Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
Rural Housing Service
National Foundation on the Arts and the Humanities
Refugee Resettlement Office
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
Indian Health Service
Refugee Resettlement Office
Substance Abuse and Mental Health Services Administration
Coast Guard
Customs and Border Protection Bureau
Federal Emergency Management Agency
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Antitrust Division
Justice Programs Office
Employee Benefits Security Administration
Employment Standards Administration
Mine Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Federal Transit Administration
Research and Special Programs Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Animal and Plant Health Inspection Service, USDA.
Final rule.
We are removing the cold treatment requirement for Ya pears imported from Hebei Province in the People's Republic of China. The cold treatment requirement had been imposed to ensure that Ya pears did not introduce the Oriental fruit fly into the United States. The People's Republic of China has submitted data indicating that no Oriental fruit flies have been found in Hebei Province since the beginning of 1997 and has requested that we remove the cold treatment requirement. This action will remove a restriction that no longer appears necessary.
June 10, 2003.
Dr. Inder P. Gadh, Import Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road, Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.
The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 through 319.56-8, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and spread of plant pests that are new to or not widely distributed within the United States.
On December 20, 2002, we published in the
We solicited comments concerning our proposal for 60 days ending February 18, 2003. We received four comments by that date. They were from a private citizen, an industry advocacy group, and representatives of State and foreign governments. The issues raised by the commenters are discussed below.
One commenter opposed the proposed rule on the grounds that it would increase the risk of a fruit fly outbreak in the United States, with potentially devastating effects for U.S. agriculture.
When the Animal and Plant Health Inspection Service (APHIS) originally allowed the importation of Ya pears from China, we required that the pears be cold treated because we had no information indicating that Oriental fruit fly was not present in Hebei and Shandong Provinces. As stated above, we now have data submitted by the People's Republic of China that indicates that Oriental fruit fly is not present in Hebei Province; in addition, climatic conditions there do not favor its establishment. (
In order to require cold treatment for Ya pears imported into the United States from Hebei Province, we would have to have scientific evidence indicating that Oriental fruit fly is present in Hebei Province and that importing Ya pears from Hebei Province would pose a risk of introducing Oriental fruit fly into the United States. The available scientific evidence, to the contrary, indicates that the cold treatment requirement for Ya pears imported from the Hebei Province in China is no longer necessary. We cannot require treatment based on a purely theoretical risk of pest introduction. Therefore, we are removing the requirement that Ya pears imported into the United States from Hebei Province be cold treated, and we are making no changes in response to this comment.
One commenter supported the proposed rule on the condition that the People's Republic of China maintain an Oriental fruit fly detection program in Hebei Province and submit annual reports to APHIS affirming that fruit fly continues not to be present in Hebei Province. Furthermore, this commenter asserted, if Oriental fruit fly is ever detected in Hebei Province, APHIS should immediately reinstate the cold treatment requirement.
The People's Republic of China will continue trapping and surveying for Oriental fruit fly and for other fruit flies and quarantine pests in Hebei Province after this final rule becomes effective. We will not, however, require that China submit the trapping and surveying data to us. Climatic conditions do not favor the establishment of Oriental fruit fly in Hebei Province, and we have no reason to suspect that Oriental fruit fly will become established there. Nevertheless, if trapping data were to indicate in the future that a quarantine pest such as Oriental fruit fly is present in Hebei Province, the national plant protection organization of China would notify APHIS immediately, fulfilling its obligation to do so under trade agreements for agricultural products. Thus, any requirement that the People's Republic of China continue submitting trapping data would, in practice, only mandate repeated submissions of negative data. Since we already have data sufficient to prove that Oriental fruit fly does not exist in Hebei Province, we do not believe further submissions of negative data are necessary.
In the event that Oriental fruit fly is detected in Hebei Province after this final rule becomes effective, we would take any and all appropriate actions to ensure that this plant pest is not introduced into the United States. Such actions may include, but may not be limited to, the reinstatement of the cold treatment requirement for Ya pears imported from Hebei Province.
One commenter questioned the reliability of the fruit fly trapping data submitted to us by the People's Republic of China. We have examined the data and believe it to be accurate. In the proposed rule, we invited persons interested in reviewing the data to contact the person listed under
One commenter argued that the recent rise in the quantity of imports of Ya pears from China and the decrease in the price of the imports, as described in the economic analysis in the proposed rule, showed that the cold treatment requirement was not significantly hampering the ability of Chinese producers to export Ya pears to the United States. The commenter also took issue with the statement in the economic analysis that Ya pears are not a substitute for domestically produced pears, on the grounds that all produce items compete for a share of the food dollar of U.S. consumers. This commenter stated that until restrictions on the export of U.S. pears to China are lifted by the Government of the People's Republic of China, APHIS restrictions on the importation of pears from China should remain in place. Another commenter opposed removing the cold treatment requirement on the grounds that the cost of complying with the cold treatment requirement was not particularly onerous.
Cold treatment was required for Ya pears from Hebei Province in China because we had no information indicating that Oriental fruit fly was not present in Hebei Province. Data made available by the People's Republic of China indicate that the Oriental fruit fly is not present in Hebei Province; therefore, this requirement appears to be unnecessary. The purpose of treating imported fruits and vegetables is to mitigate pest risk, not to impose economic barriers on the importation of fruits and vegetables; APHIS has no authority to regulate based on purely economic considerations. We are making no changes in response to these comments.
One commenter supported the proposed rule but argued that we should additionally remove the cold treatment requirement from Ya pears imported from Shandong Province in China. We will consider removing this requirement if the People's Republic of China provides APHIS with data similar to the data submitted for Hebei Province indicating that Oriental fruit fly is not present in Shandong Province. In addition, removing the cold treatment requirement from Ya pears imported from Shandong Province is beyond the scope of the present rulemaking. We are making no changes in response to this comment.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.
This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the
This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
This rule removes the cold treatment requirement for Ya pears imported from Hebei Province in the People's Republic of China. This action is based on data from the national plant protection organization of the People's Republic of China indicating that Oriental fruit fly does not occur in Hebei Province and the fact that climatic conditions do not favor the establishment of Oriental fruit fly in Hebei Province.
The rapid growth in Ya pear imports by the United States from China is evident in table 1. Imports increased from about 329,000 kilograms in 1998 to over 6.57 million kilograms in 2001. The estimated cost savings discussed in this analysis are based on the import quantity and value for 2001.
We expect that removing the cold treatment requirement for Ya pears imported from Hebei Province will reduce shipping costs. The magnitude of the reduction will depend on transport costs with and without the cold treatment requirement. While refrigeration costs will still be borne by importers in the absence of the cold treatment requirement, the costs required to maintain, monitor, and report cold treatment temperatures during transport will all be saved.
The cold treatment schedule for Ya pears from China, as specified in the Plant Protection and Quarantine Treatment Manual, is T107-F. The number of days required for cold treatment en route under the schedule—10 to 14 days, depending on the treatment temperature—is less than the number of days it takes to ship Ya pears to the United States from China. No reduction in shipping time, and thus no associated cost savings, is expected to result from the removal of the cold treatment requirement.
A recent analysis of cold treatment requirements for the Mediterranean fruit fly at U.S. ports, used here as a proxy
Assuming that boxing and pallet loading capacities are similar to those of domestic pears, a box of Ya pears would contain about 20 kilograms and a pallet would contain 49 boxes.
Ya pears are not produced in the United States, and Ya pears are not a substitute for domestically produced pears. Thus, this rule is not expected to affect the U.S. domestic pear industry.
Under the criteria established by the Small Business Administration, fruit importers (North American Industry Classification System code 422480, “Fresh Fruit and Vegetable Wholesalers”) must have 100 or fewer employees to be considered small entities. At least some U.S. importers of Ya pears from Hebei Province in China may be small entities, but the expected economic effect of no longer needing to meet cold treatment requirements is minor.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.
This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
7 U.S.C. 450, 7711-7714, 7718, 7731, 7732, 7751-7754, and 7760; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
(b)
(c) Each shipment of pears must be accompanied by a phytosanitary certificate issued by the Chinese Ministry of Agriculture stating that the conditions of this section have been met.
Grain Inspection, Packers and Stockyards Administration, USDA.
Direct final rule.
In accordance with a periodic review of existing regulations, the Federal Grain Inspection Service (FGIS) of the Grain Inspection, Packers and Stockyards Administration (GIPSA) is amending the regulations under the United States Grain Standards Act, as amended, entitled Performance and Procedural Requirements for Grain Weighing Equipment and Related Grain Handling Systems. FGIS is incorporating by reference the applicable requirements of the National Institute of Standards and Technology (NIST) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,” 2002 edition (Handbook 44 issued November 2001) and continues to adopt all of the requirements of NIST Handbook 105-1, “Specifications and Tolerances for Reference Standard Weights and Measures,” 1990 revision (Handbook 105-1). Currently, the 1994 Edition of Handbook 44 and the 1990 edition of Handbook 105-1 are incorporated into Part 802 by reference.
This rule is effective September 8, 2003 without further action, unless adverse comments or written notice of intent to submit adverse comments are received by July 10, 2003. If adverse comments are received, GIPSA will publish a timely withdrawal of the rule in the
Please send any adverse comments or written notice of intent to submit adverse comments to H. Tess Butler, GIPSA, USDA, 1400
David Orr, Director, Field Management Division, at his e-mail address:
This rule has been determined to be not-significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by OMB.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. The United States Grain Standards Act provides in section 87g that no State or subdivision may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the Act. Otherwise, this rule will not preempt any State or local laws, regulations, or policies unless they present irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection and recordkeeping requirements in Part 802 have been approved previously by OMB and assigned OMB No. 0580-0013.
Part 802 of the regulations, Official Performance and Procedural Requirements for Grain Weighing Equipment and Related Grain Handling Systems (7 CFR 802.0-802.1), sets forth certain procedures, specifications, tolerances, and other technical requirements for grain weighing equipment and related grain handling systems used in performing Class X and Class Y weighing services. This review of the regulations includes a determination of continued need for and consequences of the regulations. An objective of the review is to ensure that the regulations are consistent with FGIS policy and authority and are up-to-date. FGIS has determined that, in general, these regulations are serving their intended purpose, are consistent with FGIS policy and authority, and should remain in effect. FGIS, therefore, will incorporate the 2002 edition of Handbook 44 by reference into Part 802 of the regulations, in order to update the regulations, and continues to adopt all of the requirements of NIST Handbook 105-1 “Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures,” 1990 edition.
Effective August 18, 1995, FGIS incorporated by reference into Part 802 of the regulations most provisions in NIST Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,” 1994 edition (Handbook 44) (60 FR 31907). Those provisions in Handbook 44 that obviously did not pertain to FGIS services were not incorporated by reference. The provisions that were not incorporated are listed in section 802.0(b) of the regulations.
We are publishing this rule without a prior proposal because we regularly update this portion of the regulations and view this action as noncontroversial and anticipate no adverse public comment. This rule will be effective, as published in this document, 90 days after the date of publication in the
Adverse comments are comments that suggest the rule should not be adopted or suggest the rule should be changed.
If we receive written adverse comments or written notice of intent to submit adverse comments, we will publish a notice in the
As discussed above, if we receive no written adverse comments or written notice of intent to submit adverse comments within 30 days of publication of this direct final rule, this direct final rule will become effective 90 days following its publication.
In 1995, FGIS incorporated by reference the 1994 edition of Handbook 44. FGIS will continue to adopt this edition by reference in section 802.0(a) of the regulations.
The 1994 edition of Handbook 44 has been changed annually by NIST as new items are adopted, deleted, or revised by the National Conference on Weights and Measures. Many of these changes were for clarity. Further, most State weights and measures organizations automatically adopt each new edition of Handbook 44 and Handbook 105-1. FGIS will revise section 802.0(a) by incorporating by reference the 2002
The following table lists those relevant codes and paragraphs, but not definitions, in which amendments and editorial changes were made in 1994 through 2001 by the 79th, 80th, 81st, 82nd, 83rd, 84th, 85th, and 86th National Conference on Weights and Measures (NCWM) as they appeared in the 1995 through 2002 editions of Handbook 44. The column headed “Action” indicates changes noted as “added”, “amended”, “deleted”, “renumbered”, or provides an explanation.
Administrative practice and procedure, Export, Grain, Incorporation by reference, Reporting and recordkeeping requirements.
Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C. 71
(a) The requirements set forth in this part 802 describe certain specifications, tolerances, and other technical requirements for grain weighing equipment and related grain handling systems used in performing Class X and Class Y weighing services, official inspection services, and commercial services under the Act. All scales used for official grain weight and inspection certification services provided by FGIS shall meet applicable requirements contained in the FGIS Weighing Handbook, the General Code, the Scales Code, the Automatic Bulk Weighing Systems Code, and the Weights Code of the 2002 edition of National Institute of Standards and Technology (NIST) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices” (Handbook 44); and NIST Handbook 105-1 (1990 Edition), “Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures,” (Handbook 105-1). These requirements are confirmed to be met by having National Type Evaluation Program or Federal Grain Inspection Service type approval. Scales used for commercial purposes will be required to meet only the applicable requirements of the 2002 edition of the NIST Handbook 44. Pursuant to the provisions of 5 U.S.C. 552(a), with the exception of the Handbook 44 requirements listed in paragraph (b) of this section, the materials in Handbooks 44 and 105-1 are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the
(b) The following Handbook 44 requirements are not incorporated by reference:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.
0901 UTC, July 10, 2003.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace Navigation (air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Bureau of Industry and Security, Commerce.
Final rule.
The Bureau of Industry and Security (BIS) is publishing this final rule to describe the understandings reached at the June 2002 plenary meeting of the Australia Group (AG) and to amend the Export Administration Regulations (EAR), as needed, to implement these AG understandings. This final rule amends the licensing policy provisions in the EAR that apply to exports and reexports of items on the AG control list by clarifying several factors that are among those used to evaluate license applications for these AG-listed items and by identifying additional factors not previously listed in the EAR. In addition, this rule clarifies the circumstances under which BIS would deny license applications to export or reexport these AG-listed items. All of these changes are intended to ensure that the EAR provisions that apply to AG-listed items are consistent with the “Guidelines for Transfers of Sensitive Chemical or Biological Items,” which were adopted at the June 2002 AG plenary meeting.
This rule also implements understandings reached at the June 2002 plenary meeting concerning AG controls on fermenters and toxins. The control threshold for AG-listed fermenters described on the Commerce Control List (CCL) is lowered from a capacity of 100 liters or greater to a capacity of 20 liters or greater. In addition, this rule adds eight new toxins to the list of AG-listed human and zoonotic pathogens and toxins described on the CCL.
In addition to the AG plenary meeting changes described above, this rule implements an AG intersessional decision concerning cross (tangential) flow filtration equipment.
The rule makes corrections in four CCL entries that contain AG-listed items. One entry, containing AG-listed genetic elements and genetically modified organisms, is amended to correct errors in the use of the terms “organism” and “microorganism.” Another entry, containing AG-listed chemical manufacturing facilities and equipment, is amended to clarify the scope of that entry's controls on certain valves containing nickel and nickel alloys and on agitators for use in reaction vessels or reactors. Two other CCL entries are amended to clarify the license requirements that apply to technology for the “development” or “production” of AG-listed valves containing nickel and nickel alloys. In addition, the rule amends the AG-based licensing provisions in the EAR to identify certain CCL entries that were inadvertently omitted when BIS amended these provisions on previous occasions.
Finally, this rule updates the list of countries that are currently States Parties to the Chemical Weapons Convention (CWC) by adding six countries that recently became States Parties: Andorra, Guatemala, Palau, Saint Vincent and the Grenadines, Samoa, and Thailand.
This rule is effective June 10, 2003.
Written comments should be sent to Willard Fisher, Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, Room 2705, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230.
Douglas Brown, Office of Chemical and Biological Controls and Treaty Compliance, Bureau of Industry and Security, Telephone: (202) 482-7900.
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to implement understandings reached at the annual plenary meeting of the Australia Group (AG) that was held in Paris on June 3-6, 2002. The Australia Group is a multilateral forum, consisting of 33 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.
This rule implements two understandings reached at the June 2002 plenary meeting concerning AG controls on fermenters and toxins. The control threshold for AG-listed fermenters, described in ECCN 2B352.b on the Commerce Control List (CCL), is lowered from a capacity (
This rule makes conforming changes to the List of Items Controlled in ECCN 1C991 by revising ECCN 1C991.d to include medical products containing any of the eight toxins that were added to ECCN 1C351.d by this rule. In addition, this rule revises the Related Definitions paragraph in the List of Items Controlled by ECCN 1C991 by adding the AG definition of “vaccine,” which was adopted at the June 2002 AG plenary meeting. For the purpose of ECCN 1C991, “vaccine” is defined as a medicinal (or veterinary) product in a pharmaceutical formulation, approved by the U.S. Food and Drug Administration or the U.S. Department of Agriculture to be marketed as a medical (or veterinary) product or for use in clinical trials, that is intended to stimulate a protective immunological response in humans or animals in order to prevent disease in those to whom or to which it is administered. ECCN 1C991.a is revised to conform with the AG definition of “vaccine” by clarifying the control language to indicate that 1C991.a controls vaccines against items controlled by ECCN 1C351, 1C352, 1C353, or 1C354.
This final rule also amends the EAR to ensure that the licensing policy provisions in the EAR that apply to AG-listed items are consistent with the “Guidelines for Transfers of Sensitive Chemical or Biological Items,” which were adopted by the AG at the June 2002 plenary meeting. Specifically, this rule amends section 742.2(b)(2) of the EAR by clarifying several factors that are among those used to evaluate license applications to export or reexport these AG-listed items and by identifying
In addition, this rule clarifies the circumstances under which BIS would deny license applications to export or reexport AG-listed chemical and biological items. Specifically, this rule amends section 742.2(b)(1) of the EAR to show that where an export is intended to be used in a chemical weapons or biological weapons program, or for chemical or biological weapons terrorism purposes, it is deemed to make a material contribution to the design, development production, stockpiling, or use of chemical or biological weapons. Note that certain AG-listed chemicals also are controlled for Chemical Weapons Convention (CW) reasons and, therefore, are subject to the licensing requirements and policies described in section 742.18 of the EAR, as well as those in section 742.2 of the EAR.
Certain understandings reached at the June 2002 plenary meeting of the Australia Group (AG) do not require any regulatory action by the BIS, because they are adequately addressed by existing provisions in the EAR. These understandings are important because they represent a significant step by AG participating countries to further harmonize controls on AG-listed items and related technology.
Participating countries in the AG reached an understanding, at the June 2002 plenary meeting, to control transfers of technology for the “development” or “production” of AG-listed dual-use biological equipment. Since this technology currently is controlled by the EAR under ECCNs 2E001 and 2E002, this rule makes no changes in existing EAR controls on such technology.
The AG participating countries also agreed, for the first time, to establish AG controls on the intangible transfer of information and knowledge that could be used for chemical or biological weapons purposes. The transfer of such information and knowledge currently is defined in the EAR as “technical assistance,” which may take such forms as instruction, skills, training, working knowledge, and consulting services and may involve the transfer of “technical data” (“technical assistance” is described in the note that follows the definition of “technology” in section 772.1 of the EAR). Since the EAR currently define “technology” (
Finally, the AG participating countries agreed to expand the license requirement for exports of AG-listed biological agents to apply to all destinations, with an exception for intra-European Union (EU) trade. In accordance with section 742.2(a)(1) of the EAR, these AG-listed biological agents currently are controlled under ECCNs 1C351, 1C352, 1C353, and 1C354 on the CCL and require a license, for CB (chemical/biological) reasons, to all of the destinations indicated under CB Column 1 in the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR),
BIS is amending the EAR to implement an intersessional decision by the AG that was made prior to the June 2002 plenary meeting. Specifically, this rule revises AG controls on cross (tangential) flow filtration equipment by amending ECCN 2B352.d to lower the control threshold for such equipment from a total filtration area equal to or greater than 5 square meters (5 m
In addition, this rule amends 2B352.d to control cross (tangential) flow filtration components that: (1) have a filtration area equal to or greater than 0.2 square meters (0.2 m
This rule amends the heading and the List of Items Controlled in ECCN 1C353 to correct errors in the use of the terms “organism” and “microorganism.” The revisions to this ECCN that were made in a final rule published by BIS on May 31, 2002 (67 FR 37977) incorrectly used the term “organisms” in 1C353.a.1 and .b.1 when referring to “microorganisms” controlled by 1C351.a. to .c. In addition, that rule did not revise the heading of the ECCN to include the term genetically modified “organisms.” This rule corrects these errors.
In addition, this rule amends the heading in ECCN 2B350 to indicate that this entry does not control valves described in ECCN 2A292. BIS published a rule, on August 29, 2002 (67 FR 55594), that revised the heading of ECCN 2B350 to exclude valves controlled by ECCN 2A226; however, an exclusion for valves controlled by ECCN 2A292 was unintentionally omitted. This rule corrects that omission. Valves controlled by ECCN 2A226 or ECCN 2A292, which also meet or exceed the technical parameters described in ECCN 2B350.g, continue to be subject to CB controls (as well as NP and AT controls) even though they are not controlled under ECCN 2B350.
This rule also amends the List of Items Controlled in ECCN 2B350 to clarify that 2B350.b controls only those agitators that are for use in reaction vessels or reactors described in 2B350.a.
This rule revises § 742.2(a)(3) of the EAR, which identifies ECCNs
This rule also revises § 742.2(a)(3) of the EAR and ECCNs 2E001 and 2E002 to clarify the control status of technology for valves described in ECCN 2A226 or 2A292 that also possess the characteristics of valves described in ECCN 2B350.g. The control status of the valves, themselves, was first clarified in a final rule published by BIS on August 29, 2002 (67 FR 55594) and is further clarified in this rule (
This rule revises the heading of ECCN 1C351 to clarify that this entry controls certain zoonotic pathogens and toxins that are the causative organisms for a number of zoonoses (
This rule revises Supplement No. 2 to part 745 of the EAR (titled “States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction”) by adding the names of six countries that have recently become States Parties to the CWC (
Shipments of items removed from license exception eligibility or NLR authorization as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on June 10, 2003, pursuant to actual orders for export to a foreign destination, may proceed to that destination under the previous license exception eligibility or NLR authorization provisions so long as they have been exported from the United States before July 10, 2003. Any such items not actually exported before midnight, on July 10, 2003, require a license in accordance with this regulation.
1. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number. This rule contains collections of information subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Willard Fisher, Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2705, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230.
Exports, Foreign trade.
Administrative practice and procedure, Chemicals, Exports, Foreign trade, Reporting and recordkeeping requirements.
Exports, Foreign trade, Reporting and recordkeeping requirements.
50 U.S.C. app. 2401
(a) * * *
(3) If CB Column 3 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to Country Group D:3 (
(i) Equipment and materials identified in ECCN 2B350 or 2B351 on the CCL, and valves controlled by ECCN 2A226 or ECCN 2A292 having the characteristics of those described in 2B350.g, which can be used in the production of chemical weapons precursors or chemical warfare agents;
(ii) Equipment and materials identified in ECCN 2B352, which can be used in the production of biological agents;
(iii) Medical products identified in ECCN 1C991.d;
(iv) Technology identified in ECCN 2E001, 2E002, or 2E301 for:
(A) The development, production, or use of items controlled by ECCN 2B350, 2B351, or 2B352; or
(B) The development or production of valves controlled by ECCN 2A226 or 2A292 having the characteristics of those described in ECCN 2B350.g; and
(v) Technology identified in ECCN 2E201 or 2E290 for the use of valves controlled by ECCN 2A226 or 2A292 having the characteristics of those described in 2B350.g.
(b)
(2) The following factors are among those that will be considered to determine what action should be taken on license applications for the items described in paragraph (a) of this section:
(i) The specific nature of the end-use, including the appropriateness of the stated end-use;
(ii) The significance of the export and reexport in terms of its potential contribution to the design, development, production, stockpiling, or use of chemical or biological weapons;
(iii) The nonproliferation credentials of the importing country, including the importing country's chemical and biological capabilities and objectives;
(iv) The risk that the items will be diverted for use in a chemical weapons or biological weapons program, or for chemical weapons or biological weapons terrorism purposes;
(v) The reliability of the parties to the transaction, including whether:
(A) An export or reexport license application involving any such parties has previously been denied;
(B) Any such parties have been engaged in clandestine or illegal procurement activities;
(C) The end-user is capable of securely handling and storing the items to be exported or reexported;
(vi) Relevant information about proliferation and terrorism activities, including activities involving the design, development, production, stockpiling, or use of chemical or biological weapons by any parties to the transaction;
(vii) The types of assurances or guarantees against the design, development, production, stockpiling, or use of chemical or biological weapons that are given in a particular case, including any relevant assurances provided by the importing country or the end-user;
(viii) The applicability of other multilateral export control or nonproliferation agreements (
(ix) The existence of a pre-existing contract.
(3) BIS will review license applications in accordance with the licensing policy described in paragraph (b)(1) of this section for items not described in paragraph (a) of this section that:
(i) Require a license for reasons other than short supply;
(ii) Could be destined for the design, development, production, stockpiling, or use of chemical or biological weapons, or for a facility engaged in such activities.
50 U.S.C. 1701
50 U.S.C. app. 2401
8. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C353 is amended by revising the ECCN heading and the List of Items Controlled to read as follows:
Genetic elements include,
(1) Ricinus Communis Agglutinin
(2) Ricinus Communis Lectin
(3) Saxitoxin identified by C.A.S. #35523-89-8.
a. Vaccines against items controlled by ECCN 1C351, 1C352, 1C353, or 1C354;
b. Immunotoxins containing items controlled by 1C351.d;
c. Medical products containing botulinum toxins controlled by ECCN 1C351.d.1;
d. Medical products containing items controlled by ECCN 1C351.d, except
e. Diagnostic and food testing kits containing items controlled by ECCN 1C351.d, except items controlled for CW reasons under ECCN 1C351.d.5 or .d.6.
10. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 2—Materials Processing, ECCN 2B350 is amended by revising the ECCN heading and the List of Items Controlled to read as follows:
Carbon-graphite is a composition consisting primarily of graphite and amorphous carbon, in which the graphite is 8 percent or more by weight of the composition.
a. Complete containment facilities at P3 or P4 containment level.
P3 or P4 (BL3, BL4, L3, L4) containment levels are as specified in the WHO Laboratory Biosafety Manual (Geneva, 1983).
b. Fermenters capable of cultivation of pathogenic microorganisms, viruses, or for toxin production, without the propagation of aerosols, having a capacity equal to or greater than 20 liters.
Fermenters include bioreactors, chemostats, and continuous-flow systems.
Centrifugal separators include decanters.
N.B.: 2B352.d.1 does not control reverse osmosis equipment, as specified by the manufacturer.
In this ECCN, “sterilized” denotes the elimination of all viable microbes from the equipment through the use of either physical (
This entry does not control suits designed to be worn with self-contained breathing apparatus.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Cross Vetpharm Group, Ltd. The ANADA provides for the oral use of pyrantel pamoate paste for the removal and control of certain internal parasites in horses and ponies.
This rule is effective June 10, 2003.
Lonnie W. Luther, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 301-827-8549, e-mail:
Cross Vetpharm Group, Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland, filed ANADA 200-350 that provides for the use of EXODUS (pyrantel pamoate) Paste for the removal and control of certain internal parasites in horses and ponies. Cross Vetpharm Group Ltd.'s EXODUS Paste is approved as a generic copy of Pfizer, Inc.'s STRONGID (pyrantel pamoate) Paste approved under NADA 129-831. The ANADA is approved as of March 25, 2003, and the regulations are amended in 21 CFR 520.2044 to reflect the approval. The basis of approval is discussed in the freedom of information summary.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
(a) * * *
(3) Each mL contains 171 mg pyrantel base (as pyrantel pamoate).
(b) * * *
(3) No. 061623 for use of product described in paragraph (a)(3) of this section.
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 for two approved new
This rule is effective June 10, 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:
Anthony Products Co., 5600 Peck Rd., Arcadia, CA 91006, has informed FDA that it has transferred ownership of, and all rights and interest in, the following two approved NADAs to Cross Vetpharm Group, Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland:
Accordingly, the agency is amending the regulations in 21 CFR 522.1696a and 522.1696b to reflect the transfer of ownership.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
21 U.S.C. 360b.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Intervet, Inc. The supplemental NADA provides for use of an approved fenbendazole Type A medicated article to make Type B and Type C medicated feeds used for the control of gastrointestinal worms in horses.
This rule is effective June 10, 2003.
Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7540, e-mail:
Intervet, Inc., P.O. Box 318, 405 State St., Millsboro, DE 19966, filed a supplement to NADA 131-675 that provides for the use of SAFE-GUARD (fenbendazole) 20% Type A medicated article to make Type B and Type C medicated horse feeds. The medicated feeds are used for the control of large strongyles (
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetics Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval qualifies for 3 years of marketing exclusivity beginning March 14, 2003.
The agency has determined under § 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs, Animal feeds.
21 U.S.C. 360b, 371.
(e) * * *
(4)
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Seventh Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the NE. 8th Street (George Bush Boulevard) bridge at Delray Beach across the Atlantic Intracoastal Waterway, mile 1038.7 in Delray Beach, Palm Beach County, Florida. Under this deviation, the bridge need only open a single-leaf of the bridge and shall provide double-leaf openings with two-hours advance notice to the bridge tender. This temporary deviation is required to allow the bridge owner to safely complete repairs to the bridge.
This deviation is effective from 7 a.m. on June 16, 2003, until 6 p.m. on August 16, 2003.
Material received from the public, as well as comments indicated in this preamble as being available in the docket, are part of docket [CGD07-03-087] and are available for inspection or copying at Commander (obr), Seventh Coast Guard District, 909 SE. 1st Avenue, Room 432, Miami, Florida 33131 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Mr. Michael Lieberum, Project Manager, Seventh Coast Guard District, Bridge Branch at (305) 415-6744.
The existing regulations of the NE. 8th Street bridge, mile 1038.7 at Delray Beach require the bridge to open on signal; except that, from November 1 to May 31, from 11 a.m. to 6 p.m., on Saturdays, Sundays and Federal holidays, the draw need open only on the hour, quarter-hour, half-hour, and three quarter-hour. On May 7, 2003, Palm Beach County, the bridge owner, requested a deviation from the current regulations to allow the bridge to only open a single-leaf of the bridge. Double-leaf openings are available with two-hours advance notice to the bridge tender. The other leaf of the bridge will remain in the upright, open to navigation position. This schedule will be in effect from 7 a.m. on June 16, 2003, to 6 p.m. on July 3, 2003, and from 7 a.m. on July 8, 2003, to 6 p.m. on August 16, 2003. During all other times, the bridge will open according to the published schedule in 33 CFR 117.261(z). This temporary deviation is required to allow the bridge owner to safely complete repairs to the bridge structure.
The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.261(z). Under this deviation, the NE. 8th Street (George Bush Boulevard) bridge need only open a single-leaf of the bridge from 7 a.m. on June 16, 2003, to 6 p.m. on July 3, 2003, and from 7 a.m. on July 8, 2003, to 6 p.m. on August 16, 2003. During this time the bridge shall provide double-leaf openings with two-hours advance notice to the bridge tender.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the Celebrate America fireworks display on June 14, 2003. This safety zone is necessary to control vessel traffic within the immediate location of the fireworks launch site and to ensure the safety of life and property during the event. This safety zone is intended to restrict vessel traffic from a portion of Lake St. Clair.
This temporary final rule is effective from 8 p.m. until 11 p.m. on June 14, 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 [CGD09-03-217] and are available for inspection or copying at: U.S. Coast Guard Marine Safety Office Detroit, 110 Mt. Elliott Ave. Detroit, MI 48207, between 8 a.m. and 4 p.m.,
LTJG Brandon Sullivan, U.S. Coast Guard Marine Safety Office Detroit, 110 Mt. Elliott Ave., Detroit, MI 48207. The telephone number is (313) 568-9558.
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. 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
Temporary safety zones are necessary to ensure the safety of vessels and spectators from the hazards associated with fireworks displays. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing safety zones to control vessel movement around the locations of the launch platforms will help ensure the safety of persons and property at these events and help minimize the associated risk.
The safety zone will encompass all waters surrounding the fireworks launch platform bounded by the arc of a circle with a 300-yard radius with its center in approximate position 42°26′4″ N, 082°52′1″ W (approximately 500′ off shore of 930 Lake Shore Drive, Grosse Point Shores, MI). The geographic coordinates are based upon North American Datum 1983 (NAD 83). The size of this zone was determined using the National Fire Prevention Association guidelines and local knowledge concerning wind, waves, and currents.
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol representative. Entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.
This determination is based on the minimal time that vessels will be restricted from the zone, and therefore minor if any impacts to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant 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 would not have a significant economic impact on a substantial number of small entities.
This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit or anchor in the activated safety zone.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone is only in effect from 8 p.m. until 11 p.m. the day of the event and allows vessel traffic to pass outside of the safety zone. Before the effective period, we will issue maritime advisories widely available to users of Lake St. Clair by the Ninth Coast Guard District Local Notice to Mariners, and Marine Information Broadcasts. Facsimile broadcasts may also be made.
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 want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Detroit (
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 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 would not result in such an expenditure, we do discuss the
This 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 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.
The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
We have considered the environmental impact of this rule and concluded that, under figure 2-1 of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We 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.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.
(a)
(b)
(c)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the International Freedom Festival Fireworks display on June 25, 2003. This safety zone is necessary to control vessel traffic within the immediate location of the fireworks launch site and to ensure the safety of life and property during the event. This safety zone is intended to restrict vessel traffic from a portion of the Detroit River.
This temporary final rule is effective from 5 p.m. until 12 a.m. on June 25, 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 [CGD09-03-216] and are available for inspection or copying at: U.S. Coast Guard Marine Safety Office Detroit, 110 Mt. Elliott Ave., Detroit, MI 48207, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
LTJG Brandon Sullivan, U.S. Coast Guard Marine Safety Office Detroit, at (313) 568-9558.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the
Temporary safety zones are necessary to ensure the safety of vessels and spectators from the hazards associated with fireworks displays. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the locations of the launch platforms will help ensure the safety of persons and property at these events and help minimize the associated risk.
The safety zone will encompass the portion of the Detroit River bounded on the South by the International Boundary, on the West by 83°03′30″ W, on the North by the City of Detroit shoreline and on the East by 083°01′ W. These geographic coordinates are based upon North American Datum 1983 (NAD 83). The size of this zone was determined using the National Fire Prevention Association guidelines and local knowledge concerning wind, waves, and currents.
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or his designated on-scene patrol representative. The designated on-scene patrol representative will be the patrol commander. Entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under that order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.
This determination is based on the minimal time that vessels will be restricted from the zone, and therefore minor if any impacts to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant 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 would not have a significant economic impact on a substantial number of small entities.
This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit or anchor in the activated safety zone.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason: This safety zone is only in effect from 5 p.m. until 12 midnight on the day of the event.
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 want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Detroit (
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 would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This 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 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.
The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
We have considered the environmental impact of this rule and concluded that, under figure 2-1 of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We 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.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.
(a)
(b)
(c)
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs (VA) adjudication regulations and its Veterans Benefit Administration fiduciary activities regulations to reflect statutory provisions of the Veterans Education and Benefits Expansion Act of 2001. These changes address the presumption of service connection for respiratory cancers based on herbicide exposure in Vietnam; benefits for Gulf War veterans' chronic disabilities; repeal of the limitation of benefits for incompetent institutionalized veterans; non-service-connected pension eligibility; the limitation on pension for certain recipients of Medicaid-covered nursing home care; the prohibition on certain benefits to fugitive felons; and the limitation on the payment of compensation for veterans remaining incarcerated since October 7, 1980. This document also makes nonsubstantive changes for purposes of clarity and miscellaneous technical amendments in those regulations.
The amendments to 38 CFR 3.3 are applicable September 17, 2001. The amendment to 38 CFR 3.307(a)(6)(ii) is applicable January 1, 2002. The amendment to 38 CFR 3.307(a)(6)(iii) is applicable December 27, 2001. The amendments to 38 CFR 3.317 are applicable March 1, 2002. The amendments to 38 CFR 3.353, 3.400(e), 3.452, 3.454, 3.501, 3.551, 3.552, 3.557 through 3.559, 3.666, 3.801, 3.852, 3.853, 3.1007, 13.70, 13.71, 13.74 through 13.77, 13.107, 13.108, and 13.109 are applicable December 27, 2001. The amendment to 38 CFR 3.665(a) is applicable December 27, 2001. The amendment to 38 CFR 3.665(c) is applicable April 1, 2002. The removal of the authority citation following 38 CFR 3.665(m) and the addition of 38 CFR 3.665(n) are applicable December 27, 2001.
Bill Russo, Compensation and Pension Service, Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, DC, 20420, telephone (202) 273-7211.
On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001, Public Law 107-103 (the Act), was enacted. Several provisions of the Act directly affect the payment of VA compensation or pension benefits. These provisions concern presumptions based on herbicide exposure in Vietnam, Gulf War veterans' chronic disabilities, the repeal of the limitation of benefits for incompetent institutionalized veterans, non-service-connected pension eligibility, the extension of the limitation on pension for certain recipients of Medicaid-covered nursing home care, the prohibition on certain benefits to fugitive felons and their dependents, and a limitation on the payment of compensation for certain veterans remaining incarcerated since October 7, 1980.
Section 201 of the Act amended 38 U.S.C. 1116(a)(2)(F) to eliminate the requirement that respiratory cancer (cancers of the lung, bronchus, larynx, trachea) become manifest within 30 years of the veteran's departure from Vietnam to qualify for the presumption of service connection based on exposure to herbicides such as Agent Orange. Section 201 also expanded the presumption of exposure to herbicides to include all Vietnam veterans, not just those who have a disease on the presumptive list in 38 U.S.C. 1116(a)(2) and 38 CFR 3.309(e). In this document we are amending 38 CFR 3.307 to reflect these changes. In addition, section 201 added Type 2 diabetes to the presumptive list in 38 U.S.C. 1116(a)(2). This disease had previously been added to VA's list in 38 CFR 3.309(e).
Section 202(a) of the Act amended 38 U.S.C. 1117 to expand the definition of “qualifying chronic disability” (for service connection) to include not only a disability resulting from an undiagnosed illness as stated in prior law, but also any diagnosed illness that the Secretary determines in regulations warrants a presumption of service-connection under 38 U.S.C. 1117(d). We
Section 202(a) also expanded the definition of “qualifying chronic disability” to include a “medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms.” We believe this provision may be difficult for VA adjudicators to understand and apply consistently due to the highly technical medical aspects of the task of determining whether an illness meets the criteria of “medically unexplained chronic multisymptom illness * * * that is defined by a cluster of signs or symptoms.” Therefore this rulemaking clarifies this category of illnesses by defining the term “medically unexplained chronic multisymptom illness” in new § 3.317(a)(2)(ii) to mean “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” We also state: “Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.”
This definition is based on the Joint Explanatory Statement for H.R. 1291, the Veterans Education and Benefits Expansion Act of 2001, December 13, 2001, 147 CR 13235 at 13238, which said “it is the intent of the Committees to ensure eligibility for chronically disabled Gulf War veterans not withstanding [sic] a diagnostic label by a clinician in the absence of conclusive pathophysiology or etiology.” The Joint Explanatory Statement also stated, “The compromise agreement's definition [of medically unexplained chronic multisymptom illness * * * that is defined by a cluster of signs or symptoms] encompasses a variety of unexplained clinical conditions, characterized by overlapping symptoms and signs, that share features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.”
The Joint Explanatory Statement also said, “By listing the first three diagnoses as examples, it is the Committees' intend [sic] to give guidance to the Secretary rather than limit eligibility for compensation based upon other similarly described conditions that may be defined or redefined in the future.”
In addition, section 202(b) changed the phrase “Neurological signs or symptoms” to “Neurological signs and symptoms,” and we are amending 38 CFR 3.317 accordingly.
Section 204 of the Act amended 38 U.S.C. 5503 to eliminate the withholding of benefits for incompetent, institutionalized veterans without dependents. This document therefore removes the VA regulations on this type of withholding (38 CFR 3.557, 3.559, 13.74 through 13.77, and 13.108), and amends § 3.558, to reflect this change. This document amends § 3.852 to remove the references to institutional awards made under 38 U.S.C. 5503(b). (This document also clarifies that the authority for VA to pay benefits to an institution housing an incompetent veteran is 38 U.S.C. 5502.)
In addition, this document generally removes the references to §§ 3.557, 3.559, and 13.108 that are found in title 38. Specifically, this document removes the references to 38 CFR 3.557 contained in 38 CFR 3.353, 3.400, 3.452, 3.454, 3.501, 3.551, 3.552, 3.801, and 3.853. (We are also changing the heading of § 3.452 to more clearly explain the purpose of that regulation.)
We have retained, however, the references to § 3.557 in §§ 3.558, 3.1003, and 3.1007. Although Public Law 107-103 repealed former 38 U.S.C. 5503(b), the new statute does not require distribution of funds that were properly withheld by VA while former 38 U.S.C. 5503(b) remained in effect, until such time as the veteran regains competency. Also, VA is not obligated under Public Law 107-103 to distribute funds properly withheld under former section 5503(b) to a veteran's survivors in the event that the veteran dies without regaining competency.
This document removes the reference to 38 CFR 3.559 contained in 38 CFR 3.551. This document removes the references to 38 CFR 13.108 contained in 38 CFR 13.70 and 13.71.
We are removing 38 CFR 13.109 because the provisions of that section only pertain to former section 5503(b) and/or former 38 U.S.C. 5505. Section 5505 expired September 30, 1992 (38 U.S.C. 5505(c)), and was later repealed by the Veterans' Benefits Improvements Act of 1994, Public Law 103-446, section 1201(g)(4)(A), 108 Stat. 4645, 4687.
Section 206 of the Act amended 38 U.S.C. 1502(a) to authorize VA to consider a veteran to be permanently and totally disabled for the purposes of non-service-connected disability pension if the veteran is: a patient in a nursing home for long-term care due to disability, or determined to be disabled for purposes of Social Security Administration benefits. This document amends 38 CFR 3.3 to reflect these changes, as well as to reflect expressly the other bases already contained in section 1502(a) for considering persons to be totally and permanently disabled.
Section 207 of the Act added a new 38 U.S.C. 1513, under which a veteran who is age 65 or over and meets the military service and income/net worth requirements for non-service-connected pension is eligible for pension without regard to whether the veteran is permanently and totally disabled. This document amends 38 CFR 3.3 to reflect that change.
Section 504 of the Act amended 38 U.S.C. 5503 to extend the $90 limitation on pension for certain recipients of Medicaid-covered nursing home care to September 30, 2011. This document amends 38 CFR 3.551 to reflect this change.
Section 505 of the Act added a new 38 U.S.C. 5313B to prohibit the payment of benefits to a veteran while he or she is a fugitive felon or to a veteran's dependent while the veteran or the dependent is a fugitive felon. This amendment includes definitions of the terms “fugitive felon” and “felony.” The amendment's prohibition applies to compensation, dependency and indemnity compensation, pension,
Section 506 of the Act amended 38 U.S.C. 5313 to extend its current limitations on payment of compensation benefits to incarcerated veterans to also apply to any veteran who is entitled to compensation and who on October 7, 1980, was incarcerated in a Federal, State, or local penal institution for a felony committed before that date; and remains so incarcerated for conviction of that felony as of December 27, 2001, the date of enactment of the Act. This document amends 38 CFR 3.665 to reflect this change. We are also removing the phrase “, or prior to October 7, 1980,” from 38 CFR 3.341(b) (referring to veterans rated as unemployable prior to October 7, 1980) since it is now obsolete.
Changes made by this final rule merely reflect statutory provisions, are nonsubstantive changes made for purposes of clarity, or are nonsubstantive technical changes. Accordingly, there is a basis for dispensing with the prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.
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 final rule will have no consequential effect on State, local, or tribal governments.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
This document has been reviewed by the Office of Management and Budget under Executive Order 12866.
The Secretary hereby certifies that the adoption of 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, 5 U.S.C. 601-612. This final rule does not directly affect any small entities. Only individuals could be directly affected. 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 Catalog of Federal Domestic Assistance program numbers for this rule are 64.104, 64.105, 64.109, and 64.110.
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Veterans, Vietnam.
Surety bonds, Trusts and trustees, and Veterans.
38 U.S.C. 501(a), unless otherwise noted.
The additions read as follows:
(a) * * *
(3) * * *
(vi)(A) Is age 65 or older; or
(B) * * *
(
(
(
(
(
(
The addition reads as follows:
(a) * * *
(2)(i) For purposes of this section, a
(A) An undiagnosed illness;
(B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms:
(
(
(
(
(C) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection.
(ii) For purposes of this section, the term
(b) * * *
(1)
(e)
The revisions read as follows:
The additions read as follows:
(a) * * *
(b) * * *
The revision and additions read as follows:
(a) * * * However, no apportionment will be made if the veteran or the dependent is a fugitive felon as defined in paragraph (n) of this section.
(c) * * *
(3) A veteran who, on October 7, 1980, was incarcerated in a Federal, State, or local penal institution for a felony committed before that date, and who remains so incarcerated for a conviction of that felony as of December 27, 2001.
(n)
(1) Compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. Compensation or DIC is not payable on behalf of a dependent of a veteran for any period during which the veteran or the dependent is a fugitive felon.
(2) For purposes of this section, the term
(i) Fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or
(ii) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law.
(3) For purposes of paragraph (n) of this section, the term
(4) For purposes of paragraph (n) of this section, the term
The revision and additions read as follows:
(e)
(1) Pension is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. Pension or death pension is not payable on behalf of a dependent of a veteran for any period during which the veteran or the dependent is a fugitive felon.
(2) For purposes of this section, the term
(i) Fleeing to avoid prosecution, or custody or confinement after conviction for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or
(ii) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law.
(3) For purposes of paragraph (e) of this section, the term
(4) For purposes of paragraph (e) of this section, the term
The addition reads as follows:
The revision reads as follows:
(a) * * *
The revision reads as follows:
72 Stat. 1114, 1232, as amended, 1237; 38 U.S.C. 501, 5502, 5503, 5711, unless otherwise noted.
The addition reads as follows:
The revision reads as follows:
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking final action to approve a revision to the State Implementation Plan (SIP) submitted by the state of Kansas. The purpose of this revision is to delete the Wyandotte County Air Pollution Control Regulations from the Federally-Approved Regulations. These regulations were originally incorporated
This direct final rule will be effective August 11, 2003, unless EPA receives adverse comments by July 10, 2003. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Comments may be mailed to Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101, or E-mail her at
Copies of documents relative to this action are available for public inspection during normal business hours at the above-listed Region 7 location. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.
Heather Hamilton at (913) 551-7039.
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
This action approves the deletion of the Wyandotte County Air Pollution Control Regulations from the Federally-Approved Regulations. These regulations were originally incorporated into the SIP on April 3, 1981, and codified in 40 CFR 52.870(c). Due to the continuing evolution of the Kansas Air Quality Regulations, these local regulations are no longer necessary to assure continued maintenance of the air quality.
The Wyandotte County Air Pollution Control Regulations 2A-1 through 2A-32 have been cross-reviewed with the Kansas Air Quality Regulations and the Kansas Statutes. All of the former Wyandotte County Air Pollution Control regulations have an equivalent state rule or statute with the exception of four regulations. The content of these four regulations, 2A-2 “Purpose,” 2A-3 “Definitions” (definition of “Vehicle” to include “railroad engines”), 2A-23 “Restriction of Emissions of Odors,” and 2A-32 “Conflict of Ordinances, Effect of Partial Invalidity,” do not directly affect air quality standards.
The Kansas Department of Health and Environment approved the recommendation to remove these rules on January 14, 2003. The rules will be deleted with this direct final action.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
EPA is approving the revision to the Kansas SIP to delete the Wyandotte County Air Pollution Control Regulations from the Federally-Approved Regulations. On January 14, 2003, the state of Kansas submitted a request for EPA to remove Wyandotte County Air Pollution Control regulations which are no longer necessary to assure continued maintenance of the air quality standards for the area. The Wyandotte County regulations that affect air quality have been replicated in the Kansas Air Quality Regulations or Kansas Statutes.
We are processing this action as a direct final action because it removes duplicative regulations from the SIP. We do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 11, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
The revision reads as follows:
(b) * * *
(3) Copies of the materials incorporated by reference may be inspected at the Environmental Protection Agency, Region VII, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101; the Office of Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC; or at the EPA Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, NW., (Mail Code 6102T), Washington, DC 20460.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Adoption of interim final rule as final.
This final rule adopts the interim final rule, published in the
The Interim Final Rule published on May 4, 2001 at 66 FR
James Walke, FEMA, 500 C Street, SW., Washington, DC 20472, (facsimile) (202) 646-3304, or e-mail
On May 4, 2001, FEMA published in the
By the close of the comment period, FEMA received one comment on the interim final rule from an emergency management association. The major concern expressed by the membership of the association was the reduction from 90% to 75% of the Federal share for alternate projects. The association recognized that this reduction is a statutory change to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5172 and therefore beyond the scope of FEMA's rulemaking authority.
Accordingly, the interim final rule to implement portions of the Disaster Mitigation Act of 2000 that affect large in-lieu contributions (alternate projects), irrigation facilities, critical/non-critical private nonprofit facilities, and community disaster loans which was published at 66 FR 22443 on May 4, 2001, is adopted as a final rule without change.
NEPA imposes requirements for considering the environmental impacts of agency decisions. It requires that an agency prepare an Environmental Impact Statement (EIS) for “major federal actions significantly affecting the quality of the human environment.” If an action may or may not have a significant impact, the agency must prepare an environmental assessment (EA). If, as a result of this study, the agency makes a Finding of No Significant Impact (FONSI), no further action is necessary. If it will have a significant effect, then the agency uses the EA to develop an EIS.
Categorical Exclusions. Agencies can categorically identify actions (for example, repair of a building damaged by a disaster) that do not normally have a significant impact on the environment. The purpose of this final rule is to amend our Stafford Act rules to incorporate part of the changes mandated by the Disaster Mitigation Act of 2000 for the Public Assistance Program and for Community Disaster Loans. Accordingly, we have determined that this rule is excluded from the preparation of an environmental assessment or environmental impact statement under 44 CFR 10.8(d)(2)(ii), where the rule is related to actions that qualify for categorical exclusion. The changes reflected in this rule are exempt from NEPA because they reflect administrative changes to the programs that have no potential to affect the environment. We would perform an environmental review under 44 CFR part 10, Environmental Considerations, on each proposed project that we would fund and implement under the authorities covered in this rule.
This rule is not subject to the provisions of the Paperwork Reduction Act. It does not require any new information collections and therefore would not revise the number and types of responses, frequency, and burden hours.
We have prepared and reviewed this final rule under the provisions of Executive Order 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This final rule implements certain mandatory provisions of the Disaster Mitigation Act of 2000 that relate to the Public Assistance Program and the Community Disaster Loan Program. The authorities mandated would not of themselves have an annual effect on the economy of $100 million or more. We anticipate that the impacts of the alternate projects provision will be neutral, expecting that the savings from reducing the Federal share of the Federal estimate from 90 percent to 75 percent will be offset by fewer applications for assistance under this authority. We do not anticipate any change in costs by adding irrigation facilities to the definition of eligible private nonprofit facilities inasmuch as the rule reflects the statute and codifies our current policy and practices. Most of the private nonprofit organizations that will have to apply for SBA disaster loans before being eligible to apply for FEMA disaster assistance have damages well below the SBA loan limit of $1,500,000. We do not expect this provision will have an impact of $100,000,000 or more per year. Finally, we do not anticipate that savings from amendments to the Community Disaster Loan provision will exceed $100,000,000 over a several-year period—our experience is that disaster loan forgiveness rates are between 60 and 70 percent. Over the last 25 years, the annual amount of money forgiven has been an average of $2.7 million. We know of no conditions that would qualify the rule as a significant regulatory action” within the definition of section 3(f) of the Executive Order. To the extent possible this rule adheres to the principles of regulation as set forth in Executive Order 12866. The Office of Management and Budget has not reviewed this rule under the provisions of Executive Order 12866.
Executive Order 13132 sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.
We have reviewed this final rule under Executive Order 13132 and have
The interim final rule published on May 4, 2001 at 66 FR 22443 is adopted as final without change.
Federal Communications Commission.
Final rule; suspension of effectiveness.
This document suspends construction deadlines for Multipoint Distribution Service (MDS) and Instructional Television Fixed Service (ITFS) authorization holders until the completion of a companion rulemaking proceeding. The MO&O also temporarily suspends acceptance of applications for new ITFS licenses and applications to amend or modify either ITFS or MDS stations in the 2500-2690 MHz band, subject to certain exceptions. The purpose of the MO&O is to ensure that the Federal Communications Commission (FCC) neither requires nor allows significant investments in new or modified facilities that would be inconsistent with new rules proposed in the companion NPRM.
Effective June 10, 2003, § 21.930 is suspended indefinitely.
Nancy Zaczek or Charles Oliver at (202) 418-0680, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau or via the Internet to
This is a summary of the FCC's Memorandum Opinion and Order, FCC 03-56, adopted on March 13, 2003, and released on April 2, 2003. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:
• Temporarily suspends, until the completion of this rulemaking proceeding, acceptance of applications for new ITFS licenses and applications to amend or modify either ITFS or MDS stations in the 2500-2690 MHz band, subject to certain exceptions; and
• Suspends the current construction deadline for MDS and ITFS authorization holders until the completion of this rulemaking proceeding.
2. Accordingly,
3. The five-year build-out requirement in § 21.930 of the FCC's rules, 47 CFR 21.930,
4. The build-out requirements for site-based ITFS and MDS licensees and permittees that have not expired as of the release date of this
5. Applications for new ITFS licenses, major modifications of MDS stations, or changes to ITFS stations other than minor modifications, applications for license assignments or transfers of control
6. Mutually exclusive ITFS applications for acceptance of settlement agreements filed after the release date of this
Section 21.930 is suspended indefinitely.
Federal Communications Commission.
Final rule; petition for declaratory ruling.
The Commission seeks comment on a petition for declaratory ruling from the Cellular Telecommunications & Internet Association (CTIA) asking the Commission to clarify carrier obligations with respect to a number of local number portability (LNP) implementation issues.
Comments are due on or before June 13, 2003, and reply comments are due on or before June 24, 2003.
Jennifer Salhus, Attorney, 202-418-1310.
1. On May 13, 2003, the Cellular Telecommunications & Internet Association filed a Petition for Declaratory Ruling (Petition), asking the Commission to clarify carrier obligations (as found at 47 CFR 52.23—52.33) with respect to a number of local number portability implementation issues. CTIA contends that, although many of the issues associated with the implementation of LNP have been resolved by consensus in industry fora, including the North American Numbering Council (NANC), there are a number of outstanding issues that cannot be resolved without specific direction from the Commission.
2. We seek comment on the issues raised in the Petition. Interested parties may file comments on or before June 13, 2003. Reply comments are due June 24, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Comments and reply comments should be filed in the docket number, CC Docket No. 95-116.
3. This is a “permit but disclose” proceeding pursuant to § 1.1206 of the Commission's Rules. Ex parte presentations that are made with respect to the issues involved in the Petition will be allowed but must be disclosed in accordance with the requirements of § 1.1206(b) of the Commission's Rules.
4. Comments filed through the ECFS can be sent as an electronic file via the Internet to
5. Parties who choose to file by paper must file an original and four copies of each filing. Each filing should include the applicable docket number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. In addition, a diskette copy should be sent to the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail to
6. The full text of the Petition and responsive comments will be available electronically on the Commission's ECFS under CC Docket No. 95-116. In addition, copies of these documents are available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Documents may also be purchased from the Commission's duplicating contractor. Alternative formats (computer diskette, large print, audio recording and Braille) are available to persons with disabilities by contacting Brian Millin, of the Consumer and Governmental Affairs Bureau, at (202) 418-7426 (voice) or (202) 418-7365 (TTY), or at
Office of the Secretary, DOT.
Final rule.
The Office of the Secretary of Transportation (OST) is updating the regulatory language to reflect the departures of the Transportation Security Administration and the United States Coast Guard to the new Department of Homeland Security, and to change the name of the Urban Mass Transportation Administration (UMTA) to the Federal Transit Administration (FTA).
June 10, 2003.
Jennifer S. Thibodeau, Office of the Assistant General Counsel for Regulation and Enforcement, U.S. Department of Transportation, 400 Seventh St., SW., Room 10424, Washington, DC 20590, (202) 366-4723.
This final rule deletes references to the Transportation Security Administration (TSA) and the United States Coast Guard (USCG) in 49 CFR part 1 that concern delegations, organization, and duties within the Department of Transportation. It also deletes responsibilities and duties to TSA and USCG. These two agencies transferred with other agencies to form the new Department of Homeland Security, and are no longer part of the Department of Transportation. Additionally, this rule is changing the name of the Urban Mass Transit Administration (UMTA) to the Federal Transit Administration (FTA) to properly reflect the agency's name.
This final rule does not impose substantive requirements. It simply updates the CFR to reflect the departures of TSA and USCG from the Department of Transportation. The final rule is technical in nature and relates only to Departmental management, organization, procedure, and practice. Therefore, the Department has determined that notice and comment are unnecessary and that the rule is exempt from prior notice and comment requirements under 5 U.S.C. 553(b)(3)(A). These changes will not have substantive impact. The Department does not expect to receive substantive comments on the rule. Therefore, the Department finds that there is good cause under 5 U.S.C. 553 (d)(3) to make this rule effective less than 30 days after publication in the
This final rule is not considered a significant regulatory action under Executive Order 12866 and the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). There are no costs associated with this rule.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does not adopt any regulation that: (1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.
Because this rule concerns the updating of CFR provisions to reflect the departure of TSA and USCG from the Department of Transportation, this final rule is not a major OST action requiring the preparation of an environmental impact statement or environmental assessment.
Authority delegations, Organization and functions.
49 U.S.C. 322; 46 U.S.C. 2104(a); 28 U.S.C. 2672; 31 U.S.C. 3711(a)(2); Pub. L. 101-552, 104 Stat. 2736; Pub. L. 106-159, 113 Stat. 1748; Pub. L. 107-71, 115 Stat. 597; Pub. L. 107-295, 116 Stat. 2064.
(e) The Federal Transit Administrator.
(b) * * *
(5) The Federal Transit Administration, headed by the Administrator.
(f) The Federal Transit Administration. Is responsible for:
(d)
(c)
(e) * * *
(8) Authority to develop, coordinate, and issue wage schedules under the Federal Wage system.
(c) * * *
(1) * * *
(iv) Federal Transit Administration;
(c) * * *
(19) * * *
(i) Except sections 165 and 531 as they relate to matters within the primary responsibility of the Federal Transit Administrator; 105(f), 413; 414(b)(1) and (2); 421, 426, and title III; and
The Federal Transit Administrator is delegated authority to exercise the functions vested in the Secretary by:
(b) * * *
(8) Develop, coordinate, and issue wage schedules for Department employees under the Federal Wage System.
(aa) * * *
(1) The authority to process applications for the issuance, transfer, or amendment of a license for the construction and operation of a deepwater port (33 U.S.C. 1503(bb)).
2. Chief Counsels. The General Counsel has delegated to the Chief Counsels the authority delegated to the General Counsel by authority delegated to the General Counsel by Amendment 1-41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17653, November 17, 1970, as follows:
The Chief Counsels of the Federal Aviation Administration, Federal Highway Administration, Federal Railroad Administration, National Highway Traffic Safety Administration, Federal Transit Administration, the St. Lawrence Seaway Development Corporation, Maritime Administration, and Research and Special Programs Administration are hereby authorized to approve the sufficiency of the title to land being acquired by purchase of condemnation by the United States for the use of their respective organizations. This delegation is subject to the limitations imposed by the Assistant Attorney General, Land and Natural Resources Division, in his delegation to the Department of Transportation. Redelegation of this authority may only be made by the Chief Counsels to attorneys within their respective organizations.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is closing directed fishing for yellowfin sole by vessels using trawl gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the third seasonal apportionment of the halibut bycatch allowance specified for the trawl yellowfin sole fishery category in the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), June 6, 2003, through 1200 hrs, A.l.t., June 29, 2003.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The third seasonal apportionment of the halibut bycatch allowance specified for the trawl yellowfin sole fishery category in the BSAI is 49 metric tons as established by the final 2003 harvest specifications for Groundfish of the BSAI (68 FR 9907, March 3, 2003).
In accordance with § 679.21(e)(7)(v), the Administrator, Alaska Region, NMFS, has determined that the amount of the third seasonal apportionment of the halibut bycatch allowance specified for the trawl yellowfin sole fishery category in the BSAI will be caught. Consequently, NMFS is closing directed fishing for species in the yellowfin sole fishery category by vessels using trawl gear in the BSAI.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the third seasonal apportionment of the halibut bycatch allowance specified, and therefore reduce the public's ability to use and enjoy the fishery resource.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Rural Housing Service, USDA.
Proposed rule.
The Rural Housing Service (RHS) proposes to amend its regulations for the Guaranteed Rural Rental Housing Program (GRRHP). Under the GRRHP, RHS guarantees loans for the development of housing and related facilities for low or moderate income families in rural areas. RHS administers the GRRHP under the authority of the Housing Act of 1949. The GRRHP regulations are being amended to allow RHS, in the case of a default, to buy back guaranteed loans from investors. Another change includes lowering the minimum level of rehabilitation work when guaranteed loans are used for acquisition and rehabilitation. These regulatory changes are made to increase participation by the secondary mortgage market in the GRRHP.
Written or E-mail comments must be received on or before August 11, 2003.
Written comments may be submitted, in duplicate, to Tracy Givelekian, Regulations and Paperwork Management Branch, Rural Development, U.S. Department of Agriculture, Stop 0742, 1400 Independence Avenue SW., Washington, DC 20250-0742. Comments may be submitted via the Internet by addressing them to
Arlene Nunes, Senior Loan Specialist, Multi-Family Housing Processing Division, Rural Housing Service, U.S. Department of Agriculture, STOP 0781, 1400 Independence Avenue SW., Washington, DC 20250-0781, Telephone (202) 720-1604.
This rule has been determined to be significant for purposes of Executive Order 12866 and therefore has been reviewed by the Office of Management and Budget (OMB).
The information collection requirements contained in this regulation have been previously approved by OMB under the provisions of 44 U.S.C. chapter 35 and this regulation has been assigned OMB control number 0575-0174, in accordance with the Paperwork Reduction Act of 1995. There will be a slight increase in the collection requirements from those approved by OMB. Those increased requirements will be addressed when the rule change is published as a final rule.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this rule: (1) All state and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before bringing suit in court challenging action taken under this rule.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, RHS 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, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires RHS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required.
The affected program is listed in the Catalog of Federal Domestic Assistance under Number 10.438, Section 538 Rural Rental Housing Guaranteed Loans.
For the reasons contained in the Final Rule related Notice to 7 CFR part 3015, subpart V, this program is subject to Executive Order 12372 which requires intergovernmental consultation with State and local officials. RHS has conducted intergovernmental consultation in the manner delineated in RD Instruction 1940-J.
This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” It is the determination of RHS that this action does not constitute a major Federal action significantly affecting the quality of the human environment and in accordance with the National Environmental Policy Act of 1969, Pub. L. 91-190, an Environmental Impact Statement is not required.
This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has
The Guaranteed Rural Rental Housing Program (GRRHP) is a relatively new program that is administered by the Rural Housing Service (RHS). The GRRHP was operated as a pilot program in 1996 and 1997, and has been a permanent program since 1998. The program has been designed to increase the availability of affordable multifamily housing in rural America through partnerships between the Agency and lending sources, as well as with state and local housing finance agencies and bond issuers. During the early stages of the program, barriers were identified that have limited the success of the program. One of the primary barriers has been the inability of lenders to close loans due to a lack of participation by the secondary mortgage market. As a result of this poor performance, we consulted industry and governmental experts in the loan guarantee field at a December 2000 stakeholders' meeting. Our main goal was to learn what we could do to close more loans. The regulatory changes herein are the result of meetings with industry stakeholders, including input from banks, housing finance agencies, and secondary market sectors. The meetings were held to identify program stumbling blocks and brainstorm solutions. The purpose of the following changes is to make the program more industry friendly while not jeopardizing the best interests of the Government.
Banks, Conflict of interests, Credit, Environmental impact statements, Fair housing, Hearing and appeal procedures, Low and moderate income housing, Mortgages, Real property acquisition.
Therefore, chapter XXXV, title 7, Code of Federal Regulations is proposed to be amended to read as follows:
1. The authority citation for part 3565 continues to read as follows:
5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
2. Section 3565.3 is amended by adding, in alphabetical order, a definition of “Holder.”
3. Section 3565.52 is revised to read as follows:
A loan guarantee under this part will be evidenced by a Loan Note Guarantee issued by the Agency. Each lender will execute a Lender's Agreement. If a valid Lender's Agreement already exists, it is not necessary to execute a new Lender's Agreement with each loan guarantee.
(a)
(b)
(c)
(1)
(2)
(i) Surety bonding or performance and payment bonding (the preferred credit enhancement);
(ii) An irrevocable letter of credit acceptable to the Agency; and
(iii) A pledge by the lender of acceptable collateral.
(3)
(i) To any holder, 100 percent of any loss sustained by the holder on the guaranteed portion of the loan and on interest due on such portion.
(ii) To the lender, the lesser of:
(A) Any loss sustained by the lender on the guaranteed portion, including principal and interest evidenced by the notes or assumption agreements and secured advances for protection and preservation of collateral made with the Agency's authorization; or
(B) The guaranteed principal advanced to or assumed by the borrower and any interest due thereon.
4. Section 3565.102 is amended by revising paragraph (b) to read as follows:
(b) Meet the qualifications and be approved by Fannie Mae or Freddie Mac to make multifamily housing loans that are to be sold to or securitized by such corporations;
5. Section 3565.212 is amended by removing the word “; and” from paragraph (c) and adding a period and by removing paragraph (d).
6. Section 3565.252 is revised to read as follows:
The property may include new construction or rehabilitated existing structures. The units may be attached, detached, semi-detached, row houses, modular or manufactured houses, or multifamily structures. Manufactured housing must meet Agency requirements contained in 7 CFR part 1924, subpart A or a successor regulation. The Agency will guarantee proposals for new construction or acquisition with moderate or substantial rehabilitation of at least 15 percent of the total estimated replacement cost of the project or $6,500 per dwelling unit, whichever is greater. The portion of guarantee funds available for projects involving acquisition and rehabilitation may be limited in the annual Notice of Fund Availability.
7. Section 3565.403 is amended by redesignating paragraphs (a), (b), (c), and (d) as paragraphs (b), (c), (d), and (e), respectively, and by adding a new paragraph (a) to read as follows:
(a)
8. Section 3565.405 is added to read as follows:
(a)
(b)
(1) If the lender does not repurchase the unpaid guaranteed portion of the loan as provided in paragraph (a) of this section, the Agency will purchase from the holder the unpaid principal balance of the guaranteed portion together with accrued interest to date of repurchase, less the lender's servicing fee, within 30 days after written demand to the Agency from the holder. This demand notice is in addition to the copy of the written demand on the lender. The guarantee will not cover the note interest to the holder on the guaranteed loan accruing after 90 days from the date of the original demand letter of the holder to the lender requesting the repurchase.
(2) The holder's demand to the Agency must include a copy of the written demand made upon the lender. The holder must also include evidence of its right to require payment from the Agency. Such evidence will consist of either the original of the Loan Note Guarantee properly endorsed to the Agency or the original of the assignment guarantee agreement, on a form approved by the Agency, properly assigned to the Agency without recourse including all rights, title, and interest in the loan. The holder must include in its demand the amount due including unpaid principal, unpaid interest to date of demand, and interest subsequently accruing from date of demand to proposed payment date. The Agency will be subrogated to all rights of the holder.
(3) The Agency will notify the lender of its receipt of the holder's demand for payment. The lender must promptly provide the Agency with the information necessary for the Agency to determine the appropriate amount due the holder. Upon request by the Agency, the lender will furnish a current statement certified by an appropriate authorized officer of the lender of the unpaid principal and interest then owed by the borrower on the loan and the amount then owed to any holder. Any discrepancy between the amount claimed by the holder and the information submitted by the lender must be resolved between the lender and the holder before payment will be approved. Such conflict will suspend the running of the 30 day payment requirement.
(4) Purchase by the Agency neither changes, alters, nor modifies any of the lender's obligations to the Agency arising from the loan or guarantee nor does it waive any of Agency's rights against the lender. The Agency will have the right to set-off against the lender all rights inuring to the Agency as the holder of the instrument against the Agency's obligation to the lender under the guarantee.
9. Section 3565.452 is amended by revising paragraph (a) to read as follows:
(a) A decision to liquidate shall be made when it is determined that the default cannot be cured through actions contained in § 3565.403 or it has been determined that it is in the best interest of the Agency and the lender to liquidate. If the loan has not already been repurchased when a decision to liquidate is made, provisions will be made for repurchase in accordance with § 3565.405.
10. Section 3565.453 is revised to read as follows:
(a) Submission of the liquidation plan. The lender will, within 30 days after a decision to liquidate, submit to the Agency in writing, its proposed detailed plan of liquidation. The Agency will inform the lender in writing whether the Agency concurs in the lender's liquidation plan. Should the Agency and the lender not agree on the liquidation plan, negotiations will take place between the Agency and the lender to resolve the disagreement. When the liquidation plan is approved by the Agency, the lender will proceed expeditiously with liquidation. The liquidation plan submitted to the Agency by the lender shall include:
(1) Such proof as the Agency requires to establish the lender's ownership of the guaranteed loan promissory note and related security instruments.
(2) A copy of the payment ledger if available which reflects the current loan balance and accrued interest to date and the method of computing the interest.
(3) A full and complete list of all collateral including any personal and corporate guarantees.
(4) The recommended liquidation methods for making the maximum collection possible on the indebtedness and the justification for such methods, including recommended actions for:
(i) Obtaining an appraisal of the collateral;
(ii) Acquiring and disposing of all collateral;
(iii) Collecting from guarantors;
(iv) Setting the proposed date of foreclosure; and
(v) Setting the proposed date of liquidation.
(5) Necessary steps for protection of the tenants and preservation of the collateral.
(6) Copies of the borrower's latest available financial statements.
(7) Copies of the guarantor's latest available financial statements.
(8) An itemized list of estimated liquidation expenses expected to be incurred along with justification for each expense.
(9) A schedule to periodically report to the Agency on the progress of liquidation.
(10) Estimated protective advance amounts with justification.
(11) Proposed protective bid amounts on collateral to be sold at auction and a breakdown to show how the amounts were determined.
(12) If a voluntary conveyance is considered, the proposed amount to be credited to the guaranteed debt.
(13) Any legal opinions supporting the decision to liquidate.
(14) If the outstanding balance of principal and accrued interest is less than $200,000, the lender will obtain an estimate of fair market and potential liquidation value of the collateral. If the outstanding balance of principal and accrued interest is $200,000 or more, the lender will obtain an independent appraisal report on all collateral securing the loan, which will reflect the fair market value and potential liquidation value, and an examination of the title on the collateral. In order to formulate a liquidation plan which maximizes recovery, collateral must be evaluated for hazardous substances, petroleum products, or other environmental hazards which may adversely impact the market value of the collateral.
(b) A transfer and assumption of the borrower's operation can be accomplished before or after the loan goes into liquidation. However, if the collateral has been purchased through foreclosure or the borrower has conveyed title to the lender, no transfer and assumption is permitted.
(c) A protective bid may be made by the lender, with prior Agency written approval, at a foreclosure sale to protect the lender's and the Agency's interest. The protective bid will not exceed the amount of the loan, including expenses of foreclosure, and should be based on the liquidation value considering estimated expenses for holding and
(d) Filing an estimated loss claim. When the lender is conducting the liquidation and owns any or all of the guaranteed portion of the loan, the lender will file an estimated loss claim once a decision has been made to liquidate if the liquidation will exceed 90 days. The estimated loss payment will be based on the outstanding loan amount minus the liquidation value of the collateral. For the purpose of reporting and loss claim computation, the loss claim will be promptly processed in accordance with applicable Agency regulations, as set forth in this section.
(e) Property disposition. Once the liquidation plan has Agency approval, the lender must make every effort to liquidate the property in a manner that will yield the highest market value consistent with the protections afforded to tenants in 7 CFR part 1944, subpart L or successor regulation.
(f) Accounting and reports. When the lender conducts liquidation, the lender will account for funds during the period of liquidation and provide the Agency with reports at least quarterly on the progress of liquidation, including disposition of collateral, resulting costs, and additional procedures necessary for successful completion of the liquidation.
(g) Transmitting payments and proceeds to the Agency. When the Agency is the holder of a portion of the guaranteed loan, the lender will transmit to the Agency its pro rata share of any payments received from the borrower, liquidation, or other proceeds.
11. Section 3565.457 is revised to read as follows:
In all liquidation cases, final settlement will be made with the lender after the collateral is liquidated, unless otherwise designated as a future recovery or after settlement and compromise of all parties has been completed. The Agency will have the right to recover losses paid under the guarantee from any party which may be liable.
(a)
(b)
(1) The estimated loss payment shall be applied as of the date of such payment. The total amount of the loss payment remitted by the Agency will be applied by the lender on the loan debt. Such application does not release the borrower from liability.
(2) A protective advance claim will be paid only at the time of the final report of loss payment except in certain transfer and assumption situations.
(c)
(1) A determination must be made regarding the collectibility of unsecured personal and corporate guarantees. If reasonably possible, such guarantees should be promptly collected or otherwise disposed of prior to completion of the final loss report. However, in the event that collection from the guarantors appears unlikely or will require a prolonged period of time, the report of loss will be filed when all other collateral has been liquidated, and unsecured personal or corporate guarantees will be treated as a future recovery with the net proceeds to be shared on a pro rata basis by the lender and the Agency.
(2) The lender must document that all of the collateral has been accounted for and properly liquidated and that liquidation proceeds have been properly accounted for and applied correctly to the loan.
(3) The lender will show a breakdown of any protective advance amount as to the payee, purpose of the expenditure, date paid, and evidence that the amount expended was proper and that payment was actually made.
(4) The lender will show a breakdown of liquidation expenses as to the payee, purpose of the expenditure, date paid, and evidence that the amount expended was proper and that payment was actually made. Liquidation expenses are recoverable only from collateral proceeds.
(5) Accrued interest will be supported by documentation as to how the amount was accrued.
(6) Loss payments will be paid by the Agency within 60 days after the receipt of the final loss report and accounting of the collateral.
(7) Should there be a circumstance where the lender cannot or will not sign a final report of loss, the State Director may complete the final report of loss and submit it to the Finance Office without the lender's signature. Before this action can be taken, all collateral must be disposed of or accounted for; there must be no evidence of fraud, misrepresentation, or negligent servicing by the lender; and all efforts to obtain the cooperation of the lender must have been exhausted and documented.
(d)
(e)
(f)
(g)
(1) If the loss is greater than any estimated loss payment, the Agency will pay the additional amount owed by the Agency to the lender.
(2) If the loss is less than the estimated loss payment, the lender will reimburse the Agency for the overpayment plus interest at the note rate from the date of payment.
(3) If the Agency determines that it is in the Government's best interest to take assignment of the loan and conduct liquidation, as stipulated in the 538 statute 42 U.S.C. 1490, i(3) Assignment by Secretary, the Agency will pay the
(h)
(i)
(1) Adding to the unpaid principal and interest on the date of loss, an amount approved by the Agency for payments made by the lender for amounts due and owing on the property, including:
(i) Property taxes and other protective advances as approved by the Agency;
(ii) Water and sewer charges and other special assessments that are liens prior to the guaranteed loan;
(iii) Insurance of the property; and
(iv) Reasonable liquidation expenses.
(2) And by deducting the following items:
(i) Any amount received by the lender on the account of the guaranteed loan after the date of default;
(ii) Any net income received by the lender from the secured property after the date of default; and
(iii) Any cash items retained by the lender, except any amount representing a balance of the guaranteed loan not advanced to the borrower. Any loan amount not advanced will be applied by the lender to reduce the outstanding principal on the loan.
(j)
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-10-10, -10F, -15, -30, -30F (KC-10A and KDC-10), -40, and -40F airplanes; and certain Model MD-10-10F and -30F airplanes. This proposal would require inspections for cracking and corrosion of the bolt assemblies and bushings on the hinge fittings of the inboard and outboard flaps of the left and right wings, and follow-on and corrective actions. This action is necessary to prevent failure of the bolt and bushing that attach the hinge fitting to the flap, which could result in loss of the flap and consequent reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by July 25, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-164-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 Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Ron Atmur, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5224; fax (562) 627-5210.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications 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 2002-NM-164-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. 2002-NM-164-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The FAA has received reports indicating failure of the bolts and bushings that attach the hinge fittings to the inboard and outboard flaps on certain McDonnell Douglas Model DC-10 airplanes. In two cases, the failure was in the radius area of the bolt head; in one case, the failure was in the threaded portion of the bolt; in another case, both the head and threaded end had failed. Additional failures occurred in the lubrication hole in the middle of the shank. The cause of these failures has been attributed to hydrogen embrittlement. Subsequent to installation of new hinge bolts with improved corrosion protection, the corrosion and failures continued to occur.
In addition, multiple reports have been received from operators of corrosion on the bolt and bushing. Investigation revealed that a lack of lubrication caused the initiation of corrosion, and the corrosion led to the stress corrosion failure of the bolt and bushing. The bolt and bushing provide a fail-safe mechanism at the flap hinge pivot point. Such conditions, if not corrected, could result in failure of the bolts and bushings that attach the hinge fitting to the flap, which could result in loss of the flap and consequent reduced controllability of the airplane.
