its ability, will continue to meet and share information with stakeholders regarding this effort, and will provide an opportunity for public comment in a separate
After carefully considering all the comments received in response to its December 27, 2002, proposal, EPA is today promulgating a final rule that withdraws the July 2000 rule. EPA is withdrawing the July 2000 rule, rather than allowing it to go into effect, because EPA believes that significant changes would need to be made to the July 2000 rule before it could represent a workable framework for an effective TMDL program. EPA needs additional time beyond April 2003 to decide whether and how to revise the currently-effective regulations implementing the TMDL program in a way that will best achieve the goals of the CWA, and EPA is not sure how long that effort will take. In light of the significant progress States have made in the past three years establishing TMDLs under the currently-effective rules, EPA does not believe that withdrawing the July 2000 rule will impede States' efforts to implement section 303(d) to work towards cleaning up the nation's waters and meeting water quality standards.
Today's final rule does not change any part of the currently effective TMDL regulations promulgated in 1985, as amended in 1992, at 40 CFR part 130 or the NPDES regulations at parts 122—124.
Under Executive Order 12866 (58 FR 51735, (October 4, 1993)), 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 Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that this rule is a “significant regulatory action.” As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
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 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 small business based on SBA size standards; (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 final rule on small entities, I certify that this action, which withdraws the July 2000 rule that has not taken effect, will not have a significant economic impact on a substantial number of small entities. Like the July 2000 rule, this final rule will not impose any requirements on small entities. This action withdraws the July 2000 rule, which has never taken effect.
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, tribal and local governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Like the July 2000 rule, today's final rule, which withdraws the July 2000 rule that has not taken effect, contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, or tribal governments or the private sector. The final rule imposes no enforceable duty on any State, local or Tribal government or the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of UMRA. For the same reason, EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This action does not impose any requirement on any entity. There are no costs associated with this action. Therefore, today's rule is not subject to the requirements of section 203 of UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This action 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. It finalizes the withdrawal of the July 2000 rule, which has never taken effect. Thus, Executive Order 13132 does 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.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. It withdraws the July 2000 rule, which has never taken effect. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA. This final rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866.
This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355; May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule simply finalizes the withdrawal of the July 2000 rule which has never taken effect. We have concluded that this rule is not likely to have any adverse energy effects.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This final rulemaking does not impose any technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Reporting and recordkeeping requirements, Water pollution control.
Environmental protection, Administrative practice and procedure, Confidential business information, Air pollution control, Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control.
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous waste, Indians-lands, Reporting and recordkeeping requirements, Water pollution control, Water supply.
Environmental protection, Grant programs—environmental protection, Indians-lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control, Water supply.
The authority citation for part 130 continues to read as follows:
33 U.S.C. 1251
For the reasons stated in the preamble, EPA withdraws the final rule amending 40 CFR parts 9, 122, 123, 124 and 130 published July 13, 2000 (65 FR 43586).