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Agricultural Marketing Service, USDA.
Final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim final rule allowing the grading or packing of sweet cherries outside the production area established under the Washington sweet cherry marketing order which regulates the handling of sweet cherries grown in designated counties in Washington. Persons desiring to ship Washington sweet cherries for grading or packing outside the production area will apply and report to the Washington Cherry Marketing Committee (Committee) on forms provided by the Committee. The reporting requirement will provide the Committee with safeguard information on the grading or packing of sweet cherries outside the production area to assure that acceptable quality fruit is shipped. This rule will provide greater flexibility in the grading, packing, and marketing of Washington sweet cherries. In some cases, the facilities outside the production area are closer to where the fruit is produced, and the ability to grade and pack outside the production area could reduce costs. This rule was recommended unanimously by the Committee, the agency responsible for local administration of the order.
July 23, 2003.
Teresa L. Hutchinson, Marketing Specialist, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW., Third Avenue, suite 385, Portland, Oregon 97204; telephone: (503) 326-2724; Fax: (503) 326-7440; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement No. 134 and Order No. 923, both as amended (7 CFR part 923), regulating the handling of sweet cherries grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
Minimum grade, size, maturity, container, pack and inspection requirements are currently established under the order. This rule continues in effect procedures and safeguard requirements that allow for the grading or packing of Washington sweet cherries outside the production area. Persons desiring to ship Washington sweet cherries for grading or packing outside the production area will apply and report to the Committee on forms provided by the Committee.
Consistent with the authorities and procedures outlined in the Act, the order was amended on November 21, 2001 (66 FR 58350). One of the amendments increased the size of the production area to include all counties east of the Cascade Mountain Range and provided authority in § 923.54 for the establishment of procedures to allow the shipment of Washington sweet cherries outside the production area for grading and packing. Section 923.54 also provides authority for the establishment of such safeguards as may be necessary to ensure the sweet cherries are handled in accordance with the order's provisions.
The Committee met on May 14, 2002, and unanimously recommended the establishment of procedures and safeguard requirements to allow the grading or packing of sweet cherries outside the production area. Currently, all cherries are required to be graded and packed before leaving the production area. Committee members believe that this will give shippers an opportunity to choose those grading and packing facilities that will be most beneficial to their individual circumstances. The grading and packing costs that are charged to growers may be different among different handlers in the production area or packing facilities outside the production area. There may be differences in the type of packaging or other services offered by packing facilities within or outside the production area.
For example, a packing facility outside the area of production is
The Committee believes that the minimum grade, size, maturity, container, and pack requirements established under the order are very important to the industry. The Committee believes such requirements create orderly marketing, are good for consumers, encourage repeat purchases, and ultimately improve returns to growers. Therefore, the Committee also recommended the establishment of safeguards to ensure that all sweet cherries graded and packed outside the production area are ultimately inspected and certified by the Federal or Federal-State Inspection Service as meeting the minimum grade, size, maturity, container, and pack requirements established under the order. Persons desiring to ship or receive sweet cherries for grading or packing outside the production area will apply to the Committee on a
After the Committee approves an application, the applicant within the area of production and the applicant packing facility outside the area will be required to submit a weekly
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
Based on Committee data, there are approximately 1,500 growers of sweet cherries in the production area and approximately 62 handlers subject to regulation under the order. The Committee estimates that there are about 6 prospective applicants that may take advantage of this marketing opportunity. Small agricultural growers are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.
Based on Committee data, the average production of sweet cherries in Washington State for the last three years is 64,676 tons. Based on Washington Agricultural Statistics Service data, the average grower price for sweet cherries in Washington State for the last three years is $1,943 per ton. The Committee currently estimates that there are 1,500 sweet cherry growers. Using the Committee's 1,500 sweet cherry grower estimate, the average annual grower revenue is calculated to be approximately $83,777. Using Committee data regarding each individual handler's total shipments during the 2001 marketing year and a Committee estimated average f.o.b. price of $24.00 per 20-pound container in 2001, 79 percent of the Washington sweet cherry handlers ship under $5,000,000 worth of sweet cherries and 21 percent ship over $5,000,000 worth of sweet cherries. Therefore, the majority of Washington sweet cherry growers and handlers may be classified as small entities. Also, it is estimated that 6 packing facilities or receivers would be affected by this action. Although their size is not known, it is estimated that most would be considered small entities.
Committee meetings are widely publicized in advance of the meetings and are held in a location central to the production area. The meetings are open to all industry members and other interested persons who are encouraged to participate in the deliberations and voice their opinions on topics under discussion. Thus, Committee recommendations can be considered to represent the interests of small business entities in the industry.
This rule continues to allow persons to ship Washington sweet cherries outside the area of production for grading and packing. Applicants desiring to ship or receive sweet cherries for grading or packing outside the production area will be required to submit an application to the Committee. The applicants will certify that all production area cherries graded or packed outside the production area will be inspected by the Federal or the Federal-State Inspection Service and will meet the minimum grade, size, maturity, container, and pack requirements established under § 923.322 prior to shipment. Persons who are approved by the Committee to ship or receive will report all production area sweet cherries shipped or received for grading or packing outside the production area at the close of business every Friday.