We have reviewed and approved Boeing Alert Service Bulletin DC10-57A148, Revision 01, dated August 13, 2002, which describes procedures for magnetic particle and visual inspections for cracking and corrosion of the outboard pivot bolt assemblies and bushings on the hinge fittings of the inboard flaps of the left and right wings. The service bulletin also describes procedures for follow-on actions and repair of any discrepancy found, as follows:
•
•
•
We also have reviewed and approved Boeing Alert Service Bulletin DC10-57A117, Revision 01, dated July 23, 2002, which describes procedures for magnetic particle and visual inspections for cracking and corrosion of the pivot bolt assemblies on the hinge fitting of the outboard flaps of the left and right wings. The service bulletin also describes procedures for follow-on actions and repair of any discrepancy found, as follows:
•
•
•
Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.
On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD.
There are approximately 402 airplanes of the affected design in the worldwide fleet. The FAA estimates that 297 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 1 work hour per airplane to accomplish the proposed initial inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed inspections on U.S. operators is estimated to be $17,820, or $60 per airplane.
It would take approximately 2 work hours per flap, to accomplish the proposed replacement, at an average labor rate of $60 per work hour. Required parts would cost approximately $2,982 for the outboard flap, and $2,825 for the inboard flap. Based on these figures, the cost impact of the proposed replacement on U.S. operators is estimated to be $1,795,959, or $6,047 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent failure of the bolts and bushings that attach the hinge fitting to the flap, which could result in loss of the flap and consequent reduced controllability of the airplane, accomplish the following:
(a) Within 6 months after the effective date of this AD: Do initial general visual and magnetic particle inspections for cracking and corrosion of the pivot bolt assemblies and bushings on the hinge fittings of the inboard and outboard flaps of the left and right wings, per Boeing Alert Service Bulletin DC10-57A148, Revision 01, dated August 13, 2002; and Boeing Alert Service Bulletin DC10-57A117, Revision 01, dated July 23, 2002; as applicable. Before further flight, do the applicable follow-on and corrective actions required by paragraphs (a)(1), (a)(2), and (a)(3) of this AD.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to enhance visual access to all exposed surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(1) If no cracking or corrosion is found: Before further flight, do the actions specified in either (a)(1)(i) or (a)(1)(ii) of this AD per Condition 1 of the Work Instructions of the applicable service bulletin.
(i) Do the actions specified in Option 1 of Condition 1 per the applicable service bulletin. The actions include (for the inboard flaps) reinstalling each existing bushing, replacing each existing pivot bolt assembly with a new assembly made from corrosion-resistant steel, and lubricating the assembly; (for the outboard flaps) replacing each existing pivot bolt assembly with a new assembly made from multi-phase material, and lubricating the assembly.
(ii) Do the actions specified in Option 2 of Condition 1 per the applicable service bulletin. The actions include (for the inboard flaps) reinstalling the existing bushing and pivot bolt assembly, lubricating the assembly, repeating the lubrication at the intervals specified, and doing repetitive ultrasonic inspections of the assembly for cracking at the intervals specified; (for the outboard flaps) reinstalling the pivot bolt assembly, lubricating the assembly, repeating the lubrication at the intervals specified, and doing repetitive ultrasonic inspections of the assembly for cracking at the intervals specified. Accomplishment of paragraph (a)(1)(i) terminates the requirements of this paragraph.
(2) If corrosion is found: Before further flight, do the actions specified in either (a)(2)(i) or (a)(2)(ii) of this AD per Condition 2 of the Work Instructions of the applicable service bulletin.
(i) Do the actions specified in Option 1 of Condition 2 per the applicable service bulletin. The actions include (for the inboard flaps) replacing the affected bushing with a new equivalent part, replacing the affected pivot bolt assembly with a new assembly made from corrosion-resistant steel, and lubricating each assembly; (for the outboard flaps) replacing the affected pivot bolt assembly with a new assembly made from multi-phase material, and lubricating each assembly.
(ii) Do the actions specified in Option 2 of Condition 2 per the applicable service bulletin. The actions include (for the inboard flaps) repairing and re-installing the existing bushing and affected pivot bolt assembly, lubricating each assembly, repeating the lubrication at the intervals specified, and doing repetitive ultrasonic inspections of the assembly for cracking at the intervals specified; (for the outboard flaps) repairing and installing the existing pivot bolt assembly, lubricating each assembly, repeating the lubrication at the intervals specified, and doing repetitive ultrasonic inspections of the assembly for cracking, at the intervals specified. Do the inspections until paragraph (a)(2)(i) of this AD has been done.
(3) If cracking is found: Before further flight, do the actions specified in either paragraph (a)(3)(i) or (a)(3)(ii) of this AD per Condition 3 of the Work Instructions of the applicable service bulletin.
(i) Do the actions specified in Option 1 of Condition 3 per the applicable service bulletin. The actions include (for the inboard flaps) replacing the affected bushing with a new equivalent part, replacing the affected pivot bolt assembly with a new assembly made from corrosion-resistant steel, and lubricating each assembly; (for the outboard flaps) replacing the affected pivot bolt assembly with a new assembly made from multi-phase material, and lubricating each assembly.
(ii) Do the actions specified in Option 2 of Condition 3 per the applicable service bulletin. The actions include (for the inboard flaps) replacing the affected bushing and pivot bolt assembly with new equivalent parts, lubricating each assembly, repeating the lubrication at the intervals specified, and doing repetitive ultrasonic inspections of the assembly for cracking at the intervals specified; (for the outboard flaps) replacing the affected pivot bolt assembly with a new equivalent part, lubricating each assembly, repeating the lubrication at the intervals specified, and doing repetitive ultrasonic inspections of the assembly for cracking at the intervals specified. Do the inspections until paragraph (a)(3)(i) of this AD has been done.
(b) Accomplishment of the specified actions before the effective date of this AD per Boeing Alert Service Bulletin DC10-57A148, dated June 14, 2002; or Boeing Alert Service Bulletin DC10-57A117, dated February 11, 1991; is considered acceptable
(c) In accordance with 14 CFR 39.19, the Manager, Los Angeles Aircraft Certification Office, FAA, is authorized to approve alternative methods of compliance for this AD.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve a revision to the State Implementation Plan (SIP) submitted by the State of Kansas. The purpose of this revision is to delete the Wyandotte County Air Pollution Control Regulations from the Federally-Approved Regulations. These regulations were originally incorporated into the SIP to assure that local-specific air quality issues were addressed with Federally-enforceable provisions. Due to the continued evolution of the Kansas Air Quality Regulations, these local regulations are no longer necessary to assure continued maintenance of air quality standards in Wyandotte County.
In the final rules section of the
Comments on this proposed action must be received in writing by July 10, 2003.
Comments may be mailed to Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101, or E-mail her at
Heather Hamilton at (913) 551-7039.
See the information provided in the direct final rule which is located in the rules section of the
Federal Communications Commission.
Proposed rules.
In this document the Federal Communications Commission (FCC) proposes rules that would require Multipoint Distribution Service (MDS) and Instructional Television Fixed Service (ITFS) operators to limit the strength of some or all of the radio signals they transmit to levels that would make it possible for operators in adjacent service areas to provide two-way, low-power cellular services. The new rules would also expand ITFS eligibility criteria to include commercial as well as non-profit educational entities and perhaps merge ITFS with MDS, but they would maintain the amount of educational content provided on those channels at levels comparable to those attained under existing requirements. The purpose of the proposals is to facilitate provision of high-speed wireless Internet access services and mobile radio services in a band that has traditionally been used primarily for high-powered, one-way television.
Comments are due on or before September 8, 2003 and reply comments are due on or before October 23, 2003.
Nancy Zaczek or Charles Oliver at (202) 418-0680, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau or via the Internet to
This is a summary of the FCC's Notice of Purposed Rulemaking, FCC 03-56, adopted on March 13, 2003, and released on April 2, 2003. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the FCC's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:
1. By this
2. The rule changes proposed in this
3. The following is a summary of the FCC's major proposals and determinations. In the
• Seek comment on whether and how to reconfigure the 2500-2690 MHz band;
• Seek comment on the best means of ensuring the efficient utilization of unassigned ITFS spectrum, including geographic area licensing and unlicensed operation;
• Propose to convert site-by-site licenses of MDS and ITFS incumbents to geographic service areas;
• Seek comment on how best to promote increased access to and efficient utilization of ITFS spectrum;
• Propose technical rules to increase licensee flexibility and protect incumbent operations in the 2500-2690 MHz band;
• Propose technical and service rules for mobile operations;
• Propose to simplify and streamline the licensing process for the Services;
• Propose application filing and processing procedures to facilitate implementation of the Services into the Universal Licensing System (ULS) administered by the Wireless Telecommunications Bureau; and
• Propose to consolidate all service-specific rules for the Services under parts 27 and 101 but seek comment on alternatives.
4. This is a permit-but-disclose notice and comment rulemaking proceeding.
5. Pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the FCC's rules, interested parties may file comments on this NPRM on or before September 8, 2003, and reply comments on or before October 23, 2003. Comments and reply comments should be filed in WT Docket No. 03-66, and may be filed using the FCC's Electronic Comment Filing System (ECFS) or by filing paper copies. All relevant and timely comments will be considered by the FCC before final action is taken in this proceeding.
6. Comments filed through the ECFS can be sent as an electronic file via the Internet to
7. Parties who choose to file by paper must file an original and four copies of each filing. If parties want each FCC Commissioner to receive a personal copy of their comments, they must file an original plus nine copies. All filings must be sent to the FCC's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. Furthermore, parties are requested to provide courtesy copies for the following FCC staff: (1) Nancy Zaczek, Charles Oliver and Stephen Zak, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Room. 3-C124, Washington, DC 20554; and (2) Gary Michaels and Andrea Kelly, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Room 4-A760, Washington, DC 20554. One copy of each filing (together with a diskette copy, as indicated below) should also be sent to the FCC's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 202-863-2893.
8. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be attached to the original paper filing submitted to the Office of the Secretary. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Microsoft
9. The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page:
10. As required by the Regulatory Flexibility Act of 1980 (RFA), the FCC has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the
11. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the FCC has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this
12. In this
• Proposing technical rules to increase licensee flexibility;
• Seeking comment on revising the band plan;
• Proposing service rules for mobile operation;
• Proposing to encourage entrepreneurial efforts to develop new technologies and services by opening ITFS spectrum to a wide range of applicants;
• Proposing to simplify and streamline the licensing process;
• Proposing application filing and processing to facilitate electronic filing in ULS;
• Proposing to consolidate these services under Part 101;
• Tentatively concluding that MDS and ITFS licensees should receive a six-month transition period after application processing in ULS begins before requiring mandatory electronic filing in ULS;
• Suspending the acceptance and processing of applications in this band, with certain exceptions, until the completion of this rulemaking proceeding;
• Suspending the current August 16, 2003 construction deadline for BTA authorization holders; and
• Proposing to assign ITFS licenses through competitive bidding.
13. The FCC believes that its proposals will encourage the enhancement of existing services using this band and the development of new innovative services to the public such as providing wireless broadband services, including high-speed Internet access and mobile services. The FCC also believes that its proposals will allow licensees to adapt quickly to changing market conditions and the marketplace, rather than the government, to determine how this band will best be used.
14. The proposed action is authorized under sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333 and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, and 706.
15. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules. The RFA generally defines the term “small entity” as having the same meaning as the terms, “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. The definition of “small governmental jurisdiction” is one with a population of fewer than 50,000. There are 85,006 governmental jurisdictions in the nation. This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on how many of these entities have populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,556, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, the FCC estimates that 96 percent, or about 81,600, are small entities that may be affected by the FCC's rules.
16. Nationwide, there are 4.44 million small business firms, according to SBA reporting data. In this section, the FCC further describes and estimates the number of small entity licensees and regulatees that may be affected by rules adopted pursuant to this NPRM. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be the data that the FCC publishes in its
17.
18. In connection with the 1996 MDS auction, the FCC defined “small business” as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. The FCC established this small business definition in the context of this particular service and with the approval of SBA. The MDS auction resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. At this time, the FCC estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the FCC finds that there are currently approximately 440 MDS licensees that are defined as small businesses under either the SBA or the FCC's rules. Some of those 440 small business licensees may be affected by the proposals in this
19. MDS is also heavily encumbered with licensees of stations authorized prior to the auction. The SBA has developed a definition of small entities for pay television services that includes all such companies generating $11 million or less in annual receipts. This definition includes multipoint distribution systems, and thus applies to MDS licensees and wireless cable operators that did not participate in the MDS auction. Information available to us indicates that there are 832 of these licensees and operators that do not generate revenue in excess of $11 million annually. Therefore, for purposes of this IRFA, the FCC finds that there are approximately 892 small MDS providers as defined by the SBA and the FCC's auction rules, and some of these providers may take advantage of the FCC's amended rules to provide two-way MDS.
20. There are presently 2032 ITFS licensees. All but 100 of these licenses are held by educational institutions (these 100 fall in the MDS category, above). Educational institutions may be included in the definition of a small entity. ITFS is a non-profit non-broadcast service that, depending on SBA categorization, has, as small entities, entities generating either $10.5 million or less, or $11.0 million or less, in annual receipts. However, the FCC does not collect, nor is the FCC aware of other collections of, annual revenue data for ITFS licensees. Thus, the FCC finds that up to 1932 of these educational institutions are small entities that may take advantage of the FCC's amended rules to provide additional flexibility to ITFS.
21. As noted previously, applicants for MDS or ITFS licenses would be required to apply through the Universal Licensing System using FCC Form 601, and other appropriate forms. Licensees will also be required to apply for an individual station license by filing FCC Form 601 for those individual stations that (1) require submission of an Environmental Assessment of the facilities under § 1.1307 of the FCC's rules; (2) require international coordination of the application; or (3) require coordination with the Frequency Assignment Subcommittee (FAS) of the Interdepartment Radio Advisory Committee (IRAC). While these requirements are new with respect to potential licensees in the ITFS and MDS bands, the FCC has applied these requirements to licensees in other bands. Moreover, the FCC is also proposing to eliminate many burdensome filing requirements that have previously been applied to MDS and ITFS.
22. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”
23. In this
24. The FCC has reduced the burdens wherever possible. To minimize any further negative impact, however, the FCC proposes certain exclusive incentives for small entities that will redound to their benefit. The FCC proposes the use of bidding credits for small entities that participate in auctions of licenses that are conducted pursuant to the rules proposed in this
25. The regulatory burdens contained in the
26. None.
27. Accordingly,
Administrative practice and procedures, and Reporting and recordkeeping requirements.
Communications equipment, Radio, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 21, 74 and 101 as follows:
1. The authority citation for part 1 continues to read:
47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 and 325(e).
2. Section 1.933 is amended by adding paragraphs (c)(8) and (9) to read as follows:
(c) * * *
(8) Multipoint Distribution Service.
(9) Instructional Television Fixed Service.
3. Section 1.1102 is amended by revising entry 20 to the table to read as follows:
4. Part 21 is removed.
5. The authority citation for part 74 continues to read as follows:
47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.
6. Section 74.1 is amended by revising paragraph (b) to read as follows:
(b) Rules in part 74 which apply exclusively to a particular service are contained in that service subpart, as follows: Experimental Broadcast Stations, subpart A; Remote Pickup Broadcast Stations, subpart D; Aural Broadcast STL and Intercity Relay Stations, subpart E; TV Auxiliary Broadcast Stations, subpart F; Low Power TV, TV Translator and TV Booster Stations, subpart G; Low Power Auxiliary Stations, subpart H; FM Broadcast Translator Stations and FM Broadcast Booster Stations, subpart L.
7. Subpart I of part 74 is removed and reserved.
8. The authority citation for part 101 continues to read as follows:
47 U.S.C. 154 and 303, unless otherwise noted.
9. Section 101.3 is amended by adding the following definitions in alphabetical order to read as follows:
10. Section 101.101 is amended by revising the following entries to the table to read as follows:
ITFS: Instructional Television Fixed Service—(part 101, subpart P)
MDS: Multipoint Distribution Service—(part 101, subpart Q)
11. Add subpart Q to part 101 to read as follows:
(a)(1) Instructional television fixed stations are intended primarily through video, data, or voice transmissions to further the educational mission of accredited public and private schools, colleges and universities providing a formal educational and cultural development to enrolled students. Authorized instructional television fixed station channels must be used to further the educational mission of accredited schools offering formal educational courses to enrolled students.
(2) In furtherance of the educational mission of accredited schools, instructional television fixed station channels may be used for:
(i) In-service training and instruction in special skills and safety programs, extension of professional training, informing persons and groups engaged in professional and technical activities of current developments in their particular fields, and other similar endeavors;
(ii) Transmission of material directly related to the administrative activities of the licensee, such as the holding of conferences with personnel, distribution of reports and assignments, exchange of data and statistics, and other similar uses; and
(iii) Response channels transmitting information associated with formal educational courses offered to enrolled
(b) Stations may be licensed in this service as originating or relay stations to interconnect instructional television fixed stations in adjacent areas, to deliver instructional and cultural material to, and obtain such material from, commercial and noncommercial educational television broadcast stations for use on the instructional television fixed system, and to deliver instructional and cultural material to, and obtain such material from, nearby terminals or connection points of closed circuit educational television systems employing wired distribution systems or radio facilities authorized under other parts of this chapter, or to deliver instructional and cultural material to any CATV system serving a receiving site or sites which would be eligible for direct reception of ITFS signals under the provisions of paragraph (a) of this section.
(c) When an ITFS licensee makes capacity available on a common carrier basis, it will be subject to common carrier regulation.
(1) A licensee operating as a common carrier is required to comply with all policies and rules applicable to that service. Responsibility for making the initial determination of whether a particular activity is common carriage rests with the ITFS licensee.
(2) An ITFS licensee also may alternate, without further authorization required, between rendering service on a common carrier and non-common carrier basis, provided that the licensee notifies the Commission of any service status changes at least 30 days in advance of such changes. The notification shall state whether there is any affiliation or relationship to any intended or likely subscriber or program originator.
(a) Winning bidders must file an application (FCC Form 601) for an initial authorization in each market and frequency block.
(b) Blanket licenses are granted for each market and frequency block. Blanket licenses cover all mobile and response stations. Blanket licenses also cover all fixed stations anywhere within the authorized service area, except as follows:
(1) A fixed station (other than a response station) would be required to be individually licensed if:
(i) International agreements require coordination;
(ii) Submission of an Environmental Assessment is required under § 1.1307 of this chapter; and
(iii) The station would affect the radio quiet zones under § 1.924 of this chapter.
(2) Any antenna structure that requires notification to the Federal Aviation Administration (FAA) must be registered with the Commission prior to construction under § 17.4 of this chapter.
Most ITFS service areas are Basic Trading Areas (BTAs). BTAs are based on the Rand McNally 1992 Commercial Atlas & Marketing Guide, 123rd Edition, at pages 38-39. The following are additional ITFS service areas in places where Rand McNally has not defined BTAs: American Samoa; Guam; Northern Mariana Islands; Mayaguez/Aguadilla-Ponce, Puerto Rico; San Juan, Puerto Rico; and the United States Virgin Islands. The Mayaguez/Aguadilla-Ponce, PR, service area consists of the following municipios: Adjuntas, Aguada, Aguadilla, Anasco, Arroyo, Cabo Rojo, Coamo, Guanica, Guayama, Guayanilla, Hormigueros, Isabela, Jayuya, Juana Diaz, Lajas, Las Marias, Maricao, Maunabo, Mayaguez, Moca, Patillas, Penuelas, Ponce, Quebradillas, Rinco
(a) Any ITFS station licensed by the Commission prior to date to be decided as well as assignments and transfers approved by the Commission and consummated as of [date to be decided] shall be considered incumbent and grandfathered (may continue to operate under their licensed parameters).
(b) As of [date to be decided], all incumbent ITFS licenses shall be converted to a blanket license. Pursuant to that geographic area license, such incumbent licensees may modify their systems provided the signal level [specific level to be decided] does not increase outside their pre-existing protected service area. The blanket license covers all fixed stations anywhere within the authorized service area, except as follows:
(1) A fixed station (other than a response station) would be required to be individually licensed if:
(i) International agreements require coordination;
(ii) Submission of an Environmental Assessment is required under § 1.1307 of this chapter; and
(iii) The station would affect the radio quiet zones under § 1.924 of this chapter.
(2) Any antenna structure that requires notification to the Federal Aviation Administration (FAA) must be registered with the Commission prior to construction under § 17.4 of this chapter.
Incumbent operators and geographic area licensees may negotiate alternative criteria.
(c) The frequencies associated with incumbent authorizations that have been cancelled automatically or otherwise been recovered by the Commission will automatically revert to the applicable BTA licensee.
(a) Incumbent site-based licensees are subject to the construction requirements set forth in § 101.63.
(b) All ITFS BTA licensees must demonstrate substantial service at the time of license renewal. A licensee's substantial service showing should include, but not be limited to, the following information for each channel for which it holds a license, in each BTA or portion of a BTA covered by their license, in order to qualify for renewal of that license. The information provided will be judged by the Commission to determine whether the licensee is providing service which rises to the level of “substantial.”
(1) A description of the ITFS licensee's current service in terms of geographic coverage;
(2) Copies of all orders or other adjudications that the licensee has violated the Communications Act or the Commission's rules or policies;
(3) A description of the ITFS band licensee's current service in terms of population served, as well as any additional service provided during the license term;
(4) A description of the ITFS licensee's investments in its system(s) (type of facilities constructed and their operational status is required); and
(b) Any ITFS licensees adjudged not to be providing substantial service will not have their licenses renewed.
(a)
(2) Eligible ITFS licensees may apply to the Commission to partition their licensed geographic service areas to eligible entities and are free to determine the portion of their service areas to be partitioned. Eligible ITFS licensees may aggregate or disaggregate their licensed spectrum at any time following the grant of a license.
(b)
(2) Spectrum may be disaggregated in any amount. A licensee need not retain a minimum amount of spectrum.
(3) In the case of partitioning, applicants and licensees must file FCC Form 603 pursuant to § 1.948 of this chapter and list the partitioned service area on a schedule to the application. The geographic coordinates must be specified in degrees, minutes, and seconds to the nearest second of latitude and longitude, and must be based upon the 1983 North American Datum (NAD83).
(4) Combined partitioning and disaggregation. The Commission will consider requests from geographic area licensees for partial assignment of licenses that propose combinations of partitioning and disaggregation.
(c)
(2)
(3) All applications requesting partial assignments of license for partitioning or disaggregation must certify in the appropriate portion of the application which construction option is selected.
(4) Responsible parties must submit supporting documents as required by § 101.1505.
(d)
(e)
Unattended operation of licensed ITFS stations is permitted without further authority. An unattended relay station may be employed to receive and retransmit signals of another station provided that the transmitter is equipped with circuits which permit it to radiate only when the signal intended to be retransmitted is present at the receiver input terminals.
(a) Incumbent ITFS licenses shall be issued for a period of 10 years beginning with the date of grant.
(b) A BTA authorization shall be issued for a period of ten years from the date the Commission declared bidding closed in the ITFS auction.
12. Add subpart R to part 101 to read as follows:
Multipoint Distribution Service stations may provide any fixed or mobile services for which its frequency bands are allocated, subject to the technical and other rules contained in this part and subpart.
(a) Winning bidders must file an application (FCC Form 601) for an initial authorization in each market and frequency block.
(b) Blanket licenses are granted for each market and frequency block. Blanket licenses cover all mobile and response stations. Blanket licenses also cover all fixed stations anywhere within the authorized service area, except as follows:
(1) A fixed station (other than a response station) would be required to be individually licensed if:
(i) International agreements require coordination;
(ii) Submission of an Environmental Assessment is required under § 1.1307 of this chapter; and
(iii) The station would affect the radio quiet zones under § 1.924 of this chapter.
(2) Any antenna structure that requires notification to the Federal Aviation Administration (FAA) must be registered with the Commission prior to construction under § 17.4 of this chapter.
Most MDS service areas are Basic Trading Areas (BTAs). BTAs are based on the Rand McNally 1992 Commercial Atlas & Marketing Guide, 123rd Edition, at pages 38-39. The following are additional MDS service areas in places where Rand McNally has not defined BTAs: American Samoa; Guam; Northern Mariana Islands; Mayaguez/Aguadilla-Ponce, Puerto Rico; San Juan, Puerto Rico; and the United States Virgin Islands. The Mayaguez/Aguadilla-Ponce, PR, service area consists of the following municipios: Adjuntas, Aguada, Aguadilla, Anasco, Arroyo, Cabo Rojo, Coamo, Guanica, Guayama, Guayanilla, Hormigueros, Isabela, Jayuya, Juana Diaz, Lajas, Las Marias, Maricao, Maunabo, Mayaguez, Moca, Patillas, Penuelas, Ponce, Quebradillas, Rinco
(a) Any MDS station licensed by the Commission prior to [date to be decided] as well as assignments and transfers approved by the Commission and consummated as of [date to be decided] shall be considered incumbent and grandfathered (may continue to
(b) As of [date to be decided], all incumbent MDS licenses shall be converted to a blanket license. Pursuant to that geographic area license, such incumbent licensees may modify their systems provided the signal level [specific level to be decided] does not increase outside their pre-existing protected service area. The blanket license covers all fixed stations anywhere within the authorized service area, except as follows:
(1) A fixed station (other than a response station) would be required to be individually licensed if:
(i) International agreements require coordination;
(ii) Submission of an Environmental Assessment is required under § 1.1307 of this chapter; and
(iii) The station would affect the radio quiet zones under § 1.924 of this chapter.
(2) Any antenna structure that requires notification to the Federal Aviation Administration (FAA) must be registered with the Commission prior to construction under § 17.4 of this chapter.
(c) The frequencies associated with incumbent authorizations that have been cancelled automatically or otherwise been recovered by the Commission will automatically revert to the applicable BTA licensee.
(a) Incumbent site-based licensees are subject to the construction requirements set forth in § 101.63.
(b) All MDS BTA licensees must demonstrate substantial service at the time of license renewal. A licensee's substantial service showing should include, but not be limited to, the following information for each channel for which it holds a license, in each BTA or portion of a BTA covered by their license, in order to qualify for renewal of that license. The information provided will be judged by the Commission to determine whether the licensee is providing service which rises to the level of “substantial.”
(1) A description of the MDS licensee's current service in terms of geographic coverage;
(2) Copies of all orders or other adjudications that the licensee has violated the Communications Act or the Commission's rules or policies;
(3) A description of the MDS licensee's current service in terms of population served, as well as any additional service provided during the license term;
(4) A description of the MDS licensee's investments in its system(s) (type of facilities constructed and their operational status is required);
(5) Any MDS licensees adjudged not to be providing substantial service will not have their licenses renewed.
(a)
(2) Eligible MDS licensees may apply to the Commission to partition their licensed geographic service areas to eligible entities and are free to determine the portion of their service areas to be partitioned. Eligible MDS licensees may aggregate or disaggregate their licensed spectrum at any time following the grant of a license.
(b)
(2) Spectrum may be disaggregated in any amount. A licensee need not retain a minimum amount of spectrum.
(3) In the case of partitioning, applicants and licensees must file FCC Form 603 pursuant to § 1.948 of this chapter and list the partitioned service area on a schedule to the application. The geographic coordinates must be specified in degrees, minutes, and seconds to the nearest second of latitude and longitude, and must be based upon the 1983 North American Datum (NAD83).
(4) Combined partitioning and disaggregation. The Commission will consider requests from geographic area licensees for partial assignment of licenses that propose combinations of partitioning and disaggregation.
(c)
(2)
(3) All applications requesting partial assignments of license for partitioning or disaggregation must certify in the appropriate portion of the application which construction option is selected.
(4) Responsible parties must submit supporting documents as required by § 101.1505.
(d) License term. The license term for a partitioned license area and for disaggregated spectrum shall be the remainder of the original licensee's license term.
MDS stations may be operated by remote control without further authority.
Unattended operation of licensed MDS stations is permitted without further authority. An unattended relay station may be employed to receive and retransmit signals of another station provided that the transmitter is equipped with circuits which permit it to radiate only when the signal intended to be retransmitted is present at the receiver input terminals.
(a) Incumbent MDS licenses shall be issued for a period of 10 years beginning with the date of grant.
(b) A BTA authorization shall be issued for a period of ten years from the date the Commission declared bidding closed in the MDS auction.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to reclassify
Comments from all interested parties must be received by August 11, 2003 so they can be considered in our final decision. Public hearing requests must be received by July 25, 2003.
Comments and materials concerning this proposal should be sent to: Field Supervisor, U.S. Fish and Wildlife Service, 608 E. Cherry Street, Room 200, Columbia, MO 65201-7712. Comments may also be submitted by electronic mail to
Paul McKenzie, Ph.D., Columbia Field Office (
Historically, Missouri bladderpod was believed to be a State endemic plant known solely from a few sites in two counties in southwestern Missouri (Morgan 1980; U.S. Fish and Wildlife Service 1988). In 1980, a total of 550 individual plants were estimated at 4 sites, and at the time of listing as endangered in 1987, an estimated 5,000 plants were determined to occur at 9 sites (Morgan 1980; 52 FR 679, January 8, 1987). At the time of the completion of the Missouri Bladderpod Recovery Plan in 1988, the species was known from 11 sites in Christian, Dade, and Greene Counties, MO (U.S. Fish and Wildlife Service 1988). During that same year, the Service funded a four-county survey for the species in Missouri, and an additional 45 sites were located (Hickey 1988). A followup survey in 1989 yielded an additional 13 sites (Thurman and Hickey 1989). Further botanical explorations led to the discovery of 16 additional sites, including locations in an additional county in Missouri (Lawrence County) and one site each in Izard and Washington Counties, AR (Theo Witsell, Arkansas Natural Heritage Commission,
Population levels of Missouri bladderpod fluctuate widely as is typical of winter annuals, depending on edaphic (soil components) and climatic conditions, and factors such as seed crop from the preceding season, seed survival in the seed bank, recruitment from the seed bank, and the survival of growing plants (Thomas 1998). Annual monitoring data have been collected for a minimum of 11 consecutive years at two Missouri sites, and irregular monitoring has occurred at numerous other sites. Thomas (1998) and Boetsch (
An examination of the status of most extant sites following the procedures established by Hickey (1988) was conducted in the spring of 2000. Hickey visited 52 extant sites between April and May and noted that: (1) Populations of the species were found in the same terrace or rock shelf as they were in 1988-1990, and (2) some sites exhibited lower numbers than in 1988-1990, apparently attributable to the drought conditions, increase in cedar density or encroachment of other woody vegetation, or competition from exotic species of brome grasses (
In years when germination, overwinter survival, seedling establishment, and plant growth are ideal,
The current 63 extant sites have the following Natural Community rankings by The Nature Conservancy (TNC): (1) 11 (10 in Missouri and 1 in Arkansas) are graded A (
Threats identified by the Service at the time of listing (52 FR 679, January 8, 1987) were: (1) Vulnerability of small populations to overcollecting and human disturbance, (2) lack of research on proper management techniques necessary to maintain and promote populations of the species, (3) potential impacts of annual maintenance activities to populations located on highway rights-of-way, (4) seed destruction by insects and fungal infections, and (5) inadequate protection or management on public and private property necessary for the species' continued existence. Subsequently, the Service (1988) documented the presence of exotic plant species, such as
Although no specific reclassification (endangered to threatened) criteria were provided in the Recovery Plan, the following recovery (delisting) criteria were given: 30 self-sustaining populations, 15 of which are in secure ownership, must be at least one-half acre in size each and show self-sustaining populations for at least 7 years (U.S. Fish and Wildlife Service 1988). We indicated that these recovery goals could be accomplished through the following actions: (1) An inventory of suitable habitat for new populations, (2) the protection and management of existing populations, (3) the continued monitoring of populations and initiation of research on the species, (4) the development and initiation of management programs on protected sites, (5) the establishment of new populations on public land, and (6) the development of public awareness and support to further the conservation of the species.
Although some information gaps concerning the life history requirements of
Other recommended research and recovery activities include: (1) Investigating the pollination ecology of the species; (2) revising the Recovery Plan objective established in 1988 to reflect the current knowledge of the species; (3) securing funding to provide necessary information essential to complete recovery and to facilitate the removal of the species from the list of federally protected species; (4) evaluating the efficacy of different management techniques; and (5) assuring that threats such as urban development and competition from exotic plants, both of which result from rapid population growth and urbanization, do not increase (The Nature Conservancy 2002; Hickey 1988; U.S. Fish and Wildlife Service 1988; Thomas and Jackson 1990; Thomas 1996).
Section 12 of the Act directed the Secretary of the Smithsonian Institution to prepare a report, within 1 year after passage of the Act, on those plants considered to be endangered, threatened, or extinct. This report, designated as House Document No. 94-51, was presented to Congress on January 9, 1975. On July 1, 1975, the Director of the Service published a notice in the
The Endangered Species Act Amendments of 1982 required that all petitions, including the report of the Smithsonian Institution, still pending as of October 13, 1982, be treated as received on that date. Section 4(b)(3) of the Act, as amended, requires that, within 12 months of the receipt of such a petition, a finding be made as to whether the requested action is warranted, not warranted, or warranted but precluded by other higher priority activities involving additions to or removals from the Federal Lists of Endangered and Threatened Wildlife and Plants. Therefore, on October 13, 1983; October 12, 1984; and again on October 11, 1985, the Service made the finding that listing of
In letters dated January 26 and February 17, 1998, the Service received a petition from the MDC to reclassify
Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for determining whether to add, reclassify, or remove a species from the List of Endangered and Threatened Plants using five factors described in section 4(a)(1). These factors and their application to
At the time of listing,
Taking into consideration annual fluctuations in population, the estimated total number of plants known in Missouri has increased from approximately 550 plants in 1980 (Morgan 1980) to a potential maximum of 400,000-500,000 plants when climatic and edaphic conditions are ideal for germination, overwinter survival, seedling establishment, growth, and seed production. Additionally, a maximum of “tens of thousands” of plants have been reported at the Izard County, AR, site (Theo Witsell,
In addition, the threat of habitat loss has been reduced by the acquisition and management of occupied sites by public land management agencies and TNC (Table 2). The MDC and TNC successfully protected one of the largest known sites, Rocky Barrens in Greene County, MO, by purchasing a total of 281 acres of occupied habitat between 1988 and 1993. Another five sites in Missouri are under public ownership or a long-term conservation agreement, including approximately 29 acres at the Wilson's Creek National Battlefield in Christian and Greene Counties; 3 acres at the Nathan Boone State Historic Site in Greene County; and approximately 40 acres at the Bois D'Arc Conservation Area in Greene County, an MDC property. Additionally, TNC has secured a 100-year lease to manage 47 acres of bladderpod habitat at South Greenfield Glade in Dade County, MO (Beth Churchwell, TNC, pers. comm. 2000).
The MDNR, MDC, TNC, and Wilson's Creek National Battlefield have undertaken various management activities to further the conservation of the species (Table 2). Management techniques that have been effective in enhancing bladderpod habitat include prescribed burning, chainsawing, and bulldozing to control the encroachment of woody vegetation such as red cedar (
In particular, prescribed burning is a highly beneficial technique to improve bladderpod habitat. In 1988, an estimated 1,500 plants were counted at Rocky Barrens Conservation Area (Hickey 1988), and 2,000 plants were determined to occur on the same site in 1992 (MDC 2002a). In August 1993, MDC conducted a controlled burn on the area (Figg and Priddy 1994), and over 50,000 plants were estimated in May 1994 (MDC 2002a). The species responded similarly at the same site in the spring of 1997 and 1998, following controlled burns in August 1996 (Figg and Davit 1997) and 1997. MDC botanist Tim Smith estimated that the population at the site in May 1998 contained “tens of thousands” of plants (MDC 2002a).
Additional protection and management of bladderpod habitat has occurred through TNC's Registry Program. Between 1986 and 1996, nine sites in Christian, Dade, and Greene Counties were added to the organization's Registry Program. Under this program, private landowners have an agreement with TNC to protect Missouri bladderpod sites to the best of their ability and to notify TNC regarding any new threats to the species or its habitat or if the landowner plans to sell the property. Additionally, TNC personnel assist private landowners by providing management suggestions, including the development of site-specific plans, and by notifying them of various landowner incentive programs that promote Best Management Practices. Best Management Practices developed by MDC (2000) include surveys for bladderpod and bladderpod habitat, controlling the encroachment of eastern red cedars and exotic species onto glade habitat through mechanical cutting and prescribed fire, avoiding the use of nonspecific herbicides between October and July in occupied bladderpod habitat, and avoiding heavy grazing or grazing during flowering and fruiting periods (March-July) (Susanne Greenlee, TNC, pers. comm. 1998).
In 1998, the Service provided funding to TNC to enhance 90 acres of degraded bladderpod habitat on Rocky Barrens Conservation Area in Greene County. Missouri bladderpod habitat was improved by prescribed fire and cutting of invasive eastern red cedar trees. Although a thorough estimate of Missouri bladderpod plants has not yet been possible on the managed area since these restoration efforts were conducted in 1998, flowering plants were observed at the location in 1999 (Doug Ladd, TNC, pers. comm. 2000).
Potential impacts to populations of
The expansion of the exotic brome grasses
The glade and other rocky habitats where
Grazing and haying are potential threats to Missouri bladderpod populations under private ownership (U.S. Fish and Wildlife Service 1988). Overgrazing may impact small populations of the plant, but minor grazing actually enhances these populations (MDC 1997). Presently, there are no known incidents where haying has been a threat to existing Missouri bladderpod populations.
The poor, rocky, thin soils over bedrock make bladderpod habitat nonconducive to increases in agricultural development within the species' range in Missouri. Hickey (2000) reported that one population was destroyed by construction of a putting green on a golf course and another was destroyed as a result of residential construction. Thus, as discussed by Hickey (1988, 2000) and Thomas (1996), the species' habitat is threatened most by urban/suburban expansion and development.
The Service, TNC, and all public land management agencies with extant sites on lands under their jurisdiction have been actively involved in various aspects of public outreach and education associated with Missouri bladderpod. These include developing landowner contact programs, producing educational brochures, and holding identification and ecology workshops on the species. In 1995, MDC published a new brochure for the Rocky Barrens Conservation Area that highlighted Missouri bladderpod. In the same year, MDC conducted an identification workshop for employees of the National Resources Conservation Service (NRCS) and the Williams Pipeline Company in Springfield, MO. This workshop was extremely productive as it led to the discovery of a previously unknown site of Missouri bladderpods along a powerline right-of-way in Greene County. In February 1997, MDC published an Endangered Species Guide Sheet for Missouri bladderpod and distributed it to private individuals and public agency employees through MDC, TNC, NRCS, and the University of Missouri Extension Service. The brochure provided information on identification, life history requirements, habitat, distribution, causes of historic decline, current threats to the species, and management guidelines that would contribute to bladderpod recovery.
Public outreach materials developed for Missouri bladderpod include a Best Management Practice Guide Sheet distributed by MDC (2000) that outlines suggested management practices for projects that could potentially impact the species identified by MDC during environmental reviews. A public information endangered species card was published by the Conservation Commission of the State of Missouri (1999). The species was also highlighted in two separate issues of MDC's
In 1992, MDC and the Service cooperated in a landowner contact program involving 25 private landowners with extant populations of
Although great progress has been made toward the recovery of
At the time of listing, overcollecting by botanists and flower garden enthusiasts was considered a threat to the species' continued existence. Although Steyermark (1963) indicated that Missouri bladderpod is a desirable addition to rock gardens, and the Service postulated that the species may be vulnerable to overcollection at the time of listing (52 FR 679, January 8, 1987), there is no evidence to date that such activities have taken place. Additionally, given the large number of currently known extant sites (61 in Missouri and 2 in Arkansas), adverse impacts from overcollecting by wildflower enthusiasts or botanical collectors is extremely unlikely, even during years when the number of flowering individuals is low. Overutilization is no longer believed to pose a distinct threat to this species.
Morgan (1983) studied one population of
The MDC recently adopted the conservation status ranking system developed by NatureServe, TNC, and the Natural Heritage Network for global (G ranks) and State (S ranks) rankings for all State- and federally-listed species in Missouri (Missouri Natural Heritage Program 2001).
Currently,
Various human disturbances were considered as threats to the species at the time
Under the Act, an endangered species is defined as one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is defined as one that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Given that (1)
Although there has been a considerable increase in the number of known populations, an expansion of the known range of the species, and a sizeable increase in the number of known individual plants, the Missouri bladderpod has not recovered to the point that it can be removed (delisted) from the Federal List of Endangered and Threatened Plants. These numerical increases are encouraging, and they provide evidence suggesting the species has exceeded the first delisting criterion, which requires 30 self-sustaining populations. However, the delisting criteria also require that 15 of the populations must be in secure ownership, be at least one-half acre in size, and show self-sustaining populations for at least 7 years. At this time, fewer than 10 populations can be considered to be in secure ownership, and only 3 of these populations have been monitored for at least 7 years. Although acreage of these secured populations is large, because of the year-to-year population fluctuations demonstrated by this species, at this time we can document that only one of these three populations is viable and self-sustaining for at least 7 years. Therefore, we believe delisting this species would be premature.
Consequently, on the basis of our review of the best available scientific and commercial data, we propose to reclassify the Missouri bladderpod from endangered to threatened under the Act.
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 activities. Recognition through listing results in public awareness and conservation actions by Federal, State, tribal, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States and requires that recovery plans be developed for all listed species. The protection required of Federal agencies and the prohibitions against certain activities involving listed plants are discussed below.
Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed or 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. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all threatened plants. With respect to
The Act and 50 CFR 17.72 also provide for the issuance of permits to carry out otherwise prohibited activities involving threatened plants under certain circumstances. Such permits are available for scientific purposes and to enhance the propagation or survival of the species. For threatened plants, permits also are available for botanical or horticultural exhibition, educational purposes, or special purposes consistent with the purpose of the Act. We anticipate that few trade permits would ever be sought or issued for
This rule proposes to change the status of
Finalization of this rule will not be an irreversible action on the part of the Service. Reclassifying
Questions regarding whether specific activities will constitute a violation of section 9 should be directed to the Field Supervisor of the Service's Columbia Field Office (
We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. In some circumstances, we will withhold a respondent's identity from the rulemaking record, as allowable by law. If you wish for us to withhold your name or address, you must state this request prominently at the beginning of your comment. We will not consider anonymous comments. We will make all submissions from organizations or businesses available for public inspection in their entirety (
(1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to this species;
(2) The location of any additional populations of this species;
(3) Additional information concerning the range, distribution, and population size of this species; and
(4) Current or planned activities in the subject range and their possible impacts on the species.
In promulgating a final regulation on this species, we will take into consideration the comments and additional information we receive. Such communications may lead to a final regulation that differs from this proposal.
The Act provides for a public hearing on this proposal, if requested. Requests must be filed by the date specified in the
In accordance with our policy published in the
Executive Order 12866 requires each Federal agency to write regulations that are easy to understand. We invite your comments on how to make this proposal easier to understand including answers to questions such as the following: (1) Is the discussion in the
Send a copy of any comments that concern how we could make this proposal easier to understand to Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also send the comments by e-mail to
Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
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 of 1973, as
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires Federal 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 action, and no Statement of Energy Effects is required.
A complete list of all references cited herein, as well as others, is available upon request from the Service's Columbia, MO, Field Office (
The primary author of this proposed rule is Paul M. McKenzie, Ph.D. (
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we hereby propose to amend part 17, subchapter B of Chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Section 17.12(h) is amended by revising the entry for “
(h) * * *
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, the Food and Nutrition Service (FNS) invites the general public and other interested parties to comment on a proposed pilot test of a potential new administrative data collection system for the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). The proposed pilot-testing described in this notice is part of FNS' larger effort to address the long term staffing challenges confronting the WIC Program's ability to provide quality nutrition services. This effort by FNS is in response to a General Accounting Office (GAO) recommendation that resulted in part from the concerns expressed by WIC state and local agencies and other program stakeholders that Nutrition Services and Administration (NSA) funding has not kept pace with the challenges and costs of program operations and administration.
To be assured of consideration, comments must be received on or before August 11, 2003.
Comments may be sent to Ed Herzog, Office of Analysis, Nutrition, and Evaluation, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. Comments may also be faxed to the attention of Mr. Herzog at 703-305-2576. The Internet address is:
We are soliciting comments 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, including the validity of the methodology and assumptions used; (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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 1006.
All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will be a matter of public record.
All submitted comments should refer to the title of this proposal.
Edward Herzog at 703-305-2137.
In December 2001, GAO released their fifth and final report on this subject, Food Assistance: WIC Faces Challenges in Providing Nutrition Services (GAO-02-142). One of the key challenges noted in the report concerned the recruitment and retention of skilled staff.
In the report, GAO confirmed a widely recognized concern in the WIC community that many local WIC agencies are reporting a shortfall in the number of professional staff available to the Program and difficulty acquiring professional staff members. For example, the 1998 WIC Participant and Program Characteristics report found that 30 percent of local WIC agencies serving over 40 percent of WIC participants reported having too few professional staff members. About half of the agencies reported having difficulty recruiting and hiring staff. GAO estimated that in Federal Fiscal Year 1998, between 5 to 15 percent of local WIC agencies did not have a nutritionist or dietitian on staff. The GAO report cites one WIC Director who suggested that the problem might worsen because WIC's workforce is aging and large numbers of WIC professionals are expected to retire in the next few years.
The WIC Program community, at the national and state level, and the professional nutrition community have also registered concern about the staffing issues currently facing the WIC program and interest in identifying staffing characteristics in greater detail. The National WIC Association (NWA) local agency section has also identified a need to better understand the issues affecting local agency staffing, and has identified a number of items of interest to the WIC community.
As noted by GAO and by FNS, a key obstacle in formulating strategies to address staffing needs in the WIC Program is the lack of data regarding issues such as staffing patterns, vacancies, turnover, and salaries at the local level. Without such data, identifying the exact nature of the staffing problems is difficult, and developing strategies to address these issues is an even greater challenge. Moreover, the lack of data can by itself be a contributing factor to the problems in recruiting and maintaining skilled staff. Until there is data documenting agencies' inability to meet demand, it is difficult to develop the infrastructure necessary to produce more professional staff and provide a greater level of support for them.
In order to address the lack of WIC staffing data, GAO recommended that FNS work with the Economic Research Service and the National Association of WIC Directors (now NWA) to conduct an assessment of the staffing needs of
FNS believes that the use of an electronic data collection instrument would help minimize the burden of the data collection process. However, according to NWA, only half of their member agencies currently have internet access. For this reason, FNS will pilot both an electronic and a paper version of the data collection instrument in order to test the effectiveness of both systems.
The draft data collection instrument was designed to collect information on the following areas:
1. Number and type of staff;
2. Functional responsibilities, by category of staff;
3. Salary and benefit levels by category of staff;
4. Factors affecting recruitment and retention of staff;
5. Changes in staffing levels over time;
6. Local agency characteristics.
FNS plans for pilot testing to be performed in selected local WIC agencies. The selected local WIC agencies are to be identified in consultation with the advisory board. Participation in the pilot-test will be voluntary; no local agency will be required to participate.
The pilot-test of the data collection system will serve three purposes. It will allow FNS to: (1) Make further refinements to the data collection instrument; (2) better understand the burden on local agencies to report staffing data; and (3) decide whether to go forward with a national periodic administrative data collection of staffing data from all local WIC agencies.
A copy of the proposed data collection instrument (paper version) can be obtained from the contact person identified at the beginning of this notice. The electronic version will not be available for review but will have the same questions, in the same order, as the paper version.
(a) 1-20 employees: 30 minutes to read and understand the instructions, 120 minutes to collect the information, 40 minutes to complete the data collection instrument, and 30 minutes to complete the second survey for a total of 220 minutes.
(b) 21-100 employees: 30 minutes to read and understand the instructions, 240 minutes to collect the information, 40 minutes to complete the data collection instrument, and 30 minutes to complete the second survey for a total of 340 minutes.
(c) Over 100 employees: 30 minutes to read and understand the instructions, 360 minutes to collect the information, 40 minutes to complete the data collection instrument, and 30 minutes to complete the second survey for a total of 460 minutes.
All agencies, follow-up visits: Approximately six hours, regardless of agency size, for the follow-up visit and interviews.
There is no source of information regarding the number of employees in each of the local agencies across the country. However, from the oversite and monitoring of states and their local agencies over several years, FNS believes that the majority of local agencies probably fall within the middle size group. Accordingly, the pilot will include approximately twenty-five agencies from the first and third size groups and fifty agencies from the middle size groups for both versions of the pilot (paper and electronic). A slightly larger number of volunteer agencies will initially be identified to allow for a non-response rate and still have the desired number of responses.
Forest Service, USDA.
Notice of meeting.
The Siskiyou County Resource Advisory Committee will meet in Yreka, California, June 16, 2003. The meeting will include routine business and discussion, review, and recommendation of submitted project proposals.
The meeting will be held June 16, 2003, from 4 p.m. until 8 p.m.
The meeting will be held at the Yreka High School Library, Preece Way, Yreka, California.
Don Hall, RAC Coordinator, Klamath National Forest, (530) 841-4468 or electronically at
The meeting is open to the public. Public comment opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Import Administration, International Trade Administration, Department of Commerce.
Initiation of Antidumping Duty Investigations.
June 10, 2003.
David Layton at (202) 482-0371, AD/CVD Enforcement Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.
On May 14, 2003, the Department received petitions filed in proper form by Ciba Specialty Chemicals Corporation (Ciba or petitioner). The Department received supplemental information to the petitions from Ciba on May 27, 2003 and May 30, 2003.
In accordance with section 732(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that imports of 4,4'-Diamino-2,2'- stilbenedisulfonic acid (DAS) and stilbenic fluorescent whitening agents (SFWA) from Germany, India, and the People's Republic of China (PRC) are, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that imports from Germany, India, and the PRC are materially injuring, or are threatening to materially injure an industry in the United States.
The Department finds that the petitioner filed these petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to each of the antidumping investigations that it is requesting the Department to initiate.
The anticipated period of investigation (POI) for Germany and India is April 1, 2002, through March 31, 2003; and October 1, 2002, through March 31, 2003 for the PRC.
These investigations cover 4,4'-diamino-2,2'-stilbenedisulfonic acid (DAS) and stilbenic fluorescent whitening agents (SFWA). DAS is a chemical compound used to produce SFWA. SFWA are synthetic organic products normally used as fluorescent brightening agents in the production of certain textiles, paper, and detergent. These investigations cover all DAS and SFWA regardless of end use.
DAS is currently classifiable under subheading 2921.59.2000 of the Harmonized Tariff Schedule of the United States (HTSUS). This tariff classification only covers DAS. SFWA is currently classifiable under subheading 3204.20.80 of the HTSUS. This tariff classification represents a basket category which includes SFWA and other synthetic organic coloring matter. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
During our review of the petitions, we sought additional information from the petitioner concerning the scope of the investigations. As a result of this supplemental information, we modified the scope language proposed by the petitioner with regard to the name of the subject merchandise and the description of the products covered.
As discussed in the preamble to the Department's regulations (
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that the Department's industry support determination, which is to be made before the initiation of the investigation, be based on whether a minimum percentage of the relevant industry supports the petition. A petition satisfies this requirement if the domestic producers or workers who support the petition account for: (1) at least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall either poll the industry or rely on other information in order to determine if there is support for the petition.
Section 771(4)(A) of the Act defines the “industry” as the producers of a
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
In this case, the petitions cover a single class or kind of merchandise, DAS and its commercial agent SFWA as defined in the “Scope of Investigations” section, above. The petitioner does not offer a definition of domestic like product distinct from the scope of the investigations. Thus, based on our analysis of the information presented to the Department by the petitioner and interested parties, we have determined that there is a single domestic like product which is consistent with the definition of the “Scope of the Investigation” section above and have analyzed industry support in terms of this domestic like product.
The Department has determined that, pursuant to section 732(c)(4)(A) of the Act, the petitions contain adequate evidence of industry support and, therefore, polling is unnecessary.
On May 30, 2003, Bayer Chemicals Corporation (Bayer) submitted an argument in opposition to the petition, and on June 3, 2003, 3V Inc. also submitted an argument in opposition to the petition. However, neither party provided sufficient evidence that would call into question the sufficiency of the petitioner's industry support.
Pursuant to section 773(b) of the Act, the petitioner provided information demonstrating reasonable grounds to believe or suspect that sales in the home market of India were made at prices below the cost of production (COP) and, accordingly, requested that the Department conduct a country-wide sales-below-COP investigation in connection with this investigation. The Statement of Administrative Action (SAA), submitted to the Congress in connection with the interpretation and application of the Uruguay Round Agreements Act (URAA), states that an allegation of sales below COP need not be specific to individual exporters or producers. The SAA states that “Commerce will consider allegations of below-cost sales in the aggregate for a foreign country, just as Commerce currently considers allegations of sales at less than fair value on a country-wide basis for purposes of initiating an antidumping investigation.” SAA, H.R. Doc. No. 103-316 at 833 (1994).Further, the SAA provides that section 773(b)(2)(A) of the Act retains the requirement that before initiating such an investigation the Department have “reasonable grounds to believe or suspect” that below-cost sales have occurred. Reasonable grounds exist when an interested party provides specific factual information on costs and prices, observed or constructed, indicating that sales in the foreign market in question are at below-cost prices. We have analyzed the country-specific allegation as described below for India. Based on our analysis, we found reasonable grounds to believe or suspect that sales of DAS and SFWA in India were made at prices below cost.
The following are descriptions of the allegations of sales at less than fair value upon which the Department based its decision to initiate these investigations. The sources of data for the deductions and adjustments relating to U.S. and home market prices, and constructed value (CV) are discussed in greater detail in the Initiation Checklist. Should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determinations, we may re-examine the information and revise the margin calculations, if appropriate.
The petitioner based export price (EP) on average unit values of DAS imports from Germany during the POI. The petitioner derived such values from import statistics under the HTSUS subheading 2921.59.2000.
With respect to normal value (NV), the petitioner calculated COM based on the production costs of a German DAS manufacturer, Ciba Spezialitatenschemie Grenzach GmbH, that is affiliated with the petitioner, because home market prices and information related to third country sales were unavailable during the fiscal year 2002. To calculate selling, general and administrative expenses (SG&A) and profit, the petitioner relied on amounts reported in the consolidated financial statements for the 2002 fiscal year of Bayer AG, a German producer of DAS. We relied on the cost data contained in the petition except in the following instances.
1. We recalculated the selling, general and administrative (SG&A) expenses amount per pound of DAS exclusive of
2. We recalculated the financial expense amount per pound of DAS. We calculated the financial expense rate based on the amounts reported in the consolidated financial statements for the 2002 fiscal year of Bayer AG. and applied this financial expense rate to the reported COM.
3. We calculated the profit amount per pound of DAS. We calculated the profit rate as a percentage of cost of goods sold and SG&A amounts reported in the unconsolidated financial statements for the 2002 fiscal year of Bayer AG because these unconsolidated financial statements did not itemize the financial expenses, but included them in the basket of non-operating expenses. Therefore, we applied this profit rate to the reported COM and the SG&A expense amount inclusive of shipping cost from German port to U.S. port, and U.S. import duty.
4.We recalculated the CV by adding the reported COM to the calculated SG&A, financial expense, and profit amounts as discussed above.
The estimated dumping margins for subject merchandise from Germany, based on a comparison between the U.S. prices and adjusted CV is 194.9 percent.
India
The petitioner based EP on average unit values of DAS imports from India during the POI. The petitioner derived such values from import statistics under the HTSUS subheading 2921.59.2000.
With respect to NV, the petitioner provided a home market price for DAS using a price quote obtained from its joint venture in India. This price was quoted in U.S. dollars, FOB Hyderabad.
The petitioner has provided information demonstrating reasonable grounds to believe or suspect that sales of DAS in the home market were made at prices below the fully absorbed COP, within the meaning of section 773(b) of the Act, and requested that the Department conduct a country-wide sales-below-cost investigation. Pursuant to section 773(b)(3) of the Act, COP consists of the COM, SG&A expenses, financial expenses, and packing expenses.
The petitioner calculated COM based on its own production experience, adjusted for known differences between costs incurred to produce DAS in the United States and in India using publicly available data. For one particular raw material, oleum, we noted that the cost was based on amounts purchased from two countries. In order to be conservative in using this estimated cost, we recalculated the oleum costs based on the lower per-unit purchase price. In addition, we also corrected a mathematical error for the cost of another raw material element.
To calculate overhead and SG&A expenses, the petitioner relied upon amounts reported in the 2001-2002 financial statements of an Indian chemical producer. The petitioner did not include packing costs in the CV calculation. Based upon a comparison of the prices of the foreign like product in the home market to the calculated COP of the product, we find reasonable grounds to believe or suspect that sales of the foreign like product were made below the COP, within the meaning of section 773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating a country-wide cost investigation.
Pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioner also based NV for sales in India on CV. The petitioner calculated CV using the same COM, overhead, and SG&A, and profit expense figures used to compute the Indian home market costs. Consistent with 773(e)(2) of the Act, the petitioner included in CV an amount for profit.
The estimated dumping margin for subject merchandise from India, based on a comparison of EP and home market price, is 35.7 percent. The estimated dumping margin for India based on a comparison between EP and CV is 139.61 percent.
The petitioner based EP on average unit values of DAS imports from the PRC during the POI. The petitioner derived such values from import statistics under the HTSUS subheading 2921.59.2000.
With respect to NV, the petitioner provided CV based on Indian surrogate values and the petitioner's own experience producing DAS (its factors of production), adjusted for any known differences between the petitioner's production process and the Chinese DAS production process. Where the petitioner was unable to obtain Indian surrogate values for material inputs, it used a value of zero for such inputs. We also adjusted the value of high pressure steam to zero due to the lack of an appropriate Indian surrogate value. Indian values were converted to U.S. dollars using the exchange rates from the Department's website. Where surrogate values were not contemporaneous with the POI, the petitioner adjusted such values using wholesale price indices from India. For SG&A expenses and profit, the petitioner relied upon amounts reported in the 2001 financial reports of Atul Ltd. (India) and Daurala Organics (India). The petitioner claims that said companies have similar costs to those of a producer of the subject merchandise because said companies produce chemicals similar to the subject merchandise.
The estimated dumping margin for the PRC, based on a comparison of EP and CV, is 156.69 percent.
Based on the data provided by the petitioner, there is reason to believe that imports of DAS and SFWA from Germany, India, and the PRC are being, or are likely to be, sold at less than fair value.
The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the cumulated imports from Germany, India, and the PRC of the subject merchandise sold at less than NV.
The petitioner contends that the industry's injured condition is evident in the declining trends in net operating profits, net sales volumes, domestic prices, revenue, profit-to-sales ratios, production employment, capacity utilization, and domestic market share. The allegations of injury and causation are supported by relevant evidence including U.S. import data, lost sales, and pricing information.
The Department assessed the allegations and supporting evidence regarding material injury and causation and determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.
Based upon our examination of the petitions covering DAS and SFWA, we have found that they meet the requirements of section 732 of the Act.
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of each petition has been provided to the representatives of the governments of Germany, India, and the PRC. We will attempt to provide a copy of the public version of each petition to each exporter named in the petitions, as provided for under 19 CFR 351.203(c)(2).
We have notified the ITC of our initiations as required by section 732(d) of the Act.
The ITC will determine no later than June 30, 2003, whether there is a reasonable indication that imports of DAS and SFWA from Germany, India, and the PRC are causing material injury, or threatening to cause material injury, to a U.S. industry. A negative ITC determination for any country will result in the investigation being terminated with respect to that country; otherwise, these investigations will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
June 10, 2003.
Dana Mermelstein at (202) 482-1391, or Sean Carey (202) 482-3964; Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.
On May 14, 2003, the Department of Commerce (the Department) received a petition filed in proper form by Ciba Specialty Chemicals Corp. (Ciba) (petitioner).
In accordance with section 702(b)(1) of the Act, petitioner alleges that manufacturers, producers, or exporters of DAS and SFWA in India receive countervailable subsidies within the meaning of section 701 of the Act.
The Department finds that petitioner filed this petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and has demonstrated sufficient industry support with respect to the antidumping and countervailing duty investigations that it is requesting the Department to initiate.
In accordance with 19 CFR 351.204 (b)(2), the anticipated period of investigation (POI) is January 1, 2002, through December 31, 2002.
This investigation covers, 4,4'-diamino-2,2'-stilbenedisulfonic acid (DAS) and stilbenic fluorescent whitening agents (SFWA). DAS is a chemical compound used to produce SFWA. SFWA are synthetic organic products normally used as fluorescent brightening agents in the production of certain textiles, paper and detergent. This investigation covers all DAS and SFWA regardless of end use.
DAS is currently classifiable under subheading 2921.59.2000 of the Harmonized Tariff Schedule of the United States (HTSUS). This tariff classification only covers DAS. SFWA is currently classifiable under subheading 3204.20.80 of the HTSUS. This tariff classification represents a basket category which includes SFWA and other synthetic organic coloring matter. Although the HTSUS subheadings are provided for convenience and Customs purposes, the written description of the merchandise under investigation is dispositive.
During our review of the petition, we sought additional information from the petitioner concerning the scope of the investigation. As a result of this supplemental information, we modified the scope language proposed by the petitioner with regard to the name of the subject merchandise and the description of the products covered.
As discussed in the preamble to the Department's regulations, we are setting aside a time period for parties to raise issues regarding product coverage.
In accordance with Article 13.1 of the Agreement on Subsidies and Countervailing Measures and section 702(b)(4)(A)(ii) of the Tariff Act of 1930, we held consultations with the Government of India ("GOI”) regarding this petition on May 29, 2003.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that the Department's industry support determination, which is to be made before the initiation of the investigation, be based on whether a minimum percentage of the relevant industry supports the petition. A petition meets this requirement if the domestic producers or workers who support the petition account for: (1) at least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition.
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The U.S. International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to the law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
In this case, the petitions cover a single class or kind of merchandise, DAS and its commercial agent SFWA as defined in the
The Department has determined that, pursuant to section 702(c)(4)(A) of the Act, the petition contains adequate evidence of industry support and, therefore, polling is unnecessary.
For each country, the Department has determined, based on information provided in the petition, that the petitioner represents over 50 percent of total production of the domestic like product. The petitioner is the only U.S. producer of DAS and accounts for over 50 percent of U.S. production of SFWA. Thus, Ciba satisfies the requirements of section 732(c)(4)(A)(i) of the Act because it accounts for at least 25 percent of the total production of the domestic like product. Furthermore, the requirements of section 702(c)(4)(A)(ii) of the act are also met. Although, on May 30, 2003, Bayer Chemicals Corporation (Bayer) submitted an argument in opposition to the petition, and on June 3, 2003, 3V Inc. also submitted an argument in opposition to the petition, they did not provide evidence that would call into question the sufficiency of Ciba's industry support. Accordingly, we determine that these petitions are filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.
Because India is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from India materially injure, or threaten material injury to, a U.S. industry.
Section 702(b) of the Act requires the Department to initiate a countervailing duty proceeding whenever an interested party files a petition, on behalf of an industry, that; (1) alleges the elements necessary for an imposition of a duty under section 701(a), and (2) is accompanied by information reasonably available to petitioners supporting the allegations.
We are initiating an investigation of the following programs alleged in the petition to have provided countervailable subsidies to manufacturers, producers and exporters of the subject merchandise in India (a full description of each program is provided in the
1. The Duty Entitlement Passbook Scheme (DEPB)/ Post-Export Credits
2. Pre-Shipment and Post-Shipment Export Financing
3. Export Promotion Capital Goods Scheme (EPCGS)
4. Income Tax Exemption Scheme (Sections 10A, 10B, and 80 HHC)
5. Exemption of Export Credit from Interest Taxes
6. Export Processing Zones/ Export-Oriented Units Programs
7. Market Development Assistance (MDA)
8. Special Imprest Licenses
We are not including in our investigation the following programs alleged to be benefitting producers and exporters of the subject merchandise in
1. Import Mechanisms (Sale of Import Licenses)
2. Duty Drawback on Excise Taxes
Petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or threatened with material injury, by reason of subsidized imports from India of the subject merchandise. Petitioner contends that the industry's injured condition is evident in the reduced levels of production and capacity utilization, decline in profits, decline in research and development, decreased U.S. market share, lost sales and revenue, and price suppression and depression. The allegations of injury and causation are supported by relevant evidence including lost sales and pricing information. We have assessed the allegations and supporting evidence regarding material injury and causation, and have determined that these allegations are properly supported by accurate and adequate evidence and meet the statutory requirements for initiation.
Based on our examination of the petition on DAS and SFWA, and petitioner's responses to our requests for supplemental information clarifying the petition, we have found that the petition meets the requirements of section 702(b) of the Act. Therefore, in accordance with section 702(b) of the Act, we are initiating a countervailing duty investigation to determine whether manufacturers, producers, or exporters of DAS and SFWA from India receive countervailable subsidies. Unless the deadline is extended, we will make our preliminary determination no later than 65 days after the date of this initiation.
In accordance with section 702(b)(4)(A)(i) of the Act, a copy of the public version of the petition has been provided to the representatives of the government of India. We will attempt to provide a copy of the public version of the petition to each exporter named in the petition, as provided for under 19 CFR 351.203(c)(2).
Pursuant to section 702(d) of the Act, we have notified the ITC of our initiation.
The ITC will determine, no later than June 28, 2003, whether there is a reasonable indication that imports of subject merchandise from India are materially injuring, or threatening material injury to, a U.S. industry. A negative ITC determination will result in the investigation being terminated; otherwise, this investigation will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce; U.S. Fish and Wildlife Service (USFWS), Interior.
Notice of Intent to Prepare an Environmental Impact Statement.
Pursuant to the National Environmental Policy Act (NEPA) and in accordance with the Washington State Environmental Policy Act, this notice advises the public that the USFWS and NMFS (collectively, the Services) intend to gather information necessary to prepare an Environmental Impact Statement (EIS). The EIS is for the potential approval of a Habitat Conservation Plan (HCP) and issuance of two incidental take permits (from NMFS and from the USFWS) to take seven endangered and threatened species and 22 unlisted species in accordance with the Endangered Species Act, as amended (ESA). The permit applicant is King County, WA, Department of Natural Resources and Parks, Wastewater Treatment Division (King County). The application is related to construction, operation, and maintenance activities associated with a regional wastewater conveyance and treatment system in western King, Snohomish, and Pierce Counties, WA (permit activities).
The Services provide this notice to: (1) advise other agencies and the public of our intentions; and (2) obtain suggestions and information on the scope of issues to include in the EIS.
Written comments are encouraged, and should be received on or before August 11, 2003. The Services will jointly hold public scoping meetings on the following dates:
Address comments and requests for information related to preparation of the EIS, or requests to be added to the mailing list for this project, to Jon Avery, USFWS, 510 Desmond Drive S.E., Suite 102, Lacey, WA 98503-1273; facsimile 360-753-9518; or to Phyllis Meyers, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-6349.
Jon Avery, USFWS, 360-753-5824; or Phyllis Meyers, NMFS, 206-526-4506.
NEPA requires Federal agencies to conduct an environmental analysis of their proposed actions to determine if the actions may affect the human environment. The Services expect to take action on ESA section 10(a)(1)(B) permit applications anticipated from the King County Wastewater Treatment Division. Therefore, the Services are seeking public input on the scope of the required NEPA analysis, including the range of reasonable alternatives and associated impacts of any alternatives.
Section 9 of the ESA and implementing regulations prohibit the “taking” of a species listed as endangered or threatened. The term take is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532 (19)). Harm is defined by the USFWS to include significant habitat modification or
Section 10 of the ESA contains provisions for the issuance of incidental take permits to non-Federal landowners for the take of endangered and threatened species, provided that all permit issuance criteria are met, including the requirement that the take is incidental to otherwise lawful activities, and will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. In addition, the applicant must prepare and submit to the Services for approval, an HCP containing a strategy for minimizing and mitigating all take associated with the proposed activities to the maximum extent practicable. The applicant must also ensure that adequate funding for the HCP will be provided.
King County needs permits because some its activities have the potential to take listed species. Therefore, King County intends to request permits from NMFS and FWS for Chinook salmon (
King County owns and operates a regional wastewater conveyance and treatment system that serves 1.3 million people in the greater Seattle area. The system receives wastewater from a 420-square-mile area in King County and parts of Snohomish and Pierce Counties. Using an extensive network of pipes and pumps, King County currently conveys wastewater collected from local sewer districts to one of two regional treatment plants, where it undergoes both primary and secondary treatment before it is discharged into Puget Sound through outfalls located offshore of West Point and Duwamish Head.
In response to projected population growth within the Puget Sound region, King County has developed the Regional Wastewater Services Plan (RWSP), which enumerates the new and expanded facilities that King County will need throughout its three-county service area to meet increased demand for its wastewater conveyance and treatment services over the next 40 years. The RWSP is the subject of a Washington State Environmental Policy Act document entitled “Final Environmental Impact Statement for the Regional Wastewater Services Plan, April 1998,” prepared by the Wastewater Treatment Division of the King County Department of Natural Resources. Construction, operation, and maintenance activities associated with some new or expanded facilities called for in the RWSP, as well as those same activities associated with some existing King County facilities, have the potential to impact species subject to protection under Section 9 of the ESA.
King County has initiated discussions with the Services regarding the possibility of receiving permits that would cover take of listed species incidental to the following otherwise lawful activities:
(1) King County's existing and proposed secondary treated effluent discharges permitted under the National Pollutant Discharge Elimination System;
(2) Construction, operation, and maintenance activities associated with King County's existing and proposed effluent discharge outfalls;
(3) Construction, operation, and maintenance activities associated with King County's existing and proposed wastewater treatment facilities;
(4) Construction, operation, and maintenance activities associated with King County's existing and proposed conveyance facilities;
(5)King County habitat restoration projects, water quality improvement projects, water quality and fish habitat monitoring programs, and adaptive management activities intended to avoid, minimize, and mitigate the impacts of King County activities (1)- (4) on the proposed covered species, to the maximum extent practicable.
The King County Wastewater Treatment Division is currently considering the following types of conservation measures for the proposed Habitat Conservation Plan:
(a) A program of land conservation for the preservation, enhancement, or creation of suitable habitats for species addressed in the HCP to mitigate impacts associated with proposed construction activities;
(b) Development of new construction best management practices to avoid or minimize construction impacts on species addressed in the HCP;
(c) Commitment to continuing certain wastewater source control activities that are currently voluntary, targeted at reducing potential environmental risks by removing wastes before they are discharged into the sewer system;
(d) Implementation of an adaptive management program with ongoing monitoring and adjustment of covered activities.
Under NEPA, a reasonable range of alternatives to a proposed project must be developed and considered in the Services' environmental review. At a minimum, the alternatives developed must include: (1) A No Action alternative, and (2) the Proposed Action, with thorough descriptions of its management features and anticipated resource conservation benefits and potential impacts. For the present environmental review, the Services
Comments and suggestions are invited from all interested parties to ensure that the full range of issues related to this proposed action and all significant issues are identified. The Services request that comments be as specific as possible. In particular, we request information regarding: the direct, indirect, and cumulative impacts that implementation of the proposed HCP could have on endangered and threatened and other covered species and their communities and habitats; other possible alternatives; potential adaptive management and/or monitoring provisions; funding issues; baseline environmental conditions in King, Pierce, and Snohomish Counties; other plans or projects that might be relevant to this proposed project; and minimization and mitigation efforts.
In addition to considering potential impacts on listed and other covered species and their habitats, the EIS could include information on potential impacts resulting from alternatives on other components of the human environment. These other components could include air quality, water quality and quantity, geology and soils, cultural resources, social resources, economic resources, and environmental justice.
Comments or questions concerning this proposed action and the environmental review should be directed to the U.S. Fish and Wildlife Service or NMFS at the address or telephone numbers provided above. All comments and materials received, including names and addresses, will become part of the administrative record and may be released to the public.
The environmental review of this project will be conducted in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (42 USC 4321
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of availability of funds.
The purpose of this notice is to invite the public to submit proposals for available funding toward research and development projects that address various aspects of Chesapeake Bay Submerged Aquatic Vegetation (SAV) culture and large scale restoration projects. Funds are available to State, local and Indian tribal governments, institutions of higher education, other non-profit organizations and commercial organizations. This notice describes the conditions under which project proposals will be accepted and criteria under which proposals will be evaluated for funding consideration. Depending upon the level of Federal involvement in individual projects, selected recipients will enter into either a cooperative agreement or a grant.
Applications must be received by 5 p.m. eastern daylight savings time on July 10, 2003. Applications received after that time will not be considered for funding.
Statements of Intent (
You can obtain an application package from, and send completed proposals to: Peter Bergstrom, NOAA Chesapeake Bay Office, 410 Severn Avenue, Suite 107A, Annapolis, MD 21403. You can also obtain the application package from the NOAA Chesapeake Bay Office Home Page
Peter Bergstrom, NOAA Chesapeake Bay Office, telephone: (410) 267-5660, or e-mail:
A statement of intent to submit a full proposal is requested although not required and will assist the NOAA Chesapeake Bay Office in setting up technical reviewers. It is requested that this statement provide a project title, associated investigators and approximate budget.
The Fish and Wildlife Act of 1956, as amended, at 16 U.S.C. 753a, authorizes the Secretary of Commerce (Secretary), for the purpose of developing adequate, coordinated, cooperative research and training programs for fish and wildlife resources, to continue to enter into cooperative agreements with colleges and universities, with game and fish departments of the several states, and with non-profit organizations relating to cooperative research units. The Secretary of Commerce is authorized under the Fish and Wildlife Coordination Act, 16 U.S.C. 661-666c, to provide assistance to, and cooperate with, Federal, State, and public or private agencies and organizations in the development, protection, rearing, and stocking of fisheries, resources thereof, and for fisheries habitat restoration.
The projects to be funded are in support of the Chesapeake Bay Studies Program (CFDA 11.457).
The Chesapeake Bay Studies Submerged Aquatic Vegetation Program is a new program initiated this year in response to language in the House Report (H.R. Rep. No. 108-10, at 712 (2003)). The main purpose of the program is to enhance and increase this important fisheries habitat in Chesapeake Bay and its tidal tributaries. Funding will be directed to complement existing and future efforts in this area by Federal, State, and local agencies, and community watershed associations.
Principle investigators will be expected to prepare for and attend one
Proposals should exhibit familiarity with related work that is completed or ongoing. When appropriate, proposals should be multi-disciplinary. Coordinated efforts involving multiple eligible applicants or individuals are encouraged. Proposals must address one of the areas of interest listed here. If the proposal addresses more than one area of interest, it should list first on the application the area of interest that most closely reflects the objective of the proposal. Proposals should follow and refer to the guidance in the Chesapeake Bay Program's “Strategy to Accelerate the Protection and Restoration of Submerged Aquatic Vegetation in the Chesapeake Bay” which is available at:
All proposals should address the manner in which the applicant will obtain the necessary permits (if applicable) for collecting plant materials from tidal waters and bottom disturbance or putting structures in tidal waters. For collecting permit requirements in Maryland, see:
These areas of interest are not listed in any particular order of importance:
This solicitation announces that approximately $425,000 will be made available through the NCBO for SAV culture and large scale restoration projects in FY 2003. This document describes how interested persons can apply for funding and how funding decisions will be made.
There is no guarantee that sufficient funds will be available to make awards for all qualified projects. The exact amount of funds that may be awarded will be determined in pre-award negotiations between the applicant and NOAA representatives. Publication of this notice does not oblige NOAA to award any specific project or to obligate any available funds. If applicants incur any costs prior to an award being made, they do so solely at their own risk of not being reimbursed by the government. Notwithstanding verbal or written assurance that may have been received, there is no obligation on the part of NOAA to cover pre-award costs unless approved by the Grants Officer as part of the terms when the award is made.
There are no specified award limits for proposals submitted under this solicitation.
Whether the funding instrument is a grant or a cooperative agreement will be determined by the degree of NOAA's involvement in the project. A cooperative agreement will be used if NOAA shares responsibility for management, control, direction, or performance of the project with the recipient. Specific terms regarding substantial involvement will be contained in special award conditions.
The NOAA strongly encourages applicants applying for either area of interest to share as much of the costs of the award as possible. Funds from other Federal awards may not be considered matching funds. The nature of the contribution (cash versus in-kind) and the amount of matching funds will be taken into consideration in the final selection process. Priority selection will be given to proposals that propose cash rather than in-kind contributions.
Eligible applicants include state, local and Indian tribal governments, institutions of higher education, other non-profit organizations and commercial organizations.
The Department of Commerce/National Oceanic and Atmospheric Administration (DOC/NOAA) is strongly committed to broadening the participation of historically black colleges and universities, Hispanic serving institutions, tribal colleges and universities, and institutions that work in underserved areas. The NOAA
Under this solicitation, NCBO will fund SAV related projects as 12-month cooperative agreements or grants. Proposals may be submitted for up to a 2-year project period. However, funds will be made available for only a 12-month award period, and any continuation of the award period will be subject to an approved scope of work, satisfactory progress, a panel review, and available funding to continue the award. No assurances for a funding continuation exists; funding will be at the complete discretion of NOAA.
All proposals must include a full description of the activities and budget for the first year as described in this announcement, a summary description of the proposed work for each subsequent year, and an estimated budget by line item (without supporting budget detail pages) for review and analysis. If selected for funding, the applicant will be required to submit a full proposal for the second year by the deadline announced in the following year's competitive cycle. Proposals will be evaluated through a review panel process, but will not be subject to competition with new proposals. Projects should not be scheduled to begin before September 1, 2003.
Proposals must be complete and must follow the format described in this notice. Potential recipients may submit separate proposals for each area of interest. Applicants should not assume prior knowledge on the part of the NOAA as to the relative merits of the project described in the application.
1.
a.
(1) Organization title.
(2) Address, telephone number, and email address of applicant.
(3) Area of interest for which you are applying (see section II).
(4) Project title.
(5) Project duration (1-year project period, starting on the first of the month and ending on the last day of the month).
(6) Principal Investigator(s) (PI).
(7) Project objectives.
(8) Summary of work to be performed.
(9) Total Federal funds requested.
(10) Cost-sharing to be provided from non-Federal sources, if any. Specify whether contributions are cash or in-kind.
(11) Total project cost.
b.
(1)
(2)
(3)
Investigators submitting proposals in response to this announcement are strongly encouraged to develop inter-institutional, inter-disciplinary research teams in the form of single, integrated proposals or as individual proposals that are clearly linked together. The project narrative must include a milestone table that summarizes the procedures/objectives that are to be attained in each project month covered. Table format should follow sequential month rather than calendar month (
(4)
(5)
(6)
(7)
(8)
(a) The NOAA award number, amount and period of support;
(b) The title of the project;
(c) Summary of the results of the completed work, including, or a research project, any contribution to the development of human resources in science/biology;
(d) Publications resulting from the award (applicable reprints are requested for documentation);
(e) Brief description of available data, samples, physical collections and other related research products not described elsewhere; and
(f) If the proposal is for renewed support, a description of the relation of the completed work to the proposed work.
(9)
(10)
(11)
(12)
c.
Explain the calculations and provide a narrative to support specific items or activities, such as personnel/salaries, fringe benefits, travel, equipment, supplies, contract costs, and indirect costs. The budget detail and narrative submitted with the application should match the dollar amounts on all required forms. Additional cost detail may be required prior to a final analysis of overall cost allowability, allocability, and reasonableness.
2.
a. The budget may include an amount for indirect costs if the applicant has an established indirect cost rate with the Federal Government, see Administrative Requirements, section VI, C.
b. Funds for salaries and fringe benefits may be required only for those personnel who are directly involved in implementing the proposed project and whose salaries and fringe benefits are directly related to specific products or outcomes of the proposed project. NOAA strongly encourages applicants to request reasonable amounts of funding for salaries and fringe benefits to ensure that their proposals are competitive.
3.
Applicants may obtain required Federal forms from the NOAA Chesapeake Bay Office Web site (
1.
2.
3.
4.
5.
1.
2.
3.
4.
NCBO will review all applications to assure that they meet all the requirements of this announcement, including eligibility and relevance to the NCBO. Proposals that do not support the areas of interest of the Chesapeake Bay, as defined in section II of this document above, will not be considered for funding.
Applications meeting the requirements of this solicitation will undergo an external technical review. This review will normally involve individuals in the field of SAV and habitat restoration from both NOAA and non-NOAA organizations. Proposals will be scored based on the evaluation criteria as defined in section IV. D. of this document. Reviewers will be asked to review independently and to provide a score and comments on each proposal. All comments submitted to NCBO will be taken into consideration in the evaluation of projects. No consensus advice will be given by the technical reviewers.
Scores for each proposal will then be averaged and the proposals will be ranked numerically for funding based upon the technical review scores. After the proposals have been ranked, the Chief of the NOAA Chesapeake Bay Office, in consultation with Program staff, will determine which projects will be recommended for funding.
Although numerical ranking will be the primary method used for deciding which of the proposals will be selected for funding, it will not be the sole selection factor. Duplication with other projects, geographic diversity, program goals, inter-jurisdictional and inter-institutional collaboration and duplication, and the nature and the amount of any cost share contribution may also be considered in making the final selections. A written justification will be prepared for any recommendation for funding that falls outside the ranking order. The exact amount of funds awarded to each project will be determined in pre-award negotiations among the applicant, the Grants Office, and the Program staff. Potential grantees should not initiate projects in expectation of Federal funding until an award document
Unsuccessful applications will be kept on file in the Program office for a period of at least 12 months, then destroyed.
The Department of Commerce Pre-Award Notification of Requirements for Grants and Cooperative Agreements contained in the
Regardless of any approved indirect cost rate applicable to the award, the maximum dollar amount of allocable indirect costs for which the Department of Commerce will reimburse the recipient shall be the lesser of the line item amount for the Federal share of indirect costs contained in the approved budget of the award, or the Federal share of the total allocable indirect costs of the award based on the indirect cost rate approved by an oversight or cognizant Federal agency and current at the time the cost was incurred, provided the rate is approved on or before the award end date. However, the Federal share of the indirect costs may not exceed 25 percent of the total proposed direct costs for this Program. Applicants with indirect costs above 25 percent may use the amount above the 25 percent level as cost sharing. If the applicant does not have a current negotiated rate and plans to seek reimbursement for indirect costs, documentation necessary to establish a rate must be submitted within 90 days of receiving an award.
Funds awarded cannot necessarily pay all the costs that the recipient might incur in the course of carrying out the project. Allowable costs are determined by reference to the Office of Management and Budget Circulars A-122, “Cost Principles for Nonprofit Organizations”; A-21, “Cost Principles for Education Institutions”; and A-87, “Cost Principles for State, Local and Indian Tribal Governments.” Generally, costs that are allowable include salaries, equipment, supplies, and training, as long as these are “necessary and reasonable.” Funds cannot be used for construction activities beyond minor facility upgrades,
This action has been determined to be “not significant” for purposes of Executive Order 12866. Applications under this program are subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.” Under 5 U.S.C. 553(a)(2), prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits and contracts. Because notice and an opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Under section 553(a)(2) of the Administrative Procedure Act, prior notice and an opportunity for public comment are not required for this notice concerning grants, benefits, and contracts. Therefore, a regulatory flexibility analysis is not required for the purposes of the Regulatory Flexibility Act.
This notice contains collection-of-information requirements subject to the Paperwork Reduction Act. The use of Standard Forms 424, 424A, 424B, and CD-346 has been approved by OMB under the respective control numbers 0348-0043, 0348-0044, 0348-0040, and 0605-0001.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid OMB control number.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit and availability of environmental assessment.
Notice is hereby given that Dr. Peter L. Tyack, Biology Department, Woods Hole Oceanographic Institution, Woods Hole, Massachusetts, 02543, has been issued a permit to take various cetacean species for purposes of scientific research.
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;
Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727)570-5301; fax (727)570-5320.
Carrie Hubard, Tammy Adams, or Steve Leathery, (301)713-2289.
On April 23, 2003, notice was published in the
The permit authorizes takes of various cetacean species, including endangered whales, in the North Atlantic, including the Gulf of Mexico, and Mediterranean Sea. The research is divided into three projects which use as their principle sampling technique the short-term tagging (via suction cup mounted instruments) of marine mammals with an advanced digital sound recording tag (DTAG) that can record the acoustic stimuli an animal hears, while also measuring the animal's vocal, behavioral, and physiological responses to sound. Takes include harassment during close approaches for behavior observation and photo-identification, attachment of tags, focal follows (i.e.,
Project 1 will involve applying DTAGs to a variety of whale and dolphin species to study the baseline behavior of animals tagged throughout the North Atlantic. There are three main goals of Project 1: (1) to obtain continuous sampling of marine mammal vocal and motor behavior, (2) to determine correction factors that can be applied to visual sighting data to better estimate population and stock abundance, and (3) to serve as a control group for Projects 2 and 3, described below.
For Project 2, tagged whales and dolphins in the Mediterranean Sea will be used as test subjects in controlled tests of a whale-finding sonar developed by a North Atlantic Treaty Organization (NATO) undersea research lab in Italy. Maximum received level will be 160 dB re 1 μPa rms. Playbacks of sperm whale codas will be used as a control stimulus. The goal of Project 2 is to validate the effectiveness of a whale-finding sonar, to calibrate measurements of the target strength of marine mammals as a function of aspect, and to assess the received levels at which animals that can hear the sonar may start to show changes in behavior.
For Project 3 the responses of tagged sperm whales to short impulses from airgun arrays at received levels no higher than 180 dB re 1 μPa rms will be studied in the Gulf of Mexico. Playbacks of sperm whale codas will be used as a control stimulus. These studies will involve visual observations of surfacing sperm whales, passive acoustic tracking of diving sperm whales, and tagging sperm whales with DTAGs. The primary research objective of the Project 3 airgun playbacks is to determine what characteristics of exposure to specific sounds evoke behavioral responses in marine mammals.
The purpose of the research, as stated in the application, is to study the biology, foraging ecology, communication, and behavior of cetacean species, with a focus on their responses to anthropogenic sounds in the marine environment. The permit will be valid for a period of five years.
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Office of Fossil Energy, DOE.
Notice of application.
American Electric Power Service Corporation (AEPSC), on behalf of its public utility operating companies, has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before June 25, 2003.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Im/Ex (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-287-5736).
Xavier Puslowski (Program Office) 202-586-4708 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On April 5, 2001, the Office of Fossil Energy (FE) of the Department of Energy (DOE) received an application from AEPSC, on behalf of its public utility operating companies, to transmit electric energy from the United States to Mexico. Notice of the export application was placed in the
On May 21, 2003, AEPSC applied for an extension of its authorization. This application was again filed by AEPSC on behalf of its public utility affiliates, namely: Appalachian Power Company; AEP Texas Central Company; Columbus Southern Power Company; Indiana Michigan Power Company; Kentucky Power Company; Ohio Power Company; Public Service Company of Oklahoma; Southwestern Electric Power Company; and AEP Texas North Company (collectively, the “AEP Operating Companies” or the “Applicants”). AEPSC is incorporated under the laws of the State of New York and has its principal place of business in Columbus, Ohio. The electric energy which the applicants propose to export to Mexico would be either from surplus generation of the AEP Operating Companies or from purchases made on the wholesale market.
The applicants propose to arrange for the delivery of electric energy to Mexico over the international transmission facilities owned by San Diego Gas & Electric Company, El Paso Electric Company, Central Power and Light Company, and Comision Federal de Electricidad, the national electric utility of Mexico. The construction of each of the international transmission facilities to be utilized by the applicants, as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Comments on the AEPSC application to export electric energy to Mexico should be clearly marked with Docket EA-236-A. Additional copies are to be filed directly with F. Mitchell Dutton, Esq., American Electric Power Service Corporation, 1 Riverside Plaza, 15th Floor, Columbus, Ohio 43215-2373 and John R. Lilyestrom, Esq., Hogan & Hartson, LLP, 555 13th Street, NW., Washington, DC 20004.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969 (NEPA), and a determination is made by the DOE that the proposed action will not adversely impact the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy Home Page at
Take notice that on May 28, 2003, ANR Pipeline Company, (ANR) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the tariff sheets in Appendix A to the filing, with an effective date of July 1, 2003.
ANR states that these tariff sheets are being filed in compliance with Article 5 of the Stipulation and Agreement submitted in the above-referenced docket on July 10, 2001 (the Settlement), and the Commission's April 9 Order issued in the above-referenced docket. ANR Pipeline Company, 101 FERC § 61,022 (2003).
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 § 385.211 of the Commission's rules and regulations. All such protests must be filed in accordance with § 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 29, 2003, ANR Pipeline Company (ANR), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Sub Fifth Revised Sheet No. 161A.02, with an effective date of May 1, 2003.
ANR states that the tariff sheet is being filed in compliance with the Commission's April 29, 2003, order accepting ANR's proposal, subject to the conditions in the order, to clarify ANR's right to allow contractual Rights of First Refusal pursuant to section 22.2 of the General Terms and Conditions of ANR's Tariff when contracts might otherwise not be eligible for such rights.
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 § 385.211 of the Commission's rules and regulations. All such protests must be filed in accordance with § 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 30, 2003, Columbia Gas Transmission Corporation (Columbia) as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, with a proposed effective date of July 1, 2003:
Fifth Revised Sheet No. 101
Fifth Revised Sheet No. 108
Fourth Revised Sheet No. 117
Fourth Revised Sheet No. 133
Sixth Revised Sheet No. 171
Eleventh Revised Sheet No. 262
Fourth Revised Sheet No. 466
First Revised Sheet No. 467
Original Sheet No. 468
Fifth Revised Sheet No. 501
Second Revised Sheet No. 502A
Fifth Revised Sheet No. 503
Fourth Revised Sheet No. 511
Columbia states that it is making this filing to add a new General Terms and Conditions (GTC) section to its Tariff, and to make conforming revisions to related Tariff provisions. In particular, Columbia is proposing to include in new section 42 of the GTC of its Tariff a provision that will permit Columbia and eligible shippers to mutually agree to include in their service agreements regulatory unbundling contract demand reduction rights under specified circumstances.
Columbia states that copies of its filing have been mailed to all firm customers, interruptible customers and affected state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's regulations. Protests will be considered
Take notice that on May 30, 2003, Columbia Gas Transmission Corporation (Columbia) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, with a proposed effective date of July 1, 2003:
Eighth Revised Sheet No. 280
Original Sheet No. 280A
Third Revised Sheet No. 485
Fourth Revised Sheet No. 501
Original Sheet No. 501A
First Revised Sheet No. 502A
Fourth Revised Sheet 503
Original Sheet No. 503A
First Revised Sheet No. 505A
Third Revised Sheet No. 511
Columbia states that it is submitting this filing to include in its Tariff new provisions permitting Columbia to agree with its shippers, on a not unduly discriminatory basis, to a contractual right of first refusal (ROFR), equivalent to the ROFR right set forth from time to time in section 4 of the General Terms and Conditions of its Tariff, for service agreements that have a term of 12 or more consecutive months of service but bear a rate that is either discounted or negotiated.
Columbia states that copies of its filing have been mailed to all firm customers, interruptible customers and affected state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 30, 2003, Columbia Gulf Transmission Company (Columbia Gulf) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No.1, the following revised tariff sheets, a proposed effective date of July 1, 2003:
Fifth Revised Sheet No. 55A
Sixth Revised Sheet No. 63A
Second Revised Sheet No. 88
Seventh Revised Sheet No. 125
Third Revised Sheet No. 272
Original Sheet No. 273
Fifth Revised Sheet No. 318
Columbia Gulf states that it is making this filing to add a new General Terms and Conditions (GTC) section to its Tariff, and to make conforming revisions to related Tariff provisions. In particular, Columbia Gulf states that it is proposing to include in new Section 34 of the GTC of its Tariff a provision that will permit Columbia Gulf and eligible shippers to mutually agree to include in their service agreements regulatory unbundling contract demand reduction rights under specified circumstances.
Columbia Gulf states that copies of its filing have been mailed to all firm customers, interruptible customers and affected state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 22, 2003, Distrigas of Massachusetts LLC (DOMAC), One Liberty Square, 10th Floor, Boston, Massachusetts 02109, filed in Docket No. CP03-305-000, an application pursuant to section 7(c) of the Natural Gas Act and part 157 of the Federal Energy Regulatory Commission's regulations for authorization to construct, install, operate, and maintain facilities (DOMAC Connection) at DOMAC's liquefied natural gas (LNG) plant in Everett, Massachusetts in order to connect to and deliver regasified LNG into the system of Algonquin Gas Transmission Company (Algonquin), as more fully described in the application. 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
DOMAC states that its application is related to Algonquin's pending HubLine Phase II (or Everett Extension) proceeding, filed on February 5, 2003, in Docket No. CP01-5-003. DOMAC explains that, in the HubLine Phase II proceeding, Algonquin proposes to construct the Everett Extension, in part, to provide 50,000 Dth/d of firm transportation service for DOMAC, and that the DOMAC Connection facilities are necessary to allow such regasified LNG to be delivered into Algonquin's Everett Extension. DOMAC states that the DOMAC Connection represents a new avenue for the delivery of regasified LNG to the New England gas market, while mitigating take-away constraints on its regasified LNG.
Specifically, DOMAC proposes to construct a new 300-foot send-out line, odorant system, and metering system, and to reconfigure existing vaporization equipment to allow higher pressure deliveries into Algonquin's Everett Extension. The proposed facilities will be built entirely on the LNG plant's existing property, and will cost approximately $2.4 million.
DOMAC requests that the Commission issue a final certificate by December 1, 2003, in order to allow DOMAC time to meet its contractual obligation to complete the project by June 1, 2005.
Any questions regarding this application should be directed to Mr. Robert A. Nailling, Vice President and General Counsel, Distrigas of Massachusetts LLC, One Liberty Square, 10th Floor, Boston, Massachusetts 02109, or call (617)526-8300 or FAX (617)526-8356.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's rules of practice and procedure (18 CFR 385.214 or 385.211) and the regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission may issue a preliminary determination on non-environmental issues prior to the completion of its review of the environmental aspects of the project. This preliminary determination typically considers such issues as the need for the project and its economic effect on existing customers of the applicant, on other pipelines in the area, and on landowners and communities. For example, the Commission considers the extent to which the applicant may need to exercise eminent domain to obtain rights-of-way for the proposed project and balances that against the non-environmental benefits to be provided by the project. Therefore, if a person has comments on community and landowner impacts from this proposal, it is important either to file comments or to intervene as early in the process as possible.
Protests and interventions may be filed electronically via the internet in lieu of paper;
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying a certificate will be issued.
Take notice that on May 30, 2003, Eastern Shore Natural Gas Company (Eastern Shore) tendered for filing its annual Fuel Retention Adjustment filing pursuant to section 31 of the General Terms and Conditions of its FERC Gas Tariff, Second Revised Volume No. 1.
Eastern Shore states that Section 31, “Fuel Retention Adjustment”, specifies that with no less than thirty (30) days prior notice, Eastern Shore shall file with the Commission revised tariff sheets containing a re-determined Fuel Retention Percentage (FRP) for affected transportation rate schedules to be effective July 1 of each year. Such FRP is designed to reimburse Eastern Shore for the cost of its Gas Required for Operations (“GRO”) which consists of (a) gas used for compressor fuel and (b) gas otherwise used, lost or unaccounted for, in its operations. Eastern Shore states that its FRP is calculated by determining the GRO quantities attributable to system-wide operations for the affected transportation rate schedules using the last twelve (12) month period for which actual data is available and then dividing such quantity by the transportation quantities received by Eastern Shore for the corresponding twelve (12) month period.
Eastern Shore states that as shown in its filing, Eastern Shore's calculated FRP is .64 %, an increase of .34 % from the current FRP in effect.
Eastern Shore states that copies of its filing has been mailed to its customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 29, 2003, Enbridge Pipelines (KPC) (KPC) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets to be made effective January 1, 2003, subject to the extension granted by Commission order dated November 12, 2002, and the May 6, 2003, notice in FERC Docket Nos. RP02-488-002 and RP00-318-003:
First Revised Sheet No. 101
First Revised Sheet No. 102
Substitute Original Sheet No. 103
Substitute Original Sheet No. 104
Substitute Fourth Revised Sheet No.
Substitute First Revised Sheet No. 132
KPC states that the purpose of this filing is to comply with the Commission's order issued April 30, 2003, which required KPC to delete certain language from section 8.1(d) of the General Terms and Conditions (GT&C) and to also clarify certain language in sections 8.1(d) and 11.2. KPC states that the instant filing complies with the Commission's Order.
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 § 385.211 of the Commission's rules and regulations. All such protests must be filed in accordance with § 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 30, 2003, Equitrans, L.P. (Equitrans) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the revised tariff sheets listed on the filing, to become effective on July 1, 2003.
Equitrans states that the purpose of this tariff filing is to comply with Commission Order No. 587-R , issued March 12, 2003, which required interstate natural gas pipelines to incorporate into their tariffs Version 1.6 of the consensus standards promulgated by the Wholesale Gas Quadrant (WGQ) of the North American Energy Standards Board and the WGQ standards governing partial day recalls.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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
Global Common Greenport, LLC (GCG) filed an application for market-based rate authority, with an accompanying tariff. The proposed tariff provides for the sale of capacity and energy at market-based rates. GCG also requested waiver of various Commission regulations. In particular, GCG requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by GCG.
On May 23, 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 following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by GCG 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 June 23, 2003.
Absent a request to be heard in opposition by the deadline above, GCG is 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 GCG, 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 GCG's issuances of securities or assumptions of liability.
Copies of the full text of the Order 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 May 30, 2003, Gulf South Pipeline Company, LP (Gulf South) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets, to become effective May 1, 2003.
Gulf South states that this filing establishes a minimum volume threshold for the connection of new receipt and delivery points and requires certain gas quality control equipment be installed at certain receipt points. Gulf South states that this filing is submitted in compliance with the Commission's Order dated May 1, 2003, in Docket No. RP03-47-000.
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 § 385.211 of the Commission's rules and regulations. All such protests must be filed in accordance with § 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 30, 2003, Gulf South Pipeline Company, LP (Gulf South) tendered for filing its report of the net revenues attributable to the operation of its cash-in/cash-out program for an annual period beginning April 1, 2002, and ending March 31, 2003.
Gulf South states that this filing reflects its annual report of the activities attributable to the operation of its cash-in/cash out program. Gulf South states that the report shows a negative cumulative position that will continue to be carried forward and applied to the
Gulf South states that copies of this filing have been served upon Gulf South's customers, state commissions and other interested parties.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 28, 2003, Honeoye Storage Corporation (Honeoye) tendered for filing as part of its FERC Gas Tariff, First Revised Volume 1A, the revised tariff sheets listed on Appendix A to the filing, to be effective April 1, 2003.
Honeoye states that the purpose of the filing is to comply with the Federal Energy Regulatory Commission's Order 587-R issued on March 12, 2003, which established certain business practices for interstate natural gas pipelines.
Honeoye states that copies of the filing are being mailed to Honeoye's jurisdictional customers and interested state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 30, 2003, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets:
Iroquois states that the instant tariff filing corrects inadvertent omissions of language from the above noted tariff sheets currently on file with the Commission and corrects the pagination of one of those tariff sheets. Iroquois' states that these omissions were discovered as part of an on-going internal review of Iroquois' FERC Gas Tariff. Iroquois also states that the proposed corrections are necessary to provide Iroquois' shippers with uniform tariff provisions and to avoid confusion.
Iroquois states that copies of its filing were served on all jurisdictional customers and interested state regulatory agencies and all parties to the 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 § 385.211 of the Commission's rules and regulations. All such protests must be filed in accordance with § 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 30, 2003, MidAmerican Energy Company (MidAmerican) filed with the Federal Energy Regulatory Commission (Commission) a Complaint against the Mid-Continent Area Power Pool (MAPP) pursuant to section 206 of the Federal Power Act and rule 206 of the Commission's rules of practice and procedure, 18 CFR 385.206. According to the Complaint, MAPP is implementing a business practice that is inconsistent with its tariff and the Commission's pro forma tariff.
Any person desiring to be heard or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. The answer to the complaint and all comments, interventions or protests must be filed on or before the comment date below. 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 30, 2003, National Fuel Gas Supply Corporation (National) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, Fifty Fifth Revised Sheet No. 9, to become effective June 1, 2003.
National states that the filing is made pursuant to a settlement approved by Commission Letter Order issued on February 16, 1996, in the proceedings in Docket Nos. RP94-367-000,
National states that under Article II, section 2, of the settlement, it is required to recalculate the maximum Interruptible Gathering (IG) rate semi-annually and monthly. Further, National states that it is required to charge the recalculated monthly rate on the first day of the following month if the result is an IG rate more than 2 cents above or below the IG rate as calculated under section 1 of Article II. National asserts that the recalculation produced an IG rate of $1.21 per dth. National states that in addition, Article III, section 1 states that any overruns of the Firm Gathering service provided by National shall be priced at the maximum IG rate.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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
PG&E Gas Transmission, Northwest Corporation; Notice of Negotiated Rates
Take notice that on May 29, 2003, PG&E Gas Transmission, Northwest Corporation (GTN) tendered for filing to be part of its FERC Gas Tariff, Second Revised Volume No. 1-A, Thirteenth Revised Sheet No. 15, with an effective date of May 29, 2003.
GTN states that this filing is being filed to reflect the implementation of one new negotiated rate agreement on GTN's system in accordance with the Commission's October 28, 1999, order in Docket No. RP99-518, (PG&E Gas Transmission, Northwest Corporation, 89 FERC ¶ 61,114 (1999).
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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
On June 19, 2001, PPL Montana, LLC (PPL Montana) filed a petition for declaratory order to clarify its obligations as co-licensee of the Kerr Project No. 5, located on the Flathead River in Lake and Flathead Counties, Montana, and partially on lands within the Flathead Indian Reservation. On April 17, 2003, PPL Montana filed a notice of withdrawal of its petition.
No motion to the notice of withdrawal was filed, and the Commission took no action to disallow the withdrawal. Accordingly, pursuant to rule 216 of the Commission's rules of practice and procedure,
Take notice that on June 2, 2003, San Diego Gas & Electric (SDG&E) tendered for filing with the Federal Energy Regulatory Commission (Commission) a Complaint against the California Independent System Operator Corporation (ISO). The Complaint alleges that the ISO has improperly levied certain grid management charges on SDG&E, in violation of the ISO's filed rate.
SDG&E states that a copy of this filing was served upon the California Independent System Operator Corporation.
Any person desiring to be heard or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. The answer to the complaint and all comments, interventions or protests must be filed on or before the comment date below. 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 30, 2003, Total Peaking Services, L.L.C. (TPS), tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the tariff sheets listed on Appendix A to the filing with an effective date of July 1, 2003.
TPS states that the purpose of this filing is to comply with the Federal Energy Regulatory Commission's orders in Docket No. RM96-1 incorporating the business practice standards promulgated by the Wholesale Gas Quadrant (WGQ) of the North American Energy Standards Board (NAESB) through Version 1.6, together with the WGQ-recommended standards R02002 and R02002-2 governing partial day recalls and to change the name of the contact individual. In addition, TPS requests an extension of time for implementing certain standards and related electronic Data Sets until 180 days after a person first requests use thereof.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 29, 2003, Transcontinental Gas Pipe Line Corporation (Transco), tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Third Revised Sheet No. 292, Eighth Revised Sheet No. 296, and Ninth Revised Sheet No. 303. The proposed effective date of the tariff sheets is May 1, 2003.
Transco states that the purpose of the instant filing is to update certain Delivery Point Entitlement (DPE) tariff sheets in accordance with the provisions of section 19.1(f) of the General Terms and Conditions of Transco's Third Revised Volume No. 1 tariff. Transco states that specifically, such tariff sheets have been revised to reflect the increase in capacity associated with the May 1, 2003, in-service date of Phase 1 of the Momentum Expansion Project.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 29, 2003, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing a copy of the executed service agreement amendment that contains a negotiated delivery point facilities surcharge (facilities surcharge) under Transco's Rate Schedule FT for the costs of the Westmore Road Meter Stations, a delivery point to Washington Gas Light Company (WGL). The effective date of this facilities surcharge is June 1, 2003, which is the anticipated in-service date of the Westmore Road Meter Stations.
Transco states that Transco and WGL are parties to a service agreement, dated January 1, 1996, under Transco's Rate Schedule FT for firm transportation service on Transco's pipeline system. Transco further states that it has agreed to construct the Westmore Road Meter Stations, a new delivery point to WGL located on Transco's main line in Montgomery County, Maryland. Transco asserts that pursuant to section 20.7 of the General Terms and Conditions of Transco's FERC Gas Tariff, Transco and WGL have executed an amendment to the service agreement to add Exhibit C thereto to include a facilities surcharge for the Westmore Road Meter Stations in addition to the applicable rates and charges for WGL's firm transportation service under Rate Schedule FT.
Transco states that the effective date of this facilities surcharge is June 1, 2003, which is the anticipated in-service date of the Westmore Road Meter Stations.
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 § 385.211 of the Commission's rules and regulations. All such protests must be filed on or before the protest date as shown below. 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 30, 2003, Vector Pipeline L.P. tendered for filing to become part of its FERC Gas Tariff, Volume No. 1, the tariff sheets listed on Appendices A-D to the filing, to be effective July 1, 2003. In addition, Vector is proposing to add two new firm transportation services to its tariff.
Vector states that the purpose of this filing is to fulfill its obligation under Ordering Paragraph (I) of the certificate order issued May 27, 1999, in Docket Nos. CP98-131-000,
Vector's in-service date was December 1, 2000. Vector states that its filing satisfies that requirement.
Vector is requesting an increase in the recourse rates for service under Rate Schedules FT-1, IT-1, and PALS, based on a cost of service of $134,911,668. Vector states that the presently pending rate for Rate Schedule TTS service in Docket No. RP02-479-002 and the existing rate for Rate Schedule MBA service are unchanged by this filing. Vector also is proposing recourse rates for two new firm transportation services, limited firm in Rate Schedule FT-L and hourly firm in Rate Schedule FT-H.
In addition to the rate change, Vector states that it is submitting various revised tariff sheets for the purpose of correcting and cleaning-up minor errors, making editorial corrections, clarifying certain tariff provisions, and deleting a section of the General Terms and Conditions (section 39) which is no longer applicable. Vector states that it also is electing to modify the terms of its Management of Balancing Agreement service to accommodate the requests of customers for a more broad-based service that could be used by customers who take interruptible service in addition to those who use firm transportation service.
Vector states that copies of its filing have been mailed to all customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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 May 30, 2003, Williston Basin Interstate Pipeline Company (Williston Basin), tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following revised tariff sheets to become effective July 1, 2003:
Eighth Revised Sheet No. 203
Fifth Revised Sheet No. 236
Sixth Revised Sheet No. 376
Fourth Revised Sheet No. 503
Fifth Revised Sheet No. 508
Fourth Revised Sheet No. 509
Tenth Revised Sheet No. 510
Fourth Revised Sheet No. 553
Fifth Revised Sheet No. 558
Fourth Revised Sheet No. 559
Tenth Revised Sheet No. 560
Williston Basin states that the revised tariff sheets reflect modifications to Williston Basin's FERC Gas Tariff to reflect a change in the Company's current procedures for identifying, adding and/or deleting alternate points and/or pooling points to a shipper's firm transportation contract(s).
Williston Basin states that copies of the filing are being served upon those listed on the mailing list attached to the filing.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 154.210 of the Commission's regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on May 27, 2003, ITC Holdings Corp., International Transmission Holdings Limited Partnership and International Transmission Company submitted an application pursuant to section 203 of the Federal Power Act seeking all authorizations and approvals necessary for the indirect disposition of jurisdictional facilities that may result from a change in upstream ownership interests, as more fully described in the application.
Take notice that on May 16, 2003, the Secretary of the Department of Energy by Rate Order No. WAPA-102, did confirm and approve on an interim basis, to be effective on October 1, 2003, the Western Area Power Administration
The rates in Rate Schedules P-SED-F6 and P-SED-FPG will be in effect pending the Federal Energy Regulatory Commission's (Commission) approval of these rates on a final basis, ending September 30, 2003.
Take notice that on May 16, 2003, the Secretary of the Department of Energy by Rate Order No. WAPA-103, did confirm and approve on an interim basis, to be effective on October 1, 2003, the Western Area Power Administration's (Western) Rate Schedule L-F4 for firm electric service through September 30, 2003.
The rate in Rate Schedule L-F4 will be in effect pending the Federal Energy Regulatory Commission's (Commission) approval of this rate on a final basis, ending September 30, 2003.
Take notice that on May 29, 2003, Arizona Public Service Company, El Paso Electric Company, Public Service Company of New Mexico, and Southern California Edison Company tendered for filing an Interconnection and Operating Agreement necessary to interconnect the Rudd Transmission Line to the ANPP High Voltage Switchyard between the Rudd Line Participants and the ANPP Switchyard Participants.
Take notice that on May 29, 2003, Innovative Technical Services, L.L.C. (InTech-LLC) tendered for filing with the Federal Energy Regulatory Commission (Commission) a letter requesting the Commission to amend the Western Systems Power Pool (WSPP) Agreement to include InTech-LLC as a participant. InTech-LLC respectfully requests that the Commission allow the amendment to the WSPP Agreement to become effective on May 29, 2003.
InTech-LLC states that a copy of this filing has been served upon the WSPP Executive Committee Chair, WSPP Operating Committee Chair, WSPP General Counsel, and Arizona Public Service Company.
Take notice that on May 29, 2003, Gulf States Energy Investments L.P. (Gulf States Energy Investments L.P.) petitioned the Commission for acceptance of its Rate Schedule FERC No. 1; the granting of certain blanket approvals, including the authority to sell electricity at market-based rates; and the waiver of certain Commission regulations.
Gulf States Energy Investments L.P. states that it intends to engage in wholesale electric power and energy purchases and sales as a marketer. Gulf States Energy Investments L.P. states that it is not in the business of generating or transmitting electric power. Gulf States Energy Investments L.P. asserts that it is a Texas Limited Partnership with its principal place of business and office in Dallas, Texas. Gulf States Energy Investments L.P. further states that it is involved in consulting of electricity and marketing of wholesale power. Gulf States Energy Investments L.P. explains that it is not associated with any utilities, investor owned or otherwise and is privately owned by Gulf States Energy, Inc., which is the General Partner, and several individuals from Fort Worth Texas, which act as the Limited Partners.
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 the proposed North Lansing Storage Field Abandonment Project proposed by Natural Gas Pipeline Company of America (Natural) in Harrison County, Texas.
The proposed abandonment is responsive to a Commission Order issued December 24, 2002, in FERC Docket No. CP02-391-000, involving the expansion of Natural's North Lansing storage field. An environmental condition of the Order required Natural to identify any currently unused aboveground facilities and pipelines on the property of S.J. Keasler, a landowner on the North Lansing storage field, and provide a timetable for filing an abandonment application with the
Natural identified an injection/withdrawal well, lateral pipeline and meter facility, all located on S.J. Keasler's property. The facilities were constructed under the FERC Docket No. CP89-2081-000 to increase withdrawal capabilities at the North Lansing storage field. Natural states that the injection/withdrawal well was plugged in 1997 after a leak was detected in the production tubing and has since been inactive. The surface wellhead equipment was subsequently removed. The associated meter facilities and lateral pipeline have been inactive since the well was plugged and are not located in an area of the storage field conducive for future connections to other possible wells. Due to the potential for corrosion from condensate and water to occur and cause future problems at the North Lansing storage field, Natural proposes to abandon the injection/withdrawal well and lateral pipeline in place and remove the meter facilities.
• Abandon in place the injection/withdrawal well (ODA3-W, Emma Keasler #103);
• Cut, fill, cap, and abandon in place approximately 2,380 feet of 8-inch-diameter lateral pipeline (G-7 lateral); and
• Abandon by removal all aboveground portions of the 6-inch meter facility; and the belowground portions to three feet below grade.
The general location of the project facilities is shown in appendix 1.
Abandonment of the proposed facilities would require disturbance of about 0.01 acre of land. Natural proposes that following abandonment, it would continue the existing easement agreement and retain ownership of the abandoned lateral pipeline. The 0.01 acre of land would be restored and allowed to revert to its former use.
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 us
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• Land use;
• Water resources;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Endangered and threatened species;
• Public safety.
We will not discuss impacts to the following resource areas since they are not present in the project area, or would not be affected by the proposed abandonment.
• Fisheries and wetlands;
• Hazardous waste.
We will also evaluate possible 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, beginning on page 5.
We have already identified several issues that we think deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by Natural. This preliminary list of issues may be changed based on your comments and our analysis.
• Two federally listed endangered or threatened species may occur in the proposed project area.
• In comments submitted under Docket No. CP02-391-000, S.J. Keasler, an affected landowner, expressed desires to have Natural remove all aboveground facilities and the pipeline associated with the inactive injection/withdrawal well (ODA3-W, Emma Keasler #103). However, Natural proposes to abandon the well and lateral pipeline in place.
• An unnamed intermittent tributary of the Moccasin Creek is crossed by the G-7 lateral pipeline. If the G-7 lateral pipeline were removed, the tributary would be subject to disturbance.
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 (including alternative means of abandonment), 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. CP03-131-000.
• Mail your comments so that they will be received in Washington, DC on or before July 3, 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
We might mail the EA for comment. If you are interested in receiving it, please return the Information Request (appendix 4). 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 might want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor 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 intervenor 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 intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
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 right-of-way grantors. 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 (
In addition, the Commission now offers a free service called eSubscription which allows you too keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
The Commission's rules of practice and procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
k. 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
l.
m.
Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper;
n.
Environmental Protection Agency (EPA).
Notice of final order on petition to object to State operating permit.
This notice announces that the EPA Administrator has partially granted and partially denied the petition to object to a State operating permit issued by the Louisiana Department of Environmental Quality (LDEQ) for the Port Hudson Operations of Georgia Pacific Corporation in East Baton Rouge, Louisiana. Pursuant to section 505(b)(2) of the Clean Air Act (Act), the petitioner may seek judicial review of this response to the extent the petition has been denied, in the United States Court of Appeals for the Fifth Circuit. Any petition must be filed within 60 days of the date this notice appears in the
You may review copies of the final order, the petition, and other supporting information at the EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. If you wish to examine these documents, you should make an appointment at least 24 hours before visiting day. The final order is also available electronically at the following address:
Ms. Bonnie Braganza, Air Permitting Section, Multimedia Planning and Permitting Division, EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7340, or electronic mail at
The Act affords EPA a 45-day period to review, and object to as appropriate, operating permits proposed by State permitting authorities. Section 505(b)(2) of the Act authorizes any person to petition the EPA Administrator within 60 days after the expiration of this review period to object to State operating permits if EPA has not done so. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the State, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.
The Louisiana Environmental Action Network and Ms. Juanita Stewart (“Petitioners”) submitted a petition requesting that the Administrator object to the title V operating permit issued to Georgia Pacific Corporation by the LDEQ, for the Port Hudson plant operations. The petition requests the Administrator object to the Georgia Pacific permit based on the following broad assertions:
1. Invalid emission reductions were used to avoid Nonattainment New Source Review (NNSR) for emissions increases from projects occurring from 1986 through 1992.
2. Invalid emission reductions were used to avoid NNSR and Prevention of Significant Deterioration (PSD) requirements for emissions increases associated with a new towel machine project.
3. Specific conditions in the new towel machine permit should require Georgia-Pacific to undergo additional PSD review if emissions exceed certain limits.
4. No Emission Reduction Credits (ERC) are available because the Louisiana ERC bank is mismanaged and fails to require that credits be “surplus” when used.
5. ERCs were not identified specifically enough to inform the public.
6. The Title V permit incorporates an emission limit from an invalid State permit.
7. The Title V permit fails to provide for sufficient monitoring of particulate emissions from some units.
8. The LDEQ failed to provide an adequate statement of basis in the Title V permit.
On May 9, 2003, the Administrator issued an order partially granting and partially denying the petition. The order explains the reasons for EPA's conclusion that LDEQ must reopen the permit to: (1) Reconsider whether NNSR is an applicable requirement for the 1986-1992 projects, and determine the appropriate volatile organic compound emission limit based on this determination; (2) provide an adequate explanation of the periodic monitoring at issue; and (3) provide an adequate statement of basis on these particular NNSR and periodic monitoring issues. The order also explains the reasons for denying the remaining claims.
Environmental Protection Agency.
Notice of availability of inventions for licensing.
The inventions named below are co-owned by the U.S. Government
Copies of the patents and 37 CFR part 404 can be obtained from Alan Ehrlich, Patent Counsel, U.S. Environmental Protection Agency (EPA) at the address indicated below. Requests for copies of the patents must include the patent numbers listed in this notice.
A party that is interested in obtaining a license must apply to EPA at the contact address below. The license application must contain the information set forth in 37 CFR 404.8, including the license applicant's plan for development or marketing of the inventions.
EPA intends to license these patents in cooperation with the co-owner, the University of Kentucky Research Foundation. Prior to granting an exclusive or partially exclusive license on these inventions, EPA, pursuant to 37 CFR 404.7, will publish in the
Alan Ehrlich, Patent Counsel, Office of General Counsel (2377A), Environmental Protection Agency, Washington, DC 20460, telephone (202) 564-5457.
U.S. Patent No. 6,544,419, Method of preparing a composite polymer and silica-based membrane, issued April 8, 2003;
U.S. Patent No. 6,544,418, Preparing and regenerating a composite polymer and silica-based membrane, issued April 8, 2003;
U.S. Patent No. 6,306,301, Silica-based membrane sorbent for heavy metal sequestration, issued October 23, 2001;
U.S. Patent No. 6,139,742, Membrane-based sorbent for heavy metal sequestration, issued October 30, 2000;
U.S. Patent No. 6,103,121, Membrane-based sorbent for heavy metal sequestration, issued August 15, 2000.
The Sub-Saharan Africa Advisory Committee was established by Pub. L. 105-121, November 26, 1997, to advise the Board of Directors on the development and implementation of policies and programs designed to support the expansion of the Bank's financial commitments in Sub-Saharan Africa under the loan, guarantee and insurance programs of the Bank. Further, the committee shall make recommendations on how the Bank can facilitate greater support by U.S. commercial banks for trade with Sub-Saharan Africa.
Tuesday, June 24, 2003 at 1:30 p.m. to 5 p.m. The meeting will be held at the Export-Import Bank in Room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
This meeting will focus on the Bank's business development efforts in Africa, specifically including sub-Saharan Africa. The meeting will discuss pending Bank initiatives to allow U.S. companies to become more competitive in the marketplace as well as interagency cooperative efforts focused on the region, while seeking the advice of committee members in the implementation of the ongoing business development strategy.
The meeting will be open to public participation, and the last 10 minutes will be set aside for oral questions or comments. Members of the public may also file written statement(s) before or after the meeting. If any person wishes auxiliary aids (such as a sign language interpreter) or other special accommodations, please contact, prior to June 24, 2003, Barbara Ransom, Room 1241, 811 Vermont Avenue, NW., Washington, DC 20571, Voice: (202) 565-3525 or TDD (202) 565-3377.
Barbara Ransom, Room 1241, 811 Vermont Avenue, NW., Washington, DC 20571, (202) 565-3525.
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 currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before August 11, 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 Paperwork Reduction Act (PRA) comments to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
The quarterly reports will continue to be used by the Commission to monitor carrier progress in transition to E911. The Bureau is establishing the format of the data to be submitted in order to permit the Commission to track wireless E911 deployment in a more uniform and consistent manner, as well as to assist E911 stakeholders in coordinating their deployment efforts.
Board of Governors of the Federal Reserve System
Notice
Background. Notice is hereby given of the final approval of proposed information collections by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the OMB 83-Is and supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer -Cindy Ayouch-Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202-452-3829).
OMB Desk Officer-Joseph Lackey-Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
Small businesses are affected.
Recently, the Federal Reserve reevaluated the methodology used to estimate the paperwork burden associated with consumer regulations. As a result of this change, the estimated burden declined.
Board of Governors of the Federal Reserve System, June 4, 2003.
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 June 24, 2003.
Board of Governors of the Federal Reserve System, June 4, 2003.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 3, 2003.
Board of Governors of the Federal Reserve System, June 4, 2003.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 24, 2003.
Board of Governors of the Federal Reserve System, June 4, 2003.
Administration on Children, Youth and Families (ACYF), ACF, DHHS.
Notice.
The Children's Bureau (CB) within the Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF) announces the availability of fiscal year (FY) 2003 funds for competing new activities under the Adoption Opportunities Program, the Child Abuse Prevention and Treatment Act (CAPTA), the Child Welfare Training Program, and the Promoting Safe and Stable Families Program. Funds from the Adoption Opportunities Program are designed to provide, among other things, support for demonstration projects that facilitate the elimination of barriers to adoption and provide permanent loving homes for children who would benefit from adoption, particularly children with special needs. Funds from CAPTA support research and demonstration projects on the causes, prevention, and treatment of child abuse and neglect. Funds from the Child Welfare Training Program support grants to public or other non-profit institutions of higher learning for special projects for training personnel for work in the field of child welfare. The Promoting Safe and Stable Families program is intended to prevent the unnecessary separation of children from their families by funding family support, family preservation, time-limited family reunification and adoption promotion and support services as well as research, evaluation and technical assistance relating to such services.
The closing date for submission of applications is July 25, 2003. Items postmarked after the stated due date will be classified as late. Private, non-profit organizations that apply for funds available through this announcement are encouraged to submit with their applications the optional survey located under “Grant Manuals and Forms” at
The complete program announcement, including all necessary forms, can be downloaded and printed from the Children's Bureau Web site at
Patricia Campiglia, Children's Bureau, 202-205-8060.
In order to be responsive to a number of unique, professional education needs related to public child welfare practice, this priority area is being subdivided into three subcategories as outlined above. An institution may submit only one application under this priority area and must identify the sub-priority area to which it is responding in the abstract and narrative sections of the application.
Reviewers will consider the following factors when scoring applications. Applicants, in order to adequately prepare their applications, must refer to the full program announcement for the specific evaluation criteria for each priority area.
Public reporting burden for this collection of information is estimated to average 40 hours per response, including the time for reviewing instructions, gathering and maintaining the data needed and reviewing the collection information. The project description is approved under OMB control number 0970-0139 which expires 12/31/2003.
An agency may not conduct or sponsor and a person is not required to respond to, collections of information unless it displays a currently valid OMB control number.
Most portions of this program are covered under Executive Order 12372, Intergovernmental Review of Federal Programs, and 45 CFR part 100, Intergovernmental Review of Department of Health and Human Services Program and Activities. Under the Order, States may design their own processes for reviewing and commenting on proposed Federal assistance under covered programs.
All States and Territories except Alabama, Alaska, Arizona, Colorado, Connecticut, Hawaii, Idaho, Indiana, Kansas, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Jersey, New York, Ohio, Oklahoma, Oregon, Palau, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia, Washington, and Wyoming have elected
Under 45 CFR 100.8(a)(2), a SPOC has 60 days from the application deadline to comment on proposed new or competing continuation awards. SPOCs are encouraged to eliminate the submission of routine endorsements as official recommendations. Additionally, SPOCs are requested to clearly differentiate between mere advisory comments and those official State process recommendations which may trigger the accommodate or explain rule. A list of the Single Points of Contact for each State and Territory can be found online at
Food and Drug Administration, HHS.
Notice of public meeting.
The Food and Drug Administration (FDA) is announcing the following public meeting: FDA Workshop on the Notification Process for Food Contact Substances. The purpose of the meeting is to discuss the food contact notification (FCN) process so that notifiers and/or their representatives, consumer interest groups, and other interested members of the general public can have a better understanding of the FCN process, the information requirements of an FCN, and the common deficiencies to be avoided.
The meeting will be held on Wednesday, June 25, 2003, from 11:30 a.m. to 2:30 p.m.
The meeting will be held at the Hyatt Regency Chicago, 151 East Wacker Dr., Chicago, IL.
William J. Trotter, Center for Food Safety and Applied Nutrition (HFS-275), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 202-418-3088, FAX: 202-418-3131, or e-mail:
In November 1997, Congress passed the Food and Drug Administration Modernization Act of 1997 (FDAMA). Section 309 of FDAMA amended section 409 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 348) to establish a notification process for food contact substances (FCSs). An FCS is defined as “any substance intended for use as a component of materials used in manufacturing, packing, packaging, transporting, or holding food if such use is not intended to have a technical effect in such food” (21 U.S.C. 348(h)(6)). The FCN process is used to authorize the marketing of an FCS except where the Secretary determines that submission of a food additive petition is necessary or the Secretary and a manufacturer or supplier agree that a food additive petition may be submitted (21 U.S.C. 348(h)(3)(A)).
Under 21 U.S.C. 348(h), the notification process requires a manufacturer or supplier of an FCS to notify FDA at least 120 days prior to the introduction or delivery for introduction in interstate commerce of an FCS. If FDA does not object to the notification within 120 days, the notification becomes effective (21 U.S.C. 348(h)(2)(A)), and the substance may be legally marketed for the requested use by the notifier (21 U.S.C. 348(a)(3)(B)).
In the
Persons interested in attending the June 25, 2003, meeting should send their registration information (including name, title, business affiliation, address, and telephone and fax number) to the contact person (see
Administrative, chemistry, and toxicology guidance documents for FCNs are available at the following Web site:
FDA will present its recommendations for information necessary to make an FCN adequate and complete. Topics to be presented will be broadly divided among the general categories of administrative, chemical, toxicological, and environmental information. The agenda will include the following items:
(1) Administrative: guidance document, an overview of the review process, common FCN deficiencies, Form 3480, confidentiality, one FCS per FCN, and conditions under which a food additive petition should be submitted;
(2) Chemical: guidance document, common FCN deficiencies, approaches for determining migrant levels in food, estimated daily intake, and cumulative estimated daily intake;
(3) Toxicological: guidance document, common FCN deficiencies, acceptable daily intake, risk assessments, structure activity relationships, and recommended testing; and
(4) Environmental: requirements, common FCN deficiencies, categorical
Written comments regarding the agenda may be submitted and should be identified with the docket number found in brackets in the heading of this document. Comments should be annotated and organized to identify the specific issues to which they refer. These comments should be submitted by June 13, 2003, to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Comments may also be sent to the Dockets Management Branch at the following e-mail address:
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) announces that applications will be accepted for the Graduate Geropsychology Education Program (GGEP) for Fiscal Year 2003.
As provided in section 791(a) of the Public Health Service Act, preference will be given to any qualified applicant that: (1) Has a high rate for placing graduates in practice settings having the principal focus of serving residents of medically underserved communities; or (2) during the 2-year period preceding the fiscal year for which such an award is sought, has achieved a significant increase in the rate of placing graduates in such settings. “High Rate” refers to a minimum of 20 percent of graduates in academic year 2000-2001 or academic year 2001-2002, whichever is greater, who spend at least 50 percent of their worktime in clinical practice in the specified settings and that not less than 15% of graduates from the most recent years are working in these settings.
“Significant Increase in the Rate” means that, between academic years 2000-2001 and 2001-2002, the rate of placing graduates in the specified settings has increased by a minimum of 50 percent.
If the applicant is applying for the Funding Preference as a New Program, please note the following: New programs (
1. The mission statement of the program identifies a specific purpose of preparing health professionals to serve underserved populations.
2. The curriculum includes content that will help to prepare practitioners to serve underserved populations.
3. Substantial clinical training experience is required in medically underserved communities.
4. A minimum of 20 percent of the faculty spend at least 50 percent of their time providing/supervising care in medically underserved communities.
5. The entire program or a substantial portion of the program, (
6. Student assistance, which is linked to service in medically underserved communities following graduation, is available to the students in the program.
7. The program provides a placement mechanism for deploying graduates to medically underserved communities.
Barbara Broome, Division of State, Community and Public Health, Bureau of Health Professions, HRSA, Room 8-103, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857; or e-mail at
Indian Health Service, HHS.
Final notice.
This notice advises the public that the Indian Health Service (IHS) is redesignating the geographic boundaries of the Contract Health Service Delivery Area (CHSDA) for the Rosebud Sioux Tribe (“The Tribe”). The Tribe's CHSDA was comprised of Bennett, SD, Cherry, NE, Mellette, SD, Todd, SD, and Tripp, SD counties in South Dakota and Nebraska. These counties were designated as the Tribe's CHSDA when the IHS published its updated list of CHSDAs in the
June 10, 2003.
Leslie Morris, Director, Division of Regulatory and Legal Affairs, Office of Management Support, Indian Health Service, 12300 Twinbrook Parkway, Suite 450, Rockville, MD 20857, Telephone 301-443-1116. (This is not a toll-free number.)
On August 4, 1978, the IHS published regulations establishing eligibility criteria for receipt of contract health services and for the designation of CHSDAs (43 FR 34654, codified at 42 CFR 136.22, last published in the 2002 version of the Code of Federal Regulations). On September 16, 1987, the IHS published new regulations governing eligibility for IHS services. Congress has repeatedly delayed implementation of the new regulations by imposing annual moratoriums. Section 719(a) of the Indian Health Care Amendments of 1988, Pub. L. 100-713, explicitly provides that during the period of the moratorium placed on implementation of the new eligibility regulations, the IHS will provide services pursuant to the criteria in effect on September 15, 1987. Thus, the IHS contract health services program continues to be governed by the regulations in effect on September 15, 1987. See 42 CFR 136.21, et seq. (2002).
As applicable to the Tribe, these regulations provide that, unless otherwise designated, a CHSDA shall consist of a county which includes all or part of a reservation and any county or counties which have a common boundary with the reservation (42 CFR 136.22). The regulations also provide that after consultation with the tribal governing body or bodies of those reservations included in the CHSDA, the Secretary may, from time to time, redesignate areas within the United States for inclusion in or exclusion from a CHSDA. The regulations require that certain criteria must be considered before any redesignation is made. The criteria are as follows:
(1) The number of Indians residing in the area proposed to be so included or excluded;
(2) Whether the tribal governing body has determined that Indians residing in the area near the reservation are socially and economically affiliated with the tribe;
(3) The geographic proximity to the reservation of the area whose inclusion or exclusion is being considered; and
(4) The level of funding which would be available for the provision of contract health services.
Additionally, the regulations require that any redesignation of a CHSDA must be made in accordance with the procedures of the Administrative Procedure Act (5 U.S.C. 553). In compliance with this requirement, the IHS published a proposal in 68 FR 12914, March 18, 2003, to redesignate the CHSDA for the Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota. No comments were received.
Pursuant to a Tribal Resolution 2000-32, dated March 9, 2000, the Tribe requested the IHS to redesignate their current CHSDA, which incorporates Mellette, Bennett, Todd, Trip and Cherry Counties in the State of South Dakota and Nebraska, to include Gregory and Lyman counties.
In applying the aforementioned CHSDA redesignation criteria required by 42 CFR 136.22, the following findings are made:
(1) The Tribe enrollment and census records identify 519 tribal members residing in Gregory County and 0 tribal members residing in Lyman County.
(2) The Tribe has determined that contract health services would be available to all its members and members of other federally recognized tribes who reside in Gregory County and Lyman County having close social and economic ties with the Tribe.
(3) Gregory County is presently a CHSDA county for the Yankton Sioux Tribe. There are 158 Tribal members, of the 519 total, who are eligible for the Yankton Sioux CHS program because of close economic-social ties. The Yankton Sioux and Rosebud Sioux CHS programs will work together on the eligibility and CHS coverage on a case-by-case basis. Lyman County is presently a CHSDA county for the Lower Brule Sioux Tribe. There are 0 Tribal members who are eligible for the Lower Brule Sioux CHS program. The Lower Brule and Rosebud CHS program will work together on the eligibility and CHS coverage on a case-by-case basis if/when there are Rosebud Sioux residing within Lyman County.
(4) At this time, although Gregory County does not border the Rosebud Sioux's reservation, Gregory County was within the original boundaries of the reservation and continues to have a significant population of Rosebud Sioux. The Tribe chose to include
(5) The 519 tribal members residing in Gregory County presently utilize the Rosebud Indian Health Service facility's direct care services. Therefore, the clinical work load units will not be impacted. It is estimated that the current eligible contract health service population will be increased by 519 in Gregory County. The Rosebud CHS program has a recurring CHS funding base of $4,233,730. The formula used to determine what impact the additional 519 members, residing in Gregory County, would have on the Rosebud CHS fund is determined by using the Aberdeen Area's type of facility per capita of $327 × 519 = $169,713. The 0 number residing in Lyman County would have no impact at this time. The Rosebud Indian Health Service facility recognizes that there will be no additional CHS funding for this CHSDA expansion but they do not expect a significant impact on their present funding and support the tribe's CHSDA expansion and redesignation. The expansion and redesignation of the CHSDA to include both Gregory County and Lyman County is within the present available resources.
Accordingly, after considering the Tribe's request in light of the criteria specified in the regulations the IHS is redesignating the CHSDA of the Tribe to consist of Bennett, SD, Cherry, NE, Mellette, SD, Todd, SD, Tripp, SD, Gregory, SD and Lyman, SD, Counties of South Dakota and Nebraska.
This notice does not contain reporting or recordkeeping requirements subject to prior approval by the Office of Management and Budget under the Paperwork Reduction Act of 1980.
Office of Refugee Resettlement (ORR), ACF, HHS.
Request for applications to conduct projects to strengthen refugee families through services promoting healthy marriages and the adjustment of refugee elderly and refugee youth to changing family dynamics.
ORR invites the submission of applications for assistance that supports activities in three categories aimed at strengthening refugee family life by promoting healthy marriages for refugee couples and support services for adjustment of refugee elderly and refugee youth.
The closing date for submission of applications is July 10, 2003. ACF will acknowledge receipt of applications. Mailed applications postmarked after the closing date will be classified as late.
For all categories, contact Irving Jones, Division of Community Resettlement (DCR), ORR, Administration for Children and Families (ACF), (202) 401-6533; Fax (202) 401-0981; E-mail:
This program announcement consists of four parts:
This program is authorized by section 412(c)(1)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. 1522 (c)(1)(A), as amended, the Director of ORR recognizes that refugees have specific needs for services that are authorized under section 412(c)(1)(A) iii, as follows:
to make grants to, and enter into contracts with, public or private non-profit agencies for projects specifically designed—(i) to assist refugees in obtaining the skills which are necessary for economic self-sufficiency, including projects for job training, employment services, day care, professional
This program announcement governs the availability of, and award procedures for, the Refugee Family Enrichment Program, which will be funded using FY 2003 discretionary social service funds.
Eligible applicants for these funds include public or private non-profit agencies, including faith-based and community organizations and public agencies. Applicants in all three categories must demonstrate, in detail, their relationship to the refugee communities they seek to serve and how those communities will participate in the proposed services. Also, applicants to category 1 and category 2 of this announcement should demonstrate their knowledge of and relationship to family enrichment activities.
Any non-profit organization submitting an application must submit proof of its non-profit status at the time of submission. The non-profit agency can accomplish this by providing a copy of the applicant's listing in the Internal Revenue Service's (IRS) most recent list of tax-exempt organizations described in Section 501(c)(3) of the IRS code,
This announcement is inviting applications for project periods up to three years. Awards, on a competitive basis, will be for a one-year budget period. Applications for continuation grants funded under these awards beyond the one-year budget period but within the three year project period will be entertained in subsequent years on a noncompetitive basis, subject to availability of funds, satisfactory progress of the grantee and a determination that continued funding would be in the best interest of the Government. No matching or cost sharing is required.
The Administration for Children and Families (ACF) is currently supporting several initiatives that promote and encourage healthy marriages and strengthen families. This program announcement reflects ORR's participation in these initiatives as they relate to refugee populations. The cultures of most refugee populations are built upon successful and stable family life. This strength is worthy of preservation and ORR seeks, through this announcement, to support activities toward that end. ORR believes that refugee couples face unique difficulties because of their flight from persecution and long periods of insecurity and that marriage education is a social service that can help refugees cope with these difficulties. ORR also believes that there are benefits to marriage that extend to children, adults and to all society. Thus ORR is committed to promoting policies and programs that help strengthen marriage as an institution and help refugee parents raise their children in positive and healthy environments.
Many refugee families have endured persecution or torture, trauma, abrupt flight from war, and separation from, or death of, friends and family members. Furthermore, the relationships in refugee families may become strained before arrival because of suffering and deprivation endemic to the refugee condition. Refugees in the U.S. face many challenges. The pressures of their new American environment may weaken the strong, positive family relationships that refugees have brought with them to the United States.
Family relationships may undergo strain and transformation when refugees resettle in the U.S. Strong authoritarian and sometimes patriarchal family structures may provoke conflicts when members take on new roles as they adapt to American culture. For example, school/parent relationships may differ from those in their home countries and may produce miscommunication and tension; refugee parents may have concerns or object to the range of freedom American youth are afforded; and the physical disciplinary practices between a husband and wife or between parents and children may differ from what is the norm or legal in the U.S. The low wages of entry-level jobs may force both adults to work outside the home, thereby disrupting traditional roles. Typically, low incomes force refugee households to locate in neighborhoods with high crime rates. Poor public transportation adds to time spent away from family members and complicates efforts to access services and participate in community activities. The resulting strain from these difficulties may damage refugee marriages, families and communities.
Marriage education can help refugee couples strengthen and adjust relationship skills and help them cope with the difficulties of their new American environment with the result of improving the quality of family life. Along with the skills that enable couples to communicate more effectively, manage conflict and work together as a team, marriage education can also teach the benefits that can be obtained from identifying future challenges in their relationships so that these challenges can be successfully negotiated when they arise.
Research reveals that the benefits of healthy marriages are particularly beneficial for children. On average, children raised by parents in healthy marriages are less likely to fail at school, suffer an emotional or behavioral problem requiring psychiatric treatment, be victims of child abuse and neglect, get into trouble with the law, use illicit drugs, smoke cigarettes, abuse alcohol, engage in early and promiscuous sexual activity, grow up in poverty or attempt suicide. On average, children raised by
In summary, ORR seeks to use this announcement to provide opportunities for refugees to strengthen marital and parenting skills within healthy and supportive relationships. ORR also seeks to expand understanding of the refugees' marriage and family difficulties in the resettlement experience and the factors that contribute to successfully meeting the challenges to the marriage relationship. Despite difficult hurdles such as trauma, cultural adjustment and low wage jobs, refugee families are resilient. Once in the U.S., most envision a bright future for themselves and their children. If the issues faced by refugee families are addressed early through marriage education, the problems they encounter may be reduced or prevented and refugee families can achieve the bright future they seek.
ORR is also interested in programs that support services for the elderly and youth, who may be the more vulnerable family members. Refugee elderly and youth have also experienced or witnessed persecution. They also face hardships while resettling and pose unique challenges to their families, communities and the agencies that seek to serve them.
Older refugees face various issues that make them particularly vulnerable: chronic health and emotional problems stemming from the conditions of refugee flight; family loss or separation; an inability to advocate for themselves because of cultural, linguistic, or educational barriers; limited access to appropriate health and social service agencies; limited income due to lack of work history; and barriers to meeting the requirements for naturalization. Many older refugees in the United States, particularly women, live in difficult circumstances in which they may live alone without a caregiver, have low incomes, or may be abused, neglected or exploited. Additionally, some elderly refugees have lost Supplementary Security Income and Medicaid due to expiration of eligibility.
Refugee youth also confront a number of challenges as they integrate into American society. Because youth usually adapt more quickly to their new surroundings than adult refugees, relationships with parents often undergo stress and change. Youth often learn English more quickly and become translators for their parents. This shifts power to the young, disrupting traditional relationships within the family. Refugee youth often face problems in the United States that did not exist in their home countries, depriving them of the wisdom and experience of their parents who never dealt with these problems. Youth also face dilemmas surrounding relationships with the opposite sex, as male/female relationships in the U.S. may differ significantly from those of their home country. In addition, the stress of working while attending school, along with conflicts with students, teachers and school administrators over conduct, dress or diet may impede success at school. Refugee youth may also reject their home culture and desire acceptance from peers in the U.S. This desire for acceptance can lead to discipline problems in school and at home and to problems with local law enforcement agencies.
Through category 3 of this announcement ORR seeks to fund programs that address the particular challenges faced by refugee elderly and youth so that they can meet the challenges in their resettlement experiences.
ORR intends to award funds, under one cooperative agreement, to a public or private non-profit agency with extensive knowledge of and comprehensive experience in working with refugees through (1) reception and placement services and (2) ongoing resettlement activities. Through this cooperative agreement, the grantee will meet the needs of a wide variety of ethnicities among recently arrived refugee populations. To reach these populations and to ensure that the services provided are culturally and linguistically appropriate, the applicant should have local offices or affiliated organizations with an ongoing relationship to, and the trust and respect of each group of refugees. The family enrichment activities proposed in this announcement may be outside the experience of many refugees and may be difficult to implement without a well-established relationship between the refugees and the applicant.
Applicants should describe their efforts to create collaborations, with both national and local marriage education providers who have knowledge or expertise in family strengthening activities. Information about organizations providing marriage enrichment activities can be found on the ORR web site at:
ORR expects that approximately 90 percent of the funding will be expended at the local level, and that the applicant should budget for no more than one full-time staff person at the national level. Through this cooperative agreement, ORR intends to review and approve: (1) A plan for sub-grants, including plans for geographical distribution and technical assistance; (2) a plan for implementation, which should include the building of coalitions and client outreach; (3) all written materials developed and proposed for dissemination; (4) timelines and major program outcomes; and (5) a reporting format that outlines the difficulties refugee couples face, a description of the proposed intervention and the impact of the intervention on the refugee family.
• Award 10-20 sub-grants to local organizations to conduct marriage enrichment activities with refugees.
• Develop culturally and linguistically appropriate marriage enrichment and family strengthening materials to be used in training local refugee communities.
• Assist sub-grantees, in coalition with marriage enrichment organizations, to provide culturally and linguistically appropriate communication and conflict resolution skills training to refugee couples to help them improve their relationships and enrich their marriages.
• Assist sub-grantees to train refugee couples to act as mentors in their ethnic community. Newly married refugee couples should be considered a priority group for mentoring.
• Conduct local workshops on marriage and relationship skills for refugees that may include coping with the customs of a new community,
• Conduct customized pre-marital education and marriage enrichment programs for refugee youth and young adults.
• Develop refugee resource centers to help enhance the relationships in refugee families.
• Teach effective child-rearing techniques, including positive and culturally-acceptable child disciplinary practices and parenting skills for refugees.
• Provide information about U.S. cultural and legal issues as they affect gender, parenting roles and intergenerational family relationships.
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ORR is interested in funding, under cooperative agreements, two to four public or private non-profit agencies with extensive knowledge of, and comprehensive experience in, working with refugee community-based organizations. Through this category, ORR plans to meet the needs of more targeted populations of refugees who may have been in the country for a longer period of time. To reach this population and to ensure that the services provided are culturally and linguistically appropriate, the applicant should have an ongoing relationship with and the trust and respect of refugees within the community. Unlike Category 1, Category 2 applicants need not be conducting ongoing reception and placement activities. The successful applicants for Category 2 will provide funds and training to five to ten agencies including faith-based and community organizations, which may include (1) local affiliates of the applicant or affiliates of other non-applicant refugee national organizations with whom the applicant has formed a collaboration; (2) independent refugee organizations, or (3) entities that have demonstrated an ability to work closely with refugees. The successful applicants will provide financial and program support to enable families within the refugee community to receive marriage enrichment training. The marriage enrichment activities proposed in this announcement may be outside the experience of many refugees and may be difficult to implement without a well-established relationship between the refugees and the grantee. Applicants should also demonstrate a relationship to marriage enrichment resources.
ORR is interested in projects which can address refugee needs for cultural and linguistic access to family enrichment services and this is often best achieved through partnerships with grass-roots organizations, including refugee community-based organizations or faith-based organizations. The successful applicants will, through grassroots organizations, provide culturally sensitive marriage enrichment to refugee couples.
Applicants should describe their efforts to create collaborations with marriage education providers and knowledge or expertise in marriage strengthening activities. Information about organizations providing marriage enrichment activities can be found on the ORR web site at:
ORR expects that approximately 90 percent of the funding will be expended at the local level, and that the applicant should budget for no more than one full-time staff person at the national level. Through this cooperative agreement, ORR intends to review and approve: (1) A plan for sub-grants, including plans for geographical distribution and technical assistance; (2) a plan for implementation, which should include the building of coalitions and client outreach; (3) all written materials developed and proposed for dissemination; (4) timelines and major program outcomes; and (5) a reporting format that outlines the difficulties refugee couples face, a description of the proposed intervention and the impact of the intervention on the refugee family.
• Award 5—10 sub-grants to local organizations to conduct marriage enrichment activities for refugees.
• Develop culturally and linguistically appropriate marriage enrichment and family strengthening materials to be used in training local refugee communities.
• Assist sub-grantees, in coalition with marriage enrichment organizations, to provide culturally and linguistically appropriate communication and conflict resolution skills training to refugee couples in specific refugee ethnic communities to help them improve their relationships and enrich their marriages.
• Assist sub-grantees to train refugee couples to act as mentors in their ethnic community. Newly married refugee couples should be considered a priority.
• Conduct local workshops on marriage and relationship skills that may include coping with the customs of a new community, conflict resolution, financial management, and job and career advancement for refugees.
• Conduct customized premarital education and marriage enrichment programs for refugee youth and young adults.
• Develop refugee resource centers to help enhance the relationships in refugee families.
• Teach effective child-rearing techniques, including positive and culturally-acceptable child disciplinary practices and parenting skills for refugees.
• Provide information about U.S. cultural and legal issues as they affect gender, parenting roles, and intergenerational family relationships for refugees.
The successful application will demonstrate extensive knowledge of, and comprehensive experience working with, refugee communities in providing services or access to services to refugees. The successful application also will demonstrate knowledge of marriage enrichment organizations, both national and in the local communities of sub-grantees.
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Category 3 Purpose and Objectives: ORR is interested in funding 20 or more public or private agencies, including faith-based or community organizations to aid the elderly in accessing appropriate services and to work with youth to promote healthy development. Programs should focus on unmet needs and not duplicate or supplant programs available under any other Federal source of funding.
The successful applicant must demonstrate extensive knowledge of and comprehensive experience in working with refugee communities in providing specialized services to the youth and elderly and promoting access to mainstream services for refugees.
The specific services proposed may be as diverse as the refugee populations and the resettlement communities themselves. Proposed activities and services should be planned in conjunction with mainstream service providers and should provide linkages to these services. ORR is particularly interested in projects that are planned and implemented through coalitions with community-based organizations and local service providers. Such projects would address refugee needs for cultural and linguistic access to services, and would work with their refugee community members to help the elderly to access appropriate services, or with youth, to promote healthy development and adjustment.
An application may include activities for youth, the elderly, or a combination thereof. ORR seeks to support local communities in finding innovative approaches that fit the unique needs of families in different communities. Projects may be designed to adapt contemporary American approaches to traditional practices and cultural settings. Applicants may propose activities that include, but are not limited to, the following:
• Develop or implement programs or provide linkages to existing local programs that enable older refugees to live independently as long as possible.
• Provide services that meet the needs of older refugees, such as
• Conduct outreach to locate and inform elderly refugees of the existence of services in their community.
• Provide transportation services.
• Conduct case management.
• Provide services and/or information and referral to appropriate services that offer in-home care, adult day care, institutionalized care, and State Nursing Home Ombudsmen.
• Offer programs or provide linkages to existing programs that prevent or discourage the abuse of elderly refugees.
• Offer English tutoring or home-based English language training for homebound refugees.
• Provide employment support services, especially with agencies involved with the Older American Act, Title V Senior Employment Programs.
• Provide linkages to caregiver programs.
• Help elderly become naturalized.
• Conduct workshops for parents and youth on dating and gender cultural norms in the U.S.
• Help students negotiate the school system, familiarizing them with the school rules and fostering better communication between youth, administrators, counselors, mentors and tutors.
• Support or foster parental outreach programs that involve refugee parents in their children's education to help them understand school life.
• Provide youth employment support services.
• Provide after-school tutorials focused on helping students understand and complete assignments.
• Conduct programs that encourage high school completion and full participation in school activities.
• Conduct after-school activities that foster engagement in constructive activities.
• Conduct cognitive enrichment programs to bridge the gap between refugee students' intellectual abilities and the elements of school and curriculum that are culture-based.
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* All States and Territories except Alabama, Alaska, Arizona, Colorado, Connecticut, Hawaii, Idaho, Indiana, Kansas, Louisiana, Massachusetts, Minnesota, Montana, Nebraska, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia, Washington, Wyoming, and Palau have elected not to participate in the Executive Order process. Applicants from these twenty-seven jurisdictions need take no action regarding E.O. 12372. Applicants for projects to be administered by federally-recognized Indian Tribes are also exempt from the requirements of E.O. 12372. Applicants should contact their Single-Points-of-Contact (SPOC) as soon as possible to alert them of the prospective applications and receive any necessary instructions. Applicants from participating jurisdictions must submit any required material to the SPOCs as soon as possible so that the program office can obtain and review SPOC comments as part of the award process. The applicant must submit all required materials, if any, to the SPOC and indicate the date of this submittal (the date of contact) on the Standard Form 424, item 16a.
Under 45 CFR 100.8(a)(2), a SPOC has 30 days from the application deadline to comment on proposed new or competing continuation awards. SPOCs are encouraged to eliminate the submission of routine endorsements as official recommendations. Additionally, SPOCs are requested to clearly differentiate between mere advisory comments and those official State process recommendations that may trigger the “accommodate or explain” rule.
When comments are submitted directly to ACF, they should be addressed to: Grants Management Officer, U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee Resettlement, 370 L'Enfant Promenade SW., 4th floor, Washington DC, 20447.
A list of the Single Points of Contact for each participating State and Territory can be found on the web at:
In order to be considered for a grant under this program announcement, an application must be submitted on the forms supplied and in the manner prescribed by ACF. Selected elements of the ACF Uniform Project Description (UPD) relevant to this program announcement are attached as appendix A.
Applicants must ensure that a legibly dated U.S. Postal Service postmark or a legibly dated, machine produced postmark of a commercial mail service is affixed to the envelope/package containing the application(s). To be acceptable as proof of timely mailing, a postmark from a commercial mail service must include the logo/emblem of the commercial mail service company and must reflect the date the package was received by the commercial mail service company from the applicant. Private Metered postmarks shall not be acceptable as proof of timely mailing. (Applicants are cautioned that express/overnight mail services do not always deliver as agreed.)
Applications hand carried by applicants, applicant couriers, or by other representatives of the applicant shall be considered as meeting an announced deadline if they are received on or before the deadline date, between the hours of 8 a.m. and 4:30 p.m., EST, at the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Grants Management, Division of Discretionary Grants, 370 L'Enfant Promenade SW., 4th Floor, Washington, DC 20447 between Monday and Friday (excluding Federal holidays). The address must appear on the envelope/package containing the application with the note “Attention: Daphne Weeden.” (Applicants are cautioned that express/overnight mail services do not always deliver as agreed.)
ACF cannot accommodate transmission of applications by fax or through other electronic media. Therefore, applications transmitted to ACF electronically will not be accepted regardless of date or time of submission and time of receipt.
Applicants must disclose lobbying activities on the Standard Form LLL when applying for an award in excess of $100,000. Applicants who have used non-Federal funds for lobbying activities in connection with receiving assistance under this announcement shall complete a disclosure form to report lobbying. Applicants must sign and return the disclosure form, if applicable, with their applications.
Applicants must make the appropriate certification of their compliance with the Drug Free Workplace Act of 1988. By signing and submitting the application, the applicant is providing the certification and need not mail back the certification with the applications. Applicants must make the appropriate certification that they are not presently debarred, suspended or otherwise ineligible for an award. By signing and submitting the application, the applicant is providing the certification need not mail back the certification with the applications.
Applicants must make the appropriate certification of their compliance with the Drug Free Workplace Act of 1988. By signing and submitting the application, the applicant is providing the certification and need not mail back the certification with the applications. Applicants must make the appropriate certification that they are not presently debarred, suspended or otherwise ineligible for an award. By signing and submitting the application, the applicant is providing the certification need not mail back the certification with the applications.
Please do not include books or videotapes as they are not easily reproduced and are, therefore, inaccessible to the reviewers.
All required reports must be submitted in a timely manner. Program progress reports must be submitted quarterly. A grantee is allowed 30 days to submit the report following the end of the period. Recommended formats for the reports will be provided. The final report is due 90 days after the end of the project. Grantees are required to file the Financial Status Report (SF-269) semi-annually.
Funds awarded must be accounted for, and reported under the distinct grant number ascribed. Although ORR does not expect the proposed projects to include evaluation activities, it does expect grantees to maintain adequate records to track and report on project outcomes and expenditures. The official receipt point for all reports and correspondence is the Grants Management Officer, Administration for Children and Families/Office of Grants Management, Division of Discretionary Grants, 370 L'Enfant Promenade SW., 4th Floor West, Washington, DC 20447, Telephone: (202) 401-4577. An original and one copy of each report must be submitted within 30 days of the end of each reporting period directly to the Office of Grants Management.
A Final Financial and Program Report will be due 90 days after the project expiration date or termination of Federal budget support.
The project description is approved under OMB control number 0970-0139 which expires 12/31/03.
The project description provides a major means by which an application is evaluated and ranked to compete with other applications for available assistance. The project description should be concise and complete and should address the activity for which Federal funds are being requested. Supporting documents should be included where they can present information clearly and succinctly. In preparing your project description, all information requested through each specific evaluation criteria should be provided. Awarding offices use this and other information in making their funding recommendations. It is important, therefore, that this information be included in the application.
ACF is particularly interested in specific factual information and statements of measurable goals in quantitative terms. Project descriptions are evaluated on the basis of substance, not length. Extensive exhibits are not required. Cross-referencing should be used rather than repetition. Supporting information concerning activities that will not be directly funded by the grant or information that does not directly pertain to an integral part of the grant funded activity should be placed in an appendix.
Pages should be numbered and a table of contents should be included for easy reference.
Applicants required to submit a full project description shall prepare the project description statement in accordance with the following instructions and the specified evaluation criteria. The instructions give a broad overview of what your project description should include while the evaluation criteria expands and clarifies more program-specific information that is needed.
Provide a summary of the project description (a page or less) with reference to the funding request.
Clearly identify the physical, economic, social, financial, institutional, and/or other problem(s) requiring a solution. The need for assistance must be demonstrated and the principal and subordinate objectives of the project must be clearly stated; supporting documentation, such as letters of support and testimonials from concerned interests other than the applicant, may be included. Any relevant data based on planning studies should be included or referred to in the endnotes/footnotes. Incorporate demographic data and participant/beneficiary information, as needed. In developing the project description, the applicant may volunteer or be requested to provide information on the total range of projects currently being conducted and supported (or to be initiated), some of which may be outside the scope of the program announcement.
Identify the results and benefits to be derived. For example, when applying for a grant to establish a marriage enrichment program, describe who will access program services, and how those services will benefit refugees.
Outline a plan of action that describes the scope and detail of how the proposed work will be accomplished. Account for all functions or activities identified in the application. Cite factors that might accelerate or decelerate the work and state your reason for taking the proposed approach rather than others. Describe any unusual features of the project such as design or technological innovations, reductions in cost or time, or extraordinary social and community involvement.
Provide quantitative monthly or quarterly projections of the accomplishments to be achieved for each function or activity in such terms as the number of people to be served and the number of activities to be accomplished. For example, when applying for a grant to establish a marriage enrichment program, describe the number of refugee couples expected to access marriage enrichment services for the quarter. When accomplishments cannot be quantified by activity or function, list them in chronological order to show the schedule of accomplishments and their target dates.
If any data is to be collected, maintained, and/or disseminated, clearance may be required from the U.S. Office of Management and Budget (OMB). This clearance pertains to any “collection of information that is conducted or sponsored by ACF.”
List organizations, cooperating entities, consultants, or other key individuals who will work on the project along with a short description of the nature of their effort or contribution.
Provide a biographical sketch for each key person appointed and a job description for each vacant key position. A biographical sketch will also be required for new key staff as appointed.
Provide information on the applicant organization(s) and cooperating partners such as organizational charts, financial statements, audit reports or statements from CPAs/Licensed Public Accountants, Employer Identification Numbers, names of bond carriers, contact persons and telephone numbers, child care licenses and other documentation of professional accreditation, information on compliance with Federal/State/local government standards, documentation of experience in the program area, and other pertinent information. Any
The non-profit agency can accomplish this by providing a copy of the applicant's listing in the Internal Revenue Service's (IRS) most recent list of tax-exempt organizations described in Section 501(c)(3) of the IRS code,
Include written agreements between grantees and subgrantees or subcontractors or other cooperating entities. These agreements must detail scope of work to be performed, work schedules, remuneration, and other terms and conditions that structure or define the relationship.
Provide statements from community, public and commercial leaders that support the project proposed for funding. All submissions should be included in the application
Provide line item detail and detailed calculations for each budget object class identified on the Budget Information form. Detailed calculations must include estimation methods, quantities, unit costs, and other similar quantitative detail sufficient for the calculation to be duplicated. The detailed budget must also include a breakout by the funding sources identified in Block 15 of the SF-424.
Provide a narrative budget justification that describes how the categorical costs are derived. Discuss the necessity, reasonableness, and allocability of the proposed costs.
The following guidelines are for preparing the budget and budget justification. Both Federal and non-Federal resources shall be detailed and justified in the budget and narrative justification. For purposes of preparing the budget and budget justification, “Federal resources” refers only to the ACF grant for which you are applying. Non-Federal resources are all other Federal and non-Federal resources. It is suggested that budget amounts and computations be presented in a columnar format: first column, object class categories; second column, Federal budget; next column(s), non-Federal budget(s), and last column, total budget. The budget justification should be a narrative.
Whenever the applicant intends to delegate part of the project to another agency, the applicant must provide a detailed budget and budget narrative for each delegate agency, by agency title, along with the required supporting information referred to in these instructions.
Enter the total of all other costs. Such costs, where applicable and appropriate, may include but are not limited to insurance, food, medical and dental costs (non-contractual), professional services costs, space and equipment rentals, printing and publication, computer use, training costs, such as tuition and stipends, staff development costs, and administrative costs.
[Self-explanatory]
Substance Abuse and Mental Health Services Administration, HHS.
Notice; Correction.
The Department of Health and Human Services notifies Federal agencies of the laboratories currently certified to meet standards of Subpart C of Mandatory Guidelines for Federal Workplace Drug Testing Programs (59 FR 29916, 29925). A notice listing all currently certified laboratories is published in the
Inadvertently, a currently certified laboratory was left off the list published on June 3, 2003, in FR Vol. 68, No. 106, Pages 33173-33175.
Mrs. Giselle Hersh, Division of Workplace Programs, 5600 Fishers Lane, Rockwall 2 Building, Room 815, Rockville, Maryland 20857; Tel.: (301) 443-6014, Fax: (301) 443-3031.
Mandatory Guidelines for Federal Workplace Drug Testing were developed in accordance with Executive Order 12564 and section 503 of Pub. L. 100-71. Subpart C of the Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards which laboratories must meet in order to conduct urine drug testing for Federal agencies. To become certified an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection.
To maintain that certification a laboratory must participate in a quarterly performance testing program plus periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements expressed in the HHS Guidelines. A laboratory must have its letter of certification from SAMHSA, HHS (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Guidelines, the following laboratory has met the minimum standards set forth in the Guidelines: Laboratory Corporation of America Holdings, 1120 Stateline Road West, Southaven, MS 38671 866-827-8042/800-233-6339 (Formerly: LabCorp Occupational Testing Services, Inc., MedExpress/National Laboratory Center).
Coast Guard, DHS.
Notice of meeting.
The Chemical Transportation Advisory Committee (CTAC) and its Hazardous Cargo Transportation Security Subcommittee will meet to discuss security issues relating to the marine transportation of hazardous materials in bulk. These meetings will be open to the public.
CTAC will meet on Thursday, July 17, 2003, from 8 a.m. to 4 p.m. The Subcommittee on Hazardous Cargo Transportation Security will meet on Tuesday, July 15, 2003, from 8 a.m. to 4 p.m. and Wednesday, July 16, 2003, from 8 a.m. to 4 p.m. These meetings may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before July 7, 2003. Requests to have a copy of your material distributed to each member of the Committee should reach the Coast Guard on or before July 7, 2003.
CTAC will meet at the Romano Mazzoli Federal Building, 600 Martin Luther King, Jr. Place, Louisville, KY, in room 27. The Subcommittee on Hazardous Cargo Transportation Security will meet at American Commercial Barge Line (ACBL) Company, 1701 E. Market St., Jeffersonville, IN, on the fifth floor. Send written material and requests to make oral presentations to Commander James M. Michalowski, Executive Director of CTAC, Commandant (G-MSO-3), U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001. This notice is available on the Internet at
Commander James M. Michalowski, Executive Director of CTAC, or Ms. Sara Ju, Assistant to the Executive Director, telephone 202-267-1217, fax 202-267-4570.
Notice of these meetings is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2.
(1) Introduce Subcommittee members and attendees.
(2) Discuss inland vessel tracking system.
(3) Discuss communications/publications.
(4) Discuss crew concerns.
(5) Discuss Declaration of Security (DOS) forms.
(6) Discuss outreach initiatives concerning U.S. Coast Guard security regulations.
(7) Review and prepare comments for six interim rules that promulgate maritime security requirements mandated by the Maritime Transportation Security Act of 2002.
(1) Introduce Committee members and attendees.
(2) Review and prepare comments for six interim rules that promulgate maritime security requirements mandated by the Maritime Transportation Security Act of 2002.
These meetings are open to the public. Please note that the meetings may close early if all business is finished. At the discretion of the Chair, members of the public may make oral presentations during the meetings. If you would like to make an oral presentation at a meeting, please notify the Executive Director and submit written material on or before July 7, 2003. If you would like a copy of your
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, telephone the Executive Director as soon as possible.
Customs and Border Protection, Department of Homeland Security.
Notice of accreditation of BSI Inspectorate America Corporation of Garden City, Georgia, as a commercial laboratory.
BSI Inspectorate America Corporation of Garden City, Georgia has applied to Customs and Border Protection under § 151.12 of the Customs Regulations for an extension of accreditation as a commercial laboratory to analyze petroleum products under Chapter 27 and Chapter 29 of the Harmonized Tariff Schedule of the United States (HTSUS). Customs has determined that this company meets all of the requirements for accreditation as a commercial laboratory. Specifically, BSI Inspectorate America Corporation has been granted accreditation to perform the following test methods at their Garden City, Georgia site: (1) Distillation of Petroleum Products, ASTM D86; (2) Water in Petroleum Products and Bituminous Materials by Distillation, ASTM D95; (3) API Gravity by Hydrometer, ASTM D287; (4) Kinematic Viscosity of Transparent and Opaque Liquids, ASTM D445; (5) Sediment in Crude Oils and Fuel Oils by Extraction, ASTM D473; (6) Density, Relative Density (Specific Gravity), or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method, ASTM D1298; (7) Water and Sediment in Fuel Oils by the Centrifuge Method, ASTM D1796; (8) Water and Sediment in Middle Distillate Fuels by Centrifuge, ASTM D2709; (9) Water in Crude Oil by Distillation, ASTM D4006; (10) Percent by Weight of Sulfur by Energy-Dispersive X-Ray Fluorescence, ASTM D4294; (11) Water in Crude Oils by Coulometric Karl Fischer Titration, ASTM D4928; and (12) Vapor Pressure of Petroleum Products, ASTM D5191. Therefore, in accordance with Part 151.12 of the Customs Regulations, BSI Inspectorate America Corporation of Garden City, Georgia is hereby accredited to analyze the products named above.
BSI Inspectorate America Corporation accredited site is located at: Miles Street, Georgia Port Authority Gate #2, Garden City, Georgia, 31408.
Arlene Faustermann, Science Officer, Laboratories and Scientific Services, Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Suite 1500 North, Washington, DC 20229, (202) 927-1060.
Federal Emergency Management Agency (FEMA), Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
The Federal Radiological Preparedness Coordinating Committee (FRPCC) advises the public that the FRPCC will meet on July 30, 2003 in Washington, DC.
The meeting will be held on July 30, 2003, at 9 a.m.
The meeting will be held at Holiday Inn Capitol, Columbia Ballroom, 550 C Street, SW., Washington, DC 20024.
Pat Tenorio, FEMA, 500 C Street, SW., Washington, DC 20472, telephone (202) 646-2870; fax (202) 646-4321; or e-mail
The role and functions of the FRPCC are described in 44 CFR 351.10(a) and 351.11(a). The Agenda for the upcoming FRPCC meeting is expected to include: (1) Introductions, (2) Federal agencies' updates, (3) reports from FRPCC subcommittees, (4) old and new business, and (5) business from the floor.
The meeting is open to the public, subject to the availability of space. Reasonable provision will be made, if time permits, for oral statements from the public of not more than five minutes in length. Any member of the public who wishes to make an oral statement at the July 30, 2003, FRPCC meeting should request time, in writing, from W. Craig Conklin, FRPCC Chair, FEMA, 500 C Street, SW., Washington, DC 20472. The request should be received at least five business days before the meeting. Any member of the public who wishes to file a written statement with the FRPCC should mail the statement to: Federal Radiological Preparedness Coordinating Committee, c/o Pat Tenorio, FEMA, 500 C Street, SW., Washington, DC 20472.
Office of Policy Development and Research, 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
Marie Lihn, Economic and Market Analysis Division, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street, SW., Room 8222, Washington, DC 20410; telephone (202) 708-0590, extension 5866; e-mail
The Department of Housing and Urban Development will submit the proposed information collection package 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 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; (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,
Random digit dialing (RDD) telephone surveys have been used for several years to adjust FMRs. These surveys are based on a sampling procedure that uses computers to select statistically random samples of telephone numbers to locate certain types of rental housing units for surveying. HUD contracts with a private company to conduct two types of RDD surveys: (1) Approximately 50 individual FMR areas are surveyed every year to test the accuracy of their FMRs; (2) In addition, 20 RDD surveys are conducted very year to provide updating factors for FMRs not surveyed individually and for Annual Adjustment Factors (AAFs). These surveys are conducted in the non-metropolitan portions of all 10 HUD regions, and in the 10 metropolitan portions of the regions that do not have their own Consumer Price Index (CPI) surveys.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended; and section 8(C)(1) of the United States Housing Act of 1937.
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding for a petition to list a distinct population segment (DPS) of the western gray squirrel (
The finding announced in this document was made on May 30, 2003. Although further listing action will not result from this finding, we request that you submit new information concerning the status of or threats to this subspecies whenever it becomes available.
You may send data, information, or questions concerning this finding to the Manager, U.S. Fish and Wildlife Service, Western Washington Fish and Wildlife Office, 510 Desmond Drive SE, Suite 102, Lacey, WA 98503. In order to inspect the petition, the administrative finding, supporting information, and comments received, you may make an appointment during normal business hours at the above address.
Ken Berg, Manager, Western Washington Fish and Wildlife Office (
Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
On January 4, 2001, we received a petition dated December 29, 2000, from the Northwest Ecosystem Alliance, Bellingham, Washington, and the Tacoma Audubon Society, University Place, Washington. The petition requested an emergency rule to list the Washington population(s) of the western gray squirrel (Sciurus griseus griseus) as threatened or endangered under the Act or, alternatively, the immediate emergency listing of just the southern Puget Sound population of western gray squirrels, followed by a later consideration of the “full Washington State distinct population segment under the standard processing requirements.” On October 29, 2002, we announced an initial petition finding in the
The western gray squirrel belongs to the mammalian order Rodentia, the suborder Sciurognathi, and the family Sciuridae. There are three subspecies of western gray squirrel:
The western gray squirrel is the largest native tree squirrel in the Pacific Northwest and is the only member of the genus
Western gray squirrels are silvery-gray with dark flanks and creamy white underneath. The tail is long, bushy, and edged with white; darker hairs in the tail give it a pepper-gray frost effect. Large ears without tufts also distinguish the western gray squirrel from other tree squirrels. There is a light reddish-brown wash on the backs of the ears, but otherwise the western gray squirrel is entirely gray. To some extent it resembles the eastern gray squirrel, native to the eastern United States but introduced into the range of the western gray squirrel. However, eastern gray squirrels, which are smaller in size, also have smaller tails and rufous (reddish) coloration on the head, back, flanks, and underparts (WDW 1993; Carraway and Verts 1994; Ryan and Carey 1995a).
Body measurements of western gray squirrels can be variable. Adult weights can range from 18 to 33 ounces (520 to 942 grams). Total lengths (inclusive of body and tail) may range from 20 to 24 inches (in) (500 to 615 millimeters (mm)), with tail lengths ranging on average from 9 to 15 in (240 to 381 mm) and body lengths ranging from 10 to 15 in (265 to 391 mm) (Hall 1981; Carraway and Verts 1994). Based on the results of four studies, body measurements of western gray squirrels in Klickitat County, Washington, were found to be significantly larger than elsewhere in the subspecies' range (Mary Linders, Washington Department of Fish and Wildlife (WDFW), pers. comm. 2003d).
Western gray squirrels are arboreal (adapted for living in trees) and, although they forage on the ground, they rarely stray far from trees. They use tree canopies for escape, cover, and nesting. Western gray squirrels can move rapidly and cover long distances among tree canopies when canopy conditions permit. A contiguous tree canopy that allows arboreal travel for at least 198 feet (ft) (60 meters (m)) around the nest is an important feature of western gray squirrel habitat (Ryan and Carey 1995a).
Western gray squirrels avoid open spaces; in the Puget Trough, western gray squirrels will not cross the prairie to use an isolated tree (Ryan and Carey 1995a). Western gray squirrels, when released from traps and pointed toward openings, did not cross the prairie or open areas any larger than about 40 ft (12 m). Movements across relatively open areas to small groups of trees or small habitat patches can be facilitated by scattered saplings and small trees in fence lines or in the open areas. For example, one radio telemetered squirrel was observed in a group of three isolated trees separated from the main stand by scattered individual trees. The distance of movement, which is rapidly completed, across a relatively open area with scattered trees may be about 150 ft (50 m) (M. Linders, pers. comm. 2003a).
Ryan and Carey (1995b) found that western gray squirrels on Fort Lewis Military Reservation (Fort Lewis) in Washington were rarely seen in small (less than 5 ac (2 ha)), isolated pure oak stands or in pure Douglas-fir (
In Washington, and elsewhere within the subspecies' range, the principal food is acorns, although the seeds of Douglas-fir and other conifers are also eaten (Dalquest 1948). While pine nuts and acorns are considered essential foods for storing body fat and conditioning western gray squirrels for winter, green vegetation, seeds and nuts of trees and shrubs, fleshy fruits, mushrooms, and other foods are also consumed. Hypogeous fungi (underground fungi such as truffles) comprise a large portion of the western gray squirrel diet (WDW 1993; Carraway and Verts 1994; Ryan and Carey 1995a).
The western gray squirrel is in the northern portion of its range in Washington, where the diversity of mast-producing tree species is less than in Oregon or California. “Mast” includes fruits and nuts used as a food source by wildlife. A decreased diversity of food resources increases the likelihood that concurrent mast failures could seriously affect the survivability of a mast dependent species such as the western gray squirrel population (Ryan and Carey 1995a, b; Linders 2000).
Western gray squirrels require a year-round source of water. On Fort Lewis, western gray squirrels select forested stands within 1,800 ft (550 m) of permanent water (Ryan and Carey 1995b). The majority of nests at one site in Okanogan County, Washington were within 0.6 mile (mi) (1 kilometer (km)) of water, with a maximum distance of 1 mi (1.6 km) (M. Linders, pers. comm. 2003d). Western gray squirrels drink freely from permanent and intermittent water sources, including lakes, marshes, rivers, streams, and puddles (Ryan and Carey 1995a).
Western gray squirrels are active throughout the day, but are most active in the morning. They were observed from dawn to dusk and year round on Fort Lewis; no nocturnal activity has been observed. Western gray squirrels are most active in August and September, when they are collecting and storing food for winter, and they are less visible in June and July (Ryan and Carey 1995a).
Home range sizes can differ with age, sex, location, population density, and from year to year. Home range size increases with social rank and the number of nests used by an individual. Typically, home range sizes for western gray squirrels vary across the subspecies' range from 1.2 ac (0.5 ha) recorded for males in a city park in California, to 16 ac (6.5 ha) in northern Oregon. Recorded home ranges of females vary from 0.3 ac (0.1 ha) in California to 42 ac (17 ha) in Oregon in the summer (Ryan and Carey 1995a). However, a study on the Klickitat Wildlife Area in Klickitat County, Washington, documented average home range sizes of 180 ac (73 ha) for males and 52 ac (21 ha) for females (Linders 2000). These home range estimates from Klickitat County were significantly larger than in other parts of the subspecies' distribution. However, methods used to determine home range sizes may be a source of variability (Ryan and Carey 1995a).
Western gray squirrels use two types of stick nests: large, round, covered shelter nests are used in winter, and broad platforms are for seasonal or temporary use (Ryan and Carey 1995a). Cavity nests are also used for rearing young and for sleeping at other times (Carraway and Verts 1994). Western gray squirrels frequently use more than one nest, with different individuals often occupying the same nest on successive nights; two squirrels rarely occupy the same nest simultaneously (Linders 2000). Construction and use of multiple nests by individual squirrels, overlap in use, and the fact that nests may remain intact for 3 to 5 years makes it difficult to associate the number of nests with an estimate of the population size. As an example, in Klickitat County, most pregnant and lactating females used cavity nests in oaks and averaged 14.3 nests each, significantly more than the 3.5 nests per squirrel reported for southern Oregon.
Males reach sexual maturity at 1 year and females at 10 to11 months of age. In western Washington, breeding occurs from January to September, and lactating females have been observed from May to August (Ryan and Carey 1995a; M. Linders, pers. comm. 2003d). Most researchers believe western gray squirrels have only one litter each year, although there is some indirect evidence to indicate two litters may be biologically possible, but uncommon (Ryan and Carey 1995a). Litter counts ranged from one to five, averaging about 2.6 young/litter over a 3-year period (M. Linders, pers. comm. 2003d).
Historically, the western gray squirrel's distribution was widespread throughout Washington, Oregon, California, and in western Nevada along the base of the Carson Range and in Washoe County (Dalquest 1948). Currently, the subspecies is rare in Nevada and absent from the Central Valley in California. Western gray squirrels still occur in the interior valley margin of the Cascade Mountains in Oregon and Washington; the foothills of the Coast Range in Oregon; the Sierra Nevada, Tehachapi, Little San Bernardino, Santa Rosa, and Laguna Mountains in central and southern California; and westward through the Coast Ranges of California (Carraway and Verts 1994). In California, the western gray squirrel is fairly common in the Klamath Mountains of northern California, and the Transverse and Peninsular Ranges of southern California (California Department of Fish and Game (CDFG) 1990). In Oregon, the western gray squirrel distribution extends along the southwestern foothills of the Coast Range northward to Coos Bay, and north along the eastern side of the Coast Range and along both sides of the Cascade Mountains into Washington (Verts and Carraway 1998).
Western gray squirrels in Washington once ranged from southern Puget Sound south to the Columbia River, east along the Columbia River Gorge in the southern Cascades, and north along the eastern slopes of the Cascades to Lake Chelan. Documentation for western gray squirrels includes records for Pierce, Thurston, Grays Harbor, Lewis, Clark, Skamania, Klickitat, Yakima, Kittitas, Chelan, and Okanogan Counties in Washington. There is one record from extreme northeastern Whatcom County, probably associated with western gray squirrels in the northern Cascade Mountains (WDW 1993; WDFW 2002). Currently in Washington, the western gray squirrel distribution has been reduced to three geographically isolated western gray squirrel populations in Washington: the “Puget Trough” population, now centered in Thurston and Pierce Counties in the Puget Sound region; the “South Cascades” population in extreme eastern Skamania County and Klickitat and Yakima Counties; and the “North Cascades” population in Chelan and Okanogan counties (Bayrakçi
On October 29, 2002, we published a positive initial 90-day administrative finding on the petition to list the Washington population of the western gray squirrel in the
We received comments, information, and data concerning the status of the western gray squirrel from 27 individuals, State and local agencies, nongovernmental organizations, industries, museums, and universities. Some commenters expressed only support for or opposition to a potential listing without providing additional documentation. Information or data from more substantive comments are incorporated, where appropriate, and concerns raised in the comments are addressed throughout this petition finding. We also reviewed information from peer-reviewed journal articles, agency reports and file documents, telephone interviews, and correspondence with biologists familiar with the western gray squirrel.
The rangewide status review initiated in the 90-day petition finding (67 FR 65931) entailed obtaining and considering the best scientific and commercial information available to assist us in our DPS analysis for the western gray squirrel in Washington.
Western gray squirrels are considered uncommon in Nevada. They are only found on the Carson Range in west-central Nevada where they are yearlong residents; they are not documented to currently occur elsewhere in Nevada (Biological Resources Research Center, University of Nevada-Reno (UNR) 2003). Johnson (1954) reported collection of the subspecies in Washoe County near the California State line, and observations of individuals along the base of the Carson Range. Hall (1981) cites marginal records in Verdi and just southwest of Carson City.
The Nevada western gray squirrel population probably represents a migrant population from the Sierra Nevada in California on the fringe of the subspecies' range (UNR 2003). Although western gray squirrels occur along the west slope of the Sierra Nevada, up to 7,700 ft (2,347 m) at times, they probably crossed into Nevada from lower elevations in the northern Sierra Nevada. The subspecies has never been wide-ranging in Nevada, and its limited range in Nevada is probably related to the absence of oak trees (Johnson 1954).
The western gray squirrel is a “protected species” under the Nevada Administrative Code (NAC) (NAC 503.030). There is no open season on species classified as protected (NAC 503.090), according to criteria specified in NAC 503.103. The National Heritage Status Rank for the western gray squirrel in Nevada is S4 (Apparently Secure) (NatureServe Explorer 2002).
Current distribution and population sizes in Nevada have not been documented. Although small and possibly isolated from other populations in the subspecies' range in California, this western gray squirrel population has apparently never been large. Two public comments in response to our request for information in the 90-day finding provided data suggesting that western gray squirrels are “common in the Lake Tahoe basin, especially in the urbanized areas of the basin” (J. Shane Romsos, Tahoe Regional Planning Agency (NV), pers. comm. 2002) and are “common and well-adapted to the urban/forest interface setting in South Lake Tahoe, California” (Peter Maholland, California Tahoe Conservancy, pers. comm. 2002). Western gray squirrels are apparently adapted to habitat and food sources available in these urbanized areas.
The western gray squirrel is fairly common in California where it occupies mature stands of most conifer, hardwood, and mixed hardwood-conifer habitats in the Klamath, Sierra Nevada, Tehachapi, Little San Bernardino, Santa Rosa, Laguna Mountains, and Transverse and Peninsular Ranges. Western gray squirrels are also found in riparian stands and other suitable habitats in the Sacramento Valley (CDFG 1990).
The western gray squirrel is a regulated game species in California. CDFG bases hunting regulations on estimates of approximately 12 million ha (30 million ac) of western gray squirrel habitat, not including orchards, that are occupied by approximately 18 million squirrels just before the breeding season. Their estimates include an average net increase of about 1.2 million squirrels annually, after assuming a 50 percent juvenile mortality, a 50 percent adult mortality, and a hunting harvest rate of less than 1 percent each year. Their conclusions, based on these estimates, are that hunting mortality does not have adverse effects on the western gray squirrel populations, and that environmental and density-dependent mechanisms help keep the populations in check with their habitats (CDFG 2002). Also, CDFG data indicate the number of tree squirrel hunters has declined from a high of about 68,000 in the late 1960s to about 12,000 hunters in 2000. The number of tree squirrels harvested has declined from a peak of about 350,000 in the late 1970s to about 75,000 tree squirrels harvested in 2000 (CDFG 2002).
The National Heritage Status Rank for the western gray squirrel in California is S4 (Apparently Secure) and S5 (Secure) (NatureServe Explorer 2002). None of the subspecies of the western gray squirrel is included on the CDFG “special animal” list. This list is a general term referring to all of the taxa the California Natural Diversity Data Base is interested in tracking, regardless of their legal and protection status (CDFG 1999).
Several conservation programs, policies, and regulations help maintain western gray squirrel habitat in California. The Integrated Hardwood Range Management Program, established in 1986, aims to maintain, and increase where possible, acreage of California's hardwood range resources. In 2001, the Oak Woodlands Conservation Act created the Oak Woodlands Conservation Fund for conservation actions to preserve oak woodlands and guidelines for the program are under development. The California Forest Practice Rules provide regulations for maintaining hardwood and riparian components during timber harvest planning. California Partners in Flight prepared an oak woodland bird conservation plan to conserve and restore oak woodlands, which will help maintain western gray squirrel habitats and populations. The 1985 hardwood conservation policy and 1989 hardwood guidelines developed by the California Fish and Game Commission are used as references to ensure hardwood conservation measures are considered in all project proposals reviewed under the California Environmental Quality Act (Patrick Lauridson, CDFG,
There are no historical or current population data for the western gray squirrel in Oregon, but based on Bailey (1936) and anecdotal information (Marshall
Oregon maintains a list of State threatened and endangered species under the authority of ORS 496.172, the Oregon Endangered Species Act of 1987 (OESA) (Oregon Administrative Rule (OAR) 635-100-100 to 635-100-130), which helps in carrying out the State's policy of preventing the serious depletion of any indigenous species. Oregon's Sensitive Species Rule (OAR 635-100-040) requires the Oregon Department of Fish and Wildlife (ODFW) to develop and maintain a State list of sensitive vertebrate species that are likely to become threatened or endangered throughout all or any significant portion of their range in Oregon. This list was created for the purpose of encouraging actions that will prevent further declines in species' populations and habitats and avoid the need for listing under the OESA. The western gray squirrel is classified by ODFW as a sensitive species of “undetermined status” in Oregon, which indicates the subspecies may be susceptible to population decline of sufficient magnitude that it could qualify for State classification as endangered, threatened, critical, or vulnerable status, but additional research is needed (ODFW 1997; Oregon Natural Heritage Program 2001). The basis for the western gray squirrel's sensitive species classification in Oregon includes population declines caused by timber harvesting and competition with other tree squirrel species (Marshal
The western gray squirrel was once considered one of the most commonly encountered mammals in the Pacific Northwest (Bowles 1921). The western gray squirrel was more widely distributed in prehistoric times, probably ranging throughout western Washington and the Cascade Mountains in association with oak communities, but has diminished in recent times along with the decrease in distribution of oak woodlands (Rodrick 1987; WDW 1993). One hypothesis suggests that the western gray squirrel migrated northward into Washington with the spread of Oregon (Garry) white oak (
In Washington, western gray squirrels once ranged from southern Puget Sound south to the Columbia River, east along the Columbia River Gorge in the southern Cascade Mountains, and north along the east side of the Cascade Mountains to Lake Chelan (Booth 1947; Larrison 1970). During the last century, the western gray squirrel distribution in Washington has been reduced to three geographically isolated western gray squirrel populations in Washington: The “Puget Trough” population, now centered in Thurston and Pierce Counties in the Puget Sound region; the “South Cascades “ population in extreme eastern Skamania County and Klickitat and Yakima Counties; and the “North Cascades” population in Chelan and Okanogan counties (WDW 1993). The National Heritage Status Rank for the western gray squirrel in Washington is S2 (imperiled) (NatureServe Explorer 2002).
There have been relatively few studies of western gray squirrels in Washington. Early literature was largely observational and anecdotal (Bowles 1920, 1921; Scheffer 1923; Couch 1926; Dalquest 1948; Larrison 1970). Recent studies to determine western gray squirrel densities, biology, and ecology have not been consistent in objectives, effort, or techniques, and have not been directed at determining the status and trends of the subspecies in all areas of the State.
A regional assessment of the conservation status for potential western gray squirrel habitat in Washington determined that there are approximately 1.8 million ac (719,035 ha) of potential western gray squirrel habitat in the state (M. Linders, pers. comm. 2003d). In the Puget Trough, there are 1,797 ac (727 ha) of occupied habitat remaining (David Brittell, WDFW,
Current population estimates of the western gray squirrel in the Puget Trough area are limited. In southern Thurston County, the last western gray squirrel was seen in the late 1970s (WDFW 2002). Surveys during 1985 and 1986 detected western gray squirrels on just 4 of 26 sites (15 percent), and these were confined to the Fort Lewis area (Rodrick 1987). In Statewide surveys of 40-ac (16-ha) survey blocks from 1994 to 2000 by WDFW, western gray squirrels or nest locations were found in 9 of 100 (9 percent) survey blocks in the Puget Trough. In February 1996, no
Although the western gray squirrel was once common on the partially wooded prairies adjacent to Puget Sound, the surviving Puget Trough population is now centered on Fort Lewis in southern Pierce and northern Thurston Counties where the largest area of oak woodlands remains. From 1992 to 1993, 156 western gray squirrel observations were documented on 169 sites on Fort Lewis. These observations were estimated to represent 81 individual western gray squirrels on 44 oak-conifer sites (Ryan and Carey 1995b). During intensive surveys in 1998 to 1999, only 6 western gray squirrels in only 4 percent (5 of 133) suitable habitat stands were detected in over 4,000 hours of survey effort. The researchers concluded that the low western gray squirrel population on Fort Lewis is at a high risk of extirpation (Bayrakçi
From 1993 to 1995, The Nature Conservancy of Washington conducted surveys, analyzed nest trees, and trapped western gray squirrels on McChord Air Force Base (McChord AFB) adjacent to Fort Lewis. Fifteen observations of western gray squirrels occurred at 6 different locations on McChord AFB. Most of these observations (13) occurred in 1993, with the remaining two observations occurring in 1995; none were observed in 1994 (The Nature Conservancy of Washington and Washington Natural Heritage Program 1996). They hypothesized that western gray squirrels were dispersing from Fort Lewis to McChord AFB to use acorns and other food resources when available, but only when environmental conditions were favorable (
The western gray squirrel in the Puget Trough of western Washington persists in a transitional ecological setting, in comparison with the subspecies' populations elsewhere in its range. Western gray squirrels in the Puget Trough occupy an ecotone (transitional) habitat composed of Oregon white oak woodlands situated between upland Douglas-fir forests and prairies (Ryan and Carey 1995; Bayrakçi
This western gray squirrel population, located at the northwestern limits of the subspecies' range, occur in habitat that closely conforms to the distributional range of the Oregon white oak. The western gray squirrel ranges only as far north in the Puget Trough as the northern limit of the continuous distribution of Oregon white oak on the gravelly prairies just south of Tacoma (Dalquest 1948; Larrison 1970; Stein 1990; WDW 1993). While the Puget Trough area is essentially the northwestern limit of the continuous range of the Oregon white oak, it does occurs in discontinuous patches further north on the islands of Puget Sound and, in British Columbia, Canada, on Vancouver Island and in two disjunct stands on the mainland (Stein 1990).
Geologic and floristic evidence indicates that Oregon white oak associations have evolved through successive eras as components of relatively arid pine forest that repeatedly advanced northward from a locus in the southwestern U.S. and northwestern Mexico as climates warmed and retreated as climates cooled. The most recent northward expansion ended about 6,000 years ago (Stein 1990). Pollen spectra samples show that oak communities were common around Puget Sound during the warm, dry post-glacial period 10,000 years ago. Subsequent trends toward cooler and moister conditions have influenced the replacement of Oregon white oaks by conifers (Stein 1990; Agee 1993; WDW 1993).
Prehistorically, the “Tacoma prairies” once occupied the lowland areas of Pierce and Thurston Counties in the Puget Sound region of the Puget Trough, with a southward finger into Lewis County; prairies intermittently reappeared in Clark County down to the Columbia River (Kruckeberg 1991). This landscape feature of the Puget Trough consists of a mosaic of prairie, oak woodland, and open forest called a “gravelly outwash plain.” The gravelly outwash prairies coincide with the southern terminus of the last continental ice sheet during the Vashon glaciation, which ended 15,000 years ago (Kruckeberg 1991).
Although the Puget Trough of western Washington has a wetter climate than occurs in much of the Oregon white oak range, the Puget Sound area is near sea-level and has a warm, relatively dry climate because of the Puget Sound and the surrounding mountain ranges (Thysell and Carey 2001). The Puget Sound region is included in the
As previously discussed, western gray squirrels depend primarily on acorns and pine seeds (Sumner and Dixon 1953; Kruckeberg 1991; Carraway and Verts 1994). Because of the wetter climate and flatter topography of the Puget Trough in comparison with the rest of the western gray squirrel range, the habitat is more homogeneous, and there are fewer mast-producing trees (C. Maser, pers. comm. 2003). Consequently, in this region, the success of the western gray squirrel is probably more intimately tied to the success of Oregon white oak because it provides an essential winter food item for this squirrel.
Elsewhere in the subspecies' range, Oregon white oaks occur in communities that include a wider range of mast-producing tree species. In western Washington, the western gray squirrel depends primarily on Oregon white oak, Douglas-fir, and where available, ponderosa pine (
In California, the western gray squirrel is dependent on mature stands of conifer and oak habitats and is closely associated with oaks (CDFG 1990). Oak species in western gray squirrel habitat in California include valley oak (
Although western gray squirrels consume hypogeous fungi and seeds and nuts of various trees and shrubs, acorns and pine seed may be more critical in the diet because they are high-energy foods needed for overwintering (Ryan and Carey 1995a). In the Puget Trough, acorns are the principal diet from late summer through early spring. Mushrooms and truffles are mostly eaten in spring and fall, and Douglas-fir seed are eaten upon ripening in the late summer through fall. However, mast crops differ each year caused by the depletion of food reserves in a heavy seed year, weather in year of fruiting or previous years, diseases and parasites, and maturation differences among tree groups (Ryan and Carey 1995a). Oak mast production is sporadic and unpredictable, with good mast years occurring only once in 7 to 10 years. During an 8-year study in northern Oregon, there were 4 years with poor Oregon white oak acorn crops. In 1991, there was no acorn crop in the Columbia River Gorge and an insignificant crop in 1992. When ponderosa pine is not available, western gray squirrels also rely on Douglas-fir seed (WDW 1993). However, environmental factors make the Douglas-fir seed crop erratic, and abundant crops are produced sporadically, from 2 to 11 years apart. One crop failure and two or more light to medium crops usually occur between heavy crops (U.S. Forest Service 1974).
Based on intensive and widespread surveys in Washington from 1994 to 2000, 89 percent (1,642 of 1,847) of all western gray squirrel nests and observations occurred in Klickitat County (D. Brittell,
Statewide surveys from 1994 to 2002 established that most observations of western gray squirrels and their nests occurred in Klickitat County (M. Linders, pers. comm. 2003c). Surveys in 2000 and 2001 on the Klickitat Wildlife Area documented density estimates of 0.08-0.13 western gray squirrels/ha and a more recent estimate for western gray squirrels in this area was slightly higher (0.1-0.2 squirrels/ha) (M. Linders, pers. comm. 2003b). Density estimates for western gray squirrels in California ranged from 1.37/ha in the spring in Lake County to 2.47/ha in the Yosemite Valley (Grinnell and Storer 1924). There are no density estimates for western gray squirrels in Oregon or Nevada.
Booth (1947) described the western gray squirrel as uncommon in the southern Cascade Mountains. In Yakima County, western gray squirrels were abundant in the Ahtanum and Cowiche Creek drainages, and less common along Oak Creek prior to the 1950s. A mange epidemic in the 1940s and 1950s decimated western gray squirrel populations (Stream 1993). Western gray squirrels may have been extirpated from the Oak Creek Management Area following a severe mange epidemic in the 1940s and 1950s; a reintroduction attempt in the area, using western gray squirrels from Oregon, was not successful (WDW 1993).
Little is known about western gray squirrels on the Yakama Indian Nation Reservation. Between 1995 and 1998, the Yakama Indian Nation conducted limited surveys across the reservation. Small nest clusters, scattered individual western gray squirrels, and negative surveys were reported (D. Brittell,
In 2000, surveys of all areas previously known to have western gray squirrel nests detected only 3 remnants out of the 89 nests recorded in a 1996 survey (M. Linders, pers. comm. 2003d). Eighteen previously unreported nests were documented and four western gray squirrels were observed. Relocating individual nests, however, can be difficult without detailed mapping and marking (Vander Haegen
The North cascades population occurs in an ecological setting that differs from the Puget Trough area. The native range of oaks extended only into southeastern Yakima County with a patchy distribution in central Yakima County, central Kittitas County, and northeastern Pierce County (Stein 1990). The range expansion northward from Yakima County required adaptations to habitats lacking oaks, the main source of winter foods for this subspecies in most of its range.
Couch (1928) describes the range of the “silver gray squirrel” as being known from Goldendale (Klickitat County) to Lake Chelan (Chelan County). Taylor and Shaw (1929) describe the range of the western gray squirrel as ranging along the eastern edge of the Cascades north to Lake Chelan. There are verified (reported by reliable biologists or other knowledgeable individuals) western gray squirrel sightings recorded for Chelan County from 1938 in the WDFW Natural Heritage Database (WDFW 2002). Booth (1947) notes records from Lake Chelan. Larrison (1970) describes the range as including the lower east slopes of the Cascades to Lake Chelan. He also notes that, while western gray squirrels are most numerous in the oak woods, they are spotty and scarce elsewhere in their range.
The western gray squirrel range extension into Okanogan County may have occurred in response to groves of English walnut (
Western gray squirrels were present at Lake Chelan at least as early as the 1920s, and may have been expanding northward before mast-producing trees planted in nut orchards began producing. Their secretive behavior and low population densities may have made them hard to see. Although the nut orchards probably stimulated the northward expansion and helped population sizes increase, western gray squirrels were also found in natural habitats. Western gray squirrels were regularly seen on Chelan Butte (southeast side of Lake Chelan) in the 1960s and in Purtteman Gulch (northeast end of Lake Chelan), but were no longer found there after fires burned the habitat. In the late 1960s, a western gray squirrel nest was found on a pine tree branch in Ribbon Cliff Canyon (along the Columbia River north of Entiat). Western gray squirrels were using pine trees and bigleaf maples (
Under the Act, we must consider for listing any species, subspecies, or any distinct population segments of vertebrates if sufficient information exists to indicate that such action may be warranted. We, along with the National Marine Fisheries Service (National Oceanic and Atmospheric Administration-Fisheries), developed a joint policy that addresses the recognition of DPS for potential listing actions (61 FR 4722). The policy allows for more refined application of the Act that better reflects the biological needs of a part of the taxon being considered, and avoids inclusion of entities that do not require the Act's protective measures.
Under our policy, we use two elements to assess whether a population segment under consideration for listing may be recognized as a DPS. These elements are (1) discreteness of the population segment in relation to the remainder of the species to which it belongs; and (2) the significance of the population segment to the taxon to which it belongs. If we determine that a population segment being considered for listing meets the discreteness and significance standards, 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 the population segment as either threatened or endangered is warranted.
Under current conditions, the Washington population of the western gray squirrel consists of three isolated, disjunct populations. The three populations resulted from western gray squirrels moving northward, from the region that is now the State of Oregon and later became separated from more southern populations by the Columbia River. The distribution of the western gray squirrel in Washington once extended from south Puget Sound, east along the Columbia River, and northward to Lake Chelan and subsequently expanded northward into Okanogan County in more recent times. We view these three populations as isolated portions of a once-continuous population, with a common evolutionary history.
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.
On the basis of available information, we conclude that the Washington population segment of the western gray squirrel may be discrete in relation to the remainder of the subspecies' populations because it appears to be physically separated from other populations to the south in Oregon, California, and Nevada as a result of geographical isolation by the Columbia River. Additionally, each of the three Washington populations appear to potentially be discrete from each other and this is supported by preliminary genetic analysis (Warheit (2003)). The Columbia River has likely been a barrier
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 (1) evidence of the persistence of the discrete population segment in an ecological setting that is unique for the taxon; (2) evidence that loss of the population segment would result in a significant gap in the range of the taxon; (3) 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 (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
The North Cascades population found east of the Cascade Mountains also persists in an ecological setting which differs from the Puget Trough and the South Cascades. In this population, western gray squirrels expanded their distribution into areas beyond the native range of Oregon white oak. The presence of western gray squirrels in Chelan County early in the twentieth century (Couch 1928; Booth 1947; Larrison 1970; Stream 1993; WDFW 2002) indicates adaptations to using other food resources. The continuous distribution of Oregon white oak extended into Yakima County, with only a spotty distribution into Kittitas County (Stein 1990). The range expansion northward from Yakima County required occupying habitats lacking oaks that provided the main winter food for the subspecies, relying on ponderosa pine as the primary food.
The Washington populations of western gray squirrels are found in differing ecological settings within the State. However, it is not clear that they should collectively or independently be considered as unique ecological settings for the taxon. For example, while the grasslands and oak woodlands of the Puget Sound area have different vegetation complexes compared to the grasslands and oak woodlands where western gray squirrels are found in northern California or southern Oregon, these differences are not so great that we consider the habitat of the Puget Sound population to be a unique or unusual ecological setting for western gray squirrel. The South Cascades population shares many habitat features common to the habitat for western gray squirrels found in Oregon. The North Cascades population's habitat is notable in its absence of oaks, the main source of winter foods for this subspecies in most of its range. This population appears to rely on the seed of pine trees and bigleaf maples (
Within the distribution of every species there exists a peripheral population, an isolate or subpopulation of a species at the edge of the taxon's range. The population is the basic evolutionary and ecological functional unit. The local population is where responses to environmental challenges occur, where adaptations arise, and where genetic diversity is maintained and reshuffled each generation. A species can continue to exist even though many of its populations are destroyed, resulting in a loss of biodiversity and what may be unique genetic or phenotypic traits (Meffe
Long-term geographic isolation and the loss of gene flow between populations is the foundation for genetic changes in populations resulting from natural selection or chance. Evidence of changes in peripheral populations may include genetic, behavioral and/or morphological differences from populations in the rest of the subspecies' range. Ecological differences were described above, and genetic differences in western gray squirrels are discussed below. We also considered information regarding morphological and behavioral differences in regard to adaptations that may be occurring in the western gray squirrel in Washington.
The secretive behavior of the western gray squirrel in Washington has been frequently noted and might represent an adaptation of a population on the periphery of its range. Bowles (1921) wrote, regarding western gray squirrels in Pierce County, Washington, that “although extremely numerous, we may walk for days in the country they inhabit and never see one.” Scheffer (1923) indicated that in the more heavily timbered country in Washington, the gray squirrel was only occasionally seen. Couch (1926) noted that, although western gray squirrels are hard to see, the presence of western gray squirrels in the lower Puget Sound region is evident in the peeled bark of Douglas-fir. Larrison (1970) wrote that western gray squirrels in Washington are “rather shy and do not mix well with civilization,” and in the few places
In Oregon, although described as “shy and retiring” in the countryside where they have little human contact, western gray squirrels can be found in urban parks where they are more tolerant of human contact (Susan Weston,
Whether the western gray squirrels in Washington are more secretive than those elsewhere in the range of the subspecies is unclear. Although evidence of shy behavior of the western gray squirrel has long been documented for the Washington population, similar behavior has been documented in Oregon (Susan Weston,
Overall, much of the available information on “secretiveness” of the subspecies is anecdotal in nature and there are no comparative studies to determine whether real behavioral differences in secretiveness exist across the range of the subspecies. Even if such differences do exist, the reasons for them are not clear, including whether or how such behavior might be related to the periphery of the range. The significance of such differences, if they exist, also is unclear.
In evaluating potential differences in the subspecies at the northern extent of its range, we also considered information on morphology and home range size. Body measurements of western gray squirrels in Klickitat County, Washington, were found to be significantly larger than elsewhere in the subspecies' range (M. Linders, pers. comm. 2003d). This study was conducted in a small area of Klickitat County and results were compared to another study in Washington with a small sample size, and with two California studies. Based on the limited area studies and the small sample size, the results may not be conclusive and applicable for western gray squirrels over their entire range. We also considered information showing that western gray squirrels on the Klickitat Wildlife Area have substantially larger home range sizes when compared with home range estimates elsewhere in the subspecies' distribution. In this same study, western gray squirrels also used significantly more nests per squirrel than recorded for the subspecies in Oregon (Linders 2000). These results, while interesting, do not explain the reasons for the differences in home range size and numbers of nests. The limited sample size is a confounding factor in interpreting these results. Also, as noted above, differences in methods used to determine home range sizes may be a source of variability in results among studies (Ryan and Carey 1995a). Many factors could account for these differences, and we have no basis for concluding that these results should be attributed to the location of the study area at the northern periphery of the range of the subspecies. Consequently, we do not believe that the information concerning morphology, home range size, or number of nests described for western gray squirrels in Klickitat County provides a justification for a determination of significance under the DPS policy.
The importance of peripheral populations in relation to climate change is a continuing source of discussion and study in the scientific community. Species' ranges can change dramatically with global shifts in climate. Peripheral populations may survive in isolated refugia that later, with different environmental conditions, serve as a source population for an expanded range and subsequent radiation. What constitutes a peripheral population today could be the center of a species' range in the future, and consequently peripheral populations are vitally important to a species' past, present, and future existence (Nielsen
We have considered the extent to which western gray squirrels in Washington may be significant in relation to climate change. As the result of a climate shift, as occurred in the past when Oregon white oaks moved northward from Oregon, the northern limits of the western gray squirrel range could expand northward as the changing climate again favors Oregon white oak distribution over conifer distributions. At this time there is speculation, but no clear evidence, of the potential role that western gray squirrels in Washington might play in relation to the rest of the subspecies in response to climate change. Similarly, the nature and extent of the effects of climate change on ecological conditions for the western gray squirrel in Washington are not known. Based on the speculative nature of the situation involving the western gray squirrel in relation to climate change, we do not have a basis for concluding that a potential gap in the distribution of western gray squirrels at the northern extent of its range would have evolutionary implications for the subspecies in relation to the potential effects of climate change.
Lastly we consider whether the potential reduction in the range of the subspecies that could occur in the event of the hypothetical loss of the Washington populations, collectively or individually, would meet the significance criterion of the DPS policy. Individually, we do not find that the loss of range that would be represented by the loss of any of the current Washington populations meets the significance criterion of the DPS policy. The limited population information available makes a determination about potential significance particularly difficult, but when viewed individually we do not see the potential reduction in range of each population as reaching significance to the subspecies. Collectively, the loss of all of the Washington populations would represent a serious reduction in the species range. However serious such a hypothetical reduction might be, we do not have information currently that demonstrates this consideration would meet the DPS policy's requirement of significance to the taxon (subspecies) as a whole, since there is only limited information on the potential biological and ecological significance for Washington in terms of range of the subspecies.
In 2003, researchers from WDFW and the University of Washington completed genetic analyses, using standard conservation genetic research techniques, the results point towards significant genotypic differentiation between Washington populations and squirrel populations south of the Columbia River. The report presents the results of two different types of genetic analyses (microsatellite DNA analysis and mitochondrial control region sequence analyses). The following discussion of the results of the genetic analyses is summarized from Warheit (2003).
Microsatellite DNA analyses were completed on samples from 128 western gray squirrels from California (3), Oregon (24), and Washington (101). Samples were obtained from museum skins, museum tissue collections, road-killed individuals, and ear punches from live-trapped individuals.
Microsatellites are short (no longer than six base pairs (nitrogenous bases that are part of the DNA molecule, such as cytosine and guanine)) tandemly repeated segments interspersed throughout the chromosome. Changes in the repeats result in different lengths of DNA, and a specific length of DNA can be used as a marker for a microsatellite locus (position on the chromosome). Seven of these loci that showed variation were analyzed. The results of the microsatellite analysis was summarized by the genetic diversity (the variation in chromosomes) and the genetic differentiation (how different genetically are the populations).
• An allele is a series of two or more different genes that occupy the same position on a chromosome. All populations in Oregon and California showed at least three private alleles (alleles present in only that population), while no Washington population had a private allele. This indicates that while all alleles present in each of the Washington populations are also present in at least one of the Oregon or California populations, there are alleles present in either Oregon or California that are not present in Washington.
• The Washington populations show reduced genetic diversity at all measures compared with populations south of the Columbia River, despite the fact that the mean sample size per locus is larger for each of the Washington populations.
• The reduction in genetic diversity within the Washington populations may be a function of genetic drift, which in turn may be the result of relatively smaller effective population sizes in Washington compared with that in Oregon and California.
• There is significant differentiation between each of the Washington populations, and the Oregon and California populations.
• These data support the hypothesis that each of the Washington Western Gray Squirrel populations are genetically distinct from each other, and are now functioning as separate and isolated populations.
• What these analyses demonstrate is that there is considerably more genetic differentiation between Washington and Oregon or California, than there is between Oregon and California populations.
A subset (67) of the same samples from 128 western gray squirrels used in the Microsatellite DNA analyses were used for an additional mitochondrial control region sequence analyses. Mitochondria are structures in the cell, but outside of the nucleus, which contain DNA inherited only from the mother. A 367 basepair portion of the DNA from the control region of mitochondria was sequenced (Warheit 2003).
• The haplotype is the set, made up of one allele of each gene. Haplotypes comprise the genotype (or genetic constitution of an individual or taxon). They identified only three haplotypes from 40 Washington individuals, compared with 14 haplotypes from 27 Oregon and California individuals, and no haplotype was shared across the Columbia River.
• Genetic differences between populations can also be measured using nucleotide diversity (
• Some haplotypes in Washington are more closely related to haplotypes in Oregon than other haplotypes in Washington.
Warheit (2003) summarized the results of these analyses by noting:
Despite the preliminary nature of these analyses, the following set of conclusions have been strengthened by the inclusion of a larger sample size from the Fort Lewis and Okanogan Western Gray Squirrel populations:
1. Washington populations of Western gray Squirrels show reduced genetic diversity at both nuclear (microsatellite) and mitochondrial (control region sequences) markers compared with populations from Oregon and California. This reduction in genetic diversity may be the result of genetic drift and relatively smaller effective populations sizes.
2. There is significant genetic differentiation between Washington Western Gray Squirrels, and squirrels from populations south of the Columbia River. Both the microsatellite and sequence data support the hypothesis that the Washington squirrels are a population(s) distinct from those in Oregon and California.
3. There is significant genetic differentiation among the three Washington populations. * * *
Additional and more variable microsatellites should be included in any
Thus, the preliminary information from Warheit (2003) suggests that there is genetic differentiation between Washington western gray squirrels, and squirrels from populations south of the Columbia River. We believe that this information supports our contention that western gray squirrel populations in Washington collectively or individually could meet the discreteness criterion of the DPS policy. However, we find that based on the genetic information currently available, the western gray squirrel populations in Washington collectively or individually do not differ markedly from other populations of the subspecies in their genetic characteristics such that they should be considered biologically or ecologically significant based simply on genetic characteristics. Biological and ecological significance under the DPS policy is always considered in light of Congressional guidance (
One of the more notable pieces of genetic information in the Washington populations is the lack of genetic diversity. As noted above, this reduction in genetic diversity may be the result of genetic drift and relatively smaller effective populations sizes. While there is clearly some genetic information that shows that the Washington populations are different from other populations (
Information on genetics supports the contention that western gray squirrels in Washington have been isolated from other populations for a long period of time. The results suggest that genetic differences may occur between populations of the western gray squirrel throughout its range. The genetics studies by Warheit (2003) rely on relatively limited sample sizes for some populations, n = 3 for California. Results from the genetics studies may be confounded by the effects of small population size and the consequent inbreeding and genetic drift. The patterns of differentiation that were observed may reflect the negative consequences of isolation, range contraction, and recent significant declines of local populations. To what extent the forces of isolation, genetic drift and/or inbreeding have impacted the western gray squirrel population remaining in Washington is uncertain.
On the basis of available information, we determined that the Washington populations of the western gray squirrel may be discrete in relation to the remainder of the subspecies' populations. This determination is based on information showing that the populations appear to be geographically separated from, and to have some genetic differences from, other populations to the south in Oregon, California, and Nevada as a result of isolation by the Columbia River. But, pursuant to our DPS policy, this apparent directness does not necessarily mean that the populations in Washington are significant to the remainder of the taxon.
Consequently, following a review of the available information, we conclude that the western gray squirrel populations in Washington are not significant to the remainder of the taxon. We made this determination based on the best available information, which does not demonstrate that (1) these populations persist in ecological settings that are unique for the taxon; (2) the loss of these populations would result in a significant gap in the range of the taxon; and (3) these populations differ markedly from other populations of the subspecies in their genetic characteristics, or in other considerations that might demonstrate significance. Further, the available information does not demonstrate that the life history and behavioral characteristics of these populations in Washington are unique to the subspecies. We acknowledge that, while the precise biological and ecological importance of a discrete population segment is likely to vary from case to case, we were unable to identify any other information that might bear on the biological and ecological importance of these populations.
Pursuant to the Act and our implementing regulations, a species may warrant listing if it is threatened or endangered in a significant portion of its range. Consequently, we evaluated the three populations in Washington to determine if they collectively constitute a significant portion of the range of the subspecies. In our evaluation we considered whether the geographic extent of the range of the western gray squirrel in Washington is significant relative to the remainder of the subspecies' range. Based on the extent of the range of the western gray squirrel subspecies, from southern California north to Washington as discussed in the Background section of this notice, we do not believe that Washington constitutes a significant portion of the geographic extent of the subspecies, and subsequently the range of the subspecies. Further, the available information regarding the collective abundance of animals in the three populations in Washington does not indicate that the Washington population constitutes a significant portion of the western gray squirrel population rangewide. Consequently, we have determined that the population of the western gray squirrel in Washington does not constitute a significant portion of the subspecies or its range.
We have carefully assessed the best scientific and commercial information available regarding the discreteness and significance of the western gray squirrel in Washington. We reviewed the petition, literature cited in the petition, information available in our files, peer-reviewed literature and other published and unpublished literature and information, and information submitted to us during the comment period following our 90-day petition finding. We have consulted with biologists and researchers, including geneticists familiar with the western gray squirrel, and reviewed the status of the western gray squirrel in light of the requirements of our DPS policy. On the basis of the best scientific and commercial information available, we conclude that the populations of western gray squirrel in Washington do not represent a DPS, and are therefore not a listable entity. Our review did indicate that these populations may be discrete from other western gray squirrel populations south of the Columbia River, but under our DPS policy, the Washington populations collectively or individually are not
A complete list of all references cited in this document and additional references can be requested from the Western Washington Fish and Wildlife Office (
This document was prepared by the Western Washington Fish and Wildlife Office (
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of Hanford Reach National Monument Federal Planning Advisory Committee Meetings.
The U.S. Fish and Wildlife Service (Service) is announcing four meetings of the Hanford Reach National Monument (Monument) Federal Planning Advisory Committee (Committee). In the next four meetings, the Committee will continue their work on making recommendations to the Service and the Department of Energy (DOE) on the preparation of a Comprehensive Conservation Plan and associated Environmental Impact Statement (CCP/EIS) which will serve as a long-term management plan for the Hanford Reach National Monument. The Committee is focusing on advice that identifies and reconciles land management issues while meeting the directives of Presidential Proclamation 7319 that established the Monument.
The Committee has scheduled the following meetings:
1. Tuesday, June 24, 2003, 12:30 p.m. to 4:30 p.m., Richland, WA.
2. Thursday, August 7, 2003, 12:30 p.m. to 4:30 p.m., Richland, WA.
3. Thursday, September 25, 2003, 12:30 p.m. to 4:30 p.m., Richland, WA.
4. Thursday, December 4, 2003, 12:30 p.m. to 4:30 p.m., Richland, WA.
The meeting locations are:
1. Washington State University Tri-Cities Consolidated Information Center, 2770 University Drive, Rooms 120 and 120 A, Richland, WA.
2. Washington State University Tri-Cities Consolidated Information Center, 2770 University Drive, Rooms 210, 212 and 214, Richland, WA.
3. Washington State University Tri-Cities Consolidated Information Center, 2770 University Drive, Rooms 120 and 120 A, Richland, WA.
4. Washington State University Tri-Cities Consolidated Information Center, 2770 University Drive, Rooms 120 and 120 A, Richland, WA.
Any member of the public wishing to submit written comments should send those to Mr. Greg Hughes, Designated Federal Official for the Hanford Reach National Monument Federal Planning Advisory Committee, Hanford Reach National Monument/Saddle Mountain National Wildlife Refuge, 3250 Port of Benton Blvd., Richland, WA 99352; fax (509) 375-0196. Copies of the draft meeting agenda can be obtained from the Designated Federal Official. Comments may be submitted via e-mail to
Any member of the public wishing further information concerning the meeting should contact Mr. Greg Hughes, Designated Federal Official for the Hanford Reach National Monument Federal Planning Advisory Committee; phone (509) 371-1801, fax (509) 375-0196.
Verbal comments will be considered during the course of the meeting and written comments will be accepted at the close of the meeting. Comments may also be submitted via e-mail or mail to the Monument office addresses above. The meetings are open to the public. Over the next several months, the Committee will receive information from Planning Workshops and present advice to the Service and Department of Energy on draft products from those Workshops that will be considered in the CCP/EIS. The Committee will also nominate and elect a chair and vice-chair.
Bureau of Indian Affairs, Interior.
Notice of renewal of information collection.
The Bureau of Indian Affairs (BIA) is seeking comments on the collection of information necessary for utilization of the Loan Guaranty, Insurance, and Interest Subsidy Program. This is necessary to continue the use of forms for this program approved by the Office of Management and Budget under the Paperwork Reduction Act of 1995. The public will have the opportunity to comment on the time and expense required by these forms to access the program.
Submit comments on or before August 11, 2003.
Send comments to Ray Brown, Acting Director, Office of Economic Development, Bureau of Indian Affairs, Department of the Interior, 1849 C St., NW., Mail Stop 2412-MIB, Washington, DC 20240; or hand deliver them to Room 2412 at the above address. We cannot use e-mail but you may comment by telefacsimile at (202) 208-7419.
David B. Johnson, Division of Indian Affairs, Office of the Solicitor, (202) 208-340.
The Loan Guaranty, Insurance, and Interest Subsidy Program (Program) was established in the Act of April 12, 1974, as amended, 88 Stat. 79, 25 U.S.C. 1481
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(d) Ways we could minimize the burden of the collection of the information on the respondents, such as through the use of automated collection techniques or other forms of information technology.
Please note that an agency may not sponsor or request, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Based upon historical records, BIA anticipates approximately 64 applications for loan guaranties each year. Although there have never been any loan insurance applications, apparent need suggests that BIA will receive approximately 20 additional loan insurance applications or notices of loan insurance per year. Of the combined 84 applications/notices, BIA expects that it will guarantee or insure approximately 64 new loans each year, of which approximately 45 will receive interest subsidy.
In all, BIA estimates the total annual Program compliance burden to range from approximately 4 to 12 hours per loan, with the average loan causing a burden of approximately 6.18 hours. Most compliance burdens fall below this average. BIA assumes the average hourly cost per respondent to be $20.00:
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving lands for conveyance pursuant to the Alaska Native Claims Settlement Act, will be issued to Old Harbor Native Corporation, for lands in T. 33 S., R. 24 W., Seward Meridian, Alaska, located in the vicinity of Old Harbor, Alaska, containing 277.71 acres. Notice of this decision will also be published four times in the
The time limits for filing an appeal are:
1. Any party claiming a property interest which is adversely affected by the decision shall have until July 10, 2003 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have until 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, # 13, Anchorage, Alaska 99513-7599.
Chris Sitbon, by phone at (907) 271-3226.
On the basis of the record
The Commission instituted this investigation effective May 1, 2002, following receipt of a petition filed with the Commission and Commerce by Steel City Corp., Youngstown, OH. The final phase of the investigation was scheduled by the Commission following notification of a preliminary determination by Commerce that imports of lawn and garden steel fence posts from China were being sold at LTFV within the meaning of section 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigation and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determination in this investigation to the Secretary of Commerce on June 2, 2003. The views of the Commission are contained in USITC Publication 3598 (June 2003), entitled
By order of the Commission.
International Trade Commission.
Institution of antidumping investigations and scheduling of preliminary phase investigations.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping investigations No. 731-TA-1039-1041 (Preliminary) under section 733(a) of the Tariff Act of 1930 (19 U.S.C. 1673b(a)) (the Act) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports from France, Japan, and Korea of certain wax and wax/resin thermal transfer ribbons,
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
May 30, 2003.
Christopher Cassise (202-708-5408), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
In accordance with sections 201.16(c) and 207.3 of the rules, each document
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
30-Day notice of information collection under review: Extension of a currently approved collection; Application for Representative Payee.
The Department of Justice (DOJ), Civil Division 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
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30-Day notice of information collection under review: revision of a currently approved collection; Application for Permit, User Limited Display Fireworks.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approved 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 July 10, 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, or facsimile (202) 395-5806.
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Notice is hereby given that, on May 19, 2003, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and DPC intends to file additional written notification disclosing all changes in membership.
On November 15, 1999, DPC filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 1, 2002. A notice was published in the
Notice is hereby given that, on May 19, 2003, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and J Consortium, Inc. intends to file additional written notification disclosing all changes in membership.
On August 6, 1999, J Consortium, Inc. filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 25, 2003. A notice was published in the
Notice is hereby given that, on May 20, 2003, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Portland Cement Association intends to file additional written notification disclosing all changes in membership.
On January 7, 1985, Portland Cement Association filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 31, 2003. A notice was published in the
30-day notice of information collection under review: extension of a currently approved collection; National Crime Victimization Survey (NCVS).
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. Office of Management and Budget (OMB) approval is being sought for the information collection listed below. The 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 July 10, 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 20530, or facsimile (202) 395-5806.
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:
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(6) An estimate of the total public burden (in hours) associated with the collection is 74,010 hours annual burden.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation, contact Darrin King on 202-693-4129 (this is not a toll-free number) or e-mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Employee Benefits Security Agency, Office of Management and Budget, Room 10235, Washington, DC 20503 (202-395-7316/this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* Enhance the quality, utility, and clarity of the information to be collected; and minimize the burden of
In order to ensure that the exemption is not abused and that rights of participants and beneficiaries are protected, the Department requires the bank to give the independent fiduciary notice of the in-kind transfer and full written disclosure of information concerning the registered investment company. Further, the bank or plan adviser must provide the independent fiduciary with certain ongoing disclosures.
Employee Benefits Security Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
For the period from June 4, 1999, until June 10, 2003, the restrictions of section 406(a) and (b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the investment of the assets of a Bank Plan or a Client Plan (either, a Plan) in deposits of Deutsche Bank AG, its current or future branches, and/or its current or future subsidiaries, if—
(a) Deutsche Bank AG is supervised by the Deutsche Bundesbank and/or the Bundesanstalt fur Finanzdienstleistungsaufsicht (the BAFin),
(b) The deposit bears a rate of interest that is reasonable, as defined in section III(f);
(c) The investment is:
(i) Made by a Bank Plan; or
(ii) Made by a Client Plan and expressly authorized pursuant to a provision of such Plan (or trust thereof) or expressly authorized by an independent fiduciary,
(d) In situations where Deutsche Bank AG, or any of its affiliates that are banks or registered investment advisors, acts as an investment manager on behalf of a Plan, the amount of such Plan's assets invested in the deposits of Deutsche Bank AG does not average, over any six month period, more than 5% of the total amount of the plan's assets managed by such investment manager.
Effective after June 10, 2003, the restrictions of section 406(a) and (b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the investment of the assets of a Plan in deposits of Deutsche Bank AG, its current or future branches, and/or its current or future subsidiaries, if—
(a) Deutsche Bank AG is supervised by the Deutsche Bundesbank and/or the BAFin, and, in the case of a subsidiary of Deutsche Bank AG, is also supervised by similar local government authorities;
(b) The deposit bears a rate of interest that is reasonable, as defined in section III(f);
(c) Prior to: (i) an investment of Plan assets in bank deposits; or (ii) the commencement of any Deutsche Bank AG program that invests Plan assets in such deposits, an independent fiduciary (other than with respect to a Bank Plan) receives a written disclosure describing:
(A) The circumstances pursuant to which Plan assets will be invested in deposits of Deutsche Bank AG or its subsidiaries or branches; and
(B) A description of the applicable sovereign regulatory authority/authorities governing the activities of Deutsche Bank AG;
(d) A fiduciary independent of Deutsche Bank AG and its affiliates (other than with respect to a Bank Plan) receives, upon request, copies of the most recent financial statement of Deutsche Bank AG and/or its subsidiaries;
(e) Immediately after any material adverse change in the financial condition of Deutsche Bank AG, Deutsche Bank AG will notify each Plan fiduciary of such material adverse change and will not use its authority to continue the program of deposits with respect to the Plans without the consent of a Bank Plan fiduciary or an independent Client Plan fiduciary;
(f) In situations where Deutsche Bank AG, or any of its affiliates that are banks or registered investment advisors, acts as an investment manager on behalf of a Plan, the amount of such Plan's assets invested in the deposits of Deutsche Bank AG does not average, over any six month period, more than 1% of the total amount of the plan's assets managed by such investment manager;
(g) Deutsche Bank AG-
(1) Agrees to submit to the jurisdiction of the United States;
(2) Agrees to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(3) Consents to service of process on the Process Agent;
(4) Agrees that it may be sued in the United States Courts in connection with the transactions described in this proposed exemption;
(5) Agrees that any judgment may be collectable by an employee benefit plan in the United States from Deutsche Bank AG; and
(6) Agrees to comply with, and be subject to, all relevant provisions of the Act.
(h) The investment is:
(i) Made by a Bank Plan and authorized by a Bank Plan fiduciary; or
(ii) Made by a Client Plan and authorized by an independent fiduciary with respect to such Client Plan. Notwithstanding (h)(i) and (h)(ii) above, authorization for the investment by a Plan in the deposits of Deutsche Bank AG may be presumed notwithstanding that Deutsche Bank AG does not receive any response from such Plan pursuant to two written requests by Deutsche Bank AG (one request by a certified mailing that contains only such request) for the authorization, provided that: (A) with respect to Plans that invest in the deposits of Deutsche Bank AG prior to June 10, 2003, the first request occurs not later than July 25, 2003, and the second request occurs within 30 days thereafter; and (B) with respect to Plans that invest in the deposits of Deutsche Bank AG following June 10, 2003, the first request occurs at least 45 days prior to such investment and the second request occurs within 30 days thereafter;
(i) Investments in the deposits of a subsidiary of Deutsche Bank AG will be backed by the full faith and credit of Deutsche Bank AG;
(j) Short-term debt issued by Deutsche Bank AG is rated in one of the three highest categories by an independent rating agency such as Standard & Poors, Moody's or a similar institution;
(k) Deutsche Bank AG maintains or causes to be maintained within the United States for a period of six years from the date of such transaction, in a manner that is convenient and accessible for audit and examination, such records as are necessary to enable the persons described below in paragraph (l) of this exemption to determine whether the conditions of this exemption have been met, except that a prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of Deutsche Bank AG, the records are lost or destroyed prior to the end of the six-year period; and
(l)(1) Except as provided in paragraph (2) of this section (l) and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (k) are unconditionally available at their customary location in the United States for examination during normal business hours by—
(i) Any duly authorized employee or representative of the Department or the Internal Revenue Service,
(ii) Any fiduciary of a Plan, or any duly authorized employee or representative of such fiduciary, and
(iii) Any participant or beneficiary of a Plan or duly authorized employee or representative of such participant or beneficiary;
(2) None of the persons described in paragraphs (l)(1)(ii) and (iii) shall be authorized to examine trade secrets of Deutsche Bank AG, or commercial or financial information that is privileged or confidential.
(a) The term “bank” means a bank supervised by the United States, a state, or a sovereign government.
(b) An “affiliate” of a person includes:
(1) Any person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such person;
(2) Any officer, director, employee or relative of such person, or partner of any such person; and
(3) Any corporation or partnership of which such person is an officer, director, partner or employee.
(c) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(d) A “Client Plan” refers to an employee benefit plan as described in section 3(3) with respect to which Deutsche Bank AG acts as a trustee or custodian.
(e) A “Bank Plan” means a plan sponsored or maintained by: (1) Deutsche Bank AG or any person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, Deutsche Bank AG or; (2) any entity in which Deutsche Bank AG holds more than a ten percent equity interest.
(f) A “reasonable” rate of interest means a rate of interest determinable by reference to short-term rates available to other customers of the bank, those offered by other banks, those available from money market funds, those applicable to short-term instruments such as repurchase agreements, or by reference to a benchmark such as sovereign short term debt (
(g) An “independent fiduciary” means a fiduciary independent of Deutsche Bank AG and its affiliates who has the authority to make the investments described herein, or to instruct the trustee or other fiduciary with respect to such investments, and who has no interest in the transaction which may affect the exercise of such authorizing fiduciary's best judgment as a fiduciary so as to cause such authorization to constitute an act described in section 406(b) of the Act.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on March 3, 2003, at 68 FR 10035.
Christopher Motta of the Department, telephone (202) 693-8544. (This is not a toll-free number.)
The restrictions of section 406(a)(1)(A) through (D) and 406(b)(1) and (b)(2) of the Act, and the taxes imposed by section 4975(a) and (b) of Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply, effective December 11, 2001, to the following foreign exchange transactions between Deutsche Bank or a foreign affiliate thereof that is a bank or broker-dealer (collectively, DBAG), and an employee benefit plan with respect to which DBAG is a trustee, custodian, fiduciary or other party in interest, pursuant to a standing instruction, if the conditions set forth in section II below are met:
(1) An income item conversion; or
(2) A
(a) At the time the foreign exchange transaction is entered into, the terms of the transaction are not less favorable to the plan than the terms generally available in comparable arm's-length foreign exchange transactions between unrelated parties.
(b) At the time the foreign exchange transaction is entered into, the terms of the transaction are not less favorable to the plan than the terms afforded by DBAG in comparable arm's-length foreign exchange transactions involving unrelated parties.
(c) DBAG does not have any discretionary authority or control with respect to the investment of the plan assets involved in the transaction and does not render investment advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to the investment of those assets.
(d) DBAG maintains at all times written policies and procedures regarding the handling of foreign exchange transactions for plans with respect to which DBAG is a trustee, custodian, fiduciary or other party in interest or disqualified person which assure that the person acting for DBAG knows that he or she is dealing with a plan.
(e) The covered transaction is performed under a written authorization executed in advance by a fiduciary of the plan whose assets are involved in the transaction, which plan fiduciary is independent of DBAG. The written authorization must specify:
(1) The identities of the currencies in which covered transactions may be executed; and
(2) That the authorization may be terminated by either party without penalty on no more than 10 days notice.
(f)(1) Income item conversions are executed within no more than one business day from the date of receipt of notice by DBAG that such items are good funds, and a foreign custodian which is an affiliate of DBAG, provides such notice to DBAG within “one business day” of its receipt of good funds;
(2)
(g)(1) At least once each day, at the time(s) specified in its written policies and procedures, DBAG establishes either a rate of exchange or a range of rates to be used for income item conversions and
(2) Income item conversions are executed at the next scheduled time for conversions following receipt of notice by DBAG from the foreign custodian that such funds are good funds. If it is the policy of DBAG to aggregate small amounts of foreign currency until a specified minimum threshold amount is received, then the conversion may take place at a later time but in no event more than 24 hours after such receipt of notice.
(3)
For purposes of this paragraph (g), the range of exchange rates established by DBAG for a particular foreign currency cannot deviate by more than three percent [above or below] the interbank bid and asked rates as displayed on Reuters or another nationally recognized independent service in the foreign exchange market (provided that the independent service chosen will be consistently used in determining whether the deviation limitation has been met) for such currency at the time such range or rates is established by DBAG;
(h) Prior to the execution of the authorization referred to in paragraph (e), DBAG provides the independent fiduciary with a copy of DBAG's written policies and procedures regarding the handling of foreign exchange transactions involving income item conversions and
(1) Disclosure of the time(s) each day that DBAG will establish the specific rate of exchange or the range of exchange rates for the covered transactions to be executed and the time(s) that such covered transactions will take place. DBAG shall include a description of the methodology that DBAG uses to determine the specific exchange rate or range of exchange rates;
(2) Disclosure that income item conversions and
(3) A description of the process by which DBAG's foreign exchange policies and procedures for income item conversions and
(i) DBAG furnishes to the independent fiduciary a written confirmation statement with respect to each covered transaction not more than five business days after execution of the transaction.
(1) With respect to income item conversions, the confirmation shall disclose the following information:
(A) Account name;
(B) Date of notice that good funds were received;
(C) Transaction date;
(D) Exchange rate;
(E) Settlement date;
(F) Identity of foreign currency;
(G) Amount of foreign currency sold;
(H) Amount of U.S. dollars or other currency credited to the plan; and
(2) With respect to
(A) Account name;
(B) Date of notice that sales proceeds denominated in foreign currency are received as good funds or direction to acquire foreign currency was received;
(C) Transaction date;
(D) Exchange rate;
(E) Settlement date;
(F) Currencies exchanged:
i. Identity of the currency sold;
ii. Amount sold;
iii. Identity of the currency purchased; and
iv. Amount purchased.
(j) DBAG—
(1) Agrees to submit to the jurisdiction of the United States;
(2) Agrees to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(3) Consents to service of process on the Process Agent;
(4) Agrees that it may be sued in the United States Courts in connection with the transactions described in this exemption;
(5) Agrees that any judgment may be collectable by an employee benefit plan in the United States from Deutsche Bank; and
(6) Agrees to comply with, and be subject to, all relevant provisions of the Act.
(k) DBAG maintains, within territories under the jurisdiction of the United States Government, for a period of six years from the date of the transaction, the records necessary to enable the persons described in paragraph (l) of this section to determine whether the applicable conditions of this exemption have been met, including a record of the specific exchange rate or range of exchange rates DBAG established each day for foreign exchange transactions effected under standing instructions for income item conversions and
(l)(1) Except as provided in subparagraph (2) of this paragraph and notwithstanding any provisions of subsection (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (k) of this section are available at their customary location for examination, upon reasonable notice, during normal business hours by:
(A) Any duly authorized employee or representative of the Department of Labor or the Internal Revenue Service.
(B) Any fiduciary of a plan who has authority to acquire or dispose of the assets of the plan involved in the foreign exchange transaction or any duly authorized employee or representative of such fiduciary.
(C) Any contributing employer to the plan involved in the foreign exchange transaction or any duly authorized employee or representative of such employer.
(2) None of the persons described in subparagraphs (B) and (C) shall be authorized to examine DBAG's trade secrets or commercial or financial information of DBAG, which is privileged or confidential.
For purposes of this exemption,
(a) A “foreign exchange” transaction means the exchange of the currency of one nation for the currency of another nation.
(b) The term “standing instruction” means a written authorization from a plan fiduciary, who is independent of DBAG, to DBAG to effect the transactions specified therein pursuant to the instructions provided in such authorization.
(c)(1) The term “independent of DBAG” means a plan fiduciary who is unrelated to, and independent of, DBAG. For purposes of this exemption, a plan fiduciary will be deemed to be unrelated to, and independent of, DBAG if such fiduciary represents that neither such fiduciary, nor any individual responsible for the decision to authorize or terminate authorization for transactions described in section I, is an officer, director, or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of DBAG and represents that such fiduciary shall advise DBAG if those facts change.
(2) Notwithstanding anything to the contrary in this section III (c), a fiduciary is not independent if:
(i) Such fiduciary directly or indirectly controls, is controlled by, or is under common control with DBAG;
(ii) Such fiduciary directly or indirectly receives any compensation or other consideration from DBAG for his own personal account in connection with any transaction described in this exemption;
(iii) Any officer, director, or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of DBAG, responsible for the transactions described in section I, is an officer, director, or highly compensated employee (within the meaning of section 4975(e)(2)(H) of the Code) of the plan sponsor or of the fiduciary responsible for the decision to authorize or terminate authorization for transactions described in section I. However, if such individual is a director of the plan sponsor or of the responsible fiduciary, and if he or she abstains from participation in (A) the choice of DBAG as a directed trustee or custodian and (B) the decision to authorize or terminate authorization for transactions described in section I, then section III(c)(2)(iii) shall not apply.
(3) The term “officer” means a president, any vice president in charge of a principal business unit, division or function (such as sales, administration or finance), or any other officer who performs a policy-making function for the entity.
(d) The term “control” means the power to exercise a controlling influence over the management of policies of a person other than an individual.
(e) An “income item conversion” means: (1) The conversion into U.S. dollars of an amount which is the equivalent of no more than 300,000 U.S. dollars of interest, dividends or other distributions or payments with respect to a security, tax reclaims, proceeds from dispositions of rights, fractional shares or other similar items denominated in the currency of another nation that are received by DBAG on behalf of the plan from the plan's foreign investment portfolio; or (2) the conversion into any currency as required and specified by the standing instruction of an amount which is the equivalent of no more than 300,000 U.S. dollars of interest, dividends, or other distributions or payments with respect to a security, tax reclaims, proceeds from dispositions of rights, fractional shares or other similar items denominated in the currency of another nation that are received by DBAG on behalf of the plan from the plan's foreign investment portfolio, provided that the converted funds are either transferred to an interest bearing account which provides a reasonable rate of interest within 24 hours of the conversion and held therein pending reinvestment by the plan or the bank reinvests such proceeds within 24 hours of the conversion at the direction of the plan.
(f) A “
(g) For purposes of this exemption the term “employee benefit plan” refers to a pension plan described in 29 CFR 2510.3-2 and/or a welfare benefit plan described in 29 CFR 2510.3-1.
(h) For purposes of this exemption, the term “good funds” means funds immediately available in cash with no sovereign or other governmental impediments or restrictions to the exchange or transfer of such funds.
(i) For purposes of this exemption, the term “business day” means a banking day as defined by federal or state banking regulations.
(j) For purposes of this exemption, a “foreign affiliate” of Deutsche Bank means any non-U.S. entity that is directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with Deutsche Bank.
(k) For purposes of this exemption, the term “bank” means a foreign affiliate of Deutsche Bank: (1) That is a banking institution supervised and examined by the German banking authorities (currently, the Bundesanstalt fur Finanzdienstleistungsaufsicht (the BAFin), in cooperation with the Deutsche Bundesbank (the Bundesbank)), or is subject to regulation by similar governmental banking authorities located in the same country as such affiliate; and (2) whose activities are monitored and controlled pursuant to the statutory and regulatory standards of German law applicable to the foreign affiliates of Deutsche Bank engaged in banking activities.
(l) For purposes of this exemption, the term “broker-dealer” means a foreign affiliate of Deutsche Bank: (1) Engaged in the business of effecting transactions in securities for the account of others, or regularly engaged in the business of buying and selling securities for its own account through a broker or otherwise; and (2) supervised by the German authorities responsible for regulating the activities described in (1) of this paragraph, or subject to regulation by similar governmental authorities located in the country in which such affiliate is located.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption published on December 30, 2002 at 67 FR 79649.
Christopher Motta, Office of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor, telephone (202) 693-8544. (This is not a toll-free number.)
The restrictions of sections 406(a) and 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the sale of unimproved real property (the Property) by the Plan to Mr. Richard Gorman, a trustee of the Plan, and a party in interest with respect to the Plan. This exemption is conditioned upon the adherence to the material facts and representations described herein and upon the satisfaction of the following requirements:
(a) The sale is a one-time cash transaction;
(b) The Plan receives the greater of either: (i) $290,000; or (ii) the fair market value for the Property established at the time of the sale by an independent, qualified appraiser; and
(c) The Plan pays no commissions or other expenses associated with the sale.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption published on March 21, 2003, at 68 FR 13964.
Khalif I. Ford of the Department at (202) 693-8540. (This is not a toll-free number.)
The restrictions of sections 406(a), 406(b)(1) and (b)(2) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason
(a) The Stock Redemption was a one-time cash transaction;
(b) The ESOP received the fair market value of the Shares as determined by an independent, qualified appraiser on the date of the Stock Redemption; and
(c) The ESOP paid no commissions or other expenses associated with the Stock Redemption.
This exemption is effective as of August 28, 2001.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on April 16, 2003, at 68 FR 18686 (the notice).
The Department received one written comment (the Comment) with respect to the notice and no requests for a hearing. The Comment was filed by the attorney for the applicant. The Comment states that the chart contained in Paragraph 2 of the Summary of Facts and Representations in the notice erroneously lists the number of shares owned by Dorothy Nelson (Mrs. Nelson) before the Stock Redemption as 10,400. The correct amount owned by Mrs. Nelson before the Stock Redemption was 10,000 shares.
The Department acknowledges the applicant's correction to the notice, as stated in the Comment. Accordingly, based on the entire record, the Department has determined to grant the exemption as proposed.
Ekaterina A. Uzlyan of the Department at (202) 693-8540. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
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: Secretary of Labors Opportunity Award, Exemplary Voluntary Effort (EVE), and Exemplary Public Interest Contribution (EPIC) Awards. 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 addresses section below on or before August 11, 2003.
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, Email
I.
The Secretary of Labor's Opportunity and EVE award recipients must be Federal contractors covered by Executive Order 11246, as amended; Section 503 of the Rehabilitation Act, as amended, and the Vietnam Era Veterans' Readjustment Assistance Act, as amended.
The Secretary of Labor's Opportunity Award is presented to one contractor each year that has established and instituted comprehensive workforce strategies to ensure equal employment opportunity. The EVE Award is given to those contractors who have demonstrated through programs or activities, exemplary and innovative efforts to create an inclusive American Workforce. The EPIC Award is presented to public interest organizations that have supported equal employment opportunity and linked their efforts with those of the Federal contractors to enhance employment opportunities for those with the least opportunity to join the workforce. Guidelines for the nomination process can be found in Administrative Notice Number 261 dated January 21, 2003.
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.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a pre-clearance 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 Mine Safety and Health Administration (MSHA) is soliciting comments concerning the extension of the information collection related to the 30 CFR Sections 44.9, 44.10, and 44.11; Petitions for Modification of Mandatory Safety Standards.
Submit comments on or before August 11, 2003.
Send comments to Jane Tarr, Management Analyst, Administration and Management 1100 Wilson Boulevard, Room 2171, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on computer disk, or via Internet E-mail to
Jane Tarr, Management Analyst, Records Management Group, U.S. Department of Labor, Mine Safety and Health Administration, Room 2171, 1100 Wilson Boulevard, Arlington, VA 22209-3939. Ms. Tarr can be reached at
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 811(c), provides that a mine operator or a representative of miners may petition the Secretary of Labor (Secretary) to modify the application of a mandatory safety standard. A petition for modification may be granted if the Secretary determines (1) that an alternative method of achieving the results of the standard exists and that it will guarantee, at all times, no less than the same measure of protection for the miners affected as that afforded by the standard, or (2) that the application of the standard will result in a diminution of safety to the miners affected.
MSHA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
A copy of the proposed information collection request can be obtained by contacting the employee listed in the
Under 30 CFR 44.9, mine operators must post a copy of each petition for modification concerning the mine on the mine's bulletin board and maintain the posting until a ruling on the petition becomes final. This applies only to mines for which there is no representative of miners.
Under 30 CFR 44.10, detailed guidance for filing a petition for modification is provided for the operator of the affected mine or any representative of the miners at that mine. The petition must be in writing, filed with the Assistant Secretary of Labor for Mine Safety and Health, and a copy of the petition served by the filing party (the mine operator or
Under 30 CFR 44.11(a), the petition for modification must contain the petitioner's name and address; the mailing address and mine identification number of the mine or mines affected; the mandatory safety standard to which the petition is directed; a concise statement of the modification requested and whether the petitioner (1) proposes to establish an alternate method in lieu of the mandatory safety standard, or (2) alleges that application of the standard will result in diminution of safety to the miners affected, or (3) requests relief based on both grounds; a detailed statement of the facts that show the grounds upon which a modification is claimed or warranted; and, if the petitioner is a mine operator, the identity of any representative of miners at the affected mine.
Under 30 CFR 44.10 The petition must be in writing, filed with the Assistant Secretary of Labor for Mine Safety and Health, and a copy of the petition served by the filing party (the mine operator or representative of miners) on the other party.
Under 30 CFR 44.11(a), the petition for modification must contain the petitioner's name and address; the mailing address and mine identification number of the mine or mines affected; the mandatory safety standard to which the petition is directed; a concise statement of the modification requested and whether the petitioner (1) proposes to establish an alternate method in lieu of the mandatory safety standard, or (2) alleges that application of the standard will result in diminution of safety to the miners affected, or (3) requests relief based on both grounds; a detailed statement of the facts that show the grounds upon which a modification is claimed or warranted; and, if the petitioner is a mine operator, the identity of any representative of miners at the affected mine.
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.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to request use of the Financial Disclosure Form, a new Standard Form, that will be used to make personnel security determinations, including whether to grant a security clearance, to allow access to classified information, sensitive areas, and equipment; or to permit assignment to a sensitive national security position. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.
Written comments must be received on or before August 11, 2003 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (NHP), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd, College Park, MD 20740-6001; or faxed to 301-837-3213; or electronically mailed to
Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number 301-837-1694, or fax number 301-837-3213.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways, including the use of information technology, to minimize the burden of the collection of information on respondents. The comments that are submitted will be summarized and included in the NARA request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collection:
In the wake of the Aldrich Ames espionage case, Congress passed
Under the new policy coordinating structure created by National Security Presidential Directive 1 of April 21, 2001, several policy coordinating committees (PCCs) were established to serve as the main “day-to-day” forum for interagency coordination of national security policy. The PCC on Records Access and Information Security is the PCC that handles security classification and personnel security matters. It is this PCC that resurrected the Financial Disclosure Form to solicit views from its members and to obtain final approval. The members of this PCC include NSC as Chairman, NSC as Executive Secretary, Department of Defense, Director Central Intelligence Agency, Department of State, Department of Justice, Department of Energy, Office of Management and Budget, Information Security Oversight Office and an industry observer. The Director of Records Access at the NSC chairs this committee. All members unanimously endorsed the Financial Disclosure Form now submitted for processing as a Standard Form.
The Financial Disclosure Form will contain information that will be used to make personnel security determinations, including whether to grant a security clearance; to allow access to classified information, sensitive areas, and equipment; or to permit assignment to sensitive national security positions. The data may later be used as a part of a review process to evaluate continued eligibility for access to classified information or as evidence in legal proceedings.
The Financial Disclosure Form will help law enforcement obtain pertinent information in the preliminary stages of potential espionage and counter terrorism cases. The PCC on Records Access and Information Security forwarded the current form to the Information Security Oversight Office for issuance. The Office of Management and Budget is aware of the form.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before July 25, 2003. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
To request a copy of any records schedule identified in this notice, write to the Life Cycle Management Division (NWML), National Archives and Records Administration (NARA), 8601 Adelphi Road, College Park, MD 20740-6001. Requests also may be transmitted by FAX to 301-837-3698 or by e-mail to
Paul M. Wester, Jr., Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-3120. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in
1. Department of the Air Force, Agency-wide (N1-AFU-03-8, 2 items, 2 temporary items). Appointment records of Air Force transportation officers and agents, including appointment orders, requests for appointments, records relating to qualifications of potential appointees, and files relating to termination of orders. Also included are electronic copies of records created using electronic mail and word processing.
2. Department of Defense, National Imagery and Mapping Agency (N1-537-03-4, 19 items, 19 temporary items). Records of the Office of Inspector General relating to intelligence oversight inspections, audit and investigative cases, relationships with external auditing agencies, procedures, and planning. Also included are electronic copies of records created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
3. Department of Defense, National Imagery and Mapping Agency N1-537-03-15, 5 items, 4 temporary items). Records relating to forms management and extra copies of policy documents. Proposed for permanent retention are recordkeeping copies of the master file of all internal policy documents. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
4. Department of Energy, Agency-wide (N1-434-03-1, 5 items, 5 temporary items). Files relating to security clearance matters and access authorizations. Included are files documenting the processing of individuals for access authorizations, records relating to the revocation or denial of access, and indexes to personnel security records.
5. Department of Health and Human Services, Food and Drug Administration (N1-88-03-2, 12 items, 12 temporary items). Inputs, outputs, master files, system documentation, and system backups associated with an electronic information system relating to the certification of performance requirements for x-ray systems. Included are electronic copies of documents created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to paper records and scanned images.
6. Department of the Treasury, Bureau of the Public Debt (N1-53-03-3, 57 items, 57 temporary items.) Records relating to savings bond and marketable securities. Included are such records as savings and marketable securities accounting records, administrative records, agency qualification agreements, audit reports, consignment agent files, detached requests for payment, EasySaver enrollment forms, reissue requests for current income savings bonds, savings bond issue records, tenders and related documents, and statistical and management reports. Also included are electronic copies of documents created using electronic mail and word processing.
7. Administrative Office of the U.S. Courts, Agency-wide (N1-116-03-5, 6 items, 6 temporary items). Records relating to heritage celebrations, the resolution of financial irregularities, and work measurement studies. Also included are electronic copies of documents created using electronic mail and word processing.
8. Central Intelligence Agency, Directorate of Science and Technology (N1-263-03-1, 2 items, 2 temporary items). Open source publications, including such materials as trade brochures, academic theses, conference proceedings, and documents originated by other agencies. These documents are collected in response to requirements levied by the Intelligence Community. Also included is an electronic index to the publications.
9. National Archives and Records Administration, Electronic and Special Media Records Services Division (N2-185-03-1, 1 item, 1 temporary item). Panama Canal Commission ship data bank system, which contains information concerning ships that have passed through the canal. Records were accessioned into the National Archives, but cannot be copied due to technical problems.
10. National Science Foundation, Office of Inspector General (N1-307-03-2, 12 items, 8 temporary items). Investigative files lacking historical value, files covering allegations that do not result in the creation of a formal investigative file, audit and review files without significant historical value, audit work papers, work papers and other background materials relating to policies and procedures, and other administrative files. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of such files as investigative cases and audit reports that have significant historical value, policies and procedures, and semiannual reports.
11. Office of Personnel Management, Federal Executive Boards (N1-414-03-1, 24 items, 12 temporary items). Administrative records such as working papers, meeting logistics records, feeder reports, and routine committee files. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of such records as organization and functions files, directives, Executive Directors' correspondence, meeting minutes, annual reports, and publications.
12. United States International Trade Commission, Office of the Secretary (N1-81-03-1, 12 items, 11 temporary items). Import Injury Investigation Case Files, Research Program Case Files, and Intellectual Property-Based Import Investigations. Recordkeeping copies of these files created after 1995 are maintained in a centralized electronic document repository. Also proposed for disposal are Action Jackets that do not pertain to rulemaking. Recordkeeping copies of Action Jackets that relate to rulemaking are proposed for permanent retention.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), as amended, notice is hereby given that four meetings of the Combined Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW., Washington, DC 20506 as follows:
The closed meetings and portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency by grant applicants. In accordance with the determination of the Chairman of April 30, 2003, these sessions will be closed to the public pursuant to (c)(4)(6) and (9)(B) of section 552b of Title 5, United States Code.
Any person may observe meetings, or portions thereof, of advisory panels that are open to the public, and, if time allows, may be permitted to participate in the panel's discussions at the discretion of the panel chairman and with the approval of the full-time Federal employee in attendance.
If you need special accommodations due to a disability, please contact the Office of AccessAbility, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Washington, DC 20506, (202) 682-5532, TDY-TDD (202)682-5496, at least seven (7) days prior to the meeting.
Further information with reference to this meeting can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506, or call (202) 682-5691.
National Labor Relations Board.
Notice of revised Privacy Act System of Records.
The National Labor Relations Board (NLRB) Office of Inspector General (OIG) is revising its Privacy Act System of Records, NLRB 18, Office of Inspector General Investigative Files, to include as routine uses the disclosure of information (1) to the public when a legitimate public interest exists; (2) to the public when it is necessary for the protection from imminent threat to life or property; (3) to members of the President's Council on Integrity and Efficiency/Executive Council on Integrity and Efficiency (PCIE/ECIE) for the purpose of accurate reporting to the President and Congress on the activities of the Inspectors General; (4) to members of the PCIE/ECIE, the Department of Justice, the Federal Bureau of Investigation, or the U.S. Marshals Service, as necessary, for investigative qualitative assessment review. The PCIE/ECIE is establishing a peer review process to ensure that adequate internal safeguards and management procedures continue to exist. The objectives of the review are to assess whether adequate internal safeguards and management procedures are met, foster high-quality investigations and investigative processes, ensure that the highest levels of professionalism are maintained, and promote consistency in investigative standards and practices within the Inspector General investigative community.
The revision also includes the addition of routine uses to allow the disclosure of information to the Agency's legal representative; other Federal agencies in response to their requests in connection with background investigations; State and local bar associations for disciplinary proceeding and inquiries; the Office of Government Ethics for any purpose consistent with that office's mission; in association with the collection of debt, Program Fraud Civil Remedies Act litigation; and to the Office of Management and Budget when seeking advice regarding the Agency's obligations under the Privacy Act.
The changes to this System of Records will become effective without further notice 30 days from the date of this publication (July 10, 2003), unless comments are received on or before that date which result in further modifications.
Written comments regarding proposed revisions to the NLRB Privacy Act Systems of Records, NLRB-18 may be submitted to the Executive Secretary, National Labor Relations Board, 1099 14th Street, NW., Suite 11610, Washington, DC 20570. Copies of all comments received will be available for inspection between 8:30 a.m. and 5 p.m. in Room 11600.
David P. Berry, Counsel to the Inspector General, Office of Inspector General, National Labor Relations Board, 1099 14th Street, NW., Suite 9820, Washington, DC 20570, (202) 273-1960.
This publication is in accordance with the Privacy Act requirement that agencies publish their amended systems in the
The Routine Use Notice is being amended to specifically allow for a legitimate public interest the disclosure of names of indicted or convicted individuals in the Office of Inspector General (OIG) Semiannual Report, monthly reports, and press releases or other forms of communication with the media. NLRB's objective in allowing disclosure of names is to enhance the deterrence of similar crimes against the Agency. In addition, the amended routine uses would allow the disclosure of information to the PCIE/ECIE for the preparation of reports to the President and Congress on the activities of the Inspectors General. Finally, the amendments would allow the disclosure of information to members of the PCIE/ECIE, the Department of Justice, the Federal Bureau of Investigation, or the U.S. Marshals Service, as necessary, for the purpose of investigative qualitative assessment reviews to ensure adequate internal safeguards and management procedures are maintained.
The revision also includes the addition of routine uses to allow the disclosure of information to the Agency's legal representative; other Federal agencies in response to their requests in connection with background
The notice contains minor typographical changes. Several data elements have also been updated and clarified: NLRB 18, Office of Inspector General Investigative Files, safeguards, retention and disposal, system manager(s) and address, and record source categories.
Office of Inspector General Investigative Files—NLRB 18.
These records may be disclosed as a routine use to other agencies, offices, establishments, and authorities, whether Federal, State, or local, (including State or local bar associations and other professional, regulatory, or disciplinary bodies) authorized or charged with the responsibility to investigate, litigate, prosecute, enforce, or implement a statute, rule, regulation, or order, where the record or information, by itself or in connection with other records or information, indicates a violation or potential violation of law, whether criminal, civil, administrative, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order pursuant thereto.
These records may be disclosed, as a routine use, to the Agency's legal representative, to include the Department of Justice and other outside counsel, where the Agency is a party in litigation or has an interest in litigation when either (a) NLRB, or any component thereof; (b) any employee of NLRB in his or her official capacity; (c) any employee of NLRB in his or her individual capacity, where the Department of Justice has agreed or is considering a request to represent the employee; or (d) the United States, where NLRB determines that litigation is likely to affect NLRB or any of its components, is a party to litigation or has an interest in such litigation, and NLRB determines that the use of such records by the Department of Justice is relevant and necessary to litigation; provided however, that in each case, NLRB determines that disclosures to the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
These records may routinely be disclosed to other Federal agencies, in response to their requests in connection with the conduct of background checks. Disclosure will be made only to the extent that the information is relevant and necessary to the requesting agencies' function.
These records may be disclosed, as a routine use, to the Office of Government Ethics for any purpose consistent with that office's mission, including the compilation of statistical data.
These records may be disclosed, as a routine use, to debt collection contractors for the purpose of collecting delinquent debts as authorized by the Debt Collection Act of 1982, 31 U.S.C. 3718. These records may be disclosed, as a routine use, to agency personnel responsible for bringing Program Fraud Civil Remedies Act litigation, to the persons constituting the tribunal hearing such litigation or any appeals therefrom, and to counsel for the defendant party in any such litigation.
These records may be disclosed, as a routine use, for a legitimate public interest to the news media and public to provide information on events in the criminal process following an indictment, the filing of formal charges by another means, or a conviction; or when necessary for protection from imminent threat to life or property. These records may be disclosed, as a routine use, to members of the President's Council on Integrity and Efficiency/Executive Council on Integrity and Efficiency, for the preparation of reports to the President and Congress on the activities of the Inspectors General. These records may be disclosed, as a routine use, to members of the President's Council on Integrity and Efficiency/Executive Council on Integrity and Efficiency, the Department of Justice, the Federal Bureau of Investigation, or the U.S. Marshals Service, as necessary, for the purpose of conducting qualitative assessment reviews of the investigative operations of NLRB OIG to ensure that adequate internal safeguards and management procedures are maintained.
These records may be disclosed, as a routine use, to the Office of Management and Budget in order to obtain that office's advice regarding the NLRB's obligations under the Privacy Act.
By Direction of the Board.
Office of Inspector General Investigative Files.
Office of Inspector General, National Labor Relations Board, 1099 14th Street, NW., Suite 9820, Washington, DC 20570, (202) 273-1960.
Subject individuals include, but are not limited to, current and former employees; contractors, subcontractors, their agents, or employees; and others whose actions affect the NLRB, its programs, and operations.
All correspondence relevant to the investigation; all internal staff memoranda; copies of all subpoenas issued during the investigation; affidavits, statements from witnesses, and transcripts of testimony taken in the investigation and accompanying exhibits; documents and records or copies obtained during the investigation; working papers of the staff; other documents and records relating to the investigations, and records relating to “Hotline” complaints.
Pub. L. 95-452, as amended, 5 U.S.C. app. at 1184 (1988); 5 U.S.C. 552a.
These records are used by the Inspector General's Office in the investigation of programs and operations of the National Labor Relations Board pursuant to the Inspector General Act Amendments of 1988, 5 U.S.C. app. at 1184 (1988).
Other agencies, offices, establishments, and authorities, whether Federal, State, or local, (including State or local bar associations and other professional, regulatory, or disciplinary bodies) authorized or charged with the responsibility to investigate, litigate, prosecute, enforce, or implement a statute, rule, regulation, or order, where the record or information, by itself or in connection with other records or information, indicates a violation or potential violation of law, whether
Any source from which information is requested in the course of an investigation, to the extent necessary to identify the individual, inform the source of the nature and purpose of the investigation, and to identify the type of information requested.
Independent auditors or other private firms with which the Office of Inspector General has contracted to carry out an independent audit or noncriminal investigation, or to analyze, collate, aggregate, or otherwise refine data collected in the system of records. These contractors will be required to maintain Privacy Act safeguards with respect to such records.
A court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in connection with criminal law proceedings, when the NLRB determines it is relevant and necessary to the litigation.
A court or other adjudicative body before which the NLRB is authorized to appear, when either (a) the NLRB, or any component thereof, (b) any employee of the NLRB in his or her official capacity, (c) any employee of the NLRB in his or her individual capacity, where the NLRB has agreed to represent the employee, or (d) the United States, where the NLRB determines that litigation is likely to affect the NLRB or any of it components, is a party to litigation or has interest in such litigation, and the NLRB determines that disclosure of the records to a court or other adjudicative body is relevant, necessary, and compatible with the purpose for which the records were collected.
The Department of Justice for use in litigation when either (a) the NLRB, or any component thereof, (b) any employee of the NLRB in his or her official capacity, (c) any employee of the NLRB in his or her individual capacity, where the Department of Justice has agreed to represent the employee, or (d) the United States, where the NLRB determines that litigation is likely to affect the Agency or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice is deemed by the NLRB to be relevant and necessary to the litigation, provided that in each case the NLRB determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
These records may be disclosed, as a routine use, to the Agency's legal representative, to include the Department of Justice and other outside counsel, where the Agency is a party in litigation or has an interest in litigation when either (a) NLRB, or any component thereof; (b) Any employee of NLRB in his or her official capacity; (c) Any employee of NLRB in her or her individual capacity, where the Department of Justice has agreed or is considering a request to represent the employee; or (d) The United States, where NLRB determines that litigation is likely to affect NLRB or any of its components, is a party to litigation or has an interest in such litigation, and NLRB determines that the use of such records by the Department of Justice is relevant and necessary to litigation; provided however, that in each case, NLRB determines that disclosures of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
These records may routinely be disclosed to other Federal agencies, in response to their requests in connection with the conduct of background checks. Disclosure will be made only to the extent that the information is relevant and necessary to the requesting agencies' function.
These records may be disclosed, as a routine use, to the Office of Government Ethics for any purpose consistent with that office's mission, including the compilation of statistical data.
These records may be disclosed, as a routine use, to debt collection contractors for the purpose of collecting delinquent debts as authorized by the Debt Collection Act of 1982, 31 U.S.C. 3718.
These records may be disclosed, as a routine use, to agency personnel responsible for bringing Program Fraud Civil Remedies Act litigation, to the persons constituting the tribunal hearing such litigation or any appeals therefrom, and to counsel for the defendant party in any such litigation.
A member of Congress or to a congressional staff member in response to an inquiry of the congressional office made at the written request of an individual about whom the record is maintained. In such cases, the member has no greater right to access to the record than does the individual.
These records may be disclosed, as a routine use, for a legitimate public interest to the news media and public to provide information on events in the criminal process following an indictment, the filing of formal charges by another means, or a conviction; or when necessary for protection from imminent threat to life or property.
These records may be disclosed, as a routine use, to members of the President's Council on Integrity and Efficiency/Executive Council on Integrity and Efficiency, for the preparation of reports to the President and Congress on the activities of the Inspectors General.
These records may be disclosed, as a routine use, to members of the President's Council on Integrity and Efficiency/Executive Council on Integrity and Efficiency, the Department of Justice, the Federal Bureau of Investigation, or the U.S. Marshals Service, as necessary, for the purpose of conducting qualitative assessment reviews of the investigative operations of NLRB OIG to ensure that adequate internal safeguards and management procedures are maintained.
These records may be disclosed, as a routine use, to the Office of Management and Budget in order to obtain that office's advice regarding the NLRB's obligations under the Privacy Act.
The Department of Justice for the purpose of obtaining its advice in the event that the NLRB concludes it is desirable or necessary in determining whether particular records are required to be disclosed under the Freedom of Information Act.
The Office of Inspector General Investigative Files consists of paper records maintained in files, records on computer disks and diskettes, and records on computer tapes.
The records are retrievable by case number and individual name.
These records are only available to those persons whose official duties require such access. The records are kept in a limited access area during on duty hours. During off-duty hours they are kept inside locked offices, in locked file cabinets, or in safes. Computer records can be accessed only through use of confidential procedures and passwords.
As prescribed in NLRB Records Schedule, Job Number N1-025-01-1, OIG Investigative Files are generally destroyed 10 years after a case is closed. Cases that are unusually significant for documenting major violations of criminal law or ethical standards are offered to the National Archives for permanent retention.
Office of the Inspector General, National Labor Relations Board, 1099 14th Street, NW., Suite 9820, Washington, DC 20570, (202) 273-1960.
The OIG Investigative Files are exempt pursuant to 5 U.S.C. 552a (j)(2) and (k)(2); however, consideration will be given to requests addressed to the system manager. The request should include the individual's name and date of birth.
See “Notification Procedures” above. Requestors should specify the record contents being sought. Under section 7(b) of the Inspector General Act of 1978 (Pub. L. 95-452), the identity of an employee or other personal source who makes a complaint or provides information to the Office of the Inspector General (OIG) via the OIG “Hotline” is exempt from disclosure unless the Inspector General determines such disclosure is unavoidable during the course of an investigation.
Contact the system manager at the above address, and identify the record, specify the information to be contested, and the corrective action sought with supporting justification.
The Office of Inspector General collects information from a wide variety of sources, including information from the NLRB and other Federal, state, and local agencies, witnesses, complainants and other nongovernmental sources.
Pursuant to 5 U.S.C. 552a(j)(2), this system of records, to the extent it consists of investigatory material compiled for criminal law enforcement purposes, is exempted from all provisions of the Privacy Act of 1974, 5 U.S.C. 552a, except subsections (b), (c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i).
Pursuant to 5 U.S.C. 552a(k)(2), this system of records, to the extent it consists of investigatory material compiled for law enforcement purposes other than material within the scope of the exemption at 5 U.S.C. 552a(j)(2), is exempted from the following provisions of the Privacy Act of 1974, 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f).
These exemptions are contained in 29 CFR part 102.
The Deputy Director of the National Science Foundation has determined that the establishment of the Advisory Committee for Physical Anthropology and Archaeology Data Sharing is necessary and in the public interest in connection with the performance of duties imposed upon the National Science Foundation (NSF), by 42 U.S.C. 1861
Nuclear Regulatory Commission.
Weeks of June 9, 16, 23, 30, July 7, 14, 2003.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information; David Louis Gamberoni (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Pursuant to Pub. L. 97-415, the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. Pub. L. 97-415 revised section 189 of the Atomic Energy Act of 1954, as amended (the Act), to require the Commission to publish notice of any amendments issued, or proposed to be issued, under a new provision of section 189 of the Act. This provision grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from, May 16, 2003, through May 29, 2003. The last biweekly notice was published on May 27, 2003 (68 FR 28843).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received before action is taken. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
By July 10, 2003, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff, or may be delivered to the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. Because of continuing disruptions in delivery of mail to United States Government offices, it is requested that petitions for leave to intervene and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC web site,
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes will revise TS 3.6.5.1, “Drywell,” Surveillance Requirement SR 3.6.5.1.3 to delay the performance of the next drywell bypass leakage rate test (DBLRT) to no later than November 23, 2008. This request will also revise CPS [Clinton Power Station] TS 5.5.13, “Primary Containment Leakage Rate Testing Program,” to reflect a one-time deferral of the primary containment Type A test to no later than November 23, 2008. The current Type A test interval of 10 years, based on past performance, would be extended on a one-time basis to 15 years from the last Type A test. In addition, AmerGen is proposing to delete from TS 5.5.13 the expired exception that allowed deferral of the leakage rate testing of the primary containment penetration 1MC-042 until the seventh refueling outage.
The drywell houses the reactor pressure vessel, the reactor coolant recirculating loops, and branch connections of the Reactor Coolant System (RCS), which have isolation valves at the primary containment boundary. The function of the drywell is to maintain a pressure boundary that channels steam from a Loss of Coolant Accident (LOCA) to the suppression pool, where it is condensed. Air forced from the drywell is released into the primary containment through the suppression pool. The suppression pool is a concentric open container of water with a stainless steel liner that is located at the bottom of the primary containment. The suppression pool is designed to absorb the decay heat and sensible heat released during a reactor blowdown from safety/relief valve (SRV) discharges or from a LOCA.
The function of the Mark III containment is to isolate and contain fission products released from the RCS following a design basis LOCA and to confine the postulated release of radioactive material to within limits. The test interval associated with the drywell bypass leakage and Type A testing is not a precursor of any accident previously evaluated. Therefore, extending these test intervals on a one-time basis from 10 years to 15 years does not result in an increase in the probability of occurrence of an accident. The successful performance history of the drywell bypass leakage and Type A testing provides assurance that the CPS drywell and primary containment will not exceed allowable leakage rate values specified in the TS and will continue to perform its design function following an accident. The risk assessment of the proposed changes has concluded that there is an insignificant increase in total population dose rate and an insignificant increase in the conditional containment failure probability.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes for a one-time extension of the drywell bypass leakage and Type A tests and deletion of an expired local leak rate test exception for CPS, will not affect the control parameters governing unit
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
CPS is a General Electric BWR/6 plant with a Mark III containment system. The Mark III containment design is a single-barrier pressure containment and a multi-barrier fission containment system consisting of the drywell and primary containment. The drywell houses the reactor pressure vessel, the reactor coolant recirculating loops, and branch connections of the RCS, which have isolation valves at the primary containment boundary. The function of the drywell is to maintain a pressure boundary that channels steam from a LOCA to the suppression pool, where it is condensed. The suppression pool is an annular pool of demineralized water between the drywell and the outer primary containment boundary. This pool covers the horizontal vent openings in the drywell to maintain a water seal between the drywell interior and the remainder of the containment volume. The primary containment consists of a steel-lined, reinforced concrete vessel, which surrounds the RCS and provides an essentially leak-tight barrier against an uncontrolled release of radioactive material to the environment. Additionally, this structure provides shielding from the fission products that may be present in the primary containment atmosphere following accident conditions. The primary containment is penetrated by access, piping and electrical penetrations.
The integrity of the drywell is periodically verified by performance of the DBLRT. This test ensures that the measured drywell bypass leakage is bounded by the safety analysis assumptions. The drywell integrity is further verified by a number of additional tests, including drywell airlock door seal leakage tests, overall drywell airlock leakage tests and periodical visual inspections of exposed accessible interior and exterior drywell surfaces. Additional confidence that significant degradation in the drywell leaktightness has not developed is provided by the periodic qualitative assessment of drywell performance.
The integrity of the primary containment penetrations and isolation valves is verified through Type B and Type C local leak rate tests (LLRTs) and the overall leak-tight integrity of the primary containment is verified by a Type A integrated leak rate test (ILRT) as required by 10 CFR 50, Appendix J, “Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactors.” These tests are performed to verify the essentially leak-tight characteristics of the primary containment at the design basis accident pressure. The proposed changes for a one-time extension of the drywell bypass leakage and Type A tests and deletion of an expired local leak rate test exception for CPS, do not effect the method for drywell or containment testing or the test acceptance criteria.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed Technical Specification (TS) change is an administrative change to clarify the current requirements for licensed operator qualifications and licensed operator training program. These changes conform to the current requirements of 10 CFR [Part] 55. The TS requirements for all other unit staff qualifications remain unchanged.
Although licensed operator qualifications and training may have an indirect impact on accidents [involving operator action] previously evaluated, the NRC considered this impact during the rulemaking process, and by promulgation of the revised 10 CFR [Part] 55 rule, concluded that this impact remains acceptable as long as the licensed operator training program is certified to be accredited and is based on a systems approach to training. Palo Verde's licensed operator training program is accredited by INPO [Institute of Nuclear Power Operations] and is based on a systems approach to training.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed TS change is an administrative change to clarify the current requirements for licensed operator qualifications and licensed operator training program and to conform to the revised 10 CFR [Part] 55. The TS requirements for all other unit staff qualifications remain unchanged.
As noted above, although licensed operator qualifications and training may have an indirect impact on the possibility of a new or different kind of accident [involving operator action] from any accident previously evaluated, the NRC considered this impact during the rulemaking process, and by promulgation of the revised rule, concluded that this impact remains acceptable as long as the licensed operator training program is certified to be accredited and is based on a systems approach to training. [That is to say an accredited license operator training program that is based on a systems approach to training would not introduce a new or different kind of accident.] As previously noted, Palo Verde's licensed operator training program is accredited by INPO and is based on a systems approach to training.
Additionally, the proposed TS change does not affect plant design, hardware, system operation, or procedures. Thus, the proposed amendment request does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed change does not involve a significant reduction in a margin of safety.
The proposed TS change is an administrative change to clarify the current requirements applicable to licensed operator qualifications and licensed operator-training program. This change is consistent with the requirements of 10 CFR [Part] 55. The TS qualification requirements for all other unit staff remain unchanged.
Licensed operator qualifications and training can have an indirect impact on a margin of safety. However, the NRC considered this impact during the rulemaking process, and by promulgation of the revised 10 CFR [Part] 55 [rule] determined that this impact remains acceptable when licensees maintain a licensed operator training program that is accredited and based on a systems approach to training. As noted previously, Palo Verde's licensed operator training program is accredited by INPO and is based on a systems approach to training.
The NRC has concluded, as stated in NUREG-1262, “Answers to Questions at Public Meetings Regarding Implementation of Title 10, Code of Federal Regulations, Part 55 on Operators' Licenses,” that the standards and guidelines applied by INPO in their training accreditation program are equivalent to those put forth or endorsed by the NRC. As a result, maintaining an INPO accredited, systems approach based licensed operator training program is equivalent to maintaining [an] NRC approved licensed operator training program which conform[s] with applicable NRC Regulatory Guides or NRC endorsed industry standards. The margin of safety is maintained by virtue of maintaining an INPO accredited licensed operator training program.
In addition, the NRC has published NRC Regulatory Issue Summary 2001-01, “Eligibility of Operator License Applicants,” dated January 18, 2001, “to familiarize addressees with the NRC's current guidelines for the qualification and training of reactor operator (RO) and senior operator (SO) license applicants.” The document again acknowledges that the INPO National Academy for Nuclear Training (NANT) guidelines for education and experience, outline acceptable methods for implementing the NRC's regulations in this area.
Therefore, there is no change in the analysis results and the proposed amendment request does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on that review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed Pilgrim TS 4.6.E imposes more restrictive surveillance requirements in accordance with the Standard Technical Specifications (STS) surveillance requirement 3.4.3.1 to ensure jet pump integrity during startup and run modes. The more restrictive conditions are: the recirculation loops have a flow imbalance of less than 10%, instead of the current 15%, when the pumps are operated at the same speed, and the occurrence of two of three conditions, instead of the simultaneous occurrence of all three conditions currently specified in TS 4.6.E for jet pump integrity.
The proposed more restrictive surveillance requirements ensure safe operation of the plant during startup and run modes. The requirements are not accident precursors. The proposed change that corrects a reference in Surveillance 4.11.C.1 is an administrative change with no impact on safety. These changes do not create accident conditions or increase the probability of previously evaluated accidents. The proposed changes provide additional assurance that the assumptions (
2. Does the proposed change create the possibility of a new or different kind of accident [from] any accident previously evaluated?
The proposed changes do not involve a change to the plant design or a new mode of equipment operation. As a result, the proposed changes do not affect parameters or conditions that could contribute to the initiation of any new or different kind of accident. Therefore, these proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
The proposed surveillance requirements increase the margin of safety by providing additional assurance of jet pump integrity. The proposed change to correctly reference the existing Specification is administrative in nature. Therefore, the proposed changes do not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Date of amendment request: March 19, 2003.
The changes are based on NRC-approved Technical Specification Task Force (TSTF) Standard Technical Specification Change Traveler, TSTF-413, “Elimination of Requirements for a Post Accident Sampling System (PASS).” The U.S. Nuclear Regulatory Commission (NRC) staff issued a notice of opportunity for comment in the
The PASS was originally designed to perform many sampling and analysis functions. These functions were designed and intended to be used in post accident situations and were put into place as a result of the TMI-2 accident. The specific intent of the PASS was to provide a system that has the capability to obtain and analyze samples of plant fluids containing potentially high levels of radioactivity, without exceeding plant personnel radiation exposure limits. Analytical results of these samples would be used largely for verification purposes in aiding the plant staff in assessing the extent of core damage and subsequent offsite radiological dose projections. The system was not intended to and does not serve a function for preventing accidents and its elimination would not affect the probability of accidents previously evaluated.
In the 20 years since the TMI-2 accident and the consequential promulgation of post accident sampling requirements, operating experience has demonstrated that a PASS provides little actual benefit to post accident mitigation. Past experience has indicated that there exists in-plant instrumentation and methodologies available in lieu of a PASS for collecting and assimilating information needed to assess core damage following an accident. Furthermore, the implementation of Severe Accident Management Guidance (SAMG) emphasizes accident management strategies based on in-plant instruments. These strategies provide guidance to the plant staff for mitigation and recovery from a severe accident. Based on current severe accident management strategies and guidelines, it is determined that the PASS provides little benefit to the plant staff in coping with an accident.
The regulatory requirements for the PASS can be eliminated without degrading the plant emergency response. The emergency response, in this sense, refers to the methodologies used in ascertaining the condition of the reactor core, mitigating the consequences of an accident, assessing and projecting offsite releases of radioactivity, and establishing protective action recommendations to be communicated to offsite authorities. The elimination of the PASS will not prevent an accident management strategy that meets the initial intent of the post-TMI-2 accident guidance through the use of the SAMGs, the emergency plan (EP), the emergency operating procedures (EOP), and site survey monitoring that support modification of emergency plan protective action recommendations (PARs).
Therefore, the elimination of PASS requirements from Technical Specifications (TS) (and other elements of the licensing bases) does not involve a significant increase in the consequences of any accident previously evaluated.
The elimination of PASS related requirements will not result in any failure mode not previously analyzed. The PASS was intended to allow for verification of the extent of reactor core damage and also to provide an input to offsite dose projection calculations. The PASS is not considered an accident precursor, nor does its existence or elimination have any adverse impact on the pre-accident state of the reactor core or post accident confinement of radioisotopes within the containment building.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
The elimination of the PASS, in light of existing plant equipment, instrumentation, procedures, and programs that provide effective mitigation of and recovery from reactor accidents, results in a neutral impact to the margin of safety. Methodologies that are not reliant on PASS are designed to provide rapid assessment of current reactor core conditions and the direction of degradation while effectively responding to the event in order to mitigate the consequences of the accident. The use of a PASS is redundant and does not provide quick recognition of core events or rapid response to events in progress. The intent of the requirements established as a result of the TMI-2 accident can be adequately met without reliance on a PASS.
Therefore, this change does not involve a significant reduction in the margin of safety.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to adopt TSTF [Technical Specification Task Force]-306 allows primary containment and drywell isolation valves to be unisolated under administrative controls when the associated isolation instrumentation is not operable. The isolation function is an accident mitigating function and is not an initiator of an accident previously evaluated. Administrative controls are required to be in effect when the valves are unisolated so that the penetration can be rapidly isolated when the need [for isolation] is indicated. Therefore the probability or consequences of previously evaluated accidents are not significantly increased.
The proposed change also allows the RCIC turbine steam line low pressure containment isolation instrumentation to be inoperable during low startup operating pressures. These instruments primarily provide automatic isolation when steam line pressure is too low for RCIC turbine operation. The low pressure automatic isolation feature will only be unavailable during the time that the RCIC system is not required to be operable. Therefore the change does not adversely affect the ability of the RCIC system to perform its safety function.
The RCIC steam line low pressure instruments also provide a diverse signal to indicate a possible system break. Even though the low pressure automatic isolation function will not be available for a short period during plant startup, the likelihood of a steam line break during the short period of time is low due to the low operating pressure. In addition, the safety function of providing containment integrity is maintained since there are other diverse leak detection instruments as well as other barriers or isolation capabilities that provide the isolation function.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not involve any physical alteration of plant equipment and does not change the method by which any safety-related system performs its function. The TS currently allow[s] containment and drywell isolation valves to be open under administrative controls after being closed to comply with TS ACTIONS for inoperable valves. Extending this allowance to the supporting instrumentation does not introduce any new method of isolation that has not already been evaluated.
Allowing the RCIC turbine steam line low pressure isolation instrumentation to be inoperable during low startup operating pressures does not create the possibility of any new failure modes other than those previously evaluated. No new or different type of equipment will be installed. There are no new failure mechanisms or accident initiators introduced. The low pressure isolation is designed to terminate RCIC turbine operation at low steam pressures for equipment protection. However, this function is not required since the RCIC system is not required to be operable and the same function is accomplished by maintaining the turbine trip/throttle valve closed. The low pressure isolation function will continue to be required when the RCIC system is required to be operable.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The change to allow containment and drywell isolation valves to be unisolated under administrative control does not reduce any margins to safety since the proposed allowance for the supporting isolation instrumentation is no less restrictive than the allowance for the equipment it supports. When the valves are unisolated, the design basis function of containment isolation is maintained by administrative controls.
The change to allow the RCIC turbine steam line low pressure isolation instrumentation to be inoperable during low startup operating pressures does not reduce any margins to safety. The current bounding analysis for a steam line break outside of containment remains bounding for a[n] RCIC steam break at lower pressures. In addition, the current high energy line break evaluations and subcompartment pressurization evaluations remain bounding for the low pressure condition. The design basis functions of containment isolation and containment integrity are maintained by the diverse leak detection instruments as well as other barriers or isolation capabilities that provide the isolation function.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The power supplied by the battery is used only as a source of control and motive power for the HPCS [High Pressure Core Spray] system logic, HPCS diesel-generator set control and protection, and other Division 3 related controls. The loads supplied by this system are only loads associated with Division 3 of the Emergency Core Cooling Systems (ECCS).
The battery testing period is within the period of time that the system is scheduled to be out of service for other planned maintenance. The battery test does not increase unavailability of the supported system or represent any change in risk above the current practice of planned system maintenance outages as currently allowed by the TS. Any risk associated with the testing of the Division 3 batteries will be enveloped by the risk management of the system outage.
The out of service condition is controlled and evaluated for safety implications in accordance with 10 CFR 50.65. The HPCS system reliability and availability are monitored and evaluated in relationship to Maintenance Rule goals to ensure that total outage times do not degrade operational safety over time.
Therefore, the proposed change will have no effect on the probability or consequences of any previously evaluated accident.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
This request involves the testing of the HPCS battery on-line while the system is already out of service. The testing will not add additional out of service time. Testing during this period has no influence on, nor does it contribute in any way to, the possibility of a new or different kind of accident or malfunction from those previously analyzed. The method of performing the test is not changed. No new accident modes are created by testing during the period when the system is already unavailable. Because the system is already out of service, no safety-related equipment or safety functions are altered as a result of this change.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The battery testing will be performed when the HPCS system is already out of service for maintenance. The out of service condition is controlled and evaluated for safety implications in accordance with 10 CFR 50.65. The batteries are not expected to be unavailable for more than 24 hours. This testing period is within the period of time that the system is scheduled to be out of service for other planned maintenance. Therefore, the battery test does not increase unavailability of the supported system or represent any change in risk above the current practice of planned system maintenance outages as currently allowed by the TS. Timing of this test has no effect on any fission product barrier.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change revises the applicability requirement for the Residual Heat Removal (RHR) System Isolation function of the Primary Containment and Drywell Isolation Instrumentation during MODE 5. The change removes the requirement that the instrumentation be operable during certain conditions during refueling outages. The function is intended to mitigate reactor vessel draindown events. Although draindown events during refueling operations are not specifically evaluated in the Updated Final Safety Analysis Report (UFSAR), these events were evaluated in support of licensing actions for the Alternate Decay Heat Removal System (ADHRS). The probability that a draindown event will be initiated is unrelated to operability requirement for this instrumentation or the associated isolation valves. The evaluation supporting this change determined that mitigating actions can be taken to terminate all postulated draindown events prior to fuel uncovery. As a result, the probability of draindown events causing fuel uncovery and the potential for radiological releases has not significantly increased. The operation or failure of the shutdown cooling suction isolation does not contribute to the occurrence of an accident. No active or passive failure mechanisms that could lead to an accident are affected by the proposed change.
The consequences of a vessel drainage event are not significantly increased by the proposed change. Entergy [Entergy Operations, Inc.] has evaluated various draindown and pumpdown events through the shutdown cooling flow path and determined that adequate time is available for operations personnel to identify and take action to mitigate such events such that adequate core cooling is maintained and a radiological release does not occur.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Entergy has evaluated various draindown events through the shutdown cooling flow path and determined that adequate time is available for operations personnel to identify and take action to mitigate any events such that adequate core cooling is maintained. With the containment refueling cavity flooded, sufficient inventory is available to allow operator action to terminate the inventory loss prior to reaching a low water level in the reactor. Installed equipment is not operated in a new or different manner, no new or different system interactions are created, and no new processes are introduced. No new failures have been created by the proposed changes.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed changes do not introduce any new setpoints at which protective or mitigative actions are initiated. No current setpoints are altered by this change. The design and functioning of the containment and drywell isolation function is also unchanged. The change simply modifies the applicability of the Technical Specifications (TS) by removing the requirement that the RHR system isolation on low reactor vessel level be operable with the upper containment cavity flooded in MODE 5. During MODE 5, the RHR system isolation mitigates postulated draindown events through the RHR system. Entergy has evaluated various draindown events through this flow path and determined that adequate time is available for operations personnel to identify and take action to mitigate such events such that adequate core cooling is maintained.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment to TS 5.5.12 adds a one-time extension to the current interval for Type A testing (
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed extension to the interval for the Type A test does not involve any design or operational changes that could lead to a new or different kind of accident from any accidents previously evaluated. The tests are not being modified, but are only being performed after a longer interval. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation.
Therefore, the proposed change does not create the possibility of a new or
3. Does the proposed change involve a significant reduction in a margin of safety?
The generic study of the increase in the Type A test interval, NUREG-1493, concluded there is an imperceptible increase in the plant risk associated with extending the test interval out to twenty years. The evaluations done in support of this change confirm that (conclusion). Further, the extended test interval would have a minimal effect on this risk since Type B and C testing detects 97% of potential leakage paths. For the requested change in the GGNS ILRT/DWBT interval, it was determined that the risk contribution of leakage will increase 0.99%. This change is considered very small and does not represent a significant reduction in the margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed change does not involve a significant increase in probability or consequences of an accident previously evaluated.
The proposed change to Technical Specifications (TS) Table 3.3.6.1-1, “Primary Containment Isolation Instrumentation” will incorporate into the LaSalle County Station (LSCS) TS, wording specified in NUREG-1434, “Standard Technical Specifications General Electric Plants, BWR/6,” Revision 2, dated June 2001. The proposed change will modify TS Table 3.3.6.1-1 to add the requirement to perform a Channel Check in accordance with Surveillance Requirement (SR) 3.3.6.1.1 to thirteen listed instrument functions. The performance of TS surveillance testing is not a precursor to any accident previously evaluated. A Channel Check is a monitoring activity that does not represent an accident initiator. Thus, the proposed change does not have any effect on the probability of an accident previously evaluated.
The function of instrumentation listed on TS Table 3.3.6.1-1, in combination with other accident mitigation features, is to limit fission product release during and following postulated Design Basis Accidents (DBAs) to within limits. The surveillance testing specified in TS Table 3.3.6.1-1 will provide assurance that the instrumentation will perform as designed. Thus, the radiological consequences of any accident previously evaluated are not increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not affect the control parameters governing unit operation or the response of plant equipment to transient conditions. The failure modes of the new instrumentation do not give rise to a new or different kind of accident. The proposed change does not introduce any new modes of system operation or failure mechanisms.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. The proposed changes do not involve a significant reduction in a margin of safety.
The leak detection system at LaSalle County Station uses ambient or differential temperature increases to detect small primary coolant boundary leaks in the Main Steam Line Tunnel and in various rooms of the Reactor Core Isolation Cooling (RCIC) System and the Reactor Water Cleanup (RWCU) System. The existing thermocouple monitors did not have the capability to allow a Channel Check to be performed without undue risk of initiating an inadvertent system isolation in MODE 1, 2 and 3. Thus, the LSCS TS took exception to the guidance contained in NUREG-1434 and did not specify on TS Table 3.3.6.1-1 that a SR 3.3.6.1.1 Channel Check be performed on the above listed thirteen instrument functions.
The new thermocouple monitors have continuously reading digital displays that permit the performance of a Channel Check with the Unit in MODE 1, 2 and 3 without risk of inadvertent system isolations. The new thermocouple digital displays have been installed on Unit 2 during the January/February 2003 refuel outage and are scheduled to be installed in Unit 1 during the upcoming January 2004 refuel outage. LSCS after the return to service of Unit 2 in March of 2003, verified that the thermocouple digital displays do permit a Channel Check to be successfully performed on the above listed thirteen instrument functions. Therefore, LSCS is requesting that TS Table 3.3.6.1-1 is modified to specify that a SR 3.3.6.1.1 Channel Check be performed in MODE 1, 2 and 3, consistent with the guidance contained in NUREG-1434, Rev. 2.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
Based upon the above, Exelon Generation Company concludes that the proposed amendment presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. The proposed change does not involve a significant increase in probability or consequences of an accident previously evaluated.
The proposed change to the Technical Specifications (TS) Surveillance Requirement (SR) 3.6.1.3.8 will incorporate into the SR, wording specified in NUREG-1433, “Standard Technical Specifications General Electric Plants, BWR/4,” Revision 2, dated June 2001. The proposed change will specify that the testing required by SR 3.6.1.3.8 is applicable to reactor instrumentation line excess flow check valves (EFCVs). The performance of TS surveillance testing is not a precursor to any accident previously evaluated. Thus, the proposed change does not have any affect on the probability of an accident previously evaluated.
The function of reactor instrumentation line EFCVs, in combination with other accident mitigation features, is to limit fission product release. The surveillance testing specified in SR 3.6.1.3.8 will provide assurance that the reactor instrumentation line EFCVs will perform as designed. Thus, the radiological consequences of any accident previously evaluated are not increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change does not affect the control parameters governing unit operation or the response of plant equipment to transient conditions. The proposed change does not introduce any new equipment, modes of system operation or failure mechanisms.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. The proposed changes do not involve a significant reduction in a margin of safety.
NUREG-1433, Rev. 2, provided licensees with the latest NRC recommended content and format for TS. The NUREG-1433 SR for testing EFCVs, SR 3.6.1.3.10, specifies that this testing is associated with reactor instrumentation line EFCVs. The Bases to SR 3.6.1.3.10 in NUREG-1433, Rev. 2, provides a reference to NEDO-32977-A, “Excess Flow Check Valve Testing Relaxation,” dated June 2000. NEDO-32977-A was approved for use by licensees in a NRC letter dated March 14, 2000. NEDO-32977-A states the following on the scope of TS testing associated with EFCVs:
EFCVs in instrument lines which connect to the reactor coolant pressure boundary (RCPB) are normally tested during refueling outages to meet Technical Specification requirements. Instrument lines that connect to the containment atmosphere, such as those which measure drywell pressure, or monitor the containment atmosphere or suppression pool water level, are considered extensions of primary containment. A failure of one of these instrument lines during normal operation would not result in the closure of the associated EFCV, since normal operating containment pressure is not sufficient to operate the valve. Such EFCVs will only close with a downstream line break concurrent with a Loss of Coolant Accident (LOCA). Since these conditions are beyond the plant design basis, EFCV closure is not needed and containment atmospheric instrument line EFCVs need not be tested.
The proposed change will incorporate the wording from NUREG-1433 into LaSalle County Station SR 3.6.1.3.8 to limit the scope of TS required testing to EFCVs that are directly connected to the RCPB.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
Based upon the above, Exelon Generation Company concludes that the proposed amendment presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the requested amendments involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change allows the plant to operate in Mode 3 in support of RCS [reactor coolant system] leakage inspection activities conducted during the ongoing Thirteenth Refueling Outage, utilizing a limited exception to Limiting Condition for Operation (LCO) 3.5.2. This LCO applies in plant operational Modes 1 (Power Operation), 2 (Startup), and 3 (Hot Standby). Under the proposed exception, for entry into Mode 3, both HPI trains would be required to be operable except for the capability of maintaining suction from the containment emergency sump during the recirculation phase.
The ability of the HPI pumps to draw suction from the containment emergency sump (via the LPI [low pressure injection] pumps) is a design feature credited by the Davis-Besse Nuclear Power Station Updated Safety Analysis Report (USAR) for mitigation of various types of loss-of-coolant accidents (LOCAs). Due to the potential susceptibility to damage from debris contained in the pumped fluid, the existing HPI pumps may not be capable of maintaining suction from the containment emergency sump without an increased probability for malfunction. However, the current plant conditions are unique in that decay heat generation rate in the reactor core is extremely low due to the fact that the plant has not operated in more than 14 months and 76 unirradiated fuel assemblies have been loaded into the core, replacing irradiated fuel assemblies.
A LOCA evaluation has been performed considering the current reactor core decay heat generation rate. The evaluation shows that in the unlikely event that a LOCA did occur while operating in Mode 3 under the proposed exception, the accident can be mitigated without crediting HPI flow during the recirculation phase, while crediting additional operator actions not presently credited in the USAR. In addition, a risk evaluation has been performed and shows that the increase in core damage frequency, accounting for human error probability for the additional operator actions, is very small. Also, in the unlikely event that a LOCA did occur while operating in Mode 3 under the proposed exception, radiological consequences would be very small compared to the accident analyses results of record, given the fission product decay over the extended plant shutdown. Therefore, the proposed change would not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
There are no new or different accident initiators introduced by the proposed change to allow the plant to operate n Mode 3 under a limited exception, with the HPI pumps not capable of maintaining suction from the containment emergency sump (via the LPI pumps) during the recirculation phase of a LOCA. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change allows the plant to operate in Mode 3 under a limited exception, with the HPI pumps not capable of maintaining suction from the containment emergency sump (via the LPI pumps) during the recirculation phase of a LOCA. Although the ability of the HPI pumps to draw suction from the containment emergency sump (via the LPI pumps) is a design feature credited by the Davis-Besse Nuclear Power Station USAR for mitigation of various types of LOCAs, an evaluation shows that given the extremely low decay heat generation rate in the reactor core under current plant conditions, and crediting additional operator actions, in the unlikely event that a LOCA did occur while operating in Mode 3 under the proposed exception, the accident can be mitigated without crediting HPI flow during the recirculation phase. In addition, a risk evaluation has been performed and shows that the increase in core damage frequency, accounting for human error probability for the additional operator actions, would be expected to be very small. Also, in the unlikely event that a LOCA did occur while operating in Mode 3 under the proposed exception, radiological consequences would be very small compared to the accident analyses results of record, given the fission product decay over the extended plant shutdown. Accordingly, given that accident severity or consequences will not be significantly increased under the proposed change, a significant reduction in a margin of safety is not involved.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change corrects a post modification and repair Surveillance Requirement for the Motor Driven Feedwater Pump System. This surveillance is not an initiator to any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The Technical Specifications continue to require the MDFP System to be operable and capable of performing its design function. As a result, the consequences of any accident previously evaluated are not significantly affected. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed correction does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed correction does not result in a significant reduction in the margin of safety. The corrected Surveillance Requirement continues to ensure that the Motor Driven Feedwater Pump System can perform its required function. Thus, appropriate equipment continues to be tested in a manner that provides confidence that the equipment can perform its assumed function. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed surveillance requirement relocation and replacement does not alter the design, operation, or testing of any structure system or component. No previously analyzed accident scenario is changed. Initiating conditions and assumptions remain as previously analyzed. Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed surveillance requirement relocation and replacement does not alter the design, operation, or testing of any structure system or component. No new or different accident initiators are created as a result of the proposed changes. Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed surveillance requirement relocation and replacement does not reduce or adversely affect the capabilities of the ECCS. Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed Technical Specification (TS) amendments are administrative changes to clarify the current requirements for licensed operator qualifications and licensed operator training program. With these amendments, the TS continue to meet the current requirements of 10 CFR 55.
Although licensed operator qualifications and training may have an indirect impact on accidents previously evaluated, the Nuclear Regulatory Commission (NRC) considered this impact during the rulemaking process, and by issuance of the revised 10 CFR 55 rule, concluded that this impact remains acceptable, as long as the licensed operator training programs are certified to be accredited and are based on a systems approach to training. NMC licensed operator training programs are accredited by the National Nuclear Accrediting Board (NNAB) and are based on a systems approach to training. The proposed TS amendments take credit for the NNAB accreditation of the licensed operator training programs. The TS requirements for all other facility staff qualifications remain unchanged.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed TS amendments are administrative changes to clarify the current requirements for licensed operator qualifications and licensed operator training programs and to conform to the revised 10 CFR 55.
As discussed above, although licensed operator qualifications and training may have an indirect impact on the possibility of a new or different kind of accident from any accident previously evaluated, the NRC considered this impact during the rulemaking process, and by issuance of the revised rule, concluded that this impact remains acceptable, as long as licensed operator training programs are certified to be accredited and based on a systems approach to training. As previously noted, NMC licensed operator training programs are accredited by NNAB and are based on a systems approach to training. The proposed TS amendments take credit for the NNAB accreditation of the licensed operator training programs. The TS requirements for all other facility staff qualifications remain unchanged.
Additionally, the proposed TS amendments do not affect plant design, hardware, system operation, or procedures. Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed TS amendments are administrative changes to clarify the current requirements applicable to licensed operator qualifications and licensed operator training programs. With these changes the TS continue to be consistent with the requirements of 10 CFR 55. The TS qualification requirements for all other facility staff remain unchanged.
Licensed operator qualifications and training can have an indirect impact on a margin of safety. However, the NRC considered this impact during the rulemaking process, and by issuance of the revised 10 CFR 55, determined that this impact remains acceptable, when licensees maintain a licensed operator training program that is accredited and based on a systems approach to training. As noted previously, NMC licensed operator training programs are accredited by NNAB and are based on a systems approach to training.
The NRC has concluded, as stated in NUREG-1262, “Answers to Questions at Public Meetings Regarding Implementation of Title 10, Code of Federal Regulations, Part 55 on Operators' Licenses,” that the standards and guidelines applied by the Institute for Nuclear Power Operations in their training accreditation program are equivalent to those put forth or endorsed by the NRC. As a result, maintaining NNAB accredited, systems approach based, licensed operator training programs is equivalent to maintaining NRC approved licensed operator training programs, which conform to applicable NRC Regulatory Guides or NRC endorsed industry standards. The margin of safety is maintained by virtue of maintaining the NNAB accredited licensed operator training programs.
In addition, the NRC published NRC Regulatory Issue Summary 2001-01, “Eligibility of Operator License Applicants,” dated January 18, 2001, “to familiarize addressees with the NRC's current guidelines for the qualification and training of reactor operator (RO) and senior operator (SO) license applicants.” This document acknowledges that the National Academy for Nuclear Training guidelines for education and experience outline acceptable methods for implementing the NRC's regulations in this area.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The stretch uprate evaluations performed included performance of accident analyses at uprated power parameters using approved methodologies. Results of these analyses continue to meet the event acceptance criteria. An evaluation of components and systems, including interface and control systems, that could be affected by the change in power level, were performed for the stretch power uprate. Components and systems will continue to function as designed and performance requirements for these systems will continue to be met. Additionally, the proposed change in power level was not found to initiate any accident, and therefore, does not increase the probability of an accident.
Dose consequences were evaluated using the uprated power parameters. Acceptance criteria continue to be met. Therefore, the change also does not increase the consequences of an accident.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of the proposed change. The change has no adverse effect on any safety related system and does not change the performance or integrity of any safety related system. Additionally, no new safety related equipment is being added or changed as a result of this proposed change in power. Therefore, the possibility of a new or different kind of accident is not created.
3. Involve a significant reduction in the margin of safety.
All analyses supporting the proposed uprated power condition continue to meet the appropriate acceptance criteria. Therefore, the proposed change does not involve a significant reduction in the margin of safety.
Therefore, there are no significant hazards associated with the changes in rated power level.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change is an industry accepted safety limit applicable to the KNPP transition to Westinghouse fuel. Therefore, the change does not increase the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
No new accident scenarios, failure mechanisms or limiting single failures are introduced as a result of the proposed change in fuel centerline temperature. The change has no adverse effect on the fuel or the performance or integrity of the fuel. Therefore, the possibility of a new or different kind of accident is not created.
3. Involve a significant reduction in the margin of safety.
The proposed safety limit change is backed by technical evaluations performed by Westinghouse and experimental data. The limit is shown to be met as part of reload safety evaluations performed on a cycle specific basis. All applicable analyses supporting the proposed uprated power condition continue to meet the appropriate acceptance criteria. Therefore, the proposed change does not involve a significant reduction in the margin of safety.
Therefore, there are no significant hazards associated with the change in the safety limit.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The stretch power uprate evaluations performed included performance of accident analyses. Results of the accident analyses have verified that the acceptance criteria continue to be met. Neither the change in the analytical limit nor the change in the TS setting limit changes how the system functions. Systems will continue to function as designed and system performance criteria will continue to be met. Dose consequences have also been evaluated at uprate conditions and doses remain within the appropriate acceptance criteria. Therefore, the change does not increase the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of the proposed change. The change has no adverse effect on any safety related system and does not change the performance or integrity of any safety related system. Additionally, no new safety related equipment is being added or changed as a result of the proposed change in the high-high steam flow TS setting limit. Therefore, the possibility of a new or different kind of accident is not created.
3. Involve a significant reduction in the margin of safety.
The results of the accident analyses demonstrate the acceptance criteria continue to be met. Systems will continue to function as designed and system performance criteria continue to be met. Therefore, the proposed change does not involve a significant reduction in the margin of safety.
Therefore, there are no significant hazards associated with the change in the high-high steam flow TS setting limit.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
Removal of the LCO [limiting condition for operation] is conservative in that it eliminates relaxation of a design requirement for system redundancy. Deletion of the less conservative condition is more conservative by definition. Maintaining the system in a more conservative condition cannot create new challenges to components and systems that could adversely affect their ability to mitigate accident consequences or diminish the integrity of any fission product barrier. Therefore, the deletion of the LCO does not increase the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
Maintaining the system in a more conservative condition does not adversely affect any fission product barrier, nor does it alter the safety function of safety related systems, structures, and components depended upon for accident prevention or mitigation. Equipment important to safety will continue to function at its design capacity. No new equipment is being added, replaced, or taken away by the deletion of the LCO. Therefore, the possibility of a new or different kind of accident is not created.
3. Involve a significant reduction in the margin of safety.
Safety analysis acceptance criteria continue to be satisfied for containment heat removal with deletion of this LCO. Therefore, the proposed change does not involve a significant reduction in the margin of safety.
Therefore, there are no significant hazards associated with the containment cooling systems change.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The stretch power uprate project evaluations performed included a review of the SBO [station blackout] event. Results of the evaluation verified that with the increase in the CST [condensate storage tanks] inventory, the evaluation criteria continue to be met. Systems will continue to function as designed and system performance criteria will continue to be met. Additionally, dose consequences have been evaluated for the power uprate and results remain within the appropriate acceptance criteria. Therefore, the changes to CST inventory do not increase the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of the proposed changes. The changes have no adverse effect on any safety related system and do not change the performance or integrity of any safety related system. Additionally, no new safety related equipment is being added or changed as a result of the proposed changes in inventory. Therefore, the possibility of a new or different kind of accident is not created.
3. Involve a significant reduction in the margin of safety.
The results of the SBO event review have verified that the analysis criteria continue to be met. Systems will continue to function as designed and system performance criteria
Therefore, there are no significant hazards associated with the changes in CST inventory.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The LONF accident analyses have demonstrated that the TS required AFW [auxiliary feedwater] trains at the minimum assumed flow capability provide sufficient heat removal capacity to mitigate the LONF accident such that acceptance criteria are satisfied. Single failure criteria are still met, and no physical system changes have been made. Dose consequences have been evaluated for the power uprate and the results remain within the appropriate acceptance criteria. Therefore, the changes to the auxiliary feedwater system technical specifications do not increase the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of the proposed change. The change has no adverse effect on any safety related system and does not change the performance or integrity of any safety related system. Additionally, no new safety related equipment is being added or changed as a result of these proposed changes to technical specifications. Therefore, the possibility of a new or different kind of accident is not created.
3. Involve a significant reduction in the margin of safety.
The LONF analysis supporting the proposed changes to technical specifications meets the appropriate acceptance criteria. Therefore, the proposed changes do not involve a significant reduction in the margin of safety.
Therefore, there are no significant hazards associated with the auxiliary feedwater system technical specification changes.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The editorial and administrative changes do not affect the analysis performed in support of the stretch power uprate. Therefore, the changes do not increase the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
The editorial and administrative changes do not affect the analysis performed in support of the stretch power uprate. No new accident scenarios, failure mechanisms or limiting single failures are introduced as a result of the proposed editorial and administrative changes. Therefore, the possibility of a new or different kind of accident is not created.
3. Involve a significant reduction in the margin of safety.
The editorial and administrative changes do not affect the analysis performed in support of the stretch power uprate. Therefore, the proposed changes do not involve a significant reduction in the margin of safety.
Therefore, there are no significant hazards associated with the editorial changes.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in probability or consequences of an accident previously evaluated?
The proposed change to replace the words “impulse chamber” with “steam line input” in the descriptive text associated with the P-7 function of the Reactor Trip System does not involve any physical or design change to the P-7 function. The proposed change renames the turbine inlet pressure to reflect the change in turbine design and the new location where the pressure is sensed. Because the P-7 function is not affected by the proposed amendment request, the changes to the Salem TSs are effectively editorial in nature. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The intent of the proposed change is to revise the description of the P-7 permissive as a result of changes to the design of the turbine. The P-7 permissive function is based on a relationship between first stage turbine inlet pressure and rated thermal power (RTP). Although the pressure sensed at the new location will be slightly higher, the instrument and controls logic, and all design basis functions that rely on the P-7 function, will remain the same. Therefore, the proposed change does not create the possibility of a new or different kind of accident than any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
As previously stated, the proposed change is editorial in nature and maintains the design basis functions associated with the P-7 permissive interlock. This is accomplished because the turbine pressure input to the P-7 function will continue to exhibit a consistent and accurate relationship to RTP following plant modifications. Therefore, because there will be no changes to the input assumptions associated with Salem's accident analysis, the proposed change does not involve a significant reduction in the margin of safety.
Based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
This change to the Technical Specifications does not result in a condition where the design, material, and construction
The proposed change to remove the footnote from Unit 1 Surveillance Requirement 4.3.2.1.3 is an administrative change and does not result in any increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
This change does not alter the performance of the pressure and differential pressure transmitters and switches used in the plant protection systems. All sensors will still have response time verified by test before placing the sensor in operational service and after any maintenance that could affect response time. Changing the method of periodically verifying instrument response for certain sensors (assuring equipment operability) from time response testing to calibration and channel checks will not create any new accident initiators or scenarios. Periodic surveillance of these instruments will detect significant degradation in the sensor response characteristic. Implementation of the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change to remove the footnote from Unit 1 Surveillance Requirement 4.3.2.1.3 is an administrative change and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
This change does not affect the total system response time assumed in the safety analysis. The periodic system response time verification method for selected pressure and differential pressure sensors is modified to allow use of actual test data or engineering data. The method of verification still provides assurance that the total system response is within that defined in the safety analysis, since calibration tests will detect any degradation which might significantly affect sensor response time. Based on the above, it is concluded that the proposed license amendment does not result in a reduction in margin with respect to plant safety.
The proposed change to remove the footnote from Unit 1 Surveillance Requirement 4.3.2.1.3 is an administrative change and does not involve a reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed administrative license amendment only changes the name of one of the owners of STP in the Operating Licenses. This is not an initiator for accidents nor does this action affect the consequences of an accident. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed administrative license amendment only changes the name of one of the owners of STP in the Operating Licenses. This is not an initiator for accidents. Therefore, the change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Margin of safety is associated with confidence in the ability of the fission product barriers (
Based on the above, STPNOC concludes that the proposed amendment involves no significant hazards consideration under the standards set forth in 10 CFR 50.92 and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves no significant hazards consideration.
1. The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The design of plant equipment is not being modified by the proposed changes. In addition, the DGs [diesel generators] and their associated emergency loads are accident mitigating features. As such, testing of the DGs themselves is not associated with any potential accident-initiating mechanism. Therefore, there will be no significant impact on any accident probabilities by the approval of the requested changes.
The changes include an increase in the online time that a DG under test will be paralleled to the grid (for SRs 3.8.1.10 and
The SR changes that are consistent with TSTF [Technical Specification Task Force]-283 have been approved by the NRC for submittal by licensees. The on-line tests allowed by the TSTF are only to be performed for the purpose of establishing OPERABILITY [of the DG being tested]. Performance of these SRs during restricted MODES will require an assessment to assure plant safety is maintained or enhanced.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The capability to synchronize a DG to the offsite source (via the associated plant bus) and test the DG in such a configuration is a design feature of the DGs, including the test mode override in response to a safety injection signal. Paralleling the DG for longer periods of time during plant operation may slightly increase the probability of incurring an adverse effect from the offsite source, but this increase in probability is judged to be still quite small and such a possibility is not a new or previously unrecognized consideration.
The proposed changes would not require any new or different accidents to be postulated since no changes are being made to the plant that would introduce any new accident causal mechanisms. This license amendment request does not impact any plant systems that are potential accident initiators; nor does it have any significantly adverse impact on any accident mitigating systems.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed change does not involve a significant reduction in a margin of safety.
The proposed changes do not involve a significant reduction in the margin of safety. The margin of safety is related to the confidence in the ability of the fission product barriers to perform their design [safety] functions during and following an accident situation. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The proposed changes do not directly affect these barriers, nor do they involve any significantly adverse impact on the DGs which serve to support these barriers in the event of an accident concurrent with a loss of offsite power. The proposed changes to the testing requirements for the plant DGs do not affect the OPERABILITY requirements for the DGs, as verification of such OPERABILITY will continue to be performed as required (except during different allowed MODES [of operation]). These changes have an insignificant impact on DG availability, as continued verification of OPERABILITY supports the capability of the DGs to perform their required [safety] function of providing emergency power to plant equipment that supports or constitutes the fission product barriers. Only one DG is to be tested at a time, so that the remaining DG will be available to safely shut down the plant if required. Consequently, performance of the fission product barriers will not be impacted by implementation of the proposed amendment.
In addition, the proposed changes involve no changes to [safety] setpoints or limits established or assumed by the accident analyses. On this and the above basis, no safety margins will be impacted.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. They are repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration.
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety
In its May 23, 2003, application, the licensee also proposed to delete License Conditions 2.C.(20) and 2.C.(21) which pertain to historical actions that have been met. The Nuclear Regulatory Commission staff's evaluation of the proposed deletion of License Conditions 2.C.(20) and 2.C.(21) will be addressed under separate cover.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 16, 2003.
Date of initial notice in
For the Nuclear Regulatory Commission.
Postal Rate Commission.
Notice and order.
This document provides notice that the Postal Service has filed a request with the Commission seeking an expedited decision approving a two-year experiment testing bulk parcel return services. It briefly describes the proposal, which focuses primarily on the customer-to-merchant segment of retail transactions. The notice also addresses related terms and conditions, proposed rates, and eligibility for participation in the experiment. It identifies conference dates and deadlines for certain procedural steps in the initial stages of this case.
1. June 18, 2003: notices of intervention, requests for a hearing, and comments on experimental status.
2. June 24, 2003: (optional) comments on discovery-related deadlines.
3. June 25, 2003: prehearing conference (2 p.m.).
4. June 27, 2003: responses to conditional motion for waiver of certain filing requirements.
Submit documents electronically via the Commission's Filing Online system, which can be accessed at
Stephen L. Sharfman, General Counsel, 202-789-6818.
On May 28, 2003, the Postal Service filed a request seeking a recommended decision approving an experimental change in the Domestic Mail Classification Schedule (DMCS) to establish rate categories, including rates and fees, for certain parcels and bound printed matter that are returns from customers to merchants.
In contemporaneous filings, the Postal Service requests expedited consideration of its proposal, including establishment of settlement procedures,
The Postal Service proposes an experimental bulk parcel return service applicable to merchandise returned as either Parcel Post or Bound Printed Matter (BPM) mail. Collectively, the experimental changes are referred to as Parcel Return Services, comprised of Parcel Select Return Service (PSRS) and Bound Printed Matter Return Service (BPMRS). Witness Kiefer sponsors the proposed rates and classifications.
PSRS adds two rate categories to the Parcel Post subclass, Parcel Select Return Delivery Unit (RDU) and Parcel Select Return Bulk Mail Center (RBMC). The proposed RDU rate for mail retrieved in bulk at delivery units is $2.00 per parcel. The proposed RBMC rates for parcels retrieved in bulk at the first BMC they reach range between $0.86 and $1.51 below the non-workshared rates for regular-sized parcels.
BPMRS adds one rate category to the BPM subclass, Bound Printed Matter Bulk Mail Center (RBMC). Similar to Parcel Select Return Service, the RBMC rate is applicable to BPM parcels retrieved in bulk at the first BMC they reach. The proposed rates are $0.24 below the non-workshared BPM rates.
Witness Kiefer's proposed rates are based on cost data supplied by witness Eggleston.
In support of its proposal, the Postal Service also submits the testimony of witness Gullo (USPS-T-1), who describes the proposed Parcel Return Services products, and witness Wittnebel, who discusses, from a mailer's perspective, the processing of returns and the benefits associated with the experiment (USPS-T-4).
Experimental designation. By designating its proposal as experimental, the Postal Service seeks consideration of its Request under rules 67-67d. The Postal Service suggests that these rules are appropriate as they contemplate review of proposed experimental classifications in the absence of historical data that normally underlie requests for permanent classification changes. While acknowledging that it lacks data about the potential response to the
The Service says the expedition allowed under the experimental rules is appropriate in the interest of putting the proposed services into effect in time for the 2003 holiday mailing season. Request at 5.
The Postal Service avers that its filing complies with applicable Commission filing requirements, but, as a precautionary alternative, seeks waiver of various filing requirements should the Commission conclude otherwise.
Notwithstanding its principal position, the Postal Service recognizes that the Commission may find that it has failed to comply with the filing requirements. Accordingly, the Postal Service requests a waiver of certain filing requirements if the Commission concludes that the materials incorporated from the omnibus case are not sufficient to satisfy those requirements.
In support of its request for expedition beyond that contemplated by the rules governing experimental classifications, the Postal Service asserts that the proposed classification change is straightforward, and of limited scope and duration. It also states that the proposed parcel return services would have an insignificant effect on overall volumes, revenues, and costs. Further, it states that, based on discussions with industry representatives, the proposal has widespread support and should have no significant adverse impact on competitors. The Postal Service believes there is a distinct possibility for settlement.
In lieu of proposing a specific schedule, the Postal Service identifies four procedures the Commission could employ to expedite the proceeding. These include setting a relatively short intervention period and requiring participants to identify, in their notices of intervention, whether they intend to seek a hearing and to identify any genuine issues of material fact that may warrant such a hearing. In addition, the Postal Service requests that a settlement conference be scheduled as quickly as possible following the deadline for intervention. Finally, it suggests that the time allotted for discovery, if found to be necessary, be abbreviated and limited to matters related directly to its proposal.
Proceeding under the experimental rules. The Postal Service's request was filed pursuant to the Commission's rules 67-67d involving experimental classification changes. Formal status as an experiment under these rules is based on an evaluation of factors such as the proposal's novelty, magnitude, ease or difficulty of data collection, and duration. A final determination regarding the appropriateness of the experimental designation and application of Commission rules 67-67d will not be made until participants have had an adequate opportunity to comment. Participants are invited to file comments on this matter by June 18, 2003.
Postal Service's request for expedition.The Postal Service requests that the Commission expedite this proceeding, advancing several reasons to support its request. First, the Postal Service states that the proposal is straightforward and has a limited scope and duration, as explained in the testimony of witness Gullo and in its Request. Further, the Postal Service contends that the proposed changes would not significantly effect its overall revenues, volumes, or costs. Finally, the Postal Service states that industry representatives support the proposal, concluding that it should have no adverse effect on competitors.
To expedite the proceeding, the Postal Service suggests several procedures for the Commission's consideration, including establishing a relatively short intervention period, requiring the prospective participants to request a hearing and identify any issues of material fact in their notices of intervention.
The reasons offered by the Postal Service in support of expedition are essentially the same as advanced in prior requests.
It would appear to be axiomatic that any proposed experiment would have the characteristics that the Postal Service offers to support an expedited schedule. For example, presumably all experimental changes would have a limited scope and duration, be sufficiently explained by supporting testimony, and be supported by industry representatives. Even taking these as a given, they fail to warrant accelerating this proceeding in the manner suggested by the Postal Service.
The Postal Service requests a relatively short intervention period. The Postal Service does not suggest a
By statute, the Commission is required “to conduct its proceedings with utmost expedition consistent with procedural fairness to the parties.”
The Postal Service indicates it wishes to implement this program in time for the 2003 holiday mailing season, suggesting an early October effective date would be necessary.
The due date for notices of intervention is June 18, 2003. Any person wishing to intervene must file a notice electronically via the Commission's Filing Online system, in conformance with the Commission's rules 9 through 12. See 39 CFR 3001.9-3001.12. Notices should indicate whether participation will be on a full or limited basis.
Turning to the balance of the Postal Service's suggestions, participants should indicate in their notices of intervention whether they request a hearing and, if so, they should identify all issues of material fact that may warrant such a hearing.
Settlements are to be encouraged. Given the Postal Service's representations that the proposal is widely supported and should not adversely affect competitors or other mailers, the Commission will authorize settlement negotiations in this proceeding. It appoints Postal Service counsel as settlement coordinator. In this capacity, Postal Service counsel shall file periodic reports on the status of settlement discussions. The Commission authorizes the settlement coordinator to hold a settlement conference on June 23, 24 or 25, 2003, at 10:00 a.m. in the Commission's hearing room. Authorization of settlement discussions does not constitute a finding on the proposal's experimental status or on the need for a hearing.
Finally, under the Commission's rules, discovery is permissible upon intervention. The Postal Service suggests that time limits for discovery be abbreviated without suggesting specific time limits. At this stage of the proceeding, the Commission is unable to determine whether and to what extent, if any, discovery may ensue. Nonetheless, to facilitate resolution of this proceeding, participants desiring to engage in any discovery are encouraged to submit it promptly and to be prepared to discuss the need for additional discovery at the prehearing conference. Postal Service's responses will be due within 10 days after the filing of the discovery. Objections, if any, should be filed within 7 days of the filing of the discovery. Motions to compel, if any, should be filed within 7 days of the filing of the relevant objection.
Representation of the general public. In conformance with section 3624(a) of title 39, the Commission designates Shelley S. Dreifuss, director of the Commission's office of the consumer advocate (OCA), to represent the interests of the general public in this proceeding. Pursuant to this designation, Ms. Dreifuss will direct the activities of Commission personnel assigned to assist her and, upon request, will supply their names for the record. Neither Ms. Dreifuss nor any of the assigned personnel will participate in or provide advice on any Commission decision in this proceeding.
Prehearing conference. A prehearing conference will be held June 25, 2003, at 2 p.m. in the Commission's hearing room. Participants shall be prepared to address matters referred to in this ruling.
It is ordered:
1. The Commission establishes docket no. MC2003-2, experimental parcel return services, to consider the Postal Service request referred to in the body of this order.
2. The Commission will sit en banc in this proceeding.
3. The deadline for filing notices of intervention is June 18, 2003.
4. Notices of intervention shall indicate whether the participant seeks a hearing and, if so, identify with particularity any genuine issues of material fact that may warrant a hearing.
5. Responses to the Postal Service's conditional motion for waiver of certain filing requirements are due on or before June 27, 2003.
6. The United States Postal Service's request for expedition and establishment of settlement procedures is denied, in part, and granted, in part, as set forth in the body of this order.
7. Postal Service counsel is appointed to serve as settlement coordinator in this proceeding.
8. A prehearing conference will be held June 25, 2003 at 2:00 p.m. in the Commission's hearing room.
9. Shelley S. Dreifuss, director of the Commission's Office of the Consumer Advocate, is designated to represent the interests of the general public.
10. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under (a) section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 18(f) and 21(b) of the Act; (b) section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act; (c) sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(3) of the Act; and (d) section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, c/o Donald W. Smith, Esq., Kirkpatrick & Lockhart LLP, 1800 Massachusetts Avenue, NW., Washington, DC 20036.
Deepak T. Pai, Senior Counsel, or Todd Kuehl, Branch Chief, at 202-942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (telephone 202-942-8090).
1. The Trust is registered under the Act as an open-end management investment company and is organized as a Delaware business trust. The Trust is composed of thirteen series; each series has separate investment objectives, policies, and assets (the “Funds”).
2. Some Funds may lend money to banks or other entities by entering into repurchase agreements or purchasing other short-term instruments. Other Funds may borrow money from the banks for temporary purposes to satisfy redemption requests or to cover unanticipated cash shortfalls such as a trade “fail” in which cash payment for a security sold by a Fund has been delayed.
3. If the Funds were to borrow money from a bank, under their current credit arrangement the Funds would pay interest on the borrowed cash at a rate that would be significantly higher than the rate that would be earned by other (non-borrowing) Funds on repurchase agreements and other short-term instruments of the same maturity as the bank loan. Applicants state that this differential represents the profit the bank would earn for serving as a middleman between a borrower and a lender. The borrowing Funds also pay commitment and facility fees to the bank.
4. Applicants request an order that would permit the Funds to enter into master interfund lending agreements (“Interfund Lending Agreements”) with each other that would permit the Funds to lend and borrow money for temporary purposes directly to and from each other through a credit facility (“Interfund Loan”). Applicants state that the proposed credit facility would reduce potential borrowing Funds' costs and enhance lending Funds' ability to earn higher rates of interest on their short-term lendings. Although the proposed credit facility would reduce the Funds' need to borrow from banks, the Funds would be free to continue the existing lines of credit or establish new lines of credit or other borrowing arrangements with banks.
5. Applicants anticipate that the credit facility would provide borrowing Funds with significant savings when the cash position of the Funds is insufficient to meet temporary cash requirements. This situation could arise when redemptions exceed anticipated volumes and the Funds have insufficient cash on hand to satisfy such redemptions. When the Funds liquidate portfolio securities to meet redemption requests, they often do not receive payment in settlement for up to three days (or longer for certain foreign transactions). However, redemption requests normally are satisfied immediately. The credit facility would provide a source of immediate, short-term liquidity pending settlement of the sale of portfolio securities.
6. Applicants also propose using the credit facility when a sale of securities fails due to circumstances beyond a Fund's control, such as a delay in the delivery of cash to the Fund's custodian or improper delivery instructions by the broker effecting the transaction. Sales fails may present a cash shortfall if the Fund has undertaken to purchase a security using the proceeds from securities sold. Under such circumstances, the Fund could (i) fail on its intended purchase due to lack of funds from the previous sale, resulting in additional cost to the Fund, or (ii) sell a security on a same day settlement basis, earning a lower return on the investment. Use of the credit facility would give the Funds access to immediate short-term liquidity without incurring custodian overdraft or other charges.
7. While bank borrowings generally could supply needed cash to cover unanticipated redemptions and sales fails, under the proposed credit facility, a borrowing Fund would pay lower interest rates than those that would be payable under short-term loans offered by banks. In addition, Funds making short-term cash loans directly to other Funds would earn interest at a rate higher than they otherwise could obtain from investing their cash in repurchase agreements or purchasing shares of a Money Market Fund. Thus, applicants believe that the proposed credit facility would benefit both borrowing and lending Funds.
8. The interest rate charged to the Funds on any loan made pursuant to the proposed credit facility (the “Interfund Loan Rate”) would be determined daily
9. The credit facility would be administered by staff members of SBC Financial who are not portfolio mangers (the “Administrative Staff”). Under the credit facility, the portfolio managers for each participating Fund, or the staff of SBC Financial responsible for coordinating the portfolio managers and overseeing their management of each Fund, (who are not the Administrative Staff) could provide standing instructions to participate in the credit facility daily as a borrower or lender. On each business day, the Administrative Staff would collect data on the uninvested cash and borrowing requirements of all participating Funds from the Fund's custodian. Once it had determined the aggregate amount of cash available for loans and borrowing demand, the Administrative Staff would allocate loans among borrowing Funds without any further communication from portfolio managers. After the Administrative Staff has allocated cash for Interfund Loans, the Administrative Staff will invest any remaining cash in accordance with the standing instructions of portfolio managers or return remaining amounts to the Funds.
10. The Administrative Staff would allocate borrowing demand and cash available for lending among the Funds on what the Administrative Staff believes to be an equitable basis, subject to certain administrative procedures applicable to all Funds, such as (i) the time of filing requests to participate, (ii) minimum loan lot sizes, and (iii) the need to minimize the number of transactions and associated administrative costs. To reduce transaction costs, each Interfund Loan normally would be allocated in a manner intended to minimize the number of participants necessary to complete the loan transaction.
11. SBC Financial would (a) monitor the interest rates charged and the other terms and conditions of the loans, (b) limit the borrowings and loans entered into by each Fund to ensure that they comply with the Fund's investment policies and limitations, (c) ensure equitable treatment of each Fund, and (d) make quarterly reports to the Board of each Fund concerning any transactions by the Fund under the credit facility and the interest rates charged. The method of allocation and related administrative procedures would be approved by the Board, including a majority of the Board members who are not “interested persons” of the Funds as that term is defined in section 2(a)(19) of the Act (“Independent Trustees”), to ensure that both borrowing and lending Funds participate on an equitable basis.
12. SBC Financial would administer the credit facility as part of its duties under its existing advisory contract with each Fund and would receive no additional fee as compensation for its services. SBC Financial may collect standard pricing and record keeping, bookkeeping, and accounting fees associated with repurchase and lending transactions generally, including transactions effected through the credit facility. Fees paid to SBC Financial in connection with an Interfund Loan would be no higher than those associated with comparable bank loan transactions.
13. No Fund may participate in the credit facility unless: (i) The Fund has obtained shareholder approval for its participation, if such approval is required by law; (ii) the Fund has fully disclosed all material information concerning the credit facility in its prospectus and/or SAI; and (iii) the Fund's participation in the credit facility is consistent with its investment objectives, limitations, and organizational documents.
14. In connection with the credit facility, applicants request an order under (i) section 6(c) of the Act granting relief from sections 18(f) and 21(b) of the Act; (ii) section 12(d)(1)(J) of the Act granting relief from sections 12(d)(1)(A) and (B) of the Act; (iii) sections 6(c) and 17(b) of the Act granting relief from sections 17(a)(1) and 17(a)(3) of the Act; and (iv) section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint transactions.
1. Section 17(a)(3) of the Act generally prohibits an affiliated person, or an affiliated person of an affiliated person, from borrowing money or other property from a registered investment company. Section 21(b) of the Act generally prohibits any registered management company from lending money or other property to any person if that person controls or is under common control with that company. Section 2(a)(3) of the Act defines an “affiliated person” of another person, in part, to be any person directly or indirectly controlling, controlled by, or under common control with, the other person. Applicants state that the Funds may be under common control by virtue of having SBC Financial as their common investment adviser, and/or by reason of having common officers, directors and/or trustees.
2. Section 6(c) of the Act provides that an exemptive order may be granted where an exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) provided that the terms of the transaction, including the consideration to be paid or received, are fair and reasonable and do not involve overreaching on the part of any person concerned, and the transaction is consistent with the policy of the investment companies involved, as recited in their registration statements, and with the general purposes of the Act. Applicants believe that the proposed arrangements satisfy these standards for the reasons discussed below.
3. Applicants submit that sections 17(a)(3) and 21(b) of the Act were intended to prevent a person with potential adverse interests to, and some influence over the investment decisions of, a registered investment company from causing or inducing the investment company to engage in lending transactions that unfairly inure to the benefit of that person and that are detrimental to the best interests of the investment company and its shareholders. Applicants assert that the proposed credit facility transactions do not raise these concerns because: (i) SBC Financial would administer the program as a disinterested fiduciary in the best interests of the Funds' shareholders; (ii) all Interfund Loans would consist only of uninvested cash reserves that a Fund otherwise would invest in short-term
4. Section 17(a)(1) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of an affiliated person, from selling any securities or other property to the company. Section 12(d)(1) of the Act generally makes it unlawful for a registered investment company to purchase or otherwise acquire any security issued by any other investment company, except in accordance with the limitations set forth in that section. Applicants state that the obligation of a borrowing Fund to repay an Interfund Loan may constitute a security for purposes of sections 17(a)(1) and 12(d)(1) of the Act. 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 such exception is consistent with the public interest and the protection of investors. Applicants contend that the standards under sections 6(c), 17(b) and 12(d)(1)(J) of the Act are satisfied for all the reasons set forth above in support of their request for relief from sections 17(a)(3) and 21(b) and for the reasons discussed below.
5. Applicants state that section 12(d)(1) was intended to prevent the pyramiding of investment companies in order to avoid duplicative costs and fees attendant upon multiple layers of investment companies. Applicants submit that the proposed credit facility does not involve these abuses. Applicants note that there would be no duplicative costs or fees to the Funds or shareholders. SBC Financial would administer the credit facility under its existing advisory agreements with the Funds, and would receive no additional compensation for its services. Applicants also note that the purpose of the proposed credit facility is to provide economic benefits for all of the participating Funds and their shareholders.
6. Section 18(f)(1) of the Act prohibits open-end investment companies from issuing any senior security, except that a company is permitted to borrow from any bank, if immediately after the borrowing there is an asset coverage of at least 300 percent for all borrowings of the company. Under section 18(g) of the Act, the term “senior security” includes any bond, debenture, note, or similar obligation or instrument constituting a security and evidencing indebtedness. Applicants request exemptive relief from section 18(f)(1) to the limited extent necessary to implement the credit facility (because the lending Funds are not banks).
7. Applicants believe that granting relief under section 6(c) of the Act is appropriate because the Funds would remain subject to the requirement of section 18(f)(1) that all borrowings of the Fund, including combined credit facility and bank borrowings, have at least 300% asset coverage. Based on the conditions and safeguards described in the application, applicants also submit that to allow the Funds to borrow from other Funds pursuant to the proposed credit facility is consistent with the purposes and policies of section 18(f)(1).
8. Section 17(d) of the Act and rule 17d-1 under the Act generally prohibit an affiliated person of a registered investment company, or an affiliated person of such a person, when acting as principal, from effecting any joint transaction unless the transaction is approved by the Commission. Rule 17d-1(b) under the Act provides that in passing upon applications for exemptive relief from section 17(d), the Commission will consider whether the participation of a registered investment company in a joint enterprise on the basis proposed is consistent with the provisions, policies, and purposes of the Act and the extent to which the company's participation is on a basis different from, or less advantageous than, that of other participants.
9. Applicants submit that the purpose of section 17(d) is to avoid overreaching by, and unfair advantage to, investment company insiders. Applicants believe that the credit facility is consistent with the provisions, policies and purposes of the Act in that it offers both reduced borrowing costs and enhanced returns on loaned funds to all participating Funds and their shareholders. Applicants note that each Fund would have an equal opportunity to borrow and lend on equal terms consistent with its investment policies and fundamental investment limitations. Applicants therefore believe that each Fund's participation in the proposed credit facility will be on terms no different from, or less advantageous than, that of other participating Funds.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The Interfund Loan Rate to be charged to the Funds under the credit facility will be the average of the Repo Rate and the Bank Loan Rate.
2. On each business day, SBC Financial will compare the Bank Loan Rate with the Repo Rate and will make cash available for Interfund Loans only if the Interfund Loan Rate is (i) more favorable to the lending Fund than the Repo Rate and, if applicable, the yield of any Money Market Fund in which the lending Fund could otherwise invest and (ii) more favorable to the borrowing Fund than the Bank Loan Rate.
3. If a Fund has outstanding borrowings, any Interfund Loans to the Fund (i) will be at an interest rate equal to or lower than any outstanding bank loan, (ii) will be secured at least on an equal priority basis with at least an equivalent percentage of collateral to loan value as any outstanding bank loan that requires collateral, (iii) will have a maturity no longer than any outstanding bank loan (and in any event not over seven days), and (iv) will provide that, if an event of default occurs under any agreement evidencing an outstanding bank loan to the Fund, that event of default will automatically (without need for action or notice by the lending Fund) constitute an immediate event of default under the Interfund Lending Agreement entitling the lending Fund to call the Interfund Loan (and exercise all rights with respect to any collateral) and that such call will be made if the lending bank exercises its right to call its loan under its agreement with the borrowing Fund.
4. A Fund may make an unsecured borrowing through the credit facility if its outstanding borrowings from all sources immediately after the interfund borrowing total 10% or less of its total assets, provided that if the Fund has a secured loan outstanding from any other lender, including but not limited to another Fund, the Fund's interfund borrowing will be secured on at least an equal priority basis with at least an equivalent percentage of collateral to loan value as any outstanding loan that requires collateral. If a Fund's total outstanding borrowings immediately after an interfund borrowing would be greater than 10% of its total assets, the Fund may borrow through the credit facility on a secured basis only. A Fund may not borrow through the credit facility or from any other source if its
5. Before any Fund that has outstanding interfund borrowings may, through additional borrowings, cause its outstanding borrowings from all sources to exceed 10% of its total assets, the Fund must first secure each outstanding Interfund Loan by the pledge of segregated collateral with a market value at least equal to 102% of the outstanding principal value of the loan. If the total outstanding borrowings of a Fund with outstanding Interfund Loans exceed 10% of its total assets for any other reason (such as a decline in net asset value or because of shareholder redemptions), the Fund will within one business day thereafter (a) repay all its outstanding Interfund Loans, (b) reduce its outstanding indebtedness to 10% or less of its total assets, or (c) secure each outstanding Interfund Loan by the pledge of segregated collateral with market value at least equal to 102% of the outstanding principal value of the loan until the Fund's total outstanding borrowings cease to exceed 10% of its total assets, at which time the collateral called for by this condition 5 shall no longer be required. Until each Interfund Loan that is outstanding at any time that a Fund's total outstanding borrowings exceeds 10% is repaid or the Fund's total outstanding borrowings cease to exceed 10% of its total assets, the Fund will mark the value of the collateral to market each day and will pledge such additional collateral as is necessary to maintain the market value of the collateral that secures each outstanding Interfund Loan at least equal to 102% of the outstanding principal value of the loan.
6. No Fund may lend funds through the credit facility if the loan would cause its aggregate outstanding loans through the credit facility to exceed 15% of its net assets at the time of the loan.
7. A Fund's Interfund Loans to any one Fund shall not exceed 5% of the lending Fund's net assets.
8. The duration of Interfund Loans will be limited to the time required to receive payment for securities sold, but in no event more than seven days. Loans effected within seven days of each other will be treated as separate loan transactions for purposes of this condition.
9. Each Interfund Loan may be called on one business day's notice by a lending Fund and may be repaid on any day by a borrowing Fund.
10. A Fund's participation in the credit facility must be consistent with its investment policies and limitations and organizational documents.
11. The Administrative Staff will calculate total Fund borrowing and lending demand through the credit facility, and allocate loans on an equitable basis among the Funds without the intervention of any portfolio manger of the Funds. The Administrative Staff will not solicit cash for the credit facility from any Fund or prospectively publish or disseminate loan demand data to portfolio managers. The Administrative Staff will invest any amount remaining after satisfaction of borrowing demand in accordance with the standing instructions from portfolio managers or return remaining amounts to the Funds.
12. SBC Financial will monitor the interest rates charged and the other terms and conditions of the Interfund Loans and will make a quarterly report to the Board concerning the participation of the Funds in the credit facility and the terms and other conditions of any extensions of credit under the facility.
13. The Fund's Board, including a majority of the Independent Trustees: (a) Will review no less frequently than quarterly the Fund's participation in the credit facility during the preceding quarter for compliance with the conditions of any order permitting the transactions; (b) will establish the Bank Loan Rate formula used to determine the interest rate on Interfund Loans and review no less frequently than annually the continuing appropriateness of the Bank Loan Rate formula, and (c) will review no less frequently than annually the continuing appropriateness of the Fund's participation in the credit facility.
14. In the event an Interfund Loan is not paid according to its terms and the default is not cured within two business days from its maturity or from the time the lending Fund makes a demand for payment under the provisions of the Interfund Lending Agreement, SBC Financial will promptly refer the loan for arbitration to an independent arbitrator selected by the Board of any Fund involved in the loan who will serve as arbitrator of disputes concerning Interfund Loans. The arbitrator will resolve any problem promptly, and the arbitrator's decision will be binding on both Funds.
15. Each Fund will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any transaction under the credit facility occurred, the first two years in an easily accessible place, written records of all such transactions setting forth a description of the terms of the transaction, including the amount, the maturity and the rate of interest on the loan, the rate of interest available at the time on overnight repurchase agreements and bank borrowings, the yield of any Money Market Fund in which the lending Fund could otherwise invest and such other information presented to the Fund's Board in connection with the review required by conditions 12 and 13.
16. SBC Financial will prepare and submit to the Board of each Fund for review an initial report describing the operations of the credit facility and the procedures to be implemented to ensure that all Funds are treated fairly. After the commencement of operations of the credit facility, SBC Financial will report on the operations of the credit facility at the quarterly Board meetings.
In addition, for two years following the commencement of the credit facility, the independent public accountant for each Fund shall prepare an annual report that evaluates SBC Financial's assertion that it has established procedures reasonably designed to achieve compliance with the conditions of the order. The report shall be prepared in accordance with the Statements on Standards for Attestation Engagements No. 3 and it shall be filed pursuant to Item 77Q3 of Form N-SAR. In particular, the report shall address procedures designed to achieve the following objectives: (a) That the Interfund Loan Rate will be higher than the Repo Rate, and if applicable, the yield of the Money Market Funds, but lower than the Bank Loan Rate; (b) compliance with the collateral requirements as set forth in the application; (c) compliance with the percentage limitations on interfund borrowing and lending; (d) allocation of interfund borrowing and lending demand in an equitable manner and in accordance with procedures established by the Board; and, (e) that the interest rate on any Interfund Loan does not exceed the interest rate on any third-party borrowings of a borrowing Fund at the time of the Interfund Loan.
After the final report is filed, a Fund's external auditors, in connection with their Fund audit examinations, will continue to review the operation of the
17. No Fund will participate in the credit facility upon receipt of requisite regulatory approval unless it has fully disclosed in its SAI all material facts about its intended participation.
18. A Fund's borrowings through the credit facility, as measured on the day when the most recent loan was made, will not exceed the greater of 125% of the Fund's total net cash redemptions and 102% of sales fails for the preceding seven calendar days.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given that the following filing(s) has/have been made with the Commission under provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by June 27, 2003, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After June 27, 2003 the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Northeast Utilities (“NU”), located at 174 Brush Hill Avenue, West Springfield, MA 01090-0010, a registered holding company under the Act, Northeast Utilities Service Company (“NUSCO”), its wholly-owned service company subsidiary, located at 107 Selden Street, Berlin, CT 06307, and NU's wholly-owned public-utility subsidiaries, Western Massachusetts Electric Company (“WMECO”), located at 174 Brush Hill Avenue, West Springfield, MA 01090-0010, The Connecticut Light and Power Company (“CL&P”), located at 107 Selden Street, Berlin, CT 06307, Holyoke Water Power Company (“HWP”), located at One Canal Street, Holyoke, MA 01040, Public Service Company of New Hampshire (“PSNH”) and North Atlantic Energy Corporation (“NAEC”), both located at 780 North Commercial Street, Manchester, NH 03101, Northeast Nuclear Energy Company (“NNECO”) and NU's wholly-owned nonutility subsidiaries, NU Enterprises, Inc. (“NUEI”), a wholly-owned nonutility holding company subsidiary of NU and its direct and indirect wholly-owned subsidiaries, Northeast Generation Company (“NGC”), Northeast Generation Services Company (“NGS”), ES Boulos Company (“Boulos”), Woods Electrical Company, Inc. (“Woods”), Woods Network Services, Inc. (“Woods Network”), Select Energy, Inc. (“Select Energy”), Select Energy New York, Inc. (“SENY”), Mode 1 Communications, Inc. (“Mode 1”); Yankee Energy System, Inc. (“YES”), a wholly-owned holding company subsidiary exempt under 3(a)(1) of the Act by rule 2 and its wholly-owned subsidiaries, Yankee Gas Services Company (“Yankee Gas”), a gas public-utility, Yankee Energy Financial Services Company (“Yankee Financial”), Yankee Energy Services Company (“YESCO”) and NorConn Properties, Inc. (“NorConn”); The Rocky River Realty Company (“RR”) and The Quinnehtuk Company (“Quinnehtuk”), all located at 107 Selden Street, Berlin, CT 06307; Select Energy Services, Inc., (formerly HEC Inc.) (“SESI”), located at 24 Prime Parkway, Natick, MA 01760 (collectively, the “Applicants”), have filed a post-effective amendment to their application-declaration (“Application”) under sections 6(a), 7, 9(a), 10, 12(b), 32 and 33 of the Act and rules 43, 53 and 54.
NU has seven public-utility company subsidiaries, CL&P, WMECO, PSNH, Yankee Gas, HWP, NAEC and NNECO. CL&P, WMECO and PSNH engage, among other things, in the sale of electric energy at retail and Yankee Gas engages in the sale of natural gas at retail. Prior to the sale by the NU system of all of its nuclear assets, NAEC and NNECO were an owner and a manager, respectively, of various nuclear generating assets. As noted above, YES is an intrastate exempt holding company subsidiary of NU. CL&P, WMECO, PSNH, YES and Yankee Gas are referred to collectively below as the “Utility Borrowers.”
Applicant nonutility subsidiaries of NU are: NUSCO, the NU system service company; NGC, an exempt wholesale generator (“EWG”); NUEI, a nonutility holding company; RR, Quinnehtuk and NorConn, each a real estate company; SESI, an energy services company; Select, SENY, NGS, Woods, Boulos and YESCO, each a rule 58 company; Mode 1 and Woods Network, each an exempt telecommunications company under section 34 of the Act (“ETC”); and Yankee Financial, a financial services company. The Applicants, with the exception of NUSCO, are also referred to as “Pool Participants” and NU, YES, Mode 1, Woods Network and NGC are referred to as “Non-borrowing Pool Participants.”
By order dated December 28, 2000 (the “Prior Order”), the Commission authorized NU, CL&P, WMECO, PSNH, YES and Yankee Gas, among others, to enter into short-term unsecured debt within specified limits and parameters through June 30, 2003.
Applicants now seek the following authorizations:
1. continuation through June 30, 2006 (the “Authorization Period”) for NU and the Utility Borrowers to issue short-term unsecured debt to unaffiliated third parties;
2. amendment of the NU, utility and nonutility subsidiary dollar limitations imposed by the Prior Order upon the short-term borrowings of the respective company, whether from unaffiliated third parties or the NU Money Pool;
3. authorization through the Authorization Period for the Utility Borrowers to issue short-term secured debt, pending completion of the record;
4. authorization for NU and the Utility Borrowers to enter into interest rate hedging transactions (“Interest Rate Hedges”) related to their short-term debt transactions;
5. continuation through June 30, 2004 of the NU Money Pool, with NUSCO as the administrator;
6. participation in the NU Money Pool by those companies authorized to participate by the requested order and previous orders, subject to (a) amendment of the NU Money Pool Agreement to provide for utility subsidiaries' borrowing priority over Nonutility Pool Participants and (b) the Applicants' submission to the Commission by December 31, 2003 of a feasibility study concerning the creation of a separate money pool for nonutility subsidiaries of NU;
7. participation of Boulos, Woods and SENY, each a nonutility subsidiary, in the NU Money Pool both as lenders and borrowers;
8. participation of Woods Network in the NU Money Pool solely as a lender; and
9. addition of any additional participants to the Money Pool.
Financings with third parties by NU and the Utility Borrowers will be subject to the following conditions (“Financing Parameters”): (i) the effective cost of capital on short-term debt financings will not exceed competitive market rates available at the time of issuance for securities having the same or reasonably similar terms and conditions issued by similar companies of reasonably comparable credit quality, provided that in no event will the effective cost of capital on short-term debt borrowings exceed 500 basis points over the comparable term London Interbank Offered Rate, and (ii) the underwriting fees, commissions or other similar remuneration paid in connection with the non-competitive issue, sale or distribution of securities requested will not exceed the greater of 5% of the principal or total amount of the securities being issued.
The proceeds from the short-term debt of NU and the Utility Borrowers authorized by the Commission pursuant to this Application will be used for (i) general corporate purposes, including investments by and capital expenditures of NU and its subsidiaries, including, without limitation, the funding of future investments in EWGs, foreign utility companies (each to the extent permitted under the Act or Commission order), rule 58 subsidiaries and ETCs, (ii) the repayment, redemption, refunding or purchase by NU or any subsidiary of any of its own securities from non-affiliates pursuant to rule 42, and (iii) financing working capital requirements of NU and its subsidiaries.
The Applicants seek external short-term debt financing authorization for NU and the five Utility Borrowers, subject to aggregate limits described below. The external financing authorization for HWP, NAEC and NNECO expires on June 30, 2003 and these utility subsidiaries' authorization will be limited to borrowings through the NU Money Pool, also described below. The short-term debt of NU, CL&P, WMECO, PSNH, HWP, NAEC, NNECO, YES and Yankee Gas outstanding at any one time, whether through external financings (which authorization expires on June 30, 2006) or borrowings through the NU Money Pool (which authorization expires on June 30, 2004), pursuant to the authority requested in this Application, will not exceed the following:
With respect to the Utility Borrowers, as described below, these limitations would include both unsecured and secured debt amounts.
NU requests authority to issue and sell, through the Authorization Period, short-term unsecured debt in an aggregate principal amount at any time outstanding not to exceed $400 million. The short-term unsecured debt of NU will take a variety of forms, including commercial paper and notes to banks or other financial institutions, and will be on terms that are generally available to borrowers with comparable credit ratings. All NU short-term unsecured debt will have maturities of less than one year from the date of issuance.
Subject to its short-term debt limit and the Financing Parameters, NU intends to renew and extend outstanding short-term debt as it matures, to refund such short-term debt with other similar short-term debt, to repay such short-term debt or to increase the amount of its short-term debt from time to time.
The Utility Borrowers request authority to issue and sell, through the Authorization Period, short-term unsecured debt, on terms that are generally available to borrowers with comparable credit ratings, subject to the applicable debt limits, Financing Parameters and the same terms as are applicable to NU, described above. In addition, the Utility Borrowers request the Commission to reserve jurisdiction, through the Authorization Period, over their request to issue and sell short-term secured debt, on terms that are generally available to borrowers with comparable credit ratings, pending their completion of the record. In all other respects the proposed short-term secured debt would be subject to the applicable debt limits, Financing Parameters and, to the extent
Subject to the applicable short-term debt limits and the Financing Parameters, discussed above, as in the case of NU, the Utility Borrowers intend to renew and extend outstanding short-term debt as it matures, to refund such short-term debt with other similar short-term debt, to repay such short-term debt or to increase the amount of their short-term debt from time to time.
NU and the Utility Borrowers also request authorization to enter into interest rate hedging transactions with respect to its outstanding indebtedness (“Interest Rate Hedges”), subject to the limitations and restrictions below, in order to reduce or manage the effective interest rate cost. Interest Rate Hedges would only be entered into with counterparties (“Approved Counterparties”) whose senior debt ratings, or those of any credit support providers guaranteeing the Approved Counterparties, as published by Standard & Poor's Rating Group, are equal to or greater than BBB, or an equivalent rating from Moody's Investor Service or Fitch IBCA, or through on-exchange transactions.
Interest Rate Hedges will involve the use of financial instruments commonly used in the capital markets, such as options, interest rate swaps, locks, caps, collars, floors, exchange-traded futures and options, and other similar appropriate instruments. The transactions would be for fixed periods and stated notional amounts as are generally accepted as prudent in the capital markets. In no case will the notional principal amount of any Interest Rate Hedge exceed that of the underlying debt instrument. Neither NU nor the Utility Borrowers will engage in speculative transactions within the meaning of such term in Statement of Financial Accounting Standard 133, as amended. Transaction fees, commissions and other amounts payable to brokers in connection with an Interest Rate Hedge will not exceed those generally obtainable in competitive markets for parties of comparable credit quality.
The Applicants request authorization to continue the NU Money Pool through June 30, 2004, with NUSCO as the NU Money Pool administrator. The Applicants also request continued participation in the NU Money Pool by those companies authorized to participate, subject to (a) amendment of the NU Money Pool Agreement to provide for utility subsidiaries' borrowing priority over Nonutility Pool Participants and (b) the Applicants' submission to the Commission by December 31, 2003 of a feasibility study concerning the creation of a separate money pool for nonutility subsidiaries of NU.
The Pool Participants, other than the Non-borrowing Pool Participants, request authority to continue to enter into, from time to time, short-term unsecured debt transactions through the NU Money Pool, to contribute surplus funds to the NU Money Pool and to lend to (and acquire promissory notes from) one another through the NU Money Pool. The Non-borrowing Pool Participants also request authority solely to contribute surplus funds and to lend to the Pool Participants through the NU Money Pool.
In addition, the Applicants seek authorization for Boulos, Woods and SENY to participate in the Money Pool, as both borrowers and lenders, and for Woods Network to participate in the NU Money Pool, solely as a lender, through June 30, 2004.
Finally, the Nonutility Pool Participants request authorization to borrow from the NU Money Pool to the following limits: Quinnehtuk to $10 million, NUEI to $100 million, NGS to $25 million, Select to $200 million, RR to $30 million, Yankee Financial to $10 million, NorConn to $10 million, YESCO to $10 million, SESI (formerly HEC, Inc.) to $35 million, Boulos to $10 million, Woods to $10 million and SENY to $10 million.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Amex proposes to amend its options fee schedule by adopting a per contract license fee in connection with specialist and registered options traders (“ROTs”) transactions in options on iShares Lehman 1-3 Year Treasury Bond Fund (SHY), iShares Lehman 7-10 Year Treasury Bond Fund (IEF), and iShares Lehman 20+ Year Treasury Bond Fund (TLT) (collectively, the “iShares Lehman Treasury Funds”).
The text of the proposed rule change is available at Amex and at the Commission.
In its filing with the Commission, 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. Amex has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange has entered into numerous agreements with issuers and owners of indexes for the purpose of trading options on certain exchange-traded funds (“ETFs”). Many agreements require the Exchange to pay a significant licensing fee to issuers or index owners as a condition to the listing and trading of these ETF options that may not be reimbursed. In an effort to recoup the costs associated with index licenses, the Exchange has previously established a per contract licensing fee for specialists and ROTs that is collected on every transaction in designated products in which a specialist or a ROT is a party. The licensing fee currently imposed on specialists and ROTs is as follows: (1) $0.10 per contract side for options on the Nasdaq-100 Index Tracking Stock (QQQ), the Nasdaq-100 Index (NDX), the Mini-NDX (MNX), and the iShares Goldman Sachs Corporate Bond Fund (LQD); (2) $0.09 per contract side for options on the iShares Cohen & Steers Realty Majors Index Fund (ICF); and (3) $0.05 per contract side for options on the S&P 100 iShares (OEF).
The purpose of the proposed fee is for the Exchange to recoup its costs in connection with the index license fee for the trading of options on the iShares Lehman Treasury Funds. The proposed licensing fee will be collected on every option transaction of the iShares Lehman Treasury Funds in which the specialist or ROT is a party. The Exchange proposes to charge $0.10 per contract side for options on the iShares Lehman Treasury Funds. Accordingly, Amex believes that requiring the payment of a per contract licensing fee by those specialists units and ROTs that are the beneficiaries of the Exchange's index license agreements is justified and consistent with the rules of the Exchange and the Act. In addition, the Exchange believes that passing the license fee (on a per contract basis) along to the specialist(s) allocated the iShares Lehman Treasury Fund options and the ROTs trading such products is efficient and consistent with the intent of the Exchange to pass on its non-reimbursed costs to those market participants that are the beneficiaries.
Amex notes that in recent years it has increased a number of member fees to better align Exchange fees with the actual cost of delivering services and to reduce Exchange subsidies of such services.
The Exchange asserts that the proposed license fee will provide additional revenue for the purpose of recouping Amex's costs associated with the trading of options on the iShares Lehman Treasury Funds. In addition, Amex believes that this fee will help allocate, to those specialists and ROTs transacting in options on the iShares Lehman Treasury Funds, a fair share of the related costs of offering such options. Accordingly, the Exchange believes that the proposed fee is reasonable.
The Exchange believes the proposed rule change is consistent with section 6 of the Act,
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.
The foregoing proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of April 22, 2003, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change 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 Amex. All submissions should refer to File No. SR-Amex-2003-29 and should be submitted by July 1, 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
The Exchange proposes to amend its membership dues and fees schedule (“Schedule”) to decrease certain technology and connectivity fees charged to the Exchange's on-floor member firms, and to waive those fees for the month of June 2003. The text of the proposed rule change is available at the Commission and at the CHX.
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 CHX proposes to amend the Schedule by decreasing the charges assessed to on-floor member firms for the computer equipment and connectivity that the Exchange provides, and by waiving the fees for this technology for the month of June 2003.
The Exchange made changes to this section of the Schedule in February 2003, decreasing many of the fees and instituting new connectivity fees.
The Exchange believes the proposed rule change is consistent with section 6(b)(4) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were solicited or received.
The proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to file number SR-CHX-2003-14, and should be submitted by July 1, 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”),
Nasdaq proposes to extend through December 1, 2003, the penny ($0.01) legal short sale standard contained in NASD Interpretative Material 3350 (“IM-3350”).
In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
On March 2, 2001, the Commission approved, on a one-year pilot basis ending March 1, 2002,
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act
Nasdaq does not believe that the proposed rule change will impose any inappropriate burden on competition.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) impose any significant burden on competition; and
(iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, it has become effective pursuant to section 19(b)(3)(A) of the Act
Nasdaq has requested that the Commission waive both the 5-day notice and the 30-day operative delay. The Commission believes waiving the 5-day notice and 30-day operative delay is consistent with the protection of investors and the public interest. Acceleration of the operative date will allow the pilot to continue uninterrupted through December 1, 2003, and will provide Nasdaq and the Commission with an opportunity to evaluate the impact of the penny short sale pilot. For these reasons, the Commission designates the proposal to be effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the
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 NYSE is proposing to extend its pilot to disengage NYSE Direct+
Only straight limit orders without tick restrictions are eligible for entry as auto ex orders. Auto ex orders to buy shall be priced at or above the price of the published NYSE offer. Auto ex orders to sell shall be priced at or below the price of the NYSE bid. An auto ex order shall receive an immediate, automatic execution against orders reflected in the Exchange's published quotation and shall be immediately reported as NYSE transactions, unless:
(i)-(vi) No change.
Auto ex orders that cannot be immediately executed shall be displayed as limit orders in the auction market. An auto ex order equal to or greater than the size of the NYSE's published bid or offer shall trade against the entire published bid or offer, and a new bid or offer shall be published pursuant to Rule 60(e). The unfilled balance of the auto ex order shall be displayed as a limit order in the auction market.
During a [one-week] pilot program in 2003, NYSE Direct+ shall not be available in the following five stocks: American Express (AXP), Pfizer (PFE), International Business Machines (IBM), Goldman Sachs (GS), and Citigroup (C). The Exchange will announce in advance to its membership the
In its filing with the Commission, the NYSE included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NYSE has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In SR-NYSE-2003-10, the Commission approved the Exchange's proposed rule change to conduct a one-week pilot to disengage NYSE Direct+ in five actively-traded stocks.
To assess the impact of autoquoting bids and offers in connection with the liquidity quote initiative, the NYSE is proposing to extend the pilot until June 20, 2003. The NYSE believes that continuing the pilot will provide continuity and avoid starting and stopping the disengagement of NYSE Direct+. According to the NYSE, this continuity should aid in the learning process for NYSE Floor personnel.
The NYSE believes that the basis under the Act for this proposed rule change is Section 6(b)(5) of the Act,
The Exchange believes that the proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments regarding the proposed rule change.
Because the proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days (or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest) after the date of the filing, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
The NYSE has requested a waiver of the five-day written notice and the 30-day operative delay requirements. The Commission believes that waiving the five day pre-filing requirement and the 30-day operative delay will allow the NYSE to continue, without undue interruption, to assess the impact on the autoquoting of bids and offers in connection with the LiquidityQuote initiative in five actively-traded stocks without the impact of NYSE Direct+.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room in 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of such filing will also be available for inspection and copying at the principal office of the NYSE.
All submissions should refer to SR-NYSE-2003-20 and should be submitted by July 1, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On April 3, 2003, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange's API program allows specialists to provide automatic price improvement to automatically executable market and marketable limit orders in New York Stock Exchange, Inc. and American Stock Exchange LLC (“Amex”) listed securities received through Phlx's Automated Communication and Execution System (“PACE”)
Currently, API is not available to certain buy orders if the execution price of those buy orders would be on a minus or zero-minus tick.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange has stated that it will issue a regulatory circular informing its members which securities are currently exempt from the “tick” requirements of the Short Sale Rule and thus available for API under the rule change. At this time, securities that trade on the Exchange that the Commission has exempted from the “tick” requirements of the Short Sale Rule include Exchange-Traded Funds (“ETFs”)
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with the requirements of the Act and rules and regulations thereunder.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
In accordance with a notice received from the Department of Homeland Security—Federal Emergency Management Agency, effective June 3, 2003, the above numbered declaration is hereby amended to include Union County as a disaster area due to damages caused by severe storms, tornadoes and flooding occurring on May 6 through May 11, 2003.
In addition, applications for economic injury loans from small businesses located in the contiguous county of Jackson in the State of Illinois; and Perry County in the State of Missouri may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary counties have been previously declared.
All other information remains the same,
In accordance with a notice received from the Department of Homeland Security—Federal Emergency Management Agency, effective May 22, 2003, the above numbered declaration is hereby amended to include Haskell, Meade and Seward Counties in the State of Kansas as disaster areas due to damages caused by severe storms, tornadoes and flooding occurring on May 4, 2003 and continuing.
In addition, applications for economic injury loans from small businesses located in the contiguous counties of Clark, Finney, Ford, Grant, Gray, Kearny and Stevens in the State of Kansas; and Beaver and Texas Counties in the State of Oklahoma may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary counties have been previously declared.
All other information remains the same,
U.S. Office of Special Counsel.
Notice.
In accordance with the requirements of the Paperwork
On March 10, 2003, notice of this request for OMB approval with a request for public comment was published in the Federal Register at 68 FR 11442. The notice and the proposed forms were also posted on OSC's Web site (at
Federal employees, other federal agencies, and the general public are invited to comment on OSC's information collection activities relating to possible prohibited employment practices and whistleblower disclosures.
Comments should be received on or before July 10, 2003.
Comments should be sent to the Office of Information and Regulatory Affairs at the Office of Management and Budget, 725 Seventeenth Street, NW, Attention: Desk Officer for U.S. Office of Special Counsel, Washington, DC 20503. A copy of any comments should also be sent to Kathryn Stackhouse, General Law Counsel, Legal Counsel and Policy Division, U.S. Office of Special Counsel, 1730 M Street, NW, Washington, DC 20036-4505.
Copies of the collections of information and supporting documentation are available from Kathryn Stackhouse, General Law Counsel, Legal Counsel and Policy Division, U.S. Office of Special Counsel, Planning and Advice Division, 1730 M Street, NW, Suite 300, Washington, DC 20036-4505; telephone (202) 653-8971; facsimile (202) 653-5151.
Comment is requested on the following two collections of information:
The two proposed forms described above are available on OSC's Web site (at
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State, (telephone: 202/619-6981). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
The following Agreements were filed with the Department of Transportation under the provisions of 49 U.S.C. 412 and 414. Answers may be filed within 21 days after the filing of the application.
Federal Aviation Administration (FAA), DOT.
Notice; request for comments.
The Federal Aviation Administration, Office of Spectrum Policy and Management, is conducting bench tests to investigate the impact of ultrawideband emissions on selected aeronautical systems which operate below 1 GHz and on the global positioning system (GPS). Public comment is being sought on the test plans, and therefore a two week comment period will follow the date of posting of this notice. Three draft test plans cover (1) global positioning system (GPS) receiver, (2) Air Traffic Control communication receiver, and (3) other navigation receivers. The three test plans may be viewed and downloaded from the World Wide Web at:
Comments should be directed to: UWB Test Plan Comments, FAA, ASR-1, 800 Independence Avenue, SW., Washington, DC 21591.
Comments can also be send by e-mail to
Comments will be accepted during the two week period following publication of this notice.
Mr. Oscar Alvarez, FAA Spectrum Policy and Management, ASR-2, 800 Independence Ave., SW., Washington, DC 20591, (202) 267-7531, e-mail
Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) and, DOT.
Revised notice of intent.
The FHWA and FTA are jointly issuing this Revised Notice of Intent to advise the public that an Environmental Impact Statement (EIS) will not be prepared for a proposed transportation improvement project along State Highway 82 in the counties of Pitkin, Eagle and Garfield, Colorado.
Eva LaDow or Edrie Vinson, FHWA Colorado Division, 555 Zang Street, Room 250, Lakewood, Colorado 80228. Telephone (303) 969-6730 Extensions 341 and 378, respectively. Dave Beckhouse, FTA Region VIII, 216 16th Street, Suite 650, Denver, Colorado 80202. Telephone (303) 844-4266. Tom Mauser, CDOT Modal Planning, 4201 E. Arkansas Ave., DTD B-606, Denver, Colorado 80222. Telephone (303) 757-9768.
On December 31, 1997 the Federal Transit Administration (FTA) and Federal Highway Administration (FHWA) published a Notice of Intent to prepare an Environmental Impact Statement (EIS) for proposed transportation improvements in Pitkin, Eagle, and Garfield Counties. As a result of the study effort to date, no major federal action is being proposed, therefore the FTA and FHWA are terminating their involvement in the preparation of an EIS.
Comments or questions concerning this proposed action should be directed to the Colorado Department of Transportation at the address provided above.
Research and Special Programs Administration (RSPA), DOT.
Notice of public meeting and request for written comments.
RSPA will conduct a public meeting and accept written comments pertaining to 63 proposed changes to the International Atomic Energy Agency's (IAEA) Regulations for the Safe Transport of Radioactive Materials, TS-R-1, scheduled for revision in the year 2005. Interested persons are invited to attend.
• Web Site:
• Fax: 1-202-493-2251.
• Mail: Docket Management System; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: At the public meeting held July 22, 2003 or to the Docket Management System; Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9:00 am and 5:00 pm, Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to
Mr. Rick Boyle, Office of Hazardous Material Technology, U.S. Department of Transportation, Nassif Building, 400 Seventh Street, SW., Washington DC, 20590-0001; (202) 366-2993;
The purpose of this meeting is to receive public comments on the transport regulation changes proposed by the International Atomic Energy Agency (IAEA) as part of its ongoing regulatory review process. These comments will be used to develop U.S. positions on the 63 proposed changes for the IAEA regulatory review meeting scheduled for November 10-14, 2003, in Bonn, Germany. The public is invited to attend without prior notification. Due to heightened security measures at DOT Headquarters, participants are encouraged to arrive early to allow time to undergo the security checks necessary to obtain access to the building.
The regulatory changes proposed by IAEA are available on the Internet at
Comments should identify the docket number (RSPA-03-14793 (Notice No. 03-6)) and if sent by mail, comments are to be submitted in two copies. Persons wishing to receive confirmation of receipt of their comments should include a self-addressed stamped postcard. Internet users may access all comments received by the U.S. Department of Transportation 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 DOT's complete Privacy Act Statement in the
Surface Transportation Board.
Notice of public hearing.
The Surface Transportation Board (Board) will hold a public hearing in this case on Thursday, July 24, 2003, in New York City, NY. The hearing will provide a forum for interested persons to express their views on the matters at issue in this proceeding. Persons wishing to speak at the hearing should notify the Board in writing.
The public hearing will take place on Thursday, July 24, 2003. Persons wishing to speak at the hearing should file with the Board a written notice of intent to participate (and should indicate a requested time allotment) as soon as possible but no later than July 15, 2003. Written statements by persons participating in the hearing may be submitted prior to the hearing but are not required. Persons wishing to submit written statements should do so by July 17, 2003.
An original and 10 copies of all notices of intent to participate and any written statements should refer to Docket No. AB-167 (Sub-No. 1094)A, and should be sent to: Surface Transportation Board, Attn: Docket No. AB-167 (Sub-No. 1094)A, 1925 K Street, NW., Washington, DC 20423-0001.
Joseph Dettmar, (202) 565-1609. [Federal Information Relay Service (FIRS) (Hearing Impaired): (800) 877-8339.]
In 1992, the Board's predecessor, the Interstate Commerce Commission (ICC), agreed to withdraw its jurisdiction over the Highline,
Ten years later in August 2002, CPO advised the Board that it had negotiated a proposed settlement agreement with Conrail, CSX Transportation, Inc. (CSX), and the other rail interests, and with the involved governmental interests. CPO asked the Board to find that this agreement satisfies the indemnity condition imposed by the ICC. Friends of the Highline, Inc. has filed a petition to reopen the
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
By the Board, Vernon A. Williams, Secretary.
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 1120-POL, U.S. Income Tax Return for Certain Political Organizations.
Written comments should be received on or before August 11, 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 Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3179, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Department of Veterans Affairs.
Notice and request for comments.
In accordance with Executive Order 13166, Improving Access to Service for Persons with Limited English Proficiency (LEP), this notice requests comments on the Department of Veterans Affairs (VA) draft guidance on improving access for persons with limited English proficiency to VA assisted programs and activities. Executive Order 13166, requires each Federal agency that awards Federal financial assistance to publish in the
Comments must be received on or before July 10, 2003
Mail or hand-deliver written comments to: Director, Regulations Management (00REG1), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or fax comments to (202) 273-9026; or e-mail comments to
Tyrone Eddins, Office of Resolution Management (08), at (202) 501-2801; or Royce Smith, Office of General Counsel (024), at (202) 273-6374, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
The purpose of Executive Order 13166 is to eliminate, under Title VI, to the maximum extent possible, limited English proficiency (LEP) as an artificial barrier to full and meaningful participation by beneficiaries in all Federally assisted and Federally conducted programs and activities. The purpose of this policy is to further clarify the responsibilities of recipients of Federal financial assistance from VA, and assist them in fulfilling their responsibilities to LEP persons, pursuant to Title VI and Title VI regulations. The policy guidance explains that to avoid discrimination against LEP persons on the ground of national origin, recipients must take reasonable steps to ensure that LEP persons have meaningful access to the programs, activities, benefits, services, and information those recipients provide, free of charge.
On March 14, 2002, the Office of Management and Budget (OMB) issued a Report To Congress titled “Assessment of the Total Benefits and Costs of Implementing Executive Order No. 13166: Improving Access to Services for Persons with Limited English Proficiency.” The report made several recommendations designed to minimize confusion and ensure that funds dedicated to LEP services will provide meaningful access for LEP individuals. One significant recommendation was the adoption of uniform guidance across all Federal agencies, with flexibility to permit tailoring to each agency's specific recipients.
In a memorandum to all Federal funding agencies, dated July 8, 2002, Assistant Attorney General Ralph Boyd of the Department of Justice's (DOJ) Civil Rights Division requested that agencies model their agency-specific guidance for recipients after Sections I-VIII of DOJ's June 18, 2002 guidance. Therefore, this proposed guidance is modeled after the language and format of DOJ's revised, final guidance, “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons”, published June 18, 2002, 67 FR 41455.
Because this Guidance must adhere to the Federal-wide compliance standards and framework detailed in the model DOJ LEP Guidance issued on June 18, 2002, VA specifically solicits comments on the nature, scope and appropriateness of the VA specific examples set out in this guidance explaining and/or highlighting how those consistent Federal-wide compliance standards are applicable to recipients of Federal financial assistance through VA.
It has been determined that the guidance does not constitute a regulation subject to the rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 553.
The text of the complete guidance document appears below.
Most individuals living in the United States read, write, speak and understand English. There are many individuals, however, for whom English is not their primary language. For instance, based on the 2000 census, over 26 million individuals speak Spanish and almost 7 million individuals speak an Asian or Pacific Island language at home. If these individuals have a limited ability to read, write, speak, or understand English, they are limited English proficient (LEP). While detailed data from the 2000 census has not yet been released, 26% of all Spanish-speakers, 29.9% of all Chinese-speakers, and 28.2% of all Vietnamese-speakers reported that they spoke English “not well” or “not at all” in response to the 1990 census.
Language for LEP individuals can be a barrier to accessing important benefits or services, understanding and exercising important rights, complying with applicable responsibilities, or understanding other information provided by Federally funded programs and activities. The Federal Government funds an array of services that can be made accessible to otherwise eligible LEP persons. The Federal Government is committed to improving the accessibility of these programs and activities to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English. Recipients should not overlook the long-term positive impacts of incorporating or offering English as Second Language (ESL) programs in parallel with language assistance services. ESL courses can serve as an important adjunct to a proper LEP plan. However, the fact that ESL classes are made available does not obviate the statutory and regulatory requirement to provide meaningful access for those who are not yet English proficient. Recipients of Federal financial assistance have an obligation to reduce language barriers that can preclude meaningful access by LEP persons to important government services.
This policy guidance clarifies responsibilities, under existing law, of recipients of Federal financial assistance from the Department of Veterans Affairs (VA) to provide meaningful access to LEP persons. The purpose is to assist recipients in fulfilling their responsibilities to provide meaningful access to LEP persons under existing law. In certain circumstances, failure to ensure that LEP persons can effectively participate in or benefit from Federally assisted programs and activities may violate the prohibition under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d and Title VI regulations against national origin discrimination. This policy guidance clarifies existing legal requirements for LEP persons by providing a description of the factors recipients should consider in fulfilling their responsibilities to LEP persons.
As with most government initiatives, this requires balancing several principles. While this Guidance discusses that balance in some detail, it is important to note the basic principles behind that balance. First, we must ensure that Federally assisted programs aimed at the American public do not leave some behind simply because they face challenges communicating in English. This is of particular importance because, in many cases, LEP individuals form a substantial portion of those encountered in Federally assisted programs. Second, we must achieve this goal while finding constructive methods to reduce the costs of LEP requirements on small businesses, small local governments, or small non-profits that receive Federal financial assistance.
There are many productive steps that the Federal Government, either collectively or as individual grant agencies, can take to help recipients reduce the costs of language services without sacrificing meaningful access for LEP persons. Without these steps, certain smaller grantees may well choose not to participate in Federally assisted programs, threatening the critical functions that the programs strive to provide. To that end, the VA, in conjunction with the Department of Justice (DOJ), plans to continue to provide assistance and guidance in this important area. In addition, the VA plans to work with DOJ, recipients, and LEP persons to identify and share model plans, examples of best practices, and cost-saving approaches and to explore how language assistance measures, resources and cost-containment approaches developed with respect to its own Federally conducted programs and activities can be effectively shared or otherwise made available to recipients, particularly small businesses, small local governments, and small non-profits. An interagency working group on LEP has developed a Web site,
Many commentators have noted that some have interpreted the case of
VA is comprised of three distinct benefits administrations: Veterans Health Administration (VHA), Veterans Benefits Administration (VBA) and National Cemetery Administration (NCA). Each of these administrations has programs that provide Federal financial assistance to recipients. Each has existing Title VI program responsibilities that are administered independent of each other.
VHA administers several programs and activities that receive Federal financial assistance from the VA. With more than 163 VA medical centers nationwide, VHA manages one of the largest health care systems in the United States. VA medical centers within a Veterans Integrated Service Network (VISN) work together to provide efficient, accessible health care to veterans in their areas. VHA also conducts research and education and provides emergency medical preparedness.
VBA is responsible for ensuring compliance in proprietary, non-college educational institutions approved to train veterans and/or their beneficiaries. VBA also provides benefits and services to veterans and their beneficiaries through more than 50 VA regional offices. Some of the benefits and services provided by VBA include compensation and pension, education, loan guaranty, and insurance.
NCA provides Federal assistance to States to establish, expand, or improve state owned or established veterans cemeteries. The State Cemetery Grants Program (SCGP) provides these services to eligible state veterans cemeteries. NCA is responsible for providing burial benefits to veterans and eligible dependents. The delivery of these benefits involves operating 120 national cemeteries in the United States and Puerto Rico, providing headstones and grave markers worldwide, administering the State Cemetery Grants program that complements the national cemeteries, and administering the Presidential Memorial Certificate Program, which provides certificates bearing the President's signature to the next of kin of honorably discharged, deceased veterans.
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, provides that no person shall on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Section 602 authorizes and directs Federal agencies that are empowered to extend Federal financial assistance to any program or activity to effectuate the provisions of [section 601] * * * by issuing rules, regulations, or orders of general applicability. 42 U.S.C. 2000d-1.
VA regulations implementing Title VI, provide in 38 CFR at part 18.3(b) that
(1) A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on grounds of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to an individual, which is different, or is provided in a different manner, from that provided to others under the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which such services,
The Supreme Court, in
Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency,” 65 FR 50121 (August 16, 2000), was issued on August 11, 2000. Under that order, every Federal agency that provides financial assistance to non-Federal entities must publish guidance on how their recipients can provide meaningful access to LEP persons and thus comply with Title VI regulations forbidding funding recipients from “restrict[ing] an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program” or from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.”
On that same day, DOJ issued a general guidance document addressed to Agency Civil Rights Officers setting forth general principles for agencies to apply in developing guidance documents for recipients pursuant to the Executive Order and enforcement of Title VI of the Civil Rights Act of 1964, “National Origin Discrimination Against Persons With Limited English Proficiency,” 65 FR 50123 (August 16, 2000) (“DOJ LEP Guidance”). The Department of Justice's role under Executive Order 13166 is unique. The Order charges DOJ with responsibility for providing LEP Guidance to other Federal agencies and for ensuring consistency among each agency-specific guidance. Consistency among Departments of the Federal Government is particularly important. Inconsistency or contradictory guidance could confuse recipients of Federal funds and needlessly increase costs without rendering the meaningful access for LEP persons that this Guidance is designed to address.
Subsequently, Federal agencies raised questions regarding the requirements of the Executive Order, especially in light of the Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for the Civil Rights Division, issued a memorandum for “Heads of Departments and Agencies, General Counsels and Civil Rights Directors.” This memorandum clarified and reaffirmed the DOJ LEP Guidance in light of Sandoval.
VA's policy guidance is consistent with and is issued under the Title VI and the Title VI regulations, and is also consistent with the August 11, 2000, DOJ “Policy Guidance Document on Enforcement of National Origin Discrimination Against Persons With Limited English Proficiency,” 65 FR 50123 (August 16, 2000); Executive Order 13166; and the DOJ LEP guidance issued on June 18, 2002. 67 FR 41457 (June 18, 2002).
All entities that receive Federal financial assistance from the VA, either directly or indirectly, through a grant, contract or subcontract, are covered by this policy guidance (
The term Federal financial assistance to which Title VI applies includes, but is not limited to, grants and loans of Federal funds, grants or donations of Federal property, details of Federal personnel, or any agreement, arrangement, or other contract which has as one of its purposes the provision of assistance. Title VI prohibits discrimination in any program or activity that receives Federal financial assistance. What constitutes a program or activity covered by Title VI was clarified by Congress in 1988, when the Civil Rights Restoration Act of 1987 (CRRA) was enacted. The CRRA provides that, in most cases, when a recipient/covered entity receives Federal financial assistance for a particular program or activity, the recipient's entire operation is covered. This is true even if only one part of the recipient receives the Federal assistance.
VA provides assistance to a state agency to improve a particular cemetery. All of the operations of the entire state agency, not just the particular cemetery are covered.
Finally, some recipients operate in jurisdictions in which English has been declared the official language. Nonetheless, these recipients continue to be subject to Federal non-discrimination requirements, including those applicable to the provision of Federally assisted services to persons with limited English proficiency.
VHA administers several programs and activities that receive Federal financial assistance from the VA. All entities that receive Federal financial assistance from VA are listed in 38 CFR, part 18, appendix A, either directly or indirectly, through a grant, contract, or subcontract, are covered by this policy guidance. Covered entities include (1)
Examples of covered entities include, but are not limited to hospitals; nursing homes; home health agencies; managed care organizations; universities and other entities with health or social service research programs; state, county, and local health agencies; state Medicaid agencies; state, county, and local welfare agencies; programs for families, youth and children; Head Start programs; physicians; and other providers who receive Federal financial assistance from VA.
VBA is responsible for ensuring compliance in proprietary, non-college degree granting educational institutions approved to train veterans and/or their beneficiaries. In 1968, the Attorney General ruled that recipients of tuition or other payments from veterans for education programs are receiving Federal financial assistance. The U.S. District Court upheld this principle in
VBA is also responsible for ensuring Title VI compliance in certain education and training programs funded by the U.S. Department of Education (ED). Under a delegation agreement, VA has Title VI compliance responsibilities for ED-funded proprietary educational institutions, except those operated by a hospital. VA is also delegated Title VI responsibility for post-secondary, nonprofit educational institutions, other than colleges and universities, except if operated by a college, university, hospital, or a unit of State or local government. VA's LEP guidance applies only to recipients for whom VA has compliance responsibility.
VBA's Title VI compliance responsibility also applies to recognized national service organizations whose representatives assist veterans in the preparation, presentation and prosecution of claims for VA benefits. In December 1975, DOJ's “Interagency Report: Evaluation of Title VI Enforcement at the Veterans Administration,” concluded that representatives of recognized service organizations afforded the use of Federally-owned property provided by VA without charge are recipients of Federal assistance. These service organizations are considered recipients within the meaning of Title VI. Recognized national veterans' service organizations and State employment services both use VA office space and, therefore, VA's LEP guidance applies to those entities.
VBA recipients receiving Federal financial assistance, and covered by the LEP policy guidance include but are:
NCA administers the State Cemetery Grants Program (SCGP). Examples of covered entities include, but are not limited to: Cemeteries; state, county and local agencies; and other providers who receive Federal financial assistance from VA.
Individuals who do not read, write, speak, or understand English can be limited English proficient, or “LEP” entitled to language assistance with respect to a particular type of service, benefit, or encounter.
Examples of populations likely to include LEP persons who are encountered and/or served by VA recipients and should be considered when planning language services include, but are not limited to, for example:
Recipients are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. While designed to be a flexible and fact-dependent standard, the starting point is an individualized assessment that balances the following four factors: (1) The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee; (2) the frequency with which LEP individuals come in contact with the program; (3) the nature and importance of the program, activity, or service provided by the program to people's lives; and (4) the resources available to the grantee/recipient and costs. As indicated above, the intent of this guidance is to find a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens on small business, small local governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may conclude that different language assistance measures are sufficient for different types of programs or activities. For instance, some of a recipient's activities will be more important than others and/or have greater impact on or contact with LEP persons, and thus may require more in the way of language assistance. The flexibility that recipients have in addressing the needs of the LEP populations they serve does not diminish, and should not be used to minimize, the obligation that those needs be addressed. VA recipients should apply the following four factors to the various kinds of contacts that they have with the public to assess language needs and decide what reasonable steps they should take to ensure meaningful access for LEP persons.
One factor in determining what language services recipients should provide is the number or proportion of LEP persons from a particular language group served or encountered in the eligible service population. The greater the number or proportion of these LEP persons, the more likely language services are needed. Ordinarily, persons “eligible to be served, or likely to be directly affected, by” a recipient's program or activity are those who are served or encountered in the eligible service population. This population will be program-specific, and includes persons who are in the geographic area that has been approved by a Federal grant agency as the recipient's service area. However, where, for instance, a VA facility serves a large LEP population, the appropriate service area is most likely the area serviced by the facility, and not the entire population served by the department. Where no service area has previously been approved, the relevant service area may
Recipients should first examine their prior experiences with LEP encounters and determine the breadth and scope of language services that were needed. In conducting this analysis, it is important to include language minority populations that are eligible for their programs or activities but may be under served because of existing language barriers. Other data should be consulted to refine or validate a recipient's prior experience, including the latest census data for the area served, data from school systems and from community organizations, and data from state and local governments.
The focus of the analysis is on lack of English proficiency, not the ability to speak more than one language. Note that demographic data may indicate the most frequently spoken languages other than English and the percentage of people who speak those languages speak or understand English less than well. Some of the most commonly spoken languages other than English may be spoken by people who are also overwhelmingly proficient in English. Thus, they may not be the languages spoken most frequently by limited English proficient individuals. When using census data, for instance, it is important to focus in on the languages spoken by those who are not proficient in English. Community agencies, school systems, religious organizations, legal aid entities, and others can often assist in identifying populations for whom outreach is needed and who would benefit from the recipients' programs and activities were language services provided.
Recipients should assess, as accurately as possible, the frequency with which they have or should have contact with an LEP individual from different language groups seeking assistance. The more frequent the contact with a particular language group, the more likely that enhanced language services in that language are needed. The steps that are reasonable for a recipient that serves a LEP person on a one-time basis will be very different than those expected from a recipient that serves LEP persons daily. It is also advisable to consider the frequency of different types of language contacts. For example, frequent contacts with Spanish-speaking people who are LEP may require certain assistance in Spanish. Less frequent contact with different language groups may suggest a different and less intensified solution. If a LEP individual accesses a program or service on a daily basis, a recipient has greater duties than if the same individual's program or activity contact is unpredictable or infrequent. But even recipients that serve LEP persons on an unpredictable or infrequent basis should use this balancing analysis to determine what to do if an LEP individual seeks services under the program in question. This plan need not be intricate. It may be as simple as being prepared to use one of the commercially available telephonic interpretation services to obtain immediate interpreter services. In applying this standard, recipients should take care to consider whether appropriate outreach to LEP persons could increase the frequency of contact with LEP language groups.
The more important the activity, information, service, or program, or the greater the possible consequences of the contact to the LEP individuals, the more likely language services are needed. The obligation to communicate with a person seeking medical services differs, for example, from those to provide voluntary recreational programming. A recipient needs to determine whether denial or delay of access to services or information could have serious or even life-threatening implications for the LEP individual. Decisions by a Federal, state, or local entity to make an activity compulsory, such as access to important benefits and services can serve as strong evidence of the program's importance.
A recipient's level of resources and the costs that would be imposed on it may have an impact on the nature of the steps it should take. Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets. In addition, “reasonable steps” may cease to be reasonable where the costs imposed substantially exceed the benefits.
However, resource and cost issues can often be reduced by technological advances, the sharing of language assistance materials and services among and between recipients, advocacy groups, and Federal grant agencies, and reasonable business practices. Where appropriate, training bilingual staff to act as interpreters and translators, information sharing through industry groups, telephonic and videoconferencing interpretation services, pooling resources and standardizing documents to reduce translation needs, using qualified translators and interpreters to ensure that documents need not be late and that inaccurate interpretations do not cause delay or other costs, centralizing interpreter and translator services to achieve economies of scale, or the formalized use of qualified community volunteers, for example, may help reduce costs. Recipients should carefully explore the most cost-effective means of delivering competent and accurate language services before limiting services due to resource concerns. Large entities and those entities serving a significant number or proportion of LEP persons should ensure that their resource limitations are well-substantiated before using this factor as a reason to limit language assistance. Such recipients may find it useful to be able to articulate, through documentation or in some other reasonable manner, their process for determining that language services would be limited based on resources or costs. Small recipients with limited resources may find that entering into a bulk telephonic interpretation service contract will prove cost effective.
This four-factor analysis necessarily implicates the “mix” of LEP services required. Recipients have two main ways to provide language services: Oral interpretation either in person or via telephone interpretation service (hereinafter “interpretation”) and written translation (hereinafter “translation”). Oral interpretation can range from on-site interpreters for critical services provided to a high volume of LEP persons to access through commercially available telephonic interpretation services. Written translation, likewise, can range from translation of an entire document to translation of a short description of the document. In some cases, language services should be made available on an expedited basis while in others the LEP individual may be referred to another office of the recipient for language assistance.
The correct mix should be based on what is both necessary and reasonable in light of the four-factor analysis. For instance, a healthcare recipient
Recipients have two main ways to provide language services: Oral and written language services. Quality and accuracy of the language service is critical in order to avoid serious consequences to the LEP person and to the recipient.
Interpretation is the act of listening to something in one language (source language) and orally translating it into another language (target language). Where interpretation is needed and is reasonable, recipients should consider some or all of the following options for providing competent interpreters in a timely manner:
Competence of Interpreters. When providing oral assistance, recipients should ensure competency of the language service provider, no matter which of the strategies outlined below are used. Competency requires more than self-identification as bilingual. Some bilingual staff and community volunteers, for instance, may be able to communicate effectively in a different language when communicating information directly in that language, but not be competent to interpret in and out of English. Likewise, they may not be able to do written translations.
Competency to interpret, however, does not necessarily mean formal certification as an interpreter, although certification is helpful. When using interpreters, recipients should ensure that they:
Some recipients may have additional self-imposed requirements for interpreters. Where individual rights depend on precise, complete, and accurate interpretation or translations, particularly in the contexts of hearings, the provision of healthcare, or the provision of other vital services or exchange of vital information, the use of certified interpreters is strongly encouraged. For those languages in which no formal accreditation or certification currently exists, such entities should consider a formal process for establishing the credentials of the interpreter. Where such proceedings are lengthy, the interpreter will likely need breaks and team interpreting may be appropriate to ensure accuracy and to prevent errors caused by mental fatigue of interpreters.
While quality and accuracy of language services is critical, the quality and accuracy of language services is nonetheless part of the appropriate mix of LEP services required. The quality and accuracy of language services in a prison hospital emergency room, for example, must be extraordinarily high, while the quality and accuracy of language services in a bicycle safety class need not meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should be provided in a timely manner. To be meaningfully effective, language assistance should be timely. While there is no single definition of “timely” applicable to all types of interactions at all times by all types of recipients, one clear guide is that the language assistance should be provided at a time and place that avoids the effective denial of the service, benefit, or right at issue or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person. For example, when the timeliness of services is important, such as with certain activities of DOJ recipients providing law enforcement, health, and safety services, and when important legal rights are at issue, a recipient would likely not be providing meaningful access if it had one bilingual staff person available one day a week to provide the service. Such conduct would likely result in delays for LEP persons that would be significantly greater than those for English proficient persons. Conversely, where access to or exercise of a service, benefit, or right is not effectively precluded by a reasonable delay, language assistance can likely be delayed for a reasonable period.
Recipients, however, should take special care to ensure that family legal guardians, caretakers, and other informal interpreters are appropriate in light of the circumstances and subject matter of the program, service or activity, including protection of the recipient's own administrative interest in accurate interpretation. In many circumstances, family members (especially children), or friends are not competent to provide quality and accurate interpretations. Issues of confidentiality, privacy, or conflict of interests may also arise. LEP individuals may feel uncomfortable revealing or describing sensitive, confidential, or potentially embarrassing medical, mental health, family, or financial information to a family member, friend, or member of the local community. In addition, such informal interpreters may have a personal connection to the LEP person or an undisclosed conflict of interest. For these reasons, when oral language services are necessary, recipients should generally offer competent interpreter services free of cost to the LEP person. For VA recipient programs and activities, this is particularly true in situations in which health, safety, or access to important benefits and services are at stake, or when credibility and accuracy are important to protect an individual's rights and access to important services.
An example of such a case is when an LEP person seeks medical care from a VA funded recipient. In such a case, use of family members or neighbors to interpret for the LEP patient may raise serious issues of competency, confidentiality, and conflict of interest and be inappropriate. While issues of competency, confidentiality, and conflicts of interest in the use of family members (especially children), or friends often make their use inappropriate, the use of these individuals as interpreters may be an appropriate option where proper application of the four factors would lead to a conclusion that recipient-provided services are not necessary.
An example of this is a voluntary educational tour of a VA facility offered to the public. There, the importance and nature of the activity may be relatively low and unlikely to implicate issues of confidentiality, conflict of interest, or the need for accuracy. In addition, the resources needed and costs of providing language services may be high. In such a setting, a LEP person's use of family, friends, or others may be appropriate.
If the LEP person voluntarily chooses to provide his or her own interpreter, a recipient should consider whether a record of that choice and of the recipient's offer of assistance is appropriate. Where precise, complete, and accurate interpretations or translations of information and/or testimony are critical for adjudicatory, medical, administrative, or other reasons, or where the competency of the LEP person's interpreter is not established, a recipient might decide to provide its own, independent interpreter, even if an LEP person wants to use his or her own interpreter as well. Extra caution should be exercised when the LEP person chooses to use a minor as the interpreter. While the LEP person's decision should be respected, there may be additional issues of competency, confidentiality, or conflict of interest when the choice involves using children as interpreters. The recipient should take extra care to ensure that the LEP person's choice is voluntary that the LEP person is aware of the possible problems if the preferred interpreter is a minor child, and that the LEP person knows that a competent interpreter could be provided by the recipient at no cost.
Whether or not a document is “vital” may depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner. For instance, applications for certain recreational programs should not generally be considered vital, whereas applications for drug and alcohol counseling should be considered vital. Where appropriate, recipients are encourage to create a plan for consistently determining, over time and across its various activities, what documents are “vital” to the meaningful access of the LEP populations they serve.
Classifying a document as vital or non-vital is sometimes difficult, especially in the case of outreach materials like brochures or other information on rights and services. To have meaningful access, service, benefit, or information, LEP persons may need to be aware of their existence. Thus, vital information may include, for instance, documents indicating how to obtain oral assistance in understanding other information not contained in the translated documents. Lack of awareness that a particular program, right, or service exists may effectively deny LEP individuals meaningful access. Thus, where a recipient is engaged in community outreach activities in furtherance of its activities, it should regularly assess the needs of the populations frequently encountered or affected by the program or activity to determine whether certain critical outreach materials should be translated. Community organizations may be helpful in determining what outreach materials may be most helpful to translate. In addition, the recipient should consider whether translations of outreach material may be made more effective when done in tandem with other outreach methods, including utilizing the ethnic media, schools, religious, and community organizations to spread a message. Sometimes a document includes both vital and non-vital information. This may be the case when the document is very large. It may also be the case when the title and a phone number for obtaining more information on the contents of the document in frequently-encountered languages other than English is critical, but the document is sent out to the general public and cannot reasonably be translated into many languages. Thus, vital information may include, for instance, the provision of information in appropriate languages other than English regarding where a LEP person might obtain an interpretation or translation of the document.
The failure to provide written translations under the circumstances outlined in paragraphs (a) and (b) does not mean there is non-compliance. Rather, they provide a common starting point for recipients to consider whether, and at what point the importance of the service, benefit, or activity involved; the nature of the information sought; and the number or proportion of LEP persons served call for written translations of commonly-used forms into frequently-encountered languages other than English. Thus, these paragraphs merely provide a guide for recipients that would like greater certainty of compliance than can be provided by a fact-intensive, four-factor analysis.
Even if the safe harbors are not used, if written translation of a certain document(s) would be so burdensome as to defeat the legitimate objectives of a recipient's program, the translation of the written materials is not necessary. Other ways of providing meaningful access, such as effective oral interpretation of certain vital documents, might be acceptable under such circumstances.
Safe Harbor. The following actions will be considered strong evidence of compliance with the recipient's written-translation obligations:
(a) The recipient provides written translations of vital documents for each eligible LEP language group that constitutes five percent or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered. Translation of other documents, if needed, can be provided orally; or
(b) If there are fewer than 50 persons in a language group that reaches the five percent trigger in (a), the recipient does not translate vital written materials but provides written notice in the primary language of the LEP language group of the right to receive competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written documents only. They do not affect the requirement to provide meaningful access to LEP individuals through competent oral
Particularly where legal or other vital documents are being translated, competence can often be achieved by use of certified translators. Certification or accreditation may not always be possible or necessary. Competence can often be ensured by having a second, independent translator “check” the work of the primary translator. Alternatively, one translator can translate the document, and a second, independent translator could translate it back into English to check that the appropriate meaning has been conveyed. This is called “back translation.”
Translators should understand the expected reading level of the audience and, where appropriate, have fundamental knowledge about the target language group's vocabulary and phraseology. Sometimes direct translation of materials results in a translation that is written at a much more difficult level than the English language version or has no relevant equivalent meaning. Community organizations may be able to help consider whether a document is written at a good level for the audience. Likewise, consistency in the words and phrases used to translate terms of art, legal, or other technical concepts helps avoid confusion by LEP individuals and may reduce costs.
There may be languages that do not have an appropriate direct translation of some terms, and the translator should be able to provide an appropriate translation. The translator should likely also make the recipient aware of this. Recipients can then work with translators to develop a consistent and appropriate set of descriptions of these terms in that language that can be used again, when appropriate. Recipients will find it more effective and less costly if they try to maintain consistency in the words and phrases used to translate terms of art and legal or other technical concepts. Creating or using already-created glossaries of commonly used terms may be useful for LEP persons and translators and cost effective for the recipient. Providing translators with examples of previous accurate translations of similar material by the recipient, other recipients, or Federal agencies may be helpful.
While quality and accuracy of translation services is critical, the quality and accuracy of translation services is nonetheless part of the appropriate mix of LEP services required. For instance, documents that are simple and have no legal or other consequence for LEP persons who rely on them may require translators that are less skilled than important documents with technical legal, medical, or other information upon which reliance has important consequences. The permanent nature of written translations, however, imposes additional responsibility on the recipient to ensure that the quality and accuracy permit meaningful access by LEP persons.
After completing the four-factor analysis and deciding what language assistance services are appropriate, a recipient should develop an implementation plan. The development and maintenance of a periodically-updated written plan on language assistance for LEP persons (“LEP plan”) for use by recipient employees serving the public will likely be the most appropriate and cost effective means of documenting compliance and providing a framework for the provision of timely and reasonable language assistance. Moreover, such written plans would likely provide additional benefits to a recipient's managers in the areas of training, administration, planning, and budgeting. These benefits should lead most recipients to document in a written LEP plan their language assistance services, and how staff and LEP persons can access those services. Despite these benefits, certain recipients, such as recipients serving very few LEP persons and recipients with very limited resources, may choose not to develop a written LEP plan. However, the absence of a written LEP plan does not obviate the underlying obligation to ensure meaningful access by LEP persons to a recipient's program or activities. Accordingly, in the event that a recipient elects not to develop a written plan, it should consider alternative ways to articulate in some other reasonable manner their plan for providing meaningful access. Entities having significant contact with LEP persons, such as schools, religious organizations, community groups, and groups working with new immigrants can be very helpful in providing important input into this planning process from the beginning.
The following five steps may be helpful in designing an LEP plan and are typically part of an effective written implementation plan, however, the absence of them does not necessarily mean there is non-compliance.
The first two factors in the four-factor analysis require an assessment of the number or proportion of LEP individuals eligible to be served or encountered and the frequency of encounters. This requires recipients to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use language identification cards (or “I speak cards”), which invite LEP persons to identify their language needs to staff. Such cards, for instance, might say “I speak Spanish,” in English and Spanish or “I speak Vietnamese in English and Vietnamese”, etc. To reduce costs of compliance, the Federal Government has made a set of these cards available on the Internet. The Census Bureau “I speak card” can be found and downloaded at
An effective LEP plan includes information about the ways in which language assistance will be provided. For instance, recipients may want to include information on at least the following:
Staff should know their obligations to provide meaningful access to information and services for LEP
Recipients may want to include this training as part of the orientation for new employees. It is important to ensure that all employees in public contact positions are properly trained. Recipients have flexibility in deciding the manner in which the training is provided. The more frequent the contact with LEP persons, the greater the need will be for in-depth training. Staff with little or no contact with LEP persons may only have to be aware of an LEP plan. However, management staff, even if they do not interact regularly with LEP persons, should be fully aware of and understand the plan so they can reinforce its importance and ensure its implementation by their staff.
Once an agency has decided, based on the four factors, that it will provide language services, it is important for the recipient to let LEP persons know that those services are available and that they are free of charge. Recipients should provide this notice in a language LEP persons will understand. Examples of notification that recipients should consider include:
Posting signs in intake areas and other entry points. When language assistance is needed to ensure meaningful access to information and services, it is important to provide notice in appropriate languages in intake areas or initial points of contact so that LEP persons can learn how to access those language services. This is particularly true in areas with high volumes of LEP persons seeking access to services or activities provided by VA recipients. For instance, signs in intake offices could state that free language assistance is available. The signs should be translated into the most common languages encountered. They should explain how to get the language. The Social Security Administration has made such signs available on their Web site. These signs could be modified for recipient use.
Stating in outreach documents that language services are available from the agency. Announcements could be in, for instance, brochures, booklets, and in outreach and recruitment information. These statements should be translated into the most common languages and could be “tagged” onto the front of common documents.
Working with community-based organizations and other stakeholders to inform LEP individuals of the recipient.
Using a telephone voice mail menu. The menu could be in the most common languages encountered. It should provide information about available language assistance services and how to get them.
Including notices in local newspapers in languages other than English.
Providing notices on non-English-language radio and television stations about the available language assistance services and how to get them.
Presentations and/or notices at schools and religious organizations.
Recipients should, where appropriate, have a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP individuals, and they may want to provide notice of any changes in services to the LEP public and to employees. In addition, recipients should consider whether changes in demographics, types of services, or other needs require annual reevaluation of their LEP plan. Less frequent reevaluation may be more appropriate where demographics, services, and needs are more static. One good way to evaluate the LEP plan is to seek feedback from the community.
In their reviews, recipients may want to consider assessing changes in:
The goal for Title VI and Title VI regulatory enforcement is to achieve voluntary compliance. The requirement to provide meaningful access to LEP persons is enforced and implemented by VA through the procedures identified in the Title VI regulations. These procedures include complaint investigations, compliance reviews, efforts to secure voluntary compliance, and technical assistance.
The Title VI regulations provide that VA will investigate whenever it receives a complaint, report, or other information that alleges or indicates possible noncompliance with Title VI or its regulations. If the investigation results in a finding of compliance, VA will inform the recipient/covered entity in writing of this determination, including the basis for the determination. If the investigation results in a finding of noncompliance, VA must inform the recipient/covered entity of the noncompliance through a Letter of Findings that sets out the areas of noncompliance and the steps that must be taken to correct the noncompliance must attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, VA must secure compliance through: (a) Federal assistance after the recipient/covered entity has been given an opportunity for an administrative hearing and/or (b) referral to a DOJ litigation section to for injunctive relief or other enforcement proceedings; or (c) any other means authorized by law.
As the Title VI regulations set forth above indicate, VA has a legal obligation to seek voluntary compliance in resolving cases and cannot seek the termination of funds until it has engaged in voluntary compliance efforts and has determined that compliance cannot be secured voluntarily. VA will engage in voluntary compliance efforts, and will provide technical assistance to recipients at all stages of its investigation. During these efforts to secure voluntary compliance, VA will propose reasonable timetables for achieving compliance and will consult with and assist recipient/covered entities in exploring cost-effective ways of coming into compliance. In determining a recipient's compliance with Title VI and the regulations, VA's primary concern is to ensure that the recipient's policies and procedures provide meaningful access for LEP persons to the recipient's programs and activities.
While all recipients must work toward building systems that will ensure access for LEP individuals, VA acknowledges that the implementation of a comprehensive system to serve LEP individuals is a process and that a system will evolve over time as it is implemented and periodically
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Blackburn's sphinx moth
This rule becomes effective on July 10, 2003.
Comments and materials received, as well as supporting documentation used in the preparation of this final rule, will be available for public inspection, by appointment, during normal business hours at U.S. Fish and Wildlife Service, Pacific Islands Office, 300 Ala Moana Blvd., Room 3-122, P.O. Box 50088, Honolulu, HI 96850-0001.
Paul Henson, Field Supervisor, Pacific Islands Office, at the above address (telephone 808/541-3441; facsimile 808/541-3470).
In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.”
Currently, only 306 species or 25% of the 1,211 listed species in the U. S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially-imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with NEPA, all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions. Sidle, J.G. 1987. Critical Habitat Designation: Is it Prudent? Environmental Management 11(4):429-437.
Blackburn's sphinx moth (moth) (
Very few specimens of the moth have been seen since 1940, and after a concerted effort by staff at the Bishop Museum to relocate this species in the late 1970s, it was considered to be extinct (Gagné and Howarth 1985). In
The moth has been recorded from the islands of Kauai, Kahoolawe, Oahu, Molokai, Maui, and Hawaii, and has been observed from sea level to 1,525 m (5,000 ft) elevation. Most historical records were from coastal or lowland dry forest habitats in areas receiving less than 127 cm (50 in) of annual rainfall. On the island of Kauai, the moth was recorded only from the coastal area of Nawiliwili. Populations were known from Honolulu, Honouliuli, and Makua on leeward Oahu, and Kamalo, Mapulehu, and Keopu on Molokai. On Hawaii, it was known from Hilo, Pahala, Kalaoa, Kona, and Hamakua. It appears that this moth was historically most common on Maui, where it was recorded on Kahului, Spreckelsville, Makena, Wailuku, Kula, Lahaina, and West Maui.
Blackburn's sphinx moth larvae feed on plants in the nightshade family (Solanaceae). The natural host plants are native trees within the genus
Adult moths have been found throughout the year, and have been observed feeding on nectar from
Plant species composition in the moth's habitat varies considerably depending on location and elevation, but some of the most common native plants in areas where the moth occurs are the trees
The largest populations of Blackburn's sphinx moths, on Maui and Hawaii, are associated with trees in the genus
On Molokai, moth habitat includes vegetation consisting primarily of mixed-species mesic and dry forest communities composed of native and introduced plants (HHP 2000). Although Molokai is not known to currently contain a moth population, past moth sightings on Molokai have been reported. The island does contain native
The endangered larval host plant,
Although
Dry to mesic forest habitats in Hawaii have been severely degraded by past and present land management practices, including ranching, the impacts of introduced plants and animals, wildfire, and agricultural development (Cheetah and Stone 1990). Because of these factors,
Because the moth was once so widespread and sphinx moths are known to be strong fliers, we believe it is likely that inter-island dispersal of the species occurred to some degree prior to the loss of much of its historical habitat. Currently, the areas of dry to mesic shrub and forest habitats below 1,525 m (5,000 ft) elevation that are suitable for Blackburn's sphinx moth are approximately 148,585 ha (367,161 ac).
In addition to, or perhaps because of, habitat loss and fragmentation, Blackburn's sphinx moths are also susceptible to seasonal variations and weather fluctuations affecting their quality and quantity of available habitat and food. For example, during times of drought, nectar availability for adult moths are expected to decrease. During times of decreased nectar availability, life spans of individuals may not be affected, but studies with butterflies have shown marked decreases in reproductive capacity for many species (Center for Conservation Biology 1994). In another study, Jansen (1984) reported that host plant availability directly affected sphingid reproductive activity. In fact, for some lepidopteran (butterflies and moths) species, if nectar intake is cut in half, reproduction is also cut approximately in half. Such resource stress may occur on any time scale, ranging from a few days to an entire season, and a pattern of continuous long-term adult feeding stress could affect the future viability of a population (Center for Conservation Biology 1994).
Often, habitat suitability for herbivorous insects is determined by factors other than host plant occurrence or density. Microclimatic conditions (Thomas 1991; Solbreck 1995) and predator pressure (Roland 1993; Roland and Taylor 1995; Walde 1995) are two such widely reported factors. In a study of moth population structure, habitat patch size and the level of sun exposure were shown to affect species occupancy, while patch size and the distance from the ocean coast were reported to affect moth density. Moth populations in small habitat patches were more likely to become extinct (Forare and Solbreck 1997).
The geographic isolation of the Hawaiian Islands restricted the number of original successful colonizing arthropods and resulted in the development of an unusual fauna. Only 15 percent of the known insect families are represented by the native insects of Hawaii (Howarth 1990). Some groups that often dominate continental arthropod faunas, such as social Hymenoptera (group-nesting ants, bees, and wasps), are entirely absent from the native Hawaiian fauna. Accidental introductions from commercial shipping and air cargo to Hawaii have now resulted in the establishment of over 2,500 species of alien arthropods (Howarth 1990; Howarth
Ants are not a natural component of Hawaii's arthropod fauna, and native species evolved in the absence of predation pressure from ants. Ants can be particularly destructive predators because of their high densities, recruitment behavior, aggressiveness, and broad range of diet (Reimer 1993). Because they are often generalist feeders, ants may affect prey populations independent of prey density, and may locate and destroy isolated individuals and populations (Nafus 1993a). At least 36 species of ants have become established in the Hawaiian Islands, and three particularly aggressive species have severely affected the native insect fauna (Zimmerman 1948).
For example, in areas where the big-headed ant (
Several additional ant species threaten the conservation of Blackburn's sphinx moth. The Argentine ant (
Hawaii also has a limited fauna of native Hymenopteran wasp species, with only two native species in the family Braconidae (Beardsley 1961), neither of which is known to parasitize Blackburn's sphinx moth. In contrast, other species of Braconidae are common predators (parasitoids) on the larvae of the tobacco hornworm and the tomato hornworm in North America (Gilmore 1938). There are now at least 74 nonnative species, in 41 genera, of braconid wasps established in Hawaii, of which at least 35 species were purposefully introduced as biological control agents (Nishida 1997). Most species of alien braconid and ichneumonid wasps that parasitize moths are not host-specific, but attack the caterpillars or pupae of a variety of moths and have become the dominant larval parasitoids even in intact, high-elevation, native forest areas of the Hawaiian Islands (Zimmerman 1948, 1978; Funasaki
Small wasps in the family Trichogrammatidae parasitize insect eggs, with numerous adults sometimes developing within a single host egg. The taxonomy of this group is confusing, and it is unclear if Hawaii has any native species (John Beardsley, University of Hawaii, pers. comm. 1994; Nishida 1997). Several alien species are established in Hawaii (Nishida 1997), including
Hawaii has no native parasitic flies in the family Tachinidae (Nishida 1997). Two species of tachinid flies,
Based on the findings discussed above, nonnative predatory and parasitic insects are considered important factors contributing to the reduction in range and abundance of the Blackburn's sphinx moth, and in combination with habitat loss and fragmentation, are a serious threat to its continued existence. Some of these nonnative species were intentionally introduced by HDOA or other agricultural agencies (Funasaki
As Table 1 indicates, the assemblage of potential alien predators and parasites on each island may differ.
Furthermore, the arthropod community may differ from one area to another, even on the same island, based upon elevation, temperature, prevailing wind pattern, precipitation, or other factors (Nishida 1997). Conserving and restoring Blackburn's sphinx moth populations in multiple locations should decrease the likelihood that the effect of any single alien parasite or predator, or the combined pressure of such species, could result in the diminished vigor or extinction of the moth.
Because of the threats discussed above, we do not believe the existing habitats containing Blackburn's sphinx moth populations are sufficient to ensure the long-term survival of the species. A diverse set of habitats and climates within its former range is necessary to remove the long-term risk of rangewide extinction of the species. Threats to the moth identified in the final listing rule include vandalism and collection, predation/parasitism by alien arthropods, and habitat alteration and loss from nonnative plant and ungulate invasion (65 FR 4770; February 1, 2000). Considering the rarity of the moth, small population size is also believed to be a factor that threatens the long-term survival of the species, since random population fluctuations and catastrophic events are more likely to result in the extirpation of local populations. Wildfire and feral ungulate pressure on the moth's habitat, along with direct pressure of alien predators and parasites, are important factors currently reducing the moth's range and abundance and threatening the species' continued existence (Funasaki
A summary of previous Federal actions on this species up to the time we proposed this critical habitat designation is found in the
On June 13, 2002, we published a proposed rule for designation of critical habitat for Blackburn's sphinx moth on approximately 40,240 ha (99,433 ac) of land on the islands of Hawaii, Kahoolawe, Maui, and Molokai (67 FR 40633). The publication of the proposed rule opened a 60-day public comment period, which closed on August 12, 2002.
Subsequently, we determined that an additional extension of time was needed to complete this designation process. On August 21, 2002, the District Court in Hawaii approved another joint stipulation extending the date for the final rule designating critical habitat for Blackburn's sphinx moth to May 30, 2003.
On August 26, 2002, we published a notice (67 FR 54763) announcing the reopening of the comment period until December 30, 2002, and notice of a public hearing on the proposed rule to be held on the island of Maui. On September 12, 2002, we held a public hearing at the Maui Arts and Cultural Center Meeting Room, Kahului.
On October 10, 2002, we published a notice of a public hearing on the proposed rule to be held on the island of Hawaii (67 FR 63064). On October 29, 2002, we held a public hearing in Kailua-Kona, Hawaii.
On November 15, 2002, we published a notice of the availability of, and invitation for, comments on the draft economic analysis (DEA) for the proposed rule (67 FR 69179). The second public comment period closed on December 30, 2002.
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited, during a prepublication peer review process, independent opinions from 15 knowledgeable individuals with expertise in one or several fields, including familiarity with the species, the geographic region that the species occurs in, and the principles of conservation biology. We received comments from five reviewers. After publication of the proposed rule, we solicited independent opinions from 27 knowledgeable individuals with similar expertise. We received 8 written responses from those 27 individuals. All eight reviewers generally supported our methodology and conclusion, and supported the proposed critical habitat designation, although they recognized the limitations of scientific knowledge of life history and population characteristics of the Blackburn's sphinx moth. All of the reviewers supported including currently unoccupied habitat
In the June 13, 2002, proposed critical habitat designation (67 FR 40633), we requested all interested parties submit comments on the specifics of the proposal, including information related to biological justification, policy, economics, and proposed critical habitat boundaries. We also contacted all appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment. The comment period was scheduled to close on August 12, 2002. To allow for additional comments on the proposed designation and to allow for comments on the DEA of the proposed critical habitat, we extended the comment period until December 30, 2002 (67 FR 54763). We received 30 individually written letters, from 10 designated peer reviewers, 4 State agencies, and 16 individuals or organizations. Approximately 715 additional letters were submitted as part of a mailing campaign, all of which supported the proposed designation.
We received three requests for a public hearing. We announced the date and time of the public hearings and invited comments in letters to appropriate elected officials; Federal, State, and local agencies; scientific organizations; and other interested parties. We also published notices in several news sources, including the
We provided notification of the DEA through letters and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, and interest groups. We also published notice of its availability in the
We reviewed all comments received for substantive issues and new information regarding the Blackburn's sphinx moth. Similar comments were grouped into six general issue categories relating specifically to the proposed critical habitat determination and DEA on the proposed determination. Comments have been incorporated directly into the final rule or final addendum to the economic analysis, and/or they have been addressed in the following summary.
(1)
When designating currently unoccupied habitat for this species, we first evaluated lands that are suitable. Of this suitable habitat, we then identified those areas essential for the conservation of the species if they contained one or more of the primary constituent elements; were either in acceptable condition for conservation efforts, or could be made acceptable through appropriate management actions; and would provide the space and distribution needed by the moth to sustain itself in the future.
The one unoccupied area designated in this final rule is located on the island of Molokai. Although currently unoccupied by the moth, the area contains both larval stage and adult moth native host plants. The area is close enough in proximity to the Maui moth population that many peer reviewers stated it is feasible that the area may again be repopulated by the moth on its own. However, because it is a separate island, some additional protection from a potential natural catastrophe affecting, for example, the Maui population, may be afforded a future moth population on Molokai. Furthermore, as Molokai is the closest island to Oahu, we believe that allowing for a future moth population on Molokai may facilitate the species' dispersal and provide a flight corridor for moths eventually dispersing to the island of Oahu, which is also part of its historical range.
Molokai was designated as critical habitat in lieu of, or rather than, other suitable unoccupied areas, because we determined, to the best of our abilities, that it is the highest quality unoccupied habitat essential to the conservation of the moth. Lastly, the designated unoccupied area on Molokai may lack some of the serious potential threats to the moth (see Table 1). Conserving and restoring Blackburn's sphinx moth populations in multiple locations decreases the likelihood that the effect of any single alien parasite or predator, or the combined pressure of such species and other threats, could result in the diminished vigor or extinction of the species.
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Prior to the rulemaking process associated with listing the Blackburn's sphinx moth as endangered, we participated in, led, or sponsored a number of surveys and studies in numerous habitat areas on several islands to document the presence or absence of the moth or its essential host plant species at these locations. In addition, other natural resource agencies and organizations, including the University of Hawaii, USGS-BRD, DLNR, and the National Botanical Garden, provided us with reports of field observations at many sites on several islands. While we acknowledge the limited amount of peer-reviewed published information regarding the Blackburn's sphinx moth, as required by law we have used the best scientific and commercial data available to identify and delineate the critical habitat boundaries. Furthermore, we believe that we have been cautious in using information from studies of other, similar lepidoptera in identifying critical habitat for this moth species. For example, throughout this rule, we have explicitly identified where we were making comparisons between Blackburn's sphinx moth and related taxa rather than making assumptions outright about the moth. We have also acknowledged throughout the rule that additional studies are needed to confirm certain aspects of the species's biology, including, but not limited to, its host plant co-interactions.
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The critical habitat unit approach in this rule addresses the numerous risks to the long-term survival and conservation of Blackburn's sphinx moth by employing two widely recognized and scientifically accepted methods for promoting viable populations of imperiled species—(1) creation or maintenance of multiple populations to reduce the possibility that a single or series of catastrophic events could threaten to extirpate the species; and (2) increasing the size of each population in the respective critical habitat units to a level where the threats of genetic, demographic, and normal environmental uncertainties are diminished (Tear
In general, the larger the number of populations and the larger the size of each population, the lower the probability of extinction (Raup 1991; Meffe and Carroll 1996). This basic conservation principle of redundancy applies to Blackburn's sphinx moth. By maintaining viable populations in the designated critical habitat units, the threats represented by a fluctuating environment are reduced and the species has a greater likelihood of achieving conservation. Conversely, loss of a Blackburn's sphinx moth critical habitat unit will result in an appreciable increase in the risk that the species may not recover and survive.
Re-establishing the species to a diverse set of habitats and climates within its former range is necessary to remove the long-term risk of rangewide extinction due to catastrophic events and the numerous direct threats to the species and its habitat (Service 1997a). We are keenly aware that simply designating an area as critical habitat will not ensure its long-term conservation and recovery and, in fact, we know and recognize that active management actions and proven recovery science methods will be far more important in the long run for the moth. In accordance with our policy on peer review published on July 1, 1994 (59 FR 34270), we also solicited the expert opinions of appropriate and independent specialists regarding the proposed rule. The purpose of this peer review was to ensure that our designation methodology of critical habitat for the Blackburn's sphinx moth was based on scientifically sound data, assumptions, and analysis, and recovery science. The comments of all of the peer reviewers were taken into consideration in the development of this final designation. Furthermore, we are in the process of developing a draft recovery plan for the moth, and all peer reviewers, stakeholders, and other interested parties will have an opportunity to provide input to ensure that the best recovery science is outlined for the moth's long-term conservation and recovery.
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Numerous conservation and restoration plans for particular areas throughout the State of Hawaii have identified as primary goals the restoration of native plants, including the native host plants for the Blackburn's sphinx moth and other endangered species. Achieving these restoration goals may also require the control or elimination of nonnative vegetation, potentially including
Additionally, unlike the
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Unless there is Federal nexus to the activity, an activity by the State or private landowner or individual, such as farming, grazing, logging, and gathering, generally is not affected by a critical habitat designation, even if the property is within the geographical boundaries of the critical habitat. Recreational, commercial, and subsistence activities on non-Federal lands, including hunting, are not regulated by this critical habitat designation. These activities may be impacted only where there is Federal involvement in the action and the action is likely to destroy or adversely modify critical habitat.
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We agree that
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We did not include these additional lands in critical habitat Units 1 and 3 because we concluded that they were not essential for the conservation of the Blackburn's sphinx moth. This was based on available information concerning the status of the species in specific areas and the level of habitat degradation. We agree that some of these additional lands may potentially harbor undocumented populations of Blackburn's sphinx moth, and we also acknowledge that additional survey efforts are needed to ascertain the existence of potential moth or host plant populations in these areas and likely in other areas as well. While new reports of moth sightings or other observations of potentially suitable habitat provided by reviewers will be useful in focusing future survey efforts and research needs, we believe we have identified for designation, the best quality habitat essential for the conservation of the moth.
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As stated in the proposed rule and this final rule, existing manmade features and structures within the boundaries of the mapped areas. This includes features such as the following that do not contain one or more of the primary constituent elements, and therefore, are not included in the critical habitat designations: Buildings; roads; aqueducts and other water system features, including but not limited to pumping stations, irrigation ditches, pipelines, siphons, tunnels, water tanks, gauging stations (section in a stream channel equipped with facilities for obtaining streamflow data), intakes, and wells; telecommunications towers and associated structures and equipment; electrical power transmission lines and associated rights-of-way; radars; telemetry antennas; missile launch sites; arboreta and gardens; heiau (indigenous places of worship or shrines); airports; other paved areas; lawns; and other rural residential landscaped areas.
To further address concerns with the potential costs of identifying nondesignated areas, the Economic Analysis Addendum (Addendum) revisited the hour estimates presented in the DEA. Chapter VI, section 4.I of the DEA indicated that the landowners may want to learn how the designation may affect: (1) the use of their land (either through restrictions or new obligations), and (2) the value of their land. Since no commenters provided an estimate of time or cost incurred in order to investigate implications of critical habitat, and because of the reduction in acreage from proposed to designated, the Addendum revised the number of landowners downward, which resulted in a cost for landowners of $173,000 to $618,000 to investigate the implication of critical habitat.
While some landowners may expend time and money to investigate the implications of critical habitat on their land during the designation process, many landowners may not do so until after final designation is complete. Thus, the DEA and the Addendum treated these costs as a cost attributable to the final designation.
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As to future conservation agreement, several owners have indicated that including their lands in a critical habitat designation would have a negative impact on their existing and future voluntary conservation efforts for the moth and other species. After weighing the benefits of including these areas as critical habitat with the benefits of excluding them, we concluded that the designation of critical habitat would have a net negative conservation effect in some situations, and we excluded some of these areas from the final designation of critical habitat.
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If the Service finds that the proposed actions are likely to jeopardize the continued existence of an endangered or threatened species or result in destruction or adverse modification of critical habitat, we suggest reasonable and prudent alternatives that would allow the Federal agency to implement their proposed action without such adverse consequences. Again, we have provided our best assessment for what this may mean in terms of management actions or land uses and any associated costs in the draft economic analysis and Addendum.
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HRS section 195D-5.1 states that the Department of Land and Natural Resources (DLNR) “shall initiate amendments to the conservation district boundaries consistent with section 205-4 in order to include high quality native forests and the habitat of rare native species of flora and fauna within the conservation district.” HRS section 205-2(e) specifies that “conservation districts shall include areas necessary for * * * conserving indigenous or endemic plants, fish and wildlife, including those which are threatened or endangered * * *.” Unlike the automatic conferral of State law protection for all federally listed species (see HRS 195D-4(a)), these provisions do not explicitly reference federally designated critical habitat and, to our knowledge, DLNR has not proposed amendments in the past to include all designated critical habitat in the Conservation District. Nevertheless, according to the Land Division of DLNR, DLNR is required by HRS 195D-5.1 to initiate amendments to reclassify critical habitat lands to the Conservation District (Deirdre Mamiya, Administrator, Land Division, in litt. 2002).
State law only permits other State departments or agencies, the county in which the land is situated, and any person with a property interest in the land to petition the State Land Use Commission (LUC) for a change in the boundary of a district. HRS section 205-4. The Hawaii Department of Business, Economic Development & Tourism's (DBEDT) Office of Planning also conducts a periodic review of district boundaries taking into account current land uses, environmental concerns and other factors and may propose changes to the LUC.
The State Land Use Commission determines whether changes proposed by DLNR, DBEDT, other state agencies, counties or landowners should be enacted. In doing so, State law requires LUC to take into account specific criteria, set forth at HRS 205-17. While the LUC is specifically directed to consider the impact of the proposed
Thus, even if all federally designated critical habitat is petitioned for redistricting, the likelihood of redistricting will vary parcel by parcel. While the LUC may redistrict some parcels, it is unlikely that lands with a high economic value to the community, such as lands with significant State investments, prime agricultural land, land planned for the economic and community development, and land planned for the provision of housing, would be redistricted. By way of illustration, in the last State district boundary review only five privately owned parcels were redistricted to Conservation even though several hundred parcels were proposed for redistricting. While concern has been expressed that a third party would challenge a decision by the LUC not to redistrict a critical habitat parcel in State court, State courts have been deferential to the LUC decisions if they are supported by the record, consistent with statutory provisions, and not affected by errors.
In summary, while it is possible that the designation of critical habitat could trigger a petition to redistrict land designated as critical habitat to the Conservation District, the likelihood appears small, absent litigation, that these lands would be redistricted.
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In chapter VI, section 4 of the November 2002 DEA under indirect costs and in section 4 of the Addendum, they examined the indirect costs of critical habitat designation, such as where critical habitat triggers the applicability of a State or local statute. The economic analysis did not conclude that designation of critical habitat on Agricultural lands would prevent a rancher from using those lands. Rather, the economic analysis recognized that many areas within the critical habitat designation have been grazed for tens or hundreds of years, yet still contain the primary constituent elements for Blackburn's sphinx moth. The DEA concluded that sustainable grazing does not adversely affect the moth, and in fact, may indirectly benefit the species by reducing fire danger and controlling nonnative weeds. Moreover, the DEA concluded that areas historically subject to grazing were unlikely to meet the standards of a natural ecosystem required to be put in the Protective Subzone (HAR § 13-5-11). As a result, even if Agricultural land within the critical habitat designation were redistricted to Conservation, the DEA anticipated that agricultural activities could continue because typical agricultural activities are allowed in all subzones, except the Protective Subzone, with permission of the State Board of Land and Natural Resources (BLNR).
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We have determined that an Environmental Assessment and/or an 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 Act, which includes critical habitat designations. A notice outlining our reason for this determination was published in the
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The majority of consultations resulting from the critical habitat designation for the Blackburn's sphinx moth are likely to address land development and road construction or road expansion activities. The planned road projects (proposed Ane Keohokalole Highway) within proposed Unit 5A is not in this designation. The final economic analysis estimates that, over the next 10 years, the designation may result in potential direct economic costs ranging from approximately $1,183,800 to $1,739,000, and concludes that economic impacts from the designation of critical habitat would not be significant.
A more detailed discussion of our analyses are contained in the November 15, 2002, DEA and the Addendum to the DEA. Both documents are available for inspection at the Pacific Islands Office (see
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Another commenter also stated that the DEA's analysis of potential costs expected to be incurred by private landowners to investigate the implications of critical habitat on their lands was flawed, because the analysis failed to recognize that the costs to investigate the implications of critical habitat are associated with the designation process, not additional costs that the final designation would impose. The commenter further stated that any concerned party investigating the proposed designation of critical habitat on their lands would have already hired lawyers and consultants, and would have incurred the costs associated with figuring out the implications of designation on their lands. Moreover, were the private landowners' lands ultimately excluded from the final critical habitat designation, the landowners would still not recoup those costs; the money has already been spent. Thus, the commenter concluded that these costs should not be included in the analysis of future potential costs from designation since they have already been incurred, and were incurred, regardless of the final designation decision.
While some landowners may expend time and money to investigate the implications of critical habitat on their land during the designation process, many landowners may not do so until after final designation is complete. Thus, the DEA and the Addendum conservatively treat these costs as costs attributable to the final designation.
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The impact to the supply of affordable housing was discussed in the DEA in chapter VI, section 4.e. The DEA recognized that some landowners feared the possibility of redistricting land within the critical habitat designation to the Conservation District, and discussed the impact to the affordable housing supply should redistricting occur and prevent planned development. Specifically, in regards to the planned Villages at Laiopua (VOLA), affordable housing development planned by the State in proposed Unit 5b (island of Hawaii), the DEA noted that the County of Hawaii requires developers to provide a certain number of affordable housing units, or pay $4,720 to the County for each unit not built. Using this value as a proxy for the social value of affordable housing, the DEA estimated that the loss of 570 affordable units in the VOLA development equates to a loss of almost $2.7 million to the community. We did not include this area in this designation (
Further, the DEA also addressed the potential impact on public revenues as a result of lost construction. In chapter VI, section 4.e., the DEA recognized that a loss in development can lead to economic losses due to the “ripple-effect.” For example, if a home cannot be built, both the developer and construction company who would have built the home would have reduced revenues. In addition, the lumber company and other companies supplying the construction company would have reduced revenues, an impact that would “ripple” through the regional economy and could result in reduced public revenues. However, due to the availability of suitable land outside the critical habitat designation, the DEA concluded that any economic activity displaced within critical habitat for the moth due to redistricting of land to the Conservation District would still be expected to occur, just in other locations. Thus, the DEA implicitly concluded that there would be no appreciable impact on public revenues.
The DEA addressed the impacts to subsistence and their role in the local economy in chapter VI, section 4.d. The DEA recognized that subsistence not only plays an important role in community life, but also provides important sustenance to many residents in communities on Maui, the island of Hawaii, and Molokai. The DEA estimated that restriction of access and prohibition of subsistence activities in all areas proposed for critical habitat designation was extremely unlikely, and that more likely to occur were restrictions in small, localized areas of significant biological importance. Because of the strong stewardship and conservation values associated with those practicing subsistence activities within the proposed critical habitat, as well as the traditional recognition of the value of protecting certain areas through the kapu system, the DEA concluded that the impact of critical habitat designation on subsistence activities would be minimal.
Finally, the economic analysis addressed impacts to public infrastructure such as roads and water systems in chapter VI, sections 3.I and 3.j. of the DEA, and section 3.j. of the Addendum. These sections addressed projects planned within the critical habitat designation. Final estimated potential section 7 costs for planned road projects are $32,600 for consultations and $985,000 to $1,230,000 for project modifications. Final estimated potential section 7 costs for planned water projects are $20,600 to $61,200 for consultations and up to $6,200 for project modifications.
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Furthermore, a 10-year time horizon is used because many landowners and managers do not have specific plans for projects beyond 10 years, and timeframes beyond 10 years greatly increases the subjectivity of estimating potential economic impacts. In addition, the forecasts in the analysis of future economic activity are based on current socioeconomic trends and the current level of technology, both of which are likely to change over the long term.
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However, multiple other commenters stated the following: The benefits of species protection are overstated and speculative. The DEA does not present the expected circumstances or timeline for delisting the species, nor is there a quantifiable estimate of the economic benefits of delisting. Additionally, multiple commenters stated that the species themselves have no economic value. Any estimate of economic benefit derived from not fully developing lands proposed for critical habitat are speculative and unquantifiable, and the likelihood of new conservation dollars entering the State is speculative. Furthermore, in the DEA summary of costs and benefits, the benefits of designating critical habitat are “difficult to estimate” and are exceeded by the costs.
It is not feasible, however, to fully describe and accurately quantify these benefits in the specific context of the proposed critical habitat for Blackburn's sphinx moth because of the scarcity of available studies and information relating to the size and value of beneficial changes that area likely to occur as a result of listing the moth or designating critical habitat. In particular, the following information is not currently available: (1) Quantified data on the value of the moth or its critical habitat; and (2) quantified data on the change in the quality of the ecosystem and the species as a result of the designation.
Although the UH study does value ecosystem services, it has limited applicability for valuing the benefits of the critical habitat designation for the moth for a number of reasons. First, the UH study had a different purpose, which was to estimate the total value of environmental benefits provided by the entire Koolau Mountains on the island of Oahu. Consistent with its purpose, the UH study provides no estimates of the changes in environmental conditions resulting from changes in land and stream management due to critical habitat designation. Furthermore, many of the assumptions and much of the analysis in the UH study are not transferable to the economic analysis for the critical habitat of the moth. For example, the Koolau Mountains were evaluated as a contiguous area, whereas the moth critical habitat is composed of separate areas on four different islands.
The value of water recharge in the UH study reflects projected water supply and demand conditions on Oahu—conditions that are not applicable to Maui, Molokai, Kahoolawe, or the island of Hawaii due to the differences in size and population. Also, the UH benefit analysis of reducing soil runoff is unique to three valleys that drain through partially channelized streams in urban areas into the manmade Ala Wai Canal. Since this canal was designed with inadequate flushing from stream or ocean currents, it functions as an unintended settling basin, so must be dredged periodically. In addition, the recreational and ecotourism values provided in the UH study apply to areas that are accessible to most hikers, which
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In addition, the economic analysis did not conclude that designation of critical habitat on Agricultural lands would prevent a rancher from using those lands. Rather, the economic analysis recognized that many areas within the critical habitat designation have been
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However, the DEA recognized that a change in game-management strategy as a result of a lawsuit or as a voluntary decision by DLNR is possible, but not likely.
Nonetheless, for illustration purposes, chapter VI, section 4.b. of the DEA presented potential costs that could result if DLNR removed areas within the intended designation from the State-managed hunting units. To illustrate the magnitude of the impacts on Molokai, if about half of those who hunt game mammals on the affected lands were to give up hunting, then hunting activity could drop by about 8 percent (half of 16 percent, which is the estimated percentage of the accessible State-managed hunting lands on Molokai proposed for designation). This translates into an annual decrease in economic activity related to hunting on Molokai of about $25,000 in direct sales; $45,000 in total direct and indirect sales; one job; and $15,000 in income. To illustrate the magnitude of the impacts on the island of Hawaii, if about half of those who hunt game mammals on the affected lands were to give up hunting, then hunting activity could drop by about 12.5 percent. While the proposed critical habitat covers only 3 percent of the total hunting area on the island of Hawaii, the actual hunting activity within the area proposed for designation is much higher than 3 percent. Based on information provided by DLNR regarding the popularity and the number of hunting trips in the Puu Waawaa area, it is assumed the area included in critical habitat supports approximately 25 percent of the hunting activity on the island of Hawaii. A reduction in hunting activity by half in this area would translate into an annual decrease in economic activity related to hunting on the island of Hawaii of about $425,000 in direct sales; $750,000 in total direct and indirect sales; 13 jobs; and $250,000 in income. However, the $450,000 ($25,000 + $425,000) decrease in expenditures by the displaced hunters would probably be spent on other activities, goods and services, so these figures are likely to overstate economic costs.
In addition to the change in economic activity discussed above, a reduction in hunting activity would also result in a loss in value or benefit to hunters (consumers' surplus). Chapter VI, section 4.b. of the DEA estimates this potential loss in value at $238,000 ($13,000 for hunting on Molokai and $225,000 for hunting on the island of Hawaii) annually and recognizes that benefits derived from recreational activities that replace game mammal hunting would partially offset this loss. Because the intended revisions did not significantly reduce the amount of overlap between State-managed hunting units and the intended designation, the Addendum made no changes to the conclusions reported in the DEA regarding hunting.
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During public comment, DOTA objected to designation of Kahului Airport and stated that the proposed designation failed to adequately consider the potential economic impacts to the Kahului Airport. As noted in the DEA, activities within the critical habitat designation primarily involve the clearance and cutting back of vegetation. These activities are not typically supported through Federal funds. However, based on discussions with DOTA, it is assumed that DOTA would avoid utilizing Federal funds, if they were available, to support activities within the area designated for critical habitat in order to avoid Federal involvement and section 7 consultation. As DOTA does not currently use or anticipate using Federal funds to support activities within the critical habitat designation, the economic impact of forgoing Federal funding sources is estimated to be zero.
DOTA did not provide any specific information demonstrating economic impact, identify any other activities that would be impacted by the designation, or raise any other Federal nexus. As discussed above, there is no anticipated Federal involvement for activities at Kahului Airport. Thus, no section 7 consultations or project modifications relating to Kahului Airport are anticipated.
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Section 3.g. of the Addendum evaluated the direct economic impact of critical habitat designation on these two parcels under lease for pasture purposes and concluded that no direct section 7 costs involving these leases are anticipated because there is no known Federal involvement.
Sections 4.a. and 4.b. of the Addendum discussed indirect costs, specifically the possibility of mandated conservation management measures that would interfere with the ability to lease these lands for pasture purposes, and the possibility of restrictions on the State's ability to develop the land in the future as a result of redistricting.
As discussed in section 4.a., mandated conservation management of all of the land in critical habitat is not reasonably foreseeable. The concern expressed by some is that the prohibition on taking endangered and threatened species could be triggered by designation of critical habitat if courts apply the principles of
Section 4.b. of the Addendum discussed the possible impact on future development on the three parcels identified by DLNR. The Addendum recognized that while it is possible that redistricting of these parcels (should it occur) could restrict the ability of DLNR to develop these lands in the future, the economic impact of such a restriction
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The Mamalahoa Highway (Route 190) safety improvements in proposed Unit 6 (Unit 8, island of Hawaii) involve simple reading and resurfacing of the existing roadway. As mentioned in the DEA, the critical habitat provisions of section 7 do not apply to the operation and maintenance of existing manmade features and structures because these features are excluded from the designation. Although we are unable to individually map out every road and other manmade features and structures, they have been excluded in narrative form. Thus, the reading and resurfacing of the existing roadway planned for Mamalahoa Highway in proposed Unit 6 (Unit 8, island of Hawaii) would not be subject to section 7 consultation for critical habitat because they would not occur within designated critical habitat.
Finally, because proposed Kailua-Kona Unit 5b is not included the proposed widening of Kealakehe Parkway (Route 197) will not be affected by this critical habitat designation.
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In addition, under a most extreme scenario, planned development on the privately owned Agricultural and Urban land would be stopped. The economic impact to the developer would include the amount of money already invested in the project plus the expected profits that would not be realized due to redistricting. The potential cost associated with such a scenario is approximately $62.4 million to $74.4 million. Combined with the impacts mentioned above, the total economic cost associated with redistricting could range from $80 million to $249 million. Again, and as discussed more fully in section 4.b., while it is possible that the designation of critical habitat could trigger a petition to redistrict land designated as critical habitat to the Conservation District, the likelihood is small that the petition would actually result in redistricting any particular parcel of land into the Conservation District.
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Based on a review of projects planned within the critical habitat designation, the DEA concluded that five projects could be affected: Makena State Park; Kanaha Beach Park improvements; Kahoolawe Island Reserve Commission projects; and water tank installation and fire control at Puu Waawaa. The DEA reported that if all these projects subsequently require EISs, the additional cost to prepare them could be between $125,000 and $375,000. However, the DEA also recognized that this estimate may overstate costs, because other aspects of these projects may compel the preparation of an EIS rather than an EA. Because the areas surrounding these five projects remain within the intended designation, the Addendum made no changes to the conclusions reported in the DEA.
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Another commenter expressed concern that the Service may get involved in county permitting processes, stating: “[r]egardless of whether there is a Federal nexus for a proposed action, State and local agencies can and will require consultations with the Service (whether formal or informal) on actions that they approve in areas within or near critical habitat, and are likely to place restrictions on those actions as a result of such consultations. For example, a recent informal consultation between the County of Maui and the Service, pursuant to issuance of a County Special Management Area Permit for a proposed A & B project near BSM habitat in Kahului, resulted in the incorporation of permit conditions requiring the planting of three native
Finally, another commenter stated the following: The Service has taken the position in other states that it has a right to intervene in local land use proceedings if they affect endangered species on private property. For example, the Service petitioned the local zoning board in Arizona to postpone approval of a rezoning petition pending a survey to determine the extent to which an endangered plant was present on the property even though no Federal approval was being sought. The failure of the Service to address this type of activity in the DEA is a fundamental error of the analysis.
During public comment, a landowner in proposed Unit 5a (island of Hawaii) indicated that the Kaloko Properties development in critical habitat will require major discretionary approvals from the State and county, including Land Use District Boundary Amendment and a county zone change. (Note: this area was not included in this designation.) Section 4.c. of the Addendum addresses the costs of potential State and county mitigation measures that could be associated with approvals for this project. For example, as a mitigation measure for this project, the State or county may require the landowner to use native vegetation that is beneficial to the moth in the residential and golf course construction. The cost of this mitigation measure is estimated at $720,000 to $750,000. In a most extreme scenario, if the State or county did not grant the discretionary approvals as a result of the moth critical habitat designation, the landowner may not be able to continue with the current plans for residential and golf course development. In this case, the total cost for the Kaloko Properties development would be $4.2 million in previous expenditures and $13 million to $25 million in the potential loss of future profits. The specific likelihood of either occurrence is unknown, as it depends upon the actions of the State or county agency with permit approval under circumstances for which there is no prior history. In addition, the State or county may develop their own mitigation measures based on the particular circumstances before them when reviewing the permit. Based on the professional judgment of the team of economists preparing the economic analysis, it is not deemed likely that discretionary approval for the Kaloko Properties project would be denied solely on the basis of moth critical habitat designation. However, for illustrative purposes, costs associated with this most extreme scenario are reported.
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Moreover, no costs would be expected to occur from such impacts to water systems, because neither the Blackburn's sphinx moth nor the host plants on which it relies are stream-dependent for their survival and, therefore, would not cause a reduction in existing water diversions.
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The economic analysis considers the economic impacts of section 7 consultations related to critical habitat, even if they are attributable co-extensively to the listed status of the species. In addition, the economic analysis examines any indirect costs of critical habitat designation, such as where critical habitat triggers the applicability of a State or local statute. However, where it is the listing of a species that prompts action at the State or local level (
Based on a review of public comments received on the proposed critical habitat determination, we have reevaluated our proposed designations and included several changes to the final designation of critical habitat. These changes include the following:
(1) We revised the list of manmade features that are excluded from the designation in order to exclude additional features based on information received during the public comment periods. The revised list is described in the Criteria Used to Identify Critical Habitat section, and in regulatory language for section 17.95, “Critical habitat— fish and wildlife,” described at the end of this document.
(2) We made revisions to the unit boundaries based on information supplied by commenters, as well as information gained from field visits to some of the sites, which indicated: (1) The primary constituent elements were not present in certain portions of the proposed units; (2) certain changes in land use had occurred on lands within the proposed critical habitat that would preclude those areas from supporting the primary constituent elements; or (3) the areas were not essential to the conservation of the species. Specifically, private landowners on the islands of Molokai, Maui, and Hawaii provided us with new information regarding current land uses or prior land changes to some to the proposed areas that allowed us to identify certain lands as not essential or unsuitable for the long-term conservation of the Blackburn's sphinx moth. Likewise, the State provided us with new information regarding current land uses or prior land changes to some proposed areas on islands of Maui, Kahoolawe, and Hawaii that allowed us to identify portions of some proposed units as not essential or unsuitable for the long-term conservation of the moth. In addition, information obtained during the process of finalizing critical habitat designations for plants on the islands of Maui, Molokai, and Hawaii helped us to identify some proposed areas on those islands that are lacking the primary constituent elements, or are unsuitable for the long-term conservation of the moth. Lastly, some areas were excluded based on weighing the benefits of inclusion versus exclusion pursuant to section 4(b)(2) of the Act (
This unit has been subdivided into three smaller separate units (Unit 2, Cape Kinau; Unit 3, Ka naio; and Unit 4, Kahikinui) (
Some areas from the original unit were excluded under section 4(b)(2) because the benefits of designation of critical habitat are outweighed by the negative effect on the landowners' voluntary conservation activities on their property. Additional area was excluded because new information revealed that some lands in question did not contain moth's adult or larval stage primary constituent elements, or were more seriously degraded than previously ascertained, and are therefore not essential for the conservation of the species.
This unit was renamed Unit 1 Puu O Kali, and is now 1,604 ha (3,965 ac) in size (
This unit has been subdivided into two smaller, separate units (Unit 5 Kanaha Pond and Unit 6 Kanaha Park) (
This unit was renamed Unit 7 Upper Kahoolawe, and is now 1,721 ha (4,252 ac) in size (
This unit was renamed Unit 8 Puuwaawaa—Hualalai, and is now 9,954 ha (24,598 ac) in size (
This unit was renamed Unit 9 Kamoko Flats—Puukolekole, and is now 1,256 ha (3,105 ac) in size (
Critical habitat is defined in section 3 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,” as defined by the Act, means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of proposed critical habitat.
In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “* * * the direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and conservation of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” However, in a March 15, 2001, decision of the United States Court of Appeals for the Fifth Circuit (
In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known, using the best scientific and commercial data available, habitat areas that provide at least one of the physical or biological features essential to the conservation of the species (primary constituent elements, as defined at 50 CFR 424.12(b)). Section 3(5)(C) of the Act states that not all areas that can be occupied by a species should be designated as critical habitat unless the Secretary determines that all such areas are essential to the conservation of the species. Our regulations (50 CFR 424.12(e)) also state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.”
Section 4(b)(2) of the Act requires that we take into consideration the economic impact, and any other relevant impact, of specifying any particular 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. Section 4 requires that we designate critical habitat for a species, to the extent such habitat is determinable, at the time of listing. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we may not have sufficient information to identify all the areas essential for the conservation of the species or alternatively, we may inadvertently include areas that later will be shown to be nonessential. Nevertheless, we are required to designate those areas we believe to be critical habitat, using the best information available to us.
Our regulations state that “The Secretary shall designate critical habitat outside the geographic areas 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 and commercial data do not indicate 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.
Our Policy on Information Standards Under the Endangered Species Act, published on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for
It is important to clearly understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for conservation. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the Act's 7(a)(2) jeopardy standard and section 9 prohibitions, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the conservation of the species.
As required by section 4(b)(2) of the Act and regulations 50 CFR 424.12, we used the best scientific information available to determine areas containing the physical and biological features that are essential for the conservation of Blackburn's sphinx moth. We evaluated areas containing dry and mesic habitats as well as data on known moth occurrence. The best scientific information we analyzed included peer-reviewed scientific publications; unpublished reports by researchers; the final rule listing the species (65 FR 4770); the Blackburn's sphinx moth Recovery Outline (Service 2000); the HHP database; island-wide GIS coverages (
The critical habitat unit approach in this rule addresses the numerous risks to the long-term survival and conservation of Blackburn's sphinx moth by employing two widely recognized and scientifically accepted methods for promoting viable populations of imperiled species—(1) creation or maintenance of multiple populations to reduce the possibility that a single or series of catastrophic events could threaten to extirpate the species; and (2) increasing the size of each population in the respective critical habitat units to a level where the threats of genetic, demographic, and normal environmental uncertainties are diminished (Tear
In general, the larger the number of populations and the larger the size of each population, the lower the probability of extinction (Raup 1991; Meffe and Carroll 1996). This basic conservation principle of redundancy applies to Blackburn's sphinx moth. By maintaining viable populations in the designated critical habitat units, the threats represented by a fluctuating environment are reduced and the species has a greater likelihood of achieving conservation. Conversely, loss of a Blackburn's sphinx moth critical habitat unit will result in an appreciable increase in the risk that the species may not recover and survive.
The Blackburn's sphinx moth is short-lived, extremely mobile, and rare; hence population densities are not easily determined (A. Medeiros, pers comm., 1998; Janzen 1984; Roderick and Gillespie 1997; Van Gelder and Conant 1998). Even if the threats responsible for the decline of the moth were controlled, the persistence of existing populations is hampered by the small number of extant populations and the small number of individuals in known populations. These circumstances make the species more vulnerable to extinction resulting from a variety of natural processes. Small populations are particularly vulnerable to reduced reproductive vigor caused by inbreeding depression, and they may suffer a loss of genetic variability over time due to random genetic drift, resulting in decreased evolutionary potential and decreased ability to cope with environmental change (Lande 1988; International Union for Conservation of Nature and Natural Resources 1994).
Populations small in size are also demographically vulnerable to extinction caused by random fluctuations in population size and sex ratio, and to catastrophes such as hurricanes (Lande 1988). We believe the existing Blackburn's sphinx moth populations on Kahoolawe, Hawaii, and Maui are insufficient in size and too limited in range to ensure the conservation of the species. While Blackburn's sphinx moth population sizes may be naturally small, establishing the species to a diverse set of habitats and climates within its former range is necessary to remove the long-term risk of rangewide extinction due to catastrophic events and the numerous direct threats to the species and its habitat (Service 1997a).
Janzen (1984) described the characteristics of tropical sphingid moths found in a Costa Rican National Park. In general, adult sphingids are nocturnal or crepuscular (dusk-flying) and regularly drink with a long proboscis from many kinds of sphingophilous flowers while hovering in front of them. Sphingophilus flowers are characterized by lightly colored tubular corollas, evening anthesis (opening), and nocturnal nectar and scent production (Haber and Frankie 1989). Fecundity was unknown, but estimated in the hundreds if the female can feed freely.
Particularly helpful in understanding the conservation needs of sphingids is Janzen's (1984) description of the adult moth biological characteristics, including that they have large latitudinal ranges, feed heavily over a long period of time and extensively at spatially particulate resources relatively fixed in location,
Sphingid caterpillars are known to feed heavily over a long time period and eat limited types of foliage, typically plants rich in toxic small molecules (
Ehrlich and Murphy (1987) noted that populations of herbivorous insects such as lepidopterans are often regulated by environmental factors, such as weather conditions, and thus small populations can be particularly at risk of extinction. Ehrlich and Murphy (1987) identified a number of principles important for the conservation of herbivorous insects. First, in most cases, a series of diverse demographic units will typically be needed to conserve a species. Second, where possible, corridors among the sites should be established to promote re-colonizations in areas where the species once occurred. Lastly, they noted that when populations are very sensitive to environmental changes and limited information is available on the species' population biology, it is easy to underestimate the conservation needs of such insects.
Murphy
Section 3(5)(A)(i) of the Act provides that areas outside the geographical area currently occupied by the species may meet the definition of critical habitat upon determination that they are essential for the conservation of the species. Although our knowledge of the Blackburn's sphinx moth's historical range is incomplete, we believe the existing natural habitats needed to support viable populations of the moth are too small, isolated, and seriously threatened to ensure its long-term conservation, particularly in light of the foraging needs of adult sphingid moths (Janzen 1984) and the apparent wide-ranging Blackburn's sphinx moth foraging habits (Fern Duvall, DOFAW, pers. comm. 2001; B. Gagne, pers. comm. 2001; D. Hopper,
Long-term conservation of the species will require the protection and subsequent restoration of additional and larger areas of dry and mesic habitat that include the larval and adult primary constituent elements at different elevational and rainfall gradients, in order to improve the likelihood of successful larval development and adult moth foraging (A. Medeiros, pers. comm. 1998; Roderick and Gillespie 1997; Van Gelder and Conant 1998). The long-term persistence of the existing populations will likely improve if they could be increased in size, and if the connectivity among the populations was enhanced, thus promoting dispersal of individuals across intervening lands. Restoring moth populations in multiple locations would decrease the likelihood that the effect of any single alien parasite, predator, or combined pressure of such species could result in the diminished vigor or extinction of the moth.
Small habitats tend to support small populations, which frequently are extirpated by events that are part of normal environmental variation. The continued existence of such satellite populations requires the presence of one or more large reservoir populations, which may provide colonists to smaller, outlying habitat patches (Ehrlich and Murphy 1987). Based on recent field observations of the Blackburn's sphinx moth, we believe the species likely occurs within two regional populations on separate islands, one centered in the area of leeward East Maui (Units 1-4 (
Habitat areas close to the two large reservoir areas are also designated in order to promote genetic variability in the Blackburn's sphinx moth population, contributing to the long-term persistence and conservation of the species. These areas will serve as corridors for dispersing adult moths or as overflow habitat during particularly fecund years, which could be very important to the integrity of moth populations. For example, adult moths observed at Cape Kinau (Unit 2) on Maui may have originated from larval host plants located in the Kanaio NAR (Unit 3). The moth populations inhabiting these habitat areas appear to be taking advantage of lower elevation adult native host plants and nonnative host plants such as tree tobacco upon which the larval stage is completed successfully. In addition, these habitat areas may be able to support persistent moth populations independent of the reservoir areas, significantly contributing to conservation of the species.
Molokai is an example of essential habitat because it provides for the expansion of the species' range and for improved connectivity of the different populations. While the designated unit on this island is not known to currently harbor a Blackburn's sphinx moth population, preserving this habitat is important because some threats to the species may be absent there (Table 1 shows several of the potential moth predators and parasites are not reported on Molokai). Likewise, because of Molokai's distance from islands currently inhabited by the moth, we believe the designated critical habitat on this island will be extremely important for the species' conservation as it will help protect the species from extinction by catastrophic events, which could impact other more closely grouped populations (
Due to the species' presently reduced range, the Blackburn's sphinx moth is now more susceptible to the variations and weather fluctuations affecting quality and quantity of available habitat and food. Furthermore, the moth is now more susceptible to direct pressure from numerous nonnative insect predators and parasites. For these reasons, and the reasons discussed above, those areas currently occupied would be inadequate to ensure the conservation of the species, and we have designated 9 units on four islands.
We are developing a draft recovery plan for this species. The overall objective of this recovery plan will be to ensure the species' long-term conservation and identify research
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas to designate as critical habitat, we are required to base critical habitat determinations on the best scientific and commercial data available. We consider 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. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or egg laying; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.
The primary constituent elements for the Blackburn's sphinx moth include specific habitat components identified as essential for the primary biological needs of foraging, sheltering, maturation, dispersal, breeding, and egg laying, and are organized by life cycle stage. The primary constituent elements required by the Blackburn's sphinx moth larvae for foraging, sheltering, maturation, and dispersal are the two documented host plant species within the endemic genus
Both the larval and adult food plants are found in undeveloped areas supporting mesic and dry habitats, typically receiving less than 250 cm (100 in) of rain per year and are located between the elevations of sea level and 1,525 m (5,000 ft). Vegetative communities in these areas include native plants, and in some instances, introduced plant species (A. Medeiros, pers. comm. 1998; Roderick and Gillespie 1997; Van Gelder and Conant 1998).
Although Blackburn's sphinx moth larvae feed on the nonnative
The restoration of native host species for the moth and other endangered species may also require the control or elimination of nonnative vegetation, potentially including
We identified critical habitat areas essential to the conservation of Blackburn's sphinx moth in the primary locations where it currently occurs or has been known to occur. We have designated sufficient critical habitat at each site to maintain self-sustaining populations of Blackburn's sphinx moth at each of these locations.
During the development of this rule, we considered the role of unoccupied habitat in the conservation of Blackburn's sphinx moth. Due to the historic loss of the habitat that supports this species, we believe that future conservation and recovery of this taxon depends not only on protecting it in the limited area that it currently occupies, but also on providing the opportunity to expand its distribution by protecting currently unoccupied habitat that contains the necessary primary constituent elements within its historic range.
To help achieve our goal of conservation of Blackburn's sphinx moth, we are including one critical habitat unit on Molokai, despite the fact that the moth has not been documented there in recent years. The area is located within dry to mesic forest on the southern uplands of Molokai and contains both larval and adult stage host plants. By allowing the moth to recover to this area, either through its own ability or with assistance, the threat of extinction due to natural catastrophe occurring within the currently, close-grouped populations will be minimized. We believe the site is essential to the conservation of the species because it is the most appropriate site for a reestablishment effort. The combination of limited range, few populations, and restricted habitat, makes the moth susceptible to extinction or extirpation due to random events, such as disease, hurricanes, or other occurrences (Shaffer 1981, 1987; Primack 1993; Meffe and Carroll 1994). Such events are a concern when the number of populations or the geographic distribution of a species is severely limited, as is the case with Blackburn's sphinx moth. Establishment of the Molokai unit for the moth is likely to prove important in reducing the risk of extinction due to such catastrophic events.
Given the large size and strong flight capabilities of the Blackburn's sphinx moth, the species is believed to use large areas of habitat. Therefore, moth
Some small habitat areas are also suitable for Blackburn's sphinx moth larvae (
Blackburn's sphinx moth populations fluctuate from year to year and season to season, apparently correlated with environmental and climatic variation. The moth is likely sensitive to thermal conditions and habitat changes that disrupt its microclimatic requirements. Therefore, the critical habitat units include dry and mesic habitats containing the primary constituent elements along wide elevational gradients to better ensure adult moth foraging needs, up and downslope, within their range. Furthermore, the boundaries include elevational gradients to better ensure larval host plant availability during periods of drought. Numerous habitat elevations containing the various primary constituent elements are believed to be necessary for successful conservation of the sphingid species (Ehrlich and Murphy 1987; Shaffer 1987; Murphy and Weiss 1988; Murphy
Critical habitat is being designated on those Hawaiian Islands where the Blackburn's sphinx moth's primary constituent elements are known to occur and are considered essential for the conservation of the species. This will allow the species the ability to persist and recolonize areas where it has become extirpated due to catastrophic events or demographic stochasticity (randomness) (Shaffer 1987). For example, on the island of Kauai in 1992, Hurricane Iniki blew over large areas of native forest, leaving open areas where nonnative plants became established, and created paths for further invasion of nonnative animals, both of which have been identified as threats to the survival of the moth.
Natural areas of suitable native, dry-to-mesic habitat containing at least one
Following publication of the proposed critical habitat rule for Blackburn's sphinx moth (67 FR 40633), we re-evaluated the proposed critical habitat units and modified the boundaries using additional information from peer review experts and comments on the proposed rule. We excluded areas that do not contain one or more of the primary constituent elements, or that are highly degraded and thus not essential for the conservation of the species. In addition, some areas were excluded under section 4(b)(2) of the Act (
Within the critical habitat boundaries, section 7 consultation is generally necessary, and adverse modification could occur only if the primary constituent elements are affected. Therefore, not all activities within critical habitat would trigger an adverse modification conclusion. In designating critical habitat, we made an effort to avoid developed areas, such as towns and other similar lands, which are unlikely to contribute to the conservation of the species. However, the minimum mapping unit that we used to approximate our delineation of critical habitat for this species did not allow us to exclude all such developed areas, or other areas unlikely to contain the primary constituent elements from the maps. In addition, existing manmade features and structures within the boundaries of the mapped unit, such as the following, do not contain one or more of the primary constituent elements, and are therefore excluded under the terms of this regulation: buildings; roads; aqueducts and other water system features, including but not limited to pumping stations, irrigation ditches, pipelines, siphons, tunnels, water tanks, gauging stations, intakes, and wells; telecommunications towers and associated structures and equipment; electrical power transmission lines and associated rights-of-way; radars; telemetry antennas; missile launch sites; arboreta and gardens; heiau (indigenous places of worship or shrines); airports; other paved areas; and other rural residential landscaped areas. Federal actions limited to those areas would not trigger a section 7 consultation unless they affect the species or primary constituent elements in adjacent critical habitat.
The lack of scientific data on Blackburn's sphinx moth life history makes it impossible for us to develop a quantitative model (
The one unoccupied area designated in this final rule is located on the island of Molokai (Unit 9). Although currently unoccupied by the moth, the area contains both larval stage and adult moth native host plants. The area is close enough in proximity to the Maui moth population that the area may again be re-populated by the moth on its own, yet because it is a separate island, some additional protection from a potential natural catastrophe affecting, for example, the Maui population, may be afforded a future moth population on Molokai. Also, as Molokai is the closest island to Oahu, we believe that allowing for a future moth population on Molokai may facilitate the species' dispersal and provide a flight corridor for moths eventually migrating to the island of Oahu, which is also part of its historical range.
Molokai was designated as critical habitat rather than other suitable unoccupied areas because we determined, to the best of our abilities, that it is the highest quality unoccupied habitat essential to the conservation of the moth. The designated unoccupied area on Molokai may lack some of the serious potential threats to the moth (
Subsection 4(b)(2) of the Act allows us to exclude areas from critical habitat designation where the benefits of such exclusions outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species.
Following the publication of the proposed critical habitat designation on June 13, 2002, a DEA was prepared to estimate the potential economic impact of the designation, in accordance with recent decisions in the
Our DEA evaluated the potential direct and indirect economic impacts associated with the proposed critical habitat designation for Blackburn's sphinx moth on Hawaii, Kahoolawe, Maui, and Molokai over the next 10 years. Direct impacts are those related to consultations under section 7 of the Act. They include the cost of completing the section 7 consultation process and potential project modifications resulting from the consultation. Indirect impacts are secondary costs and benefits not related to the specific provisions of the Act. Examples of indirect impacts include potential effects to property values, redistricting of land from agricultural or urban to conservation, and social welfare benefits of ecological improvements.
The categories of potential direct and indirect 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 and technical assistance; (2) modifications to projects, activities, or land uses resulting from the section 7 consultations; (3) potential delays associated with reinitiating completed consultations after critical habitat is finalized; (4) uncertainty and public perceptions resulting in loss of land value from the designation of critical habitat; (5) potential effects on property values including potential indirect costs resulting from the loss of hunting opportunities and increased regulation related costs due to the interaction of State and local laws; and (6) potential offsetting benefits associated with critical habitat, including educational benefits. The most likely economic effects of critical habitat designation are on activities funded, authorized, or carried out by a Federal agency (
The DEA included an evaluation of the economic impacts associated with implementation of the section 7 provisions of the Act for the Blackburn's sphinx moth. To quantify the proportion of total potential economic impacts attributable to section 7 implementation, including both the section 7 listing provisions and the proposed critical habitat designation, the analysis evaluated a “without section 7” baseline and compared it to a “with section 7” scenario. The “without section 7” baseline represented the current and expected economic activity under all modifications except those associated with section 7, including protections afforded the species under Federal and State laws. The difference between the two scenarios measured the net change in economic activity attributable to the implementation of section 7 for the Blackburn's sphinx moth. Because of the uncertainty of the costs resulting solely from critical habitat designation, we believe it is reasonable to estimate the total impacts of section 7 application. However, it is important to note that inclusion of impacts attributable co-extensively to listing does not convert this economic analysis into a tool to be used in making listing decisions.
Following the close of the comment period on the DEA, an addendum was completed that incorporated public comments on the draft analysis and made other changes in the draft as necessary. These changes were primarily the result of information received during the comment period indicating that certain areas do not contain the necessary primary constituent elements or are not essential to the conservation of the species. However, the Addendum did analyze the economic impacts of areas that have been excluded pursuant to section 4(b)(2) in this final rule. Therefore, the total area and the potential impacts evaluated in the Addendum are greater than the total area designated as critical habitat and the actual impacts.
Together, the DEA as modified by the addendum constitute our final economic analysis. The final economic analysis estimates that, over the next 10 years, the designation may result in potential direct economic costs ranging from approximately $1,183,800 to $1,739,000. This reduction of approximately $27,399 to $175,400 from the costs estimated in the DEA is primarily due to the reduction in acreage for biological reasons.
Our final economic analysis for this rule also includes an evaluation of potential indirect costs associated with the designation of critical habitat for the Blackburn's sphinx moth. For example, in the event that designation results in a rezoning of property from agricultural district to conservation district a landowner could be expected to spend $50,000 to contest a potential re-zoning of their property, and a CDUA might cost as much as $100,000. Also, as described in section 4.e. of the Addendum, an estimate of the costs involved with investigation for the
In addition, the final economic analysis discusses economic benefits in qualitative terms rather than providing quantitative estimates because of the lack of information available to estimate the economic benefits of endangered species preservation and ecosystem improvements.
A more detailed discussion of our economic analysis is contained in the DEA and the Addendum. Both documents are included in our administrative record and available for inspection at the Pacific Islands Fish and Wildlife Office (
Although we do not find the economic costs to be significant, they were considered in balancing the benefits of including or excluding areas from critical habitat. The likely cost of designating critical habitat for the Blackburn's sphinx moth is estimated to be between $118,380 to $173,900 per year over the next 10 years.
Approximately 4,717 ha (11,656 ac) within two proposed critical habitat units (Units 1 and 2) are located on private lands owned by Ulupalakua and Haleakala Ranches. We are excluding both ranches from designation because the benefits provided by these two landowners' voluntary conservation activities within and adjacent to these units outweigh the benefits provided by a designation of critical habitat.
The portion of proposed Unit 1 on Ulupalakua Ranch lands is occupied habitat for Blackburn's sphinx moth.
As discussed previously, conservation of the moth will require self-sustaining, reproducing populations located in a geographic array across its range, with population numbers and population locations of sufficient robustness to withstand periodic threats due to natural disaster or biological threats. The highest priority conservation tasks include active management, such as host plant propagation and reintroduction, fire control, alien species removal, and ungulate fencing. Failure to implement these active management measures, all of which require voluntary landowner support and participation, virtually assures the extirpation of this moth species from those areas. Many of these types of conservation actions in this area of Maui are carried out as part of Ulupalakua Ranch's participation with our Partners for Fish and Wildlife and other landowner incentive-based programs, and by actions taken on the landowner's initiative in areas outside the partnership area. These activities, which are described in more detail below, require substantial voluntary cooperation by Ulupalakua Ranch.
The following analysis describes the likely conservation benefits of a critical habitat designation compared to the conservation benefits without critical habitat designation. We paid particular attention to the following issues: Whether critical habitat designation would confer regulatory conservation benefits on this species; whether the designation would educate members of the public such that conservation efforts would be enhanced; and whether a critical habitat designation would have a positive, neutral, or negative impact on voluntary conservation efforts on this privately owned land.
If excluding an area from a critical habitat designation will provide substantial conservation benefits, and at the same time including the area fails to confer a counter-balancing 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.
Critical habitat was proposed for Blackburn's sphinx moth on 3,533 ha (8,730 ac) in the Ulupalakua Ranch portion of proposed Unit 1. The primary direct benefit of inclusion of this portion of proposed Unit 1 as final critical habitat would result from the requirement under section 7 of the Act that Federal agencies consult with us to ensure that any proposed Federal actions do not destroy or adversely modify critical habitat. Without critical habitat, some site-specific projects might not trigger consultation requirements under the Act in areas where species are not currently present. In contrast, Federal actions in areas occupied by listed species would still require consultation under section 7 of the Act. The portion of Unit 1 being excluded is occupied by the moth, and thus would be subject to consultation anyway.
Historically, we have conducted no formal or informal consultations under section 7 on Maui for Blackburn's sphinx moth. We have conducted only two informal intraservice consultations regarding Ulupalakua Ranch, and these have been on the effects of fencing and outplanting of certain endangered plants including
As a result of the low level of previous Federal activity on Ulupalakua Ranch, and after considering the likely future Federal activities in this area, it is our opinion that there is likely to be a low number of future Federal activities that would affect designated Blackburn's sphinx moth critical habitat on Ulupalakua Ranch. Even if a Federal action is proposed in the future, it would likely be subject to section 7 consultation because of the presence of the moth. The Final Economic Analysis (FEA) prepared for this rule does discuss the possibility that a re-zoning of some lands from agricultural status to conservation status could occur which might limit certain agricultural activities. However, the FEA concedes that the possibility of re-zoning of agricultural lands is low or unlikely. Furthermore, there are different levels of conservation district land use categories, and in the event of a potential re-zoning, activities such as grazing would likely continue. Therefore, we anticipate little direct regulatory benefits from including Ulupalakua Ranch lands in critical habitat.
Another possible benefit if including these lands is that the designation of critical habitat can serve to educate landowners and the public regarding the potential conservation value of an area. This may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the moth species for which critical habitat was proposed in Unit 1 that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable.
However, we believe we have achieved the same educational benefits through ongoing conservation activities
In summary, we believe that a critical habitat designation for Blackburn's sphinx moth on Ulupalakua Ranch lands would provide a relatively low level of additional regulatory conservation benefits to the species. Any regulatory conservation benefits would accrue through the benefit associated with section 7 consultation. Based on a review of past consultations and consideration of the likely future activities in this area, there is little Federal activity expected to occur on this privately owned land that would trigger section 7 consultation. We also believe that a final critical habitat designation provides little additional educational benefits since the conservation value is already known by the landowner, the State, Federal agencies, and private organizations, and the area has been identified as essential to the conservation of Blackburn's sphinx moth. Both the additional regulatory conservation benefits to the species and the additional educational benefits appear marginal when considering the past and likely future conservation partnership opportunities with this landowner. Through cooperative and creative land restoration activities which have occurred on the ranch and are likely to continue to occur, a significant amount of land (hundreds of acres or more) can and will likely be restored for the long-term conservation of the moth, its host plant species, and other native Hawaiian ecosystem components. No such future conservation partnerships with this landowner are likely to occur if the proposed portions of the ranch are designated as outlined by the landowner within several letters.
Proactive voluntary conservation efforts on private lands are necessary to prevent the extinction and promote the conservation of this species on Maui and other Hawaiian islands (Wilcove and Chen 1998; Wilcove
Ulupalakua Ranch is involved in several important voluntary conservation agreements, and is currently carrying out some of these activities for the conservation of the moth and its essential habitat components. For example, the Partners for Fish and Wildlife Auwahi and Puu Makua agreements were entered into in 1997 and 1998 with the stated purpose of protecting and restoring dryland forest, including construction of exclosure fences, a greenhouse, access road, and propagation and outplanting of native plants. Preservation of these areas conserves critically endangered species of plants and animals in one of Hawaii's most degraded ecosystem types, the lowland dry forest. This management strategy is consistent with recovery of the Blackburn's sphinx moth. The Auwahi agreement is between Ulupalakua Ranch, USGS-BRD, and the Service. We provided funding ($64,388) for fence materials, plant propagation and outplanting, and weed control, Ulupalakua Ranch provided labor and materials valued at $18,000, and USGS-BRD provided materials and technical assistance as well as staff and volunteer labor. In the 4 ha (10 ac) Auwahi project area, Ulupalakua Ranch has built the exclosure fence, outplanted native plants grown in the greenhouse including
A third voluntary partnership project undertaken in cooperation with the landowner is the Auwahi II Dryforest Restoration Project. We provided $76,500 (matched by in-kind services valued at $52,000) for this 8 ha (20 ac) restoration effort adjacent to the Auwahi I project. This project is ongoing, and will employ the same methods used at Auwahi I: Construct ungulate exclosure fence, remove ungulates, control nonnative plants, and outplant native species, including listed species.
Ulupalakua Ranch entered a partnership with Ducks Unlimited (DU), a private conservation organization, and the NRCS's Wetland Reserve Program (WRP) in 2000, to create wetland complexes suitable for the Hawaiian goose, nene (
In addition to the projects described above, to address the conservation needs of the species in a larger area, Ulupalakua Ranch has expanded their Partners for Fish and Wildlife projects with the Service and in cooperation with the State NAR program for conserving additional areas, which include the following important voluntary actions by Ulupalakua Ranch:
(1) Construction of exclosure fencing around a portion of Ulupalakua Ranch and the Ka naio NAR (a portion of proposed Unit 1 (approximately 283 ha (700 ac)) with $50,000 provided us, matched by in-kind services (
(2) Active management of feral ungulates that are negatively affecting listed plants within the fenced areas;
(3) Active management of nonnative grasses and other fire hazards, and development of fire control measures; and
(4) Nursery propagation and planting of native flora, including
We believe that Blackburn's sphinx moth habitat and host plant populations originally included within the Ulupalakua Ranch portion of proposed Unit 1 will benefit substantially from these management actions. Specifically, the planned and current conservation actions on 324 ha (800 ac) or approximately 10 percent of the area originally proposed on ranch lands should directly benefit the moth and its host plants. These benefits include a reduction in ungulate browsing and habitat conversion, a reduction in competition with nonnative weeds, a reduction in risk of fire, and the potential for reintroduction of moth host plants currently extirpated from various areas. Also, these benefits include what is current or currently planned only, additional benefits could be derived from projects not yet conceived.
On Maui, simply preventing “harmful activities” will not slow the extinction of listed species. Where consistent with the discretion provided by the Act, we believe it is necessary to provide positive incentives to private landowners to voluntarily conserve natural resources. The FEA for this rule concluded that the likelihood of any particular parcel being rezoned as conservation district was low. However, the potential costs of such a rezoning should it occur, could entail additional costs to a landowner. For example, a landowner could be expected to spend $50,000 to contest a rezoning, and a conservation district use application (CDUA) might cost as much as $100,000. However, the FEA also conceded that some economic activities such as grazing would likely be permitted to continue even with a conservation district rezoning. Although the FEA concludes that the potential effects of rezoning are anticipated to be low, this landowner and other commenters nevertheless believe there is a risk that the critical habitat designation will result in the rezoning of lands, a decrease in the Ulupalakua Ranch's ability to remain economically competitive, and an increased risk of third-party litigation. The landowner has expressed concern over these potential negative impacts and has stated in several letters that they would cease all voluntary conservation activities on ranch property. We believe the ranch's cooperation on all current and planned future conservation projects on ranch property are necessary to conserve the moth. Current conservation projects alone will result in the direct restoration and conservation of approximately 10 percent of the ranch's property proposed for designation.
As described earlier, Ulupalakua Ranch has a history of entering into conservation agreements with various Federal and State agencies and private organizations on biologically important portions of their lands. These arrangements have taken a variety of forms. They include partnership commitments such as the Puu Makua and the two Auwahi Dryland Forest Restoration Partners for Fish and Wildlife projects (in cooperation with USGS-BRD and funded through Partners for Fish and Wildlife), wetland restoration/creation (in cooperation with NRCS and DU), and the Ka naio Dry Forest Restoration Project (in cooperation with DOFAW and funded through Partners for Fish and Wildlife and section 6 of the Act).
Approximately 80 percent of imperiled species in the United States occur partly or solely on private lands where we have little management authority (Wilcove
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 the Ulupalakua Ranch portion of proposed Unit 1 as critical habitat outweigh the benefits of including it as critical habitat for Blackburn's sphinx moth. This conclusion is based on the following analysis:
(1)
(2)
(3) In the past, Ulupalakua Ranch has cooperated with us, the State, and other organizations to implement voluntary conservation activities on their lands that have resulted in tangible conservation benefits. The ranch has a long history of participation in conservation projects beginning in the 1960s through the present. A substantial amount (approximately 10 percent) of the Ulupalakua Ranch portion of proposed Unit 1 is currently being managed by the landowner on a voluntary basis to achieve important conservation goals and which directly benefits numerous native Hawaiian plant and animal species including the
Simple regulation of potential “harmful activities” is not sufficient to conserve the Blackburn's sphinx moth on private lands. Landowner cooperation and support will be required to prevent its extirpation in this area of Maui and promote the recovery of the moth's host plants in this area due to the need to implement proactive conservation actions such as ungulate management, weed control, fire suppression, and plant propagation and reintroduction. This need for landowner cooperation is especially important because the Ulupalakua portion of proposed Unit 1 is part of the habitat for what is considered a core or metapopulation of the moth. In fact, some portions of the ranch's property currently being fenced and actively managed for restoration include some of the highest quality moth habitat remaining anywhere in the State. Future conservation efforts, such as maintaining and conserving Blackburn's sphinx moth host plant habitat in this area, will require the cooperation of Ulupalakua Ranch.
In conclusion, we find that the designation of critical habitat in the Ulupalakua Ranch portion of proposed Unit 1 would most likely have a net negative conservation effect on the recovery and conservation of Blackburn's sphinx moth. As described above, the overall benefits to this moth of a critical habitat designation for this portion of Unit 1 are relatively small. We conclude there is a greater likelihood of beneficial conservation activities occurring on this area of Maui without designated critical habitat than there would be with designated critical habitat in this location. We reached this conclusion because the landowner is more likely to continue and increase their ongoing voluntary conservation efforts for the moth and other listed species if their property is not designated as critical habitat. In fact, the landowner has stated in several letters to the Service that all voluntary conservation activities will cease if ranch property is designated. Therefore, it is our conclusion that the net benefits of excluding this portion of proposed Unit 1 from critical habitat for the Blackburn's sphinx moth outweigh the benefits of including it.
In considering whether or not exclusion of this portion of proposed Unit 1 might result in the extinction of Blackburn's sphinx moth, we considered the impacts to the species. It is our conclusion that the current partnership agreements developed by Ulupalakua Ranch and the Service will provide more net conservation benefits than would be provided by designating the portion of proposed Unit 1 as critical habitat. These agreements will provide tangible proactive conservation benefits that will result in the direct restoration and active management of 324 ha (800 ac) of habitat for the moth and its native host plants within proposed Unit 1. Specifically, the benefits will include the construction of exclosure fencing around a large portion of high quality moth habitat, active management of feral ungulates and nonnative grasses and weeds, development of fire control methods, and nursery propagation of the moth's host plants. These benefits will reduce the likelihood of the moth's extirpation in this area of Maui, reduce the likelihood of its extinction, and increase its likelihood of conservation overall. Extinction of the Blackburn's sphinx moth as a consequence of this exclusion is unlikely because there are no known threats in this portion of proposed Unit 1 due to any current or reasonably anticipated Federal actions that might be regulated under section 7 of the Act. Implementation of the partnership agreements between the landowner and the Service, and the exclusion of the portion of proposed Unit 1, have the highest likelihood of preventing extinction of this species and enhancing its conservation.
In addition, critical habitat is being designated in other areas of Maui and on the islands of Hawaii, Kahoolawe, and Molokai for Blackburn's sphinx moth. These other designations identify conservation areas for the maintenance and expansion of existing populations.
In summary, the above analysis indicates there is a much greater likelihood of the landowner undertaking conservation actions on Maui to prevent extinction, such as the outplanting of moth host plants to expand and establish additional populations, without the Ulupalakua Ranch portion of proposed Unit 1 being designated as critical habitat. Therefore, the exclusion of this portion of proposed Unit 1 will not cause extinction and should in fact improve the chances of conservation for Blackburn's sphinx moth.
Most of the portion of proposed Units 1 and 2 on Haleakala Ranch lands is believed to be occupied habitat for Blackburn's sphinx moth.
The following analysis describes the likely conservation benefits of a critical habitat designation compared to the conservation benefits without critical habitat designation. We paid particular attention to the following issues: Whether critical habitat designation would confer regulatory conservation benefits on this species; whether the designation would educate members of the public such that conservation efforts would be enhanced; and whether a critical habitat designation would have a positive, neutral, or negative impact on voluntary conservation efforts on this privately owned land.
If a critical habitat designation reduces the likelihood that voluntary conservation activities will be carried out, and at the same time fails to confer a counter-balancing positive regulatory or educational benefit to the species, then the benefits of excluding such areas from critical habitat outweigh the benefits of including them. The results of this type of evaluation will vary significantly depending on the landowners, geographic areas, and species involved.
On Haleakala Ranch property, critical habitat was proposed for Blackburn's sphinx moth on 393 ha (972 ac) for proposed Unit 1 and 791 ha (1,955 ac) for proposed Unit 2. The primary direct benefit of inclusion of this portion of proposed Units 1 and 2 as final critical habitat would result from the requirement under section 7 of the Act that Federal agencies consult with us to ensure that any proposed Federal actions do not destroy or adversely modify critical habitat.
Historically, there have been no formal consultations of informal consultations under section 7 involving Haleakala Ranch lands, except the consultation in the process of being completed for the Puu Pahu conservation project that we are funding in part.
Current and likely future economic activities on the ranch include cattle grazing, diversified agriculture, eco-tourism, hunting, and lease of lands for cellular phone and radio transmission towers. Likely future Federal involvement includes the development of voluntary conservation agreements between the ranch and Federal agencies such as the Service and NRCS. Additionally, it is possible the ranch
As a result of this low level of Federal activity on Haleakala Ranch, and after considering the likely future Federal activities in this area, it is our opinion that there is likely to be a low number of future Federal activities that would affect designated Blackburn's sphinx moth critical habitat on Haleakala Ranch. Even if a Federal action is proposed in the future, it would likely be subject to section 7 consultation because of the presence of the moth. The FEA prepared for this rule does discuss the possibility that a rezoning of some lands from agricultural status to conservation status could occur which might limit certain agricultural activities. However, the FEA concedes that the possibility of rezoning of agricultural lands is low or unlikely. Furthermore, there are different levels of conservation district land use categories, and in the event of a potential rezoning, activities such as grazing would likely continue. Therefore, we anticipate little regulatory benefits from including Haleakala Ranch lands in critical habitat.
Another possible benefit of including these lands is that the designation of critical habitat can serve to educate landowners and the public regarding the potential conservation value of an area. This may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. This outcome would be important for the Blackburn's sphinx moth. Any information about the species and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable.
However, we believe we have achieved the same educational benefits through ongoing conservation actions and the critical habitat designation process. The portion of proposed Units 1 and 2 that lie within Haleakala Ranch has been identified as essential to the conservation of the Blackburn's sphinx moth. In addition, the existing conservation activities being conducted within proposed Units 1 and 2, as well as within other areas of Haleakala Ranch, by the Service and other Federal agencies (
In summary, we believe that a critical habitat designation for Blackburn's sphinx moth on Haleakala Ranch lands would provide a relatively low level of additional regulatory conservation benefits to the species. Any regulatory conservation benefits would accrue through the benefit associated with section 7 consultation. Based on a review of past consultations and consideration of the likely future activities in this area, there is little Federal activity expected to occur on this privately owned land that would trigger section 7 consultation. In addition, we believe that the critical habitat proposal and final designation provides some conservation benefits by educating the public on the site-specific areas on Maui essential to the conservation of the Blackburn's sphinx moth. Both the additional regulatory conservation benefits to the species and the additional educational benefits appear marginal when considering the past and likely future conservation partnership opportunities with this landowner. Through cooperative and creative land restoration activities which have occurred and are likely to continue to occur on the ranch, a significant amount of land (hundreds of acres or more) can and will likely be restored for the long-term conservation of the moth, its host plant species, and other native Hawaiian ecosystem components. No such future conservation partnerships with this landowner are likely to occur if the proposed portions of the ranch are designated as outlined by the landowner within several letters.
Proactive voluntary conservation efforts on private lands are necessary to prevent the extinction and promote the conservation of this species on Maui and other Hawaiian islands (Wilcove and Chen 1998; Wilcove
Haleakala Ranch is involved in several important voluntary conservation agreements, some of which benefit the moth. For example, in the mid-1980s, Haleakala Ranch Company sold to TNC a perpetual conservation easement that included over 19,000 ha (47,000 ac) (Waikamoi Preserve) in order to protect its native forest resources and watershed from damage caused by pigs and cattle. Haleakala Ranch Company has been working with the Central Maui Soil and Water Conservation District to address soil and resource issues. In cooperation with the NRCS Environmental Quality Incentives Program (EQIP), Haleakala Ranch Company has been implementing a weed control program that has been ongoing for over 80 years. Eight years ago, the Haleakala Ranch Company Directors created and filled a Land Steward position in order to shepherd conservation efforts of the ranch and update the conservation plans for all Haleakala Ranch lands.
The Partners for Fish and Wildlife Puu Pahu agreement was begun in 2001 with the stated purpose of protecting and restoring native subalpine dry shrubland including construction of a 6.9 kilometers (km) (4.3 miles (mi)) exclosure fence, and removal of ungulates within the area in order to allow the already semi-intact native vegetation to regenerate. Preservation of this area conserves critically endangered species of plants and animals in one of Hawaii's most restricted ecosystem types, subalpine dry shrubland. The agreement is between Haleakala Ranch, the Service, and NRCS. The Service and NRCS provided funding for fencing materials ($91,418 from us), and are providing technical assistance on the conservation of certain native plants and restoration of the subalpine dry shrubland, whereas Haleakala Ranch is building the fence and removing the ungulates (in-kind cost-share valued at $28,875). This work is to be completed by August 30, 2003. Haleakala Ranch has also been working with DOFAW for the past 2 years on an ungulate free reserve for native habitat regeneration in the Waiopae area. Haleakala Ranch is fencing the area for better grazing management from the forest to the shoreline. These actions will include riparian protection to improve habitat for native plants and watershed management. The area contains high quality habitat for both the moth's larval and adult stage host plants, and when completed, it would involve the conservation, restoration, and management of approximately 445 ha (1,100 ac) of moth habitat.
Through voluntary agreements with our Partners for Fish and Wildlife and the NRCS Wildlife Habitat Incentives Programs (WHIP), and in cooperation with the Native Hawaiian Plant Society, USGS-BRD and DOFAW, Haleakala Ranch is assisting with the fencing and exclusion of feral axis deer in the Puu
In addition, Haleakala Ranch has informed us that they are currently devising additional management plans for conserving habitat, including that of the moth. These plans include the following important voluntary actions by Haleakala Ranch:
(1) Construction of a 9 ha (22 ac) exclosure fence around Keokea Gulch in Kihei to reduce sedimentation on the shoreline and reef, and to reduce the fire hazard in the area by using R-1 (highest quality recycled water) water to irrigate a riparian buffer; exclosure fencing of a dryland lava flow in the Keokea area, in cooperation with the Service. Additionally, the ranch has begun planning with the Service and DOFAW to fence and restore a significant portion of the Waiopae area (within proposed Unit 1) for habitat protection of native forest and riparian areas. The project would involve the enclosure and management of approximately 445 ha (1,100 ac) of high quality moth habitat, or approximately 30 percent of the amount of Haleakala Ranch lands proposed for designation.
(2) Control of feral ungulates that are negatively impacting listed and rare plants, including the Blackburn's sphinx moth's host plants, within all the currently fenced areas and planned project areas;
(3) Control of nonnative grasses and other fire hazards, and development of fire control measures within many project areas including some occupied by the moth; and
(4) Habitat protection for natural regeneration of native flora including Blackburn's sphinx moth host plants, within many of the fenced project areas.
We believe that Blackburn's sphinx moth habitat included within the Haleakala Ranch portion of proposed Units 1 and 2 will benefit substantially from these management actions. Specifically, the planned and current conservation actions on approximately 445 ha (1,100 ac) or approximately 30 percent of the ranch property amount originally proposed should directly benefit the moth and its host plants. These benefits include a reduction in ungulate browsing and habitat conversion, a reduction in competition with nonnative weeds, a reduction in risk of fire, and the potential for reintroduction of moth host plants currently extirpated from various areas. Furthermore, these benefits include what is current or currently planned only, additional benefits could be derived from projects not yet conceived.
On Maui, simply preventing “harmful activities” will not slow the extinction of listed species. Where consistent with the discretion provided by the Act, we believe it is necessary to provide incentives to private landowners to voluntarily conserve natural resources. The FEA for this rule concluded that the likelihood of any particular parcel being rezoned as conservation district was low. However, the potential costs of such a rezoning, should it occur, could entail additional costs to a landowner. For example, a landowner could be expected to spend $50,000 to contest a rezoning, and a CDUA might cost as much as $100,000. However, the FEA also conceded that some economic activities such as grazing would likely be permitted to continue even with a conservation district rezoning. Although the FEA concludes that the potential effects of rezoning are therefore anticipated to be low, this landowner and other commenters nevertheless believe there is a risk that the critical habitat designation will result in the rezoning of lands, a decrease in the Haleakala Ranch's ability to remain economically competitive and that there is an increased risk of third-party litigation. The landowner has expressed concern over these potential negative impacts and has stated in several letters that they would cease all voluntary conservation activities on ranch property. We believe the ranch's cooperation on all current and planned future conservation projects on ranch property are necessary to conserve the moth. Current and planned conservation projects alone could result in the direct restoration and conservation of approximately 30 percent of the ranch property acreage amount proposed for designation.
As described earlier, Haleakala Ranch has a history of entering into conservation agreements with various Federal and State agencies, and private organizations on important portions of their lands. These arrangements have taken a variety of forms. They include partnership commitments ranging from the Partners for Fish and Wildlife projects, and an agreement with DOFAW to fence areas in Waiopae, to weed control programs with NRCS WHIP, and a perpetual easement to TNC (Waikamoi Preserve).
We believe it is essential for the conservation of Blackburn's sphinx moth to build on continued conservation activities such as these with a proven partner. Approximately 80 percent of imperiled species in the United States occur partly or solely on private lands where we have little management authority (Wilcove
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 the Haleakala Ranch portion of proposed Units 1 and 2 as critical habitat outweigh the benefits of including it as critical habitat for Blackburn's sphinx moth. This conclusion is based on the following analysis:
(1)
(2)
(3) In the past, Haleakala Ranch has cooperated with us, the State, and other organizations to implement voluntary conservation activities on their lands that have resulted in tangible conservation benefits. Currently only a small percentage of the Haleakala Ranch portion of proposed Units 1 and 2 are being restored or managed for the moth. However, a substantial amount (approximately 30 percent) of the ranch's portion of proposed Units 1 and 2 is within the planning stage to be restored and managed by the landowner on a voluntary basis to achieve important conservation goals, and to directly benefit numerous native Hawaiian plant and animal species including the moth. For example, the landowner is currently planning with the Service and the State to restore and actively manage approximately 445 ha (1,100 ac) of high quality habitat for the moth and its host plants.
Simple regulation of potential “harmful activities” is not sufficient to conserve the Blackburn's sphinx moth on private lands. Landowner cooperation and support will be required to prevent its extirpation in this area of Maui and promote the recovery of the moth's host plants in this area due to the need to implement proactive conservation actions such as ungulate management, weed control, fire suppression, and plant propagation and reintroduction. This need for landowner cooperation is especially important because the Haleakala Ranch portion of proposed Units 1 and 2 is part of the habitat for what is considered a core or metapopulation of the moth. Future conservation efforts, such as maintaining and conserving Blackburn's sphinx moth host plant habitat in this area, will require the cooperation of Haleakala Ranch.
In conclusion, we find that the designation of critical habitat in the Haleakala Ranch portion of proposed Units 1 and 2 would most likely have a net negative conservation effect on the recovery and conservation of Blackburn's sphinx moth. As described above, the overall benefits to this moth of a critical habitat designation for this portion of Units 1 and 2 are relatively small. We conclude there is a greater likelihood of beneficial conservation activities occurring within this area of Maui without designated critical habitat than there would be with designated critical habitat in this location. We reached this conclusion because the landowner is more likely to continue and increase their ongoing voluntary conservation efforts for the moth and other listed species if their property is not designated as critical habitat. In fact, the landowner has stated in several letters to the Service that all voluntary conservation activities will cease if ranch property is designated. Therefore, it is our conclusion that the net benefits of excluding this portion of proposed Units 1 and 2 from critical habitat for the Blackburn's sphinx moth outweigh the benefits of including it.
In considering whether or not exclusion of this portion of proposed Units 1 and 2 might result in the extinction of Blackburn's sphinx moth, we considered the impacts to the species. It is our conclusion that the current partnership agreements developed and planned by Haleakala Ranch and the Service will provide more net conservation benefits than would be provided by designating the portion of proposed Units 1 and 2 as critical habitat. These agreements will provide tangible proactive conservation benefits that may result in the direct restoration and active management of 445 ha (1,100 ac) of habitat for the moth and its native host plants within proposed Units 1 and 2. Specifically, the benefits would include the construction of exclosure fencing around a large portion of high quality moth habitat, active management of feral ungulates and nonnative grasses and weeds, and development of fire control methods. These benefits will reduce the likelihood of the moth's extirpation in this area of Maui, reduce the likelihood of its extinction, and increase its likelihood of conservation overall. Extinction of the Blackburn's sphinx moth as a consequence of this exclusion is unlikely because there are no known threats in this portion of proposed Units 1 and 2 due to any current or reasonably anticipated Federal actions that might be regulated under section 7 of the Act. Implementation of the partnership agreements between the landowner and the Service, and the exclusion of the portion of proposed Units 1 and 2, have the highest likelihood of preventing extinction of this species and enhancing its conservation.
In addition, critical habitat is being designated in other areas of Maui and on the islands of Hawaii, Kahoolawe, and Molokai for Blackburn's sphinx moth. These other designations identify conservation areas for the maintenance and expansion of existing populations.
In summary, the above analysis indicates there is a much greater likelihood of the landowner undertaking conservation actions on Maui to prevent extinction, such as the restoration and management of moth host plant habitat, without the Haleakala Ranch portion of proposed Units 1 and 2 being designated as critical habitat. Therefore, the exclusion of this portion of proposed Units 1 and 2 will not cause the species' extinction and should, in fact, improve the chances of conservation for Blackburn's sphinx moth.
Approximately 567 acres of State and private land within two proposed critical habitat units (Units 5A and 5B) are excluded because the economic impacts of their inclusion outweigh the benefits provided by a designation of critical habitat. The economic analysis indicates that activities already planned for these two units, including the State VOLA master planned community with over 1,000 units of affordable housing, and the Kaloko Properties projects, could incur indirect costs ranging between $49.9 and $61.9 million. While
These areas proposed for development or other uses are proposed Units 5A and 5B. Proposed Unit 5A absent this exclusion would consist of 226 acres of State and private land. Proposed Unit 5B absent this exclusion would consist of 232 acres of State land. Both units are unoccupied by the moth.
If these areas were designated as critical habitat, any Federal agency which proposed to approve, fund or undertake any action which might adversely modify the critical habitat would be required to consult with us. This is commonly referred to as a “Federal nexus” for requiring the consultation. Since the areas in question are not occupied by the plants, this consultation would not be required absent the critical habitat designation.
The draft economic analysis and final addendum indicate no projects within the areas proposed for exclusion which have a Federal nexus, and thus there is no expectation that there would be any section 7 consultations if these areas were designated as critical habitat for the moth.
Another possible benefit of a critical habitat designation is education of landowners and the public regarding the potential conservation value of these areas. This may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation values for certain species. However, we believe that this educational benefit has largely been achieved. These units have already been identified through the draft proposal and final designation. In addition, the State has included a preserve for listed plants within its VOLA development project, which will contribute to the long-term educational benefit of conserving the habitat of listed species.
In summary, we believe that a critical habitat designation for the moth on these properties would provide relative low additional Federal regulatory benefits. There is no Federal activity which might trigger the section 7 consultation process for these species known or anticipated for the lands to be excluded. The additional educational benefits which might arise from critical habitat designation are largely accomplished through the notice and comments which accompanied the development of this regulation, and the proposed critical habitat is known to the landowners. In addition, the State is planning for a preserve for the listed plants within the VOLA development which will provide ongoing educational benefits regarding the habitat of listed species.
There are two development projects currently planned within the pre-exclusion boundaries of proposed Units 5A and 5B which could suffer significant economic impacts due to indirect effects of the critical habitat designation.
The Housing and Community Development Corporation of Hawaii has since 1990 had a master-planned community development project known as “Villages at Laiopua” (VOLA), much of which is within the pre-exclusion boundary of proposed Unit 5B. This includes a planned 570 “affordable housing” homes within the area proposed for designation. The State of Hawaii has already invested $30 million in infrastructure costs, including roads, utilities, a High School, planning and expanding the local waste-water treatment plant, and some of the project has been constructed.
There are real but undeterminable possibilities that designation of these areas as critical habitat would lead to loss or significant restriction of the project through actions not under the control of the Federal government but resulting from the critical habitat designation. These include redistricting of land, rezoning and other regulatory approvals, and litigation related to both.
Hawaii has statewide land classifications of Urban, Rural, Agricultural and Conservation, with restrictions on what type of activities can be conducted within the different classifications. The State Department of Land and Natural Resources commented on this proposal that they would be required to initiate rezoning of lands designated as critical habitat into the “Conservation” classification, which prohibits development.
While there is a low probability that the State Land Use Commission would finally vote to redistrict the lands proposed for the VOLA project, that possibility exists. In addition, there could well be litigation designed to either force the Commission to act or to have a court make the decision.
The VOLA project has already been troubled by litigation and defaulting developers; additional regulatory or legal uncertainties arising from this designation could well cause further delays or kill the project altogether. If this were to occur, the Housing and Community Development Corporation would lose the $30 million in sunk costs, and the affordable housing units that would have been constructed. Although the final addendum to the economic analysis assigns a cost to the loss of the affordable units of $2.7 million, there could well be considerable non-monetary social costs as well, particularly inasmuch as the available information indicates that there are no other affordable housing projects planned within the next 10 years.
The second project within the excluded areas is known as the Kaloko Properties/Kaloko Town Center. This project has been underway since 1987, and covers 1,150 acres, of which 240, or 21%, is within the preexclusion boundary of the proposed units. The developers have already expended over $20 million for infrastructure improvements, engineering and related costs, which approximately $4.2 (by percentage allocation) is associated with the portion of the project within the proposed critical habitat. This project will need both redistricting from the State and rezoning from the county for portions of the land. The final addendum to the economic analysis finds there is a reasonably foreseeable chance that the designation of critical habitat would affect this development.
In the worst-case scenario, the State or county might decide not to grant the discretionary approvals needed for the project—redistricting and rezoning—or might be prevented from doing so by litigation. This could lead to loss of the $4.2 million in sunk costs for the portion of the property within the proposed critical habitat, or of the entire $20 million investment. In addition, there would be an estimated loss of future profits from the land proposed for inclusion within the critical habitat of between $40 to $80 million. Using a present value discount, the loss would range between $13 and $25 million.
The VOLA project has already been troubled by litigation and defaulting developers; additional regulatory or legal uncertainties arising from this designation could well cause further delays or kill the project altogether. If this were to occur, the Housing and Community Development Corporation would lose the $30 million in sunk costs, and the affordable housing units that would have been constructed.
Although the final addendum to the economic analysis assigns a cost to the loss of the affordable units of $2.7 million, there could well be considerable non-monetary social costs as well, particularly inasmuch as the
We accordingly do not find that the benefits from the designation of critical habitat for lands within the VOLA project, as discussed above, exceed the benefits of avoiding the possible economic and social costs which could well arise from this designation.
For the Kaloko Properties/Kaloko Town Center, there is also the real possibility that the designation of critical habitat could lead to loss of necessary regulatory approvals. This in turn could lead to loss of the $4.2 million in sunk costs for the portion of the property within the proposed critical habitat, or of the entire $20 million investment. In addition, there would be an estimated loss of future profits from the land proposed for inclusion within the critical habitat of between $40 to $80 million. Using a present value discount, this loss would range between $13 and $25 million. (There could also be the loss of all project revenues in the event the inability to utilize the lands within the critical habitat designation caused the failure of the entire project.)
The possibility of significant economic impacts to this project, while not certain, clearly exist. As noted above, we cannot find offsetting benefits from the designation of critical habitat in these two units which exceed the benefits of avoiding these possible economic costs.
There are two other factors of which we take note but upon which our decision does not rest. First, in June 2002, the State enacted legislation allowing State entities to enter into Safe Harbor agreements and Habitat Conservation Plans for three designated areas, including the VOLA project. There were previously specimens of the moth's larval host plant, which presumably could be reintroduced. There are also populations of the various plants on which adult moths feed. This area is thus a candidate for a Safe Harbor agreement. Absent the exclusion, it is highly unlikely the State would pursue these conservation options.
Secondly, the developers of this project contacted us after the close of the comment period offering to undertake a number of actions designed to provide conservation benefits to the species. Specifically, the offer included: (1) To set aside 100 to 130 acres within the proposed Unit 13; (2) enter into good faith negotiations with the Federal, State or county entities for acquisition of the area; (3) agree to enter into a Safe Harbor agreement with us; and (4) to enter into a memorandum of understanding or cooperative agreement to address habitat protection, monitoring and management actions for the remainder of their property relating to Blackburn's sphinx moth and two species of endangered plants.
Due to the court-ordered date by which this designation must be completed, we were unable to conclude such an agreement with the developers or to enter into a Safe Harbor agreement with the State prior to issuing this notice and regulation. However, if we had been, these are the types of agreements for which we have found in other cases that the benefits of the agreement exceed the benefits of designation and thus warrant exclusion (
It has been our policy not to make exclusions under section 4(b)(2) based on offers of conservation agreements, and we are not doing so in either case here. However, we find it highly unlikely that either party would pursue them absent the exclusions, and note the ability to pursue the agreements as a secondary benefit of the exclusions. A decision by the developers to follow through on their offer and by the State to pursue a Safe Harbor agreement might well be in both their and the species best interest.
In considering whether or not exclusion of this portion of the proposed critical habitat might result in the extinction of Blackburn's sphinx moth, we considered the impacts on the species. Given that the units in question are unoccupied, we find, based on all of the information available to us, that the projects proposed for the areas to be excluded will not adversely impact existing populations of the moth.
The exclusions will provide an opportunity to pursue beneficial conservation agreements with the landowners, as noted above, that most likely would not exist without the exclusions.
Critical habitat for the moth is also designated on Molokai, Maui, and Kahoolawe, and in other locations on the island of Hawaii.
We accordingly find no basis for any conclusion that these exclusions would cause extinction of the species.
The critical habitat areas described below constitute our best assessment of the physical and biological features needed for the conservation of Blackburn's sphinx moth and the special management needs of this species, and are based on the best scientific and commercial information available. We publish this final rule acknowledging that we have incomplete information regarding many of the primary biological and physical requirements for this species. However, both the Act and the relevant court orders require us to proceed with designation at this time based on the best information available. As new information accrues, we may consider reevaluating the boundaries of areas that warrant critical habitat designation.
The approximate areas of the designated critical habitat by landownership or jurisdiction are shown in Table 2.
Critical habitat includes habitat for the Blackburn's sphinx moth on the islands of Hawaii, Kahoolawe, Maui, and Molokai. Lands designated as critical habitat have been divided into 9 units. A brief description of each unit is presented below.
Unit 1 consists of approximately 1,604 ha (3,965 ac) on State and private land, encompassing portions of the leeward slope of Haleakala and adjacent portions of the upper southeast isthmus. The unit is bounded on the north and the south by pasture lands, on the east by the lower slopes of Haleakala below the area of Kula, and on the west by the coastal town of Kihei. Natural features within the unit include widely spread, remnant dry forest communities, rugged aa lava flows, and numerous cindercones, including the highly visible Puu O Kali. Vegetation consists primarily of mixed-species mesic and dry forest communities composed of native and introduced plants (HHP 1993).
Along with Units 2, 3, and 4, this unit contains what is probably the largest extant Blackburn's sphinx moth population or metapopulation. This unit is essential to the species' conservation because it is occupied and contains the native larval host plant
Unit 2 consists of approximately 603 ha (1,490 ac) on State and private land, encompassing Cape Kinau and the entire Ahihi-Kinau NAR. The unit is
Along with Units 1, 3, and 4, this unit contains what is probably the largest extant Blackburn's sphinx moth population or metapopulation. This unit is essential to the species' conservation because it is occupied and contains the native larval host plant
Unit 3 consists of approximately 2,421 ha (5,982 ac) on State and private land, encompassing portions of the leeward slope of Haleakala and adjacent portions of the upper southeast isthmus. The unit is bounded on the north by pasture lands, to the south by ocean, to the east by the Kanaio NAR boundary and Puu Hokukano, and on the west by the Kanaio Homesteads and Cape Hanamanioa. Natural features within the unit include widely spread, remnant dry forest communities, rugged aa lava flows, and numerous cindercones including the highly visible Puu Pimoe. Vegetation consists primarily of mixed-species mesic and dry forest communities composed of native and introduced plants, with smaller amounts of dry coastal shrubland (HHP 1993).
Along with Units 1, 2, and 4, this unit contains what is probably the largest extant Blackburn's sphinx moth population or metapopulation. This unit is essential to the species' conservation because it is occupied and contains the native larval host plant
Unit 4 consists of approximately 4,799 ha (11,859 ac) on State and private land, encompassing portions of the leeward slope of Haleakala. The unit is bounded on the northeast by the 1,525 m (5,000 ft) elevation contour of Haleakala Volcano, to the south by the ocean, to the east by Poopoo Gulch, and on the west by Lualailua Hills. Natural features within the unit include widely spread, remnant dry forest communities, rocky coastline, numerous cindercones, and some of the most recent lava flows on Maui. Vegetation consists primarily of mixed-species mesic and dry forest communities composed of native and introduced plants, with smaller amounts of dry coastal shrubland (HHP 1993).
Along with Units 1, 2, and 3, this unit contains what is probably the largest extant Blackburn's sphinx moth population or metapopulation. This unit is essential to the species' conservation because it is occupied and contains the native larval host plant
Unit 5 consists of approximately 56 ha (139 ac) on State land, entirely comprised of the Kanaha Pond State Sanctuary on Maui. It is bounded on the south by the Kahului Airport, on the north by the ocean, on the east by coastline, and to the west by the town of Kahului. Natural features within the unit includes Kanaha Pond and remnant coastal dune communities. Vegetation consists primarily of mixed-species, dry coastal shrub land communities composed of native and introduced plants, including nonnative larval host plants (HHP 2000).
Although devoid of naturally occurring
Unit 6 consists of approximately 25 ha (62 ac) of State land, entirely comprised of coastal land on Maui. It is bounded on the south by the Kahului Airport, on the north by the ocean, on the east by other coastal lands, and immediately to the west by the Kanaha Pond State Sanctuary. Natural features within the unit include remnant coastal dune communities. Vegetation consists primarily of mixed-species, dry coastal shrub land communities composed of native and introduced plants, including nonnative larval host plants (HHP 2000).
We have no recent and verified Blackburn's sphinx moth observations within this unit. However, the unit is considered essential to the species' conservation because it is within the geographical area occupied by the species at the time of listing and contains the moth's adult stage primary constituent elements. Furthermore, recent observations of both larvae and adults have been documented within the adjacent Kanaha Pond State Sanctuary and in the nearby Kanaha-Spreckelsville area. Although this unit is lower in elevation than areas currently containing
Unit 7 consists of approximately 1,721 ha (4,252 ac) on State land, encompassing portions of the upper elevational contour of Kahoolawe, approximately above 305 m (1,000 ft) in elevation. Kahoolawe is located approximately 11 km (6.7 mi) south of
This unit contains a large Blackburn's sphinx moth population, which may or may not be part of the larger Maui populations. Adult host plants identified as primary constituent elements are numerous within this area. Because the unit is occupied, harbors adult native host plants, and is in close proximity to the large Maui moth population, this unit is essential for Blackburn's sphinx moth conservation and would improve dispersal and migration corridors and thus expand population recruitment potential (P. Higashino, pers. comm. 2001).
Unit 8 consists of approximately 9,954 ha (24,597 ac) on State and private land, encompassing portions of the flows and northwest slopes of Hualalai volcano on the island of Hawaii. It is bounded on the south by the Kailua-Kona region and large expanses of barren lava flows, on the north by Parker Ranch and large expanses of nonnative grass lands, to the east by the upper slopes of Hualalai volcano, and to the west by lava flows and coastal land. Natural features within the unit include Puuwaawaa cindercone and significant stands of native dry forest including the adult Blackburn's sphinx moth's nectar food plants and large numbers of
This unit is essential to the species' conservation because frequent and persistent observations of both Blackburn's sphinx moth larvae and adults throughout this unit indicate that Unit 8 contains the largest population of Blackburn's sphinx moth on the island of Hawaii. In addition to providing habitat for this area's population, Unit 8 provides refugia for moths migrating to other areas of existing suitable host plant habitat. As previously discussed, given the large size and strong flight capabilities of the Blackburn's sphinx moth, support for moth population linkages requires habitat in large contiguous blocks or within a matrix of undeveloped habitat (A. Medeiros, pers. comm.1998; S. Montgomery, pers. comm. 2001; McIntyre and Barrett 1992; Roderick and Gillespie 1997; Van Gelder and Conant 1998).
Unit 9 consists of approximately 1,256 ha (3,105 ac) on State and private land, encompassing portions of the higher, yet drier portions of east Molokai. It is bounded on the north by wet forests, to the south by drier coastal land, to the east by rugged, dry gullies and valleys, and to the west by dry to mesic lowland forest. Natural features within the unit include numerous forested ridges and gullies. Vegetation consists primarily of mixed-species mesic and dry forest communities composed of native and introduced plants (HHP 2000).
This unit is part of the historical range of the moth. Unit 9 is not known to currently contain a Blackburn's sphinx moth population, but it does contain native
Due to its proximity to the island of Maui where the current and presumed highest historical concentration of Blackburn's sphinx moth occurred, and because this unit contains currently and historically known dry and mesic habitats to support the larval and adult native host plants, scientists believe that the Blackburn's sphinx moth will re-establish itself on this unit over time (F. Howarth, pers. comm. 2001). Furthermore, this unit lacks some of the serious potential threats to the moth, three ant, and one wasp species (
Section 7(a) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat. Destruction or adverse modification of critical habitat occurs when a Federal action directly or indirectly alters critical habitat to the extent that it appreciably diminishes the value of critical habitat for the conservation of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat when their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is designated or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing, or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the action agency in eliminating conflicts that may be caused by the proposed action. The conservation measures in a conference report are advisory. We may issue a formal conference report, if requested by the Federal action agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if the species was listed or critical habitat designated. We may adopt the formal conference report as the biological opinion when the species is listed or critical habitat designated, if no substantial new information or changes in the action alter the content
If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal action agency must enter into consultation with us. Through this consultation, the action agency would ensure that the actions do not destroy or adversely modify critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions under certain circumstances, including instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement, or control has been retained or is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conferencing with us on actions for which formal consultation has been completed.
If we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide “reasonable and prudent alternatives” to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, which are economically and technologically feasible, and which the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project.
Federal activities that may affect Blackburn's sphinx moth or its critical habitat will require consultation under section 7 of the Act. Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the U.S. Army Corps of Engineers (Corps) under section 404 of the Clean Water Act (33 U.S.C. 1344
Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. We note that such activities may also jeopardize the continued existence of the species.
Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to:
(1) Overgrazing; maintenance of feral ungulates; clearing or cutting of native live trees and shrubs, whether by burning or mechanical, chemical, or other means (
(2) Recreational activities that appreciably degrade vegetation;
(3) Introducing or encouraging the spread of nonnative plant species into critical habitat units; and
(4) Importation of nonnative species for research, agriculture, and aquaculture, and the release of biological control agents that would have unanticipated effects on the listed species and the primary constituent elements of its habitat.
If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Pacific Islands Ecological Services Field Office (
In accordance with Executive Order 12866, the Office of Management and Budget (OMB) has determined that this critical habitat designation is not a significant regulatory action. This rule will not have an annual economic effect of $100 million or more or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. This designation will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. It will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Finally, this designation will not raise novel legal or policy issues. Accordingly, OMB has not formally reviewed this final critical habitat designation.
Under the Regulatory Flexibility Act (RFA) (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entitiesm,
Based on the information in our economic analysis (DEA and Addendum), we are certifying that the critical habitat designation for Blackburn's sphinx moth will not have a significant effect on a substantial number of small entities because a substantial number of small entities are not affected by the designation.
Small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. The RFA/SBREFA requires
The RFA/SBREFA does not explicitly define either “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation. This analysis considers the relative number of small entities likely to be impacted in an area. In addition, Federal courts and Congress have indicated that an RFA/SBREFA is properly limited to impacts to entities directly subject to the requirements of the regulation (Service 2002). Therefore, entities not directly regulated by the listing or critical habitat designation are not considered in this section of the analysis.
The primary projects and activities that might be affected by the designation that could affect small entities include ranching operations and conservation projects. Our DEA found that the only small or potentially small entities that could be impacted by the listing of Blackburn's sphinx moth and critical habitat designation were: (1) Ka Ohana O Kahikinui on Maui (participation in residential loan program; conservation activities; development of water collection system); (2) one to two lending institutions on Maui (loans for Department of Hawaiian Home Lands residential development); and (3) one farmer or rancher on Maui, Molokai, or the island of Hawaii (participation in farm loan programs). The DEA concluded that these entities did not represent a substantial number of small entities in their respective fields or industries. Because estimated section 7 costs associated with possible lessee participation in the Housing and Urban Development loan insurance and guarantee program are no longer expected, the Addendum estimates that the one to two lending institutions on Maui would no longer be impacted by critical habitat designation, and no new small entities were identified as being potentially impacted. Thus, the Addendum concluded that the critical habitat designation would not have a significant economic impact on a substantial number of small entities in Hawaii.
These conclusions are supported by the history of consultations on the Blackburn's sphinx moth. Since the species was listed in February 2000, there have been no formal section 7 consultations and only five informal section 7 consultations concerning the species, specifically on the island of Kahoolawe and entirely involved the Department of the Navy. The Navy is not a small entity.
Even where the requirements of section 7 might apply due to critical habitat, based on our experience with section 7 consultations for all listed species, virtually all projects—including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations under section 7—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures by definition must be economically feasible and within the scope of authority of the Federal agency involved in the consultation.
For these reasons, we are certifying that the designation of critical habitat for the Blackburn's sphinx moth will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis is not required.
Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801
On May 18, 2001, the President issued Executive Order 13211, on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this rule is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy production supply and distribution facilities because no energy production, supply, and distribution facilities are included within designated critical habitat. Further, for the reasons described in the economic analysis, we do not believe the designation of critical habitat for Blackburn's sphinx moth on the islands of Hawaii, Kahoolawe, Maui, and Molokai will affect future energy production. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) For reasons described in the economic analysis, this rule will not produce a Federal mandate on State or local governments or the private sector of $100 million or greater in any year, that is, it is not a “significantly regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no direct obligations on State or local governments.
(b) This rule will not “significantly or uniquely” affect small governments so a Small Government Agency Plan is not required. Small governments will not be affected unless they propose an action requiring Federal funds, permits, or other authorizations. Any such activities will require that the Federal agency ensure that the action will not adversely modify or destroy designated critical habitat.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for Blackburn's sphinx moth on
In accordance with Executive Order 13132, this final rule does not have significant federalism effects or impose substantial direct compliance costs on State and local governments. This designation requires Federal agencies to ensure that their actions do not adversely modify critical habitat; it does not impose direct obligations on State or local governments. A federalism assessment is not required. In keeping with Department of Interior policy, we requested information from appropriate State agencies in Hawaii. The economic analysis does address possible impacts to State programs (
The designations may have some benefit to these governments, in that the areas essential to the conservation of the moth are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of this species are specifically identified. While this definition and identification do not alter where and what federally sponsored activities may occur, they may assist these local governments in long-range planning, rather than waiting for case-by-case section 7 consultation to occur.
In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We have designated critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of Blackburn's sphinx moth.
This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act is required. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.
We have determined that we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reason for this determination in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) Executive Order 13175 and the Department of the 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 Blackburn's sphinx moth. Therefore, designation of critical habitat for this species does not involve any Tribal lands.
A complete list of all references cited in this final rule is available upon request from the Pacific Islands Fish and Wildlife Office (
The primary author of this final rule is Mike Richardson, Pacific Islands Fish and Wildlife Office (
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) * * *
(i)
(1) Critical habitat units are depicted for the Hawaiian islands of Maui, Kahoolawe, Hawaii, and Molokai on the maps below.
(2) The primary constituent elements of critical habitat for Blackburn's sphinx moth include specific habitat components identified as essential for the primary biological needs of foraging, sheltering, maturation, dispersal, breeding, and egg-laying.
(i) Based on our current knowledge of the species, the primary constituent elements required by Blackburn's sphinx moth larvae for foraging and maturation are two larval host plant species in the endemic genus
(ii) Based on our current knowledge of the species, the primary constituent elements required by Blackburn's sphinx moth adults for foraging, sheltering, dispersal, breeding, and egg production are native nectar-supplying plants, including, but not limited to,
(3) Existing manmade features and structures within the boundaries of the mapped areas do not contain one or more of the primary constituent elements described for the species in paragraph (2) of this section, and therefore, are not included in the critical habitat designations. These features include, but are not limited to: buildings; roads; aqueducts and other water system features such as pumping stations, irrigation ditches, pipelines, siphons, tunnels, water tanks, gauging stations (section in a stream channel equipped with facilities for obtaining streamflow data), intakes, and wells; telecommunications towers and associated structures and equipment; electrical power transmission lines and associated rights-of-way; radars; telemetry antennas; missile launch sites; arboreta and gardens; heiau (indigenous places of worship or shrines); airports; other paved areas; lawns; and other rural residential landscaped areas.
(4) Critical habitat units are described below. Coordinates are in UTM Zone 4 with units in meters using North American Datum of 1983 (NAD83). The following index map shows the general locations of the 9 critical habitat units designated on the islands of Hawaii, Kahoolawe, Maui, and Molokai.
Map 1—State of Hawaii General Locations of Units for Blackburn's Sphinx Moth on Molokai, Maui, Kahoolawe, and Hawaii follows:
(ii) Unit 1: Island of Maui, Puu O Kali (1,604 ha; 3,965 ac):
(A) Unit 1 consists of the following 38 boundary points: Start at 770230, 2293671; 769969, 2293640; 769876, 2293794; 769523, 2293779; 769444, 2293784; 769146, 2293904; 769358, 2294451; 769492, 2294471; 769569, 2294563; 770123, 2294379; 770384, 2294317; 770707, 2294517; 770169, 2294794; 769629, 2295149; 769732, 2295410; 770032, 2295219; 769985, 2295371; 770360, 2295328; 769892, 2295671; 770362, 2295705; 770578, 2295954; 771492, 2296086; 772138, 2296102; 772522, 2296179; 772876, 2295933; 773384, 2295733; 773324, 2296764; 775265, 2296040; 775041, 2295484; 774484, 2295757; 774033, 2294844; 774654, 2294538; 774448, 2294006; 774392, 2292779; 773825, 2291760; 772032, 2292639; 770772, 2293255; 770524, 2293353; return to starting point.
(B)
(iii) Unit 2: Island of Maui, Cape Kinau (603 ha; 1,490 ac):
(A) Unit 2 consists of the following 36 boundary points: 769419, 2281688; 769716, 2281856; 769854, 2281648; 769726, 2281351; 769548, 2281173; 769433, 2280683; 769312, 2280406; 769251, 2280342; 769175, 2280353; 769073, 2280442; 768954, 2280466; 768791, 2280406; 768658, 2280329; 768621, 2280282; 768645, 2279874; 768737, 2279820; 767046, 2281800; 767136, 2281768; 767208, 2281837; 767139, 2281940; 767151, 2281994; 767136, 2282020; 767607, 2282308; 767710, 2282266; 767837, 2282318; 767857, 2282291; 768160, 2282410; 769380, 2282944; 769746, 2282588; 769429, 2282400; 769103, 2282123; 768598, 2281510; 768687, 2281391; 768737, 2281399; 768836, 2281460. 768738, 2279820. Coast.
(B)
(iv) Unit 3: Island of Maui, Kanaio (2,420 ha; 5,981 ac):
(A) Unit 3 consists of the following 45 boundary points: 777366, 2282219; 777421, 2281595; 777453, 2281235; 777531, 2280334; 777588, 2279661; 777719, 2278166; 770402, 2278173; 770445, 2278268; 770936, 2279194; 771208, 2279714; 771289, 2279691; 771211, 2279314; 771211, 2278906; 771368, 2278922; 771525, 2279173; 771854, 2279424; 772011, 2279707; 772231, 2279974; 772357, 2280335; 772451, 2280445; 772514, 2280351; 772561, 2280068; 772687, 2279848; 772938, 2279801; 773221, 2279817; 773425, 2280021; 773676, 2280335; 773676, 2280665; 773888, 2280993; 773606, 2281355; 774253, 2281430; 774897, 2280433; 775340, 2281119; 774662, 2281499; 775105, 2281701; 775435, 2282376; 775590, 2284264; 776004, 2284678; 776020, 2285055; 776484, 2284998; 776553, 2285169; 776691, 2285141; 776878, 2283402; 777021, 2282206; 777227, 2278017. Coast.
(B) Unit excludes an area (1 ha; 2 ac) consisting of the following 6 boundary points: 771887, 2277914; 771944, 2277910; 771986, 2277995; 771948, 2277989; 771909, 2277980; 771870, 2277975.
(C)
(v) Unit 4: Island of Maui, Kahikinui (4,799 ha; 11,859 ac):
(A) Unit 4 consists of the following 79 boundary points: 786068, 2283893; 786089, 2283760; 782956, 2282353; 783312, 2282399; 784167, 2282606; 784764, 2282682; 785521, 2282878; 786198, 2283068; 786227, 2282882; 786706, 2282953; 786657, 2283206; 787388, 2283424; 787555, 2283500; 788907, 2284087; 789388, 2283321; 789534, 2283053; 788185, 2282559; 786399, 2281761; 785563, 2281400; 785715, 2281039; 786057, 2280754; 786112, 2280548; 779950, 2278500; 779720, 2280135; 779703, 2280237; 779617, 2280887; 779412, 2282307; 779402, 2282377; 779372, 2282585; 779368, 2282602; 779376, 2282933; 779427, 2285142; 779549, 2285133; 779550, 2285007; 780604, 2285092; 781898, 2285373; 781956, 2285061; 781923, 2284848; 781966, 2284607; 781902, 2284320; 782032, 2283672; 782491, 2282783; 782731, 2282340; 783230, 2282514; 783112, 2282850; 782587, 2283565; 782996, 2283744; 783721, 2283912; 784941, 2284106; 784823, 2284611; 785088, 2284724; 785012, 2285109; 784719, 2285271; 784639, 2285526; 784482, 2285613; 784385, 2285910; 786498, 2286367; 787288, 2286710; 787415, 2286765; 787506, 2286804; 787311, 2286772; 782285, 2285909; 782162, 2286366; 781651, 2286291; 781569, 2286457; 782827, 2286695; 786589, 2287817; 787091, 2287913; 787800, 2286248; 787893, 2286297; 787957, 2285636; 788105, 2285388; 788261, 2285257; 788481, 2284803; 788363, 2284742; 786517, 2283943; 786510, 2283966; 786068, 2283893; 779965, 2278394. Coast.
(B)
(vi) Unit 5: Island of Maui, Kanaha Pond (56 ha; 139 ac):
(A) Unit 5 consists of the following 35 boundary points: Start at 764695, 2312624; 764849, 2312615; 765062, 2312636; 765174, 2312639; 765226, 2312636; 765201, 2312573; 765221, 2312534; 765223, 2312502; 765259, 2312452; 765291, 2312304; 765287, 2312260; 765291, 2312223; 765281, 2312190; 765356, 2312144; 765352, 2312121; 765325, 2312090; 765284, 2312093; 765213, 2312118; 765183, 2312109; 765157, 2312091; 765106, 2312075; 765069, 2312044; 765036, 2312036; 764954, 2311971; 764872, 2311927; 764845, 2311912; 764588, 2311880; 764530, 2311946; 764474, 2311988; 764424, 2312038; 764390, 2312140; 764336, 2312293; 764397, 2312539; 764542, 2312565; 764615, 2312613; return to starting point.
(B)
(vii) Unit 6: Island of Maui, Kanaha Park (25 ha; 62 ac):
(A) Unit 6 consists of the following 7 boundary points: 766783, 2313583; 766781, 2313351; 766330, 2313141; 765776, 2312874; 765717, 2312838; 765689, 2312823; 765557, 2313073. Coast.
(B)
(A) Unit 7 consists of the following 39 boundary points: Start at 751848, 2276600; 751944, 2276801; 752021, 2277051; 752708, 2277402; 752817, 2277444; 752922, 2277482; 753039, 2277468; 754266, 2276996; 754390, 2276868; 754486, 2276715; 754758, 2275711; 754871, 2275319; 754880, 2275141; 754868, 2275021; 754822, 2274844; 754523, 2273789; 754438, 2273635; 754364, 2273546; 754213, 2273418; 753057, 2272446; 752825, 2272362; 750995, 2272184; 750869, 2272206; 750787, 2272247; 749069, 2273302; 749575, 2273659; 750287, 2273729; 750943, 2273970; 751205, 2274403; 751431, 2274927; 751475, 2275037; 751531, 2275180; 751447, 2275330; 751428, 2275366; 751291, 2275543; 751032, 2275938; 751109, 2276062; 751570, 2276254; 751752, 2276408; return to starting point.
(B)
(ix) Unit 8: Island of Hawaii, Puuwaawaa—Hualalai (9,954 ha; 24,598 ac):
(A) Unit 8 consists of the following 449 boundary points: Start at 193748, 2193379; 193979, 2193518; 194022, 2193428; 194091, 2193386; 194109, 2193303; 194145, 2193281; 194185, 2193225; 194212, 2193188; 194225, 2193213; 194201, 2193260; 194232, 2193325; 194227, 2193356; 194266, 2193381; 194290, 2193366; 194306, 2193379; 194301, 2193431; 194281, 2193478; 194292, 2193504; 194286, 2193538; 194291, 2193598; 194328, 2193648; 194331, 2193666; 194320, 2193710; 194969, 2194077; 195027, 2194069; 195065, 2194098; 195121, 2194107; 195172, 2194152; 195231, 2194087; 195235, 2194013; 195256, 2193957; 195324, 2193909; 195378, 2193840; 195441, 2193804; 195564, 2193455; 195558, 2193407; 195590, 2193322; 195588, 2193245; 195641, 2193182; 195659, 2193134; 195645, 2193064; 195682, 2192983; 195722, 2192963; 195793, 2192836; 195838, 2192773; 195829, 2192664; 195844, 2192499; 195907, 2192445; 196009, 2192213; 196079, 2192144; 196061, 2192063; 196077, 2191999; 196121, 2191888; 196184, 2191891; 196196, 2191837; 196250, 2191837; 196287, 2191749; 196280, 2191681; 196331, 2191672; 196361, 2191560; 196379, 2191428; 196414, 2191446; 196473, 2191524; 196497, 2191624; 196494, 2191708; 196593, 2191768; 196656, 2191837; 196644, 2191885; 196593, 2192093; 196576, 2192195; 196596, 2192288; 196581, 2192409; 196566, 2192451; 196506, 2192484; 196397, 2192655; 196367, 2192770; 196427, 2192764; 196452, 2192703; 196581, 2192577; 196614, 2192547; 196623, 2192577; 196605, 2192634; 196608, 2192685; 196679, 2192667; 196749, 2192610; 196804, 2192476; 196831, 2192436; 196879, 2192403; 196885, 2192466; 196815, 2192586; 196717, 2192687; 196614, 2192809; 196241, 2193037; 196094, 2193227; 196003, 2193494; 195985, 2193759; 196088, 2193858; 195949, 2194099; 195958, 2194379; 195865, 2194469; 195811, 2194559; 196050, 2194687; 196076, 2194653; 196055, 2194610; 196109, 2194511; 196184, 2194505; 196223, 2194361; 196256, 2194337; 196322, 2194285; 196334, 2194171; 196370, 2194174; 196348, 2194291; 196379, 2194331; 196367, 2194427; 196363, 2194508; 196372, 2194578; 196427, 2194610; 196385, 2194670; 196314, 2194718; 196304, 2194841; 196831, 2195161; 196944, 2195021; 196930, 2194959; 197092, 2194830; 197104, 2194773; 197179, 2194752; 197273, 2194622; 197279, 2194550; 197361, 2194467; 197477, 2194325; 197573, 2194252; 197613, 2194177; 197654, 2194115; 197640, 2194033; 197654, 2193943; 197697, 2193753; 197750, 2193692; 197778, 2193488; 197871, 2193374; 197922, 2193401; 197995, 2193392; 198304, 2193109; 198362, 2193103; 198518, 2192944; 198584, 2192854; 198620, 2192761; 198680, 2192715; 198716, 2192658; 198731, 2192586; 198801, 2192589; 198879, 2192547; 198921, 2192493; 199051, 2192352; 199101, 2192412; 199177, 2192324; 199171, 2192201; 199246, 2192141; 199252, 2192243; 199294, 2192252; 199303, 2192291; 199225, 2192348; 199243, 2192397; 199186, 2192439; 199156, 2192529; 199084, 2192566; 199047, 2192643; 198948, 2192736; 198956, 2192786; 198949, 2192835; 198931, 2192888; 198913, 2192924; 198819, 2192954; 198760, 2192979; 198741, 2193028; 198777, 2193070; 198746, 2193098; 198718, 2193126; 198730, 2193180; 198683, 2193290; 198609, 2193325; 198679, 2193472; 198648, 2193542; 198669, 2193598; 198623, 2193633; 198602, 2193685; 198553, 2193675; 198480, 2193748; 198442, 2193839; 198494, 2193857; 198550, 2193860; 198819, 2193594; 198819, 2193514; 198882, 2193479; 198872, 2193388; 198872, 2193252; 198861, 2193199; 198844, 2193143; 198935, 2193063; 198981, 2193027; 199010, 2192968; 199103,
(B) This unit excludes three areas:
(
(
(
(C)
(x) Unit 9: Island of Molokai, Kamoko Flats—Puukolekole (1,256 ha; 3,105 ac):
(A) Unit 9 consists of the following 170 boundary points: Start at 713960, 2337883; 713787, 2337815; 713641, 2337737; 713587, 2337686; 713542, 2337635; 713525, 2337608; 713514, 2337604; 713488, 2337574; 713275, 2337497; 713260, 2337442; 713302, 2337415; 713444, 2337400; 713651, 2337482; 713677, 2337507; 713828, 2337580; 713834, 2337585; 713841, 2337587; 713989, 2337659; 714006, 2337664; 714030, 2337681; 714036, 2337674; 714090, 2337691; 714150, 2337601; 714065, 2337490; 714169, 2337531; 714182, 2337553; 714217, 2337500; 714313, 2337356; 714267, 2337327; 713658, 2336950; 713641, 2336937; 713639, 2336938; 713638, 2336937; 713592, 2336909; 713171, 2337020; 713128, 2337025; 713101, 2337039; 712948, 2337083; 712768, 2337134; 712739, 2337127; 712714, 2337150; 712707, 2337152; 712647, 2337156; 711929, 2337023; 712115, 2336844; 712527, 2336930; 712811, 2336772; 712314, 2336653; 712783, 2336203; 712700, 2336108; 712785, 2336093; 712927, 2336085; 713147, 2336184; 713257, 2336224; 713265, 2336238; 712778, 2336365; 712783, 2336372; 712923, 2336457; 713217, 2336633; 714333, 2337309; 714341, 2337313; 715056, 2336242; 715073, 2336232; 716805, 2335668; 717490, 2335146; 717565, 2335112; 718350, 2334490; 718276, 2333666; 717554, 2332806; 717447, 2332851; 717080, 2333001; 716796, 2333195; 715114, 2334345; 715139, 2334491; 715684, 2334688; 716000, 2334857; 715980, 2334880; 715849, 2335177; 715914, 2335254; 715842, 2335306; 715274, 2335635; 715213, 2335636; 715076, 2335749; 715046, 2335773; 714377, 2335948; 714372, 2335938; 714373, 2335938; 714280, 2335711; 714494, 2335653; 714617, 2335594; 714901, 2335519; 715544, 2335359; 715547, 2335358; 715174, 2335053; 715005, 2334932; 714716, 2334982; 714205, 2335078; 714040, 2335127; 714024, 2335088; 711244, 2336986; 711354, 2337009; 711401, 2337037; 711322, 2337112; 711727, 2337380; 711733, 2337403; 711948, 2337483; 712220, 2337776; 712433, 2338103; 712602, 2338152; 712517, 2338265; 712284, 2338486; 711968, 2338683; 711759, 2338845; 711681, 2338900; 711900, 2338941; 711710, 2339118; 711642, 2339123; 711579, 2339096; 711465, 2339097; 711625, 2339356; 711763, 2339365; 711777, 2339323; 711817, 2339308; 711969, 2339303; 712089, 2339324; 712130, 2339297; 712272, 2339304; 712447, 2339115; 712346, 2339007; 712231, 2338953; 712098, 2338911; 712002, 2338805; 712132, 2338664; 712392, 2338783; 712579, 2338783; 712421, 2338675; 712279, 2338579; 712353, 2338489; 712568, 2338528; 712635, 2338591; 712780, 2338508; 712777, 2338472; 712895, 2338488; 713001, 2338534; 713003, 2338502; 713072, 2338512; 713177, 2338629; 713424, 2338561; 713452, 2338533; 712978, 2338207; 712867, 2337997; 712845, 2337873; 713121, 2337952; 713150, 2337771; 713181, 2337784; 713184, 2337801; 713189, 2337803; 713196, 2337826; 713191, 2337829; 713197, 2337831; 713204, 2337853; 713303, 2337864; 713482, 2338023; 713503, 2338044; 713520, 2338067; 713525, 2338081; 713557, 2338108; 713664, 2338205; 713713, 2338254; 713731, 2338228; return to starting point.
(B) This unit excludes two areas:
(
(
(C)
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
In this proposed rule, we are considering an adjustment to the annual update for skilled nursing facilities (SNFs) that would account for forecast errors. In addition, we are proposing to make a technical correction to correct a misspelling in existing regulation text. This proposed rule supplements the proposed rule that we published previously in the
We will consider comments if we receive them at the appropriate address, as provided below, no later than 5 p.m. on July 7, 2003 (
Mail written comments (one original and three copies) to the following address:
Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1469-P2, P.O. Box 8013, Baltimore, MD 21244-8013.
If you prefer, you may deliver your written comments (one original and three copies) to one of the following addresses:
Comments mailed to those addresses designated for courier delivery may be delayed and could be considered late. Because of staffing and resource limitations, we cannot accept comments by facsimile (FAX) transmission. Please refer to file code CMS-1469-P2 on each comment. Comments received timely will be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of this document, in Room C5-12-08 of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland, Monday through Friday of each week from 8:30 a.m. to 4 p.m. Please call (410) 786-7197 to make an appointment to view comments.
Stephen Heffler, (410) 786-1211 (for information related to the SNF Market Basket Index and forecast error adjustments). Bill Ullman, (410) 786-5667, and Sheila Lambowitz, (410) 786-7605 (for general information).
To assist readers in referencing sections contained in this document, we are providing the following Table of Contents.
Annual updates to the prospective payment system (PPS) rates are required by section 1888(e) of the Social Security Act (the Act), as amended by the Medicare, Medicaid, and State Children's Health Insurance Program (SCHIP) Balanced Budget Refinement Act of 1999 (BBRA, Pub. L. 106-113), and the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA, Pub. L. 106-554), relating to Medicare payments and consolidated billing for SNFs.
On May 16, 2003, we published in the
We note that the issue of establishing an adjustment to account for forecast error is one that we have considered previously. To date, we have not implemented such an adjustment, because we were concerned that it might tend to detract from the prospective nature of the SNF payment system. Additionally, we note that, in the past, our evaluation of a possible adjustment to account for forecast error has not taken place in isolation, but rather, within the broader context of considering the possibility of developing a SNF-specific update framework, which would keep track of the various factors that affect costs and payment per case. This would include not only the market basket, but also other factors as well, such as productivity changes, intensity changes, and adjustment for case-mix creep. For example, the May 12, 1998 interim final rule on the SNF PPS (63 FR 26293) discussed the possibility of adopting a forecast error adjustment, similar to the one employed in the existing update framework for the inpatient hospital PPS:
We are considering a mechanism to adjust future SNF PPS rates for forecast errors. * * * In any given year, there may be unanticipated price fluctuations that may result in differences between the actual increases in prices faced by SNFs and the forecast used in calculating the update factors.
We further noted that if such a mechanism were adopted,
As noted in the May 12, 1998 interim final rule, the existing update framework for the inpatient hospital capital PPS already includes an adjustment to account for forecast error (see the regulations at § 412.308(c)(1)(ii)). The update framework for the inpatient hospital operating PPS includes a similar forecast error adjustment as well. However, the latter framework serves as the basis for making a recommendation to the Congress, which then establishes the actual update amount for the operating PPS through legislation. In the context of discussing a possible update framework for the SNF PPS in the FY 2002 proposed rule published on May 10, 2001 (66 FR 24018 through 24019), we observed that in this existing update framework,
Further, in the FY 2002 final rule published on July 31, 2001 (66 FR 39586), one commenter specifically suggested establishing a mechanism in the SNF PPS to account for forecast error. In response, we noted that the development of a SNF-specific update framework “* * * would give us the ability to factor in a forecast error adjustment in our recommendation for an update to SNF payments.”
As the preceding discussion indicates, our consideration of adopting a mechanism for making forecast error adjustments has, to date, occurred exclusively within the broader context of developing a SNF-specific update framework, where the end result would be solely a recommendation to the Congress, rather than an actual adjustment to the payment rates. However, it might also be possible to establish a forecast error adjustment mechanism independently as a separate initiative, as we discuss in the following sections of this proposed rule.
Since the implementation of the SNF PPS in July 1998, annual updates to the national PPS rate have been based on the forecasted percent change in the SNF market basket for the upcoming fiscal year. The SNF market basket was described in detail in the interim final rule that we published on May 12, 1998 (63 FR 26289), and in the final rule published on July 31, 2001 (65 FR 39581). The use of a forecasted market basket percent change is consistent with section 1888(e)(5) of the Act, which directs us to establish a market basket index for SNFs that “* * * reflects changes over time in the prices of an appropriate mix of goods and services” included in covered SNF services, and to calculate the percentage change in that index from the midpoint of the prior fiscal year to the midpoint of the current one. It is also consistent with the methodology used for other prospective payment systems, most notably the inpatient hospital PPS.
The forecast of the SNF market basket percent change for the upcoming fiscal year is based on data that are available when the final rule is developed. This generally means that historical data that are available through the first quarter of the current calendar year are used to develop forecasts for the upcoming fiscal year. For example, the SNF market basket percent change for the FY 2003 payment update was forecast in June 2002, with historical data available through the first quarter of 2002. We purchase the forecasts of the individual price series in the SNF market basket from a leading macroeconometric forecasting firm, Global Insights, Inc. We define the SNF market basket forecast error as the difference in the forecasted percent change in the SNF market basket and the actual percent change in the SNF market basket for a given period, generally the fiscal year.
Upon further consideration of the language of the statute and consistent with the use of a forecast to calculate the market basket percentage under section 1888(e)(5) of the Act, we believe that the statute provides us with authority to make adjustments to the update to the SNF per diem amount computed under section 1888(e)(4)(E)(ii)(IV) of the Act to adjust for differences in the forecasted percent change in the SNF market basket and the actual percent change in the SNF market basket, determined on the basis of later acquired, actual data. Pursuant to section 1888(e)(4)(E)(ii)(IV) of the Act, the SNF market basket percentage calculated by the Secretary is used to update the per diem rate computed for the prior fiscal year in order to determine the unadjusted Federal per diem rates to be applied during the upcoming fiscal year. Consistent with section 1888(e)(4)(H)(i) of the Act, before August 1, the Secretary shall publish in the
We believe that establishing an adjustment for forecast error in prior years could help to further ensure that the payment rates appropriately reflect changes over time in the price of goods and services. However, it is important to consider certain additional factors in evaluating the feasibility of such an approach. In order to ensure that any such adjustment reflects actual market conditions accurately, it is absolutely essential that the adjustment be applied uniformly—not only in those instances where the forecasted percent change is lower than the actual percent change (as has been the case up to this point under the SNF PPS), but also in those instances where the forecasted percent change is higher than the actual percent change.
We note that the latter circumstance would result in SNFs receiving lower than expected payments. In fact, it is even possible that, under a certain set of circumstances (for example, a year in which the law specifies an adjustment of the SNF market basket percentage change minus one percentage point, in combination with a negative forecast error correction and low price inflation), it could actually yield a net
This possibility underscores a potential disadvantage of establishing a forecast error adjustment, in that it would inevitably introduce an element
One of the purposes of the prospective payment system is that hospitals will know in advance of each discharge the amount of Medicare payment. Using the latest available market basket projections prior to the beginning of a particular Federal fiscal year is consistent with this concept. To permit retroactive adjustments of the market basket inflation rates would erode the prospective nature of the system. We believe this would introduce an element of uncertainty incompatible with the very purpose of the prospective payment system. Therefore, we have not adopted the suggestion that the rates be adjusted if market basket projections prove to be inaccurate.
Further, along with the basic question of whether to adopt a forecast error adjustment, it is also necessary to consider other related issues involving the precise nature of any such adjustment. For example, as further discussed in section II.D of this proposed rule, we are considering the inclusion of a threshold under which no forecast error adjustment would be made if the forecasted percent change is within 0.25 percentage points of the actual percent change (as is currently the case under the inpatient capital PPS). However, it would also be possible to set a different threshold, such as the 0.3 percentage point level that was used in updating the SNF routine cost limits under the reasonable cost payment methodology that preceded the SNF PPS. Alternatively, we could even use a significantly higher threshold in this context, such as a full percentage point.
In addition, we are considering that the initial forecast error adjustment would occur in FY 2004, and would take into account the cumulative forecast error between FYs 2000 and 2002, that is, since the beginning of the SNF PPS. We would apply the forecast error threshold of 0.25 percentage points to the forecast error calculation for the entire cumulative forecast error for FYs 2000 through 2002 instead of applying it to each year individually. We would do this because, in this calculation, the base payment rate is being adjusted in FY 2004 to bring the payment system in line with the actual experience. Alternatively, we could adopt an approach under which the initial adjustment takes into account only the forecast error for periods beginning after the effective date of the FY 2004 final rule. Under this alternative approach, the initial adjustment would not occur until FY 2006, and would take into account the forecast error from FY 2004. Accordingly, we invite comments not only on whether to adopt an adjustment to account for forecast error, but also on the specific characteristics of any such adjustment. The following describes the methodology that would be used if we considered an initial, cumulative forecast error adjustment provision.
The initial SNF market basket forecasted update under the SNF PPS was for FY 2000 (3.1 percent), followed by forecasted updates for FY 2001 (3.161 percent), FY 2002 (3.3 percent), and FY 2003 (3.1 percent). Historical market basket data are now available through FY 2002; therefore, we can calculate the cumulative SNF market basket forecast error for FYs 2000 through 2002, as shown in Table A. Historical data for the FY 2003 SNF market basket increase will not be available until early in 2004.
The FY 2000 and FY 2001 SNF market basket percent changes are based on the 1992-based SNF market basket. The FY 2002 SNF market basket percent changes are based on the 1997-based SNF market basket.
As indicated in Table A, the cumulative SNF market basket forecast error from FYs 2000 through 2002 is 3.26 percent. This figure is calculated by taking the difference in the cumulative forecasted SNF market basket increase over this period (1.031*1.03161*1.033=1.09869) and the cumulative actual SNF market basket increase (1.041*1.051*1.034=1.13129). As mentioned previously in section II.B of this proposed rule, we applied the forecast error threshold of 0.25 percentage points to the forecast error calculation for the entire cumulative forecast error for FYs 2000 through 2002 instead of applying it to each year individually. We did this because, in this calculation, the base payment rate is being adjusted in FY 2004 to bring the payment system in line with the actual experience. The difference between these two cumulative increases equals 0.0326 (1.13129 minus 1.09869). This means that the SNF market basket was under-forecast by 3.26 percent for the period FY 2000 through 2002. Similarly, the base payment rate computed for FY 2003 was 3.26 percent lower than it would have been if actual data had been used.
The major reason that the SNF market basket forecast was under-forecast during this period was that wages and benefits for nursing home workers increased more rapidly than expected. This faster-than-expected increase occurred primarily because the health sector continued to grow rapidly despite the economic downturn, and also because of the impacts of nursing staff shortages and other conditions generally affecting the health care market.
In order to illustrate the potential impact that an initial, cumulative forecast error adjustment provision would have on payment rates, we are reproducing the original figures from Tables 1 and 2 in the FY 2004 SNF PPS proposed rule that appeared in the
As explained in section II.D, we have also included additional figures that are adjusted to reflect a 3.26 percent forecast error adjustment. The following describes the process we could consider using if we apply a forecast error adjustment only in future years.
We are also inviting comments on applying the forecast error adjustment in future years, by adjusting the SNF PPS base payment rate annually for any forecast error in the SNF market basket. This process would involve making a one-time adjustment for the forecast error from the most recently available fiscal year. For example, for the FY 2005 update, we could adjust for forecast error for FY 2003 only; FY 2004 information would not yet be final. Similarly, for the FY 2006 update, we could adjust for the FY 2004 forecast error. This process creates what is essentially a 2-year lag on the forecast error correction, but is as timely as possible given the availability of historical data.
The method of adjusting for annual forecast error would be similar to that described above for the FY 2004 update. We could adjust for forecast error in a fiscal year by adjusting the SNF PPS national base payment by the forecast error amount. For example, if the FY 2004 SNF market basket were over-forecast by 0.5 percent, we would reduce the SNF PPS national base payment rate in FY 2006 by 0.5 percent. Accordingly, this is a prospective adjustment and is consistent with the methodology currently employed under the inpatient hospital capital PPS, and with the update framework that we discussed in the FY 2002 SNF PPS proposed rule published on May 10, 2001 (66 FR 24016) and FY 2002 final rule published on July 31, 2001 (66 FR 39587).
In addition, as mentioned previously in section II.B, we are considering adopting a threshold under which no forecast error adjustment would be made if the forecasted percent change is within a defined range of the actual percent change. As noted previously, the inpatient hospital capital PPS already uses a threshold of 0.25 percentage points. We are soliciting comments on what threshold would be appropriate in the context of the SNF PPS. This methodology is again consistent with the methodology used under the inpatient capital PPS, and reflects the concept that there is a certain level of imprecision associated with measuring statistics. We invite comments on the use of this standard.
We noted above that a major reason the SNF market basket forecast was under-forecasted for previous periods was that wages and benefits for SNF workers increased more rapidly than expected. Part of this wage increase may have been caused by nursing staff shortages which, coupled with the increased demand for services during this period, drove up wages not only in SNFs but in the entire health sector. Since the factors that drive costs in SNFs can also relate to nursing home quality of care, we believe it is important to reflect appropriately the market conditions facing SNFs.
We have focused significant resources in the past two years on improving the quality of health care provided by Medicare providers. Our efforts with respect to nursing home quality have been particularly intensive. In December 2001, we announced a Nursing Home Quality Initiative. This initiative is part of the goal of the Department of Health and Human Services to continue to improve the quality of health care for all Americans, including those covered by the Medicare and Medicaid programs. After a successful six-State pilot in the Spring of 2002, we released quality of care information on November 12, 2002 for nearly 17,000 nursing homes in all 50 States, the District of Columbia, and some U.S. Territories. Consumers can view these measures and other helpful information at
The Nursing Home Quality Initiative is a four-prong effort that consists of: regulation and enforcement efforts conducted by State survey agencies and by us; improved consumer information on the quality of care in nursing homes; continual, community-based quality improvement programs designed to help nursing homes improve their quality of care; and collaboration and partnership to utilize available knowledge and resources most effectively. State pilot in the Spring of 2002, we released quality of care information on November 12, 2002 for nearly 17,000 nursing homes in all 50 States, the District of Columbia, and some U.S. Territories. Consumers can view these measures and other helpful information at
The Nursing Home Quality Initiative is a four-prong effort that consists of: regulation and enforcement efforts conducted by State survey agencies and by us; improved consumer information on the quality of care in nursing homes; continual, community-based quality improvement programs designed to help nursing homes improve their quality of care; and collaboration and partnership
To the extent that market basket adjustments to the SNF PPS result in more appropriate payments to SNFs in future years, it is expected that a majority of the additional payments made in the future to SNFs will be used for direct care services to nursing home residents. Further, we expect that SNFs will use such payments to continue to engage in proactive, quality improvement activities and programs. Accordingly, we invite comments on how SNFs will account for these direct care funds and how CMS may use its authority under section 1888 of the Act or elsewhere to further promote quality improvement efforts among SNFs. We also invite comments on available legal authority, as well as the advisability of refining and structuring payments under the SNF PPS to promote additional caregiver staffing at SNFs.
In this proposed rule, we propose to make the following revisions to the existing text of the regulations:
• In § 413.337(d)(2), we would insert additional text at the end of the paragraph, which would provide for an adjustment to the annual update of the previous fiscal year's rate to account for forecast error in the SNF market basket beginning with FY 2004.
• In § 413.345, we would make a technical correction to the second sentence of the regulation text, in order to correct the spelling of the word “standardized.”
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Because of the large number of items of correspondence we normally receive on a proposed rule, we are not able to acknowledge or respond to them individually. However, in preparing the final rule, we will consider all comments concerning the provisions of this proposed rule that we receive by the date and time specified in the
As discussed previously in section I of this preamble, we are issuing this proposed rule specifically in order to supplement the proposed rule that we published previously in the
For the reasons set forth in the preceding discussion, which indicate that providing a full comment period would be contrary to the public interest, we find that there is good cause to modify the 60-day comment period in this instance. Accordingly, the closing date of the comment period for this supplemental proposed rule is hereby set at July 7, 2003, to coincide with the close of the initial proposed rule's comment period.
We have examined the impacts of this proposed rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act (the Act), the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which merely assigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This proposed rule is a major rule, as defined in 5 U.S.C. 804(2), because, if we proceed with a forecast error adjustment, we estimate that the impact of such a change would be approximately $450 million in FY 2004 (based on the cumulative SNF market basket forecast error of 3.26 percent for FYs 2000 through 2002, as shown in Table A). The $450 million estimate also assumes the use of a 0.25 percentage point threshold (and would be reliable for thresholds up to 3.26 percent). However, as noted previously in section II.D, this estimated impact could change in any given year if we were to adopt a different threshold level.
The RFA requires agencies to analyze options for the regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most SNFs and most other providers and suppliers are small entities, either by their nonprofit status or by having revenues of $11.5 million or less in any 1 year. For purposes of the RFA, approximately 53 percent of SNFs are considered small businesses according to the Small Business Administration's latest size standards with total revenues of $11.5 million or less in any 1 year (for further information, see 65 FR 69432, November 17, 2000). Individuals and States are not included in the definition of a small entity.
The revision that we are considering in this proposed rule would simply provide for adjusting the annual increase in the applicable SNF market basket index amount, effective with FY
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. For a proposed rule, this analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. Because the change in methodology set forth in this proposed rule would also affect rural hospital swing-bed services, we believe that this proposed rule would similarly affect small rural hospitals. However, because the incremental change in payments for Medicare swing-bed services would be relatively minor in comparison to overall rural hospital revenues, this proposed rule would not have a significant impact on the overall operations of these small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in an expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million or more. This proposed rule would have no substantial effect on State, local, or tribal governments. We believe the private sector cost of this proposed rule falls below these thresholds as well.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. As stated above, this proposed rule would have no substantial effect on State and local governments.
As stated previously, the purpose of this proposed rule is simply to consider an adjustment to the annual update to account for forecast error in the SNF market basket. We believe that such a revision would have, at most, only a negligible overall effect in terms of the RFA and the other provisions discussed in this section. As such, it would not represent an additional burden to the industry.
For the reasons set forth in the preceding discussion, we are not preparing analyses for either the RFA or section 1102(b) of the Act because we have determined that this proposed rule would not have a significant economic impact on a substantial number of small entities or a significant impact on the operations of a substantial number of small rural hospitals.
Finally, in accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Health facilities, Kidney diseases, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as follows:
1. The authority citation for part 413 continues to read as follows:
Secs. 1102, 1812(d), 1814(b), 1815, 1833(a), (i) and (n), 1861(v), 1871, 1881, 1883, and 1886 of the Social Security Act (42 U.S.C. 1302, 1395d(d), 1395f(b), 1395g, 1395l(a), (i), and (n), 1395x(v), 1395hh, 1395rr, 1395tt, and 1395ww).
2. In § 413.337(d)(2), paragraph (d)(2) is revised to read as follows:
(d)
(2) For subsequent fiscal years, the unadjusted Federal rate is equal to the rate for the previous fiscal year increased by the applicable SNF market basket index amount. Beginning with fiscal year 2004, an adjustment to the annual update of the previous fiscal year's rate will be computed to account for forecast error. The initial adjustment (in fiscal year 2004) to the update of the previous fiscal year's rate will take into account the cumulative forecast error between fiscal years 2000 and 2002. Subsequent adjustments in succeeding fiscal years will take into account the forecast error from the most recently available fiscal year for which there is final data.
3. In the second sentence of § 413.345, the word “tandardized” is removed and the word “standardized” is added in its place.