Regarding the impact of this action on affected entities, this rule will impose minimal additional costs. As previously mentioned, the Committee estimates that about six prospective applicants may desire to ship or receive sweet cherries for grading or packing outside the production area during the marketing year. Such applicants will be required to submit a
An alternative to this action would be to not allow Washington sweet cherries to be shipped outside the production area for grading or packing. This alternative would limit the flexibility of growers and handlers to make decisions related to the grading, packing, and marketing of Washington sweet cherries. Another alternative would be to allow shipments of such sweet cherries for grading or packing outside the production area, but not require any reporting. The Committee did not support this alternative because of the lack of any safeguards to ensure compliance with the handling requirements implemented under the order. Allowing the shipment of Washington sweet cherries outside the production area for grading or packing is a relaxation of order requirements and any costs related to additional reporting will be greatly outweighed by the benefits of allowing such shipments.
This rule will impose an additional reporting and recordkeeping burden on persons who ship or receive sweet cherries for grading or packing outside the production area. This action requires two new Committee forms. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements on these two Committee forms was approved by the Office of Management and Budget (OMB) under OMB Control No. 0581-0214 on March 31, 2003.
As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout the sweet cherry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 14, 2002, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
An interim final rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the
Cherries, Marketing agreements, Reporting and recordkeeping requirements.
Agricultural Marketing Service, USDA.
Final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, with a minor change, an interim final rule that eliminated all container requirements from the handling regulations prescribed under the South Texas onion marketing order (order) and made several conforming and formatting changes. The order regulates the handling of onions grown in South Texas and is administered locally by the South Texas Onion Committee (Committee). This rule continues in effect the elimination of all container requirements from the handling regulations and several conforming changes. This action continues to provide the industry expanded flexibility to use any and all types and sizes of containers, or to ship onions in bulk. It also is expected to continue helping handlers compete more effectively in the marketplace, better meet buyers' needs, and help improve producer returns during the 2003 and future seasons.
July 23, 2003.
Belinda G. Garza, Regional Manager, McAllen Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1313 E. Hackberry, McAllen, Texas 78501; telephone: (956) 682-2833, Fax: (956) 682-5942; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959), regulating the handling of onions grown in South Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule continues in effect the elimination of all container requirements on onion shipments from the handling regulations prescribed under the South Texas onion order and several conforming and formatting changes. Removing all container requirements provides the industry expanded flexibility to use any and all types of containers preferred by consumers, buyers, and all retailers, or to ship onions in bulk shipments, which will help handlers compete more effectively in the marketplace, better meet buyers' needs, and help improve producer returns. All shipments will continue to be required to meet grade, size, and inspection requirements. In addition, this rule also continues to: (1) Remove outdated language from § 959.104; (2) remove all references to containers and applicable language from the order's rules and regulations; (3) remove an incorrectly referenced paragraph in current § 959.322(d)
Section 959.52(b)(4) of the onion order provides authority to regulate size, capacity, weight, dimensions, or pack of the container or containers which may be used in the packaging, transportation, sale, preparation for market, shipments, or other handling of onions. Section 959.52(c) allows for the modification, suspension, or termination of such regulations when warranted.
Before the issuance of the interim final rule, § 959.322(c) of the order's rules and regulations outlined container requirements for onions. Section 959.322(c)(1) through (7) of the regulations authorized ten containers (25-pound, 50-pound, 2-pound, 3-pound, 5-pound, and 10-pound bags; 20-pound, 25-pound, 40-pound, and 50-pound cartons) for use by onion handlers. Section 959.322(f)(2) exempted gift packages of onions not exceeding 25 pounds per package from the container requirements of § 959.322(c) if the onions had not previously been handled. Also, § 959.32(f)(4) authorized the Committee to approve other types of containers for experimental or testing purposes.
In recent years, there has been a proliferation in package requirements from buyers intent on providing either unique packaging for their stores or special carton sizes for their racking or handling equipment. American retailers desiring to emulate European marketing concepts in display developments (and supporting handling systems) in the U.S. and Canadian marketplace have significantly influenced this process. The evolution of the club and discount stores, design alterations tailored to protecting the commodity from damage during shipments and/or store presentation, and the development of new packaging materials, for example, returnable plastic containers (RPCs) have also greatly influenced the marketplace. The supply side, for reasons of efficiency, has resisted this growth when possible. However, buyer influence is such that no shipper can or will deny buyers new cartons, knowing that other shippers will readily adopt them. The shippers are all impacted by the surge in packaging demands. Many retailers have asked handlers to pack onions in specific RPCs, master containers, and containers other than the currently approved permanent containers. Container dimensions can vary slightly depending on the manufacturers. During previous seasons, handlers applied for and obtained Committee approval to use other containers on an experimental basis. Safeguarding the use of such experimental containers was an additional burden for the Committee.
Because this trend seems certain to continue in the future, the Committee concluded that the best and most economical resolution of the issue concerning the number of containers would be to simply eliminate the container requirements, thereby permitting shippers to respond to buyer requests as they see fit.
The trend toward even more unique and specialized packaging generally is governed by the desire of the retail community to receive produce in “display-ready” packaging consistent with the retailer's image and marketing plan for each type and size of store. At the same time, the packaging must meet the buyer's expectations for structural integrity and consistency with that buyer's handling practices. Although the increased flexibility does complicate the marketplace, and may result in inefficiencies, it is what retailers think consumers want, and therefore, is prerequisite to selling onions. Maximum efficiency would result from the adoption of a single uniform footprint, but an effort over the past two years to win acceptance of such a footprint has been virtually abandoned because it is contrary to trends in buyer requirements. Furthermore, foodservice buyers also have specialized container requirements often different from retailer requirements. In the end, however, the confusion is held to a minimum by the simple fact that onions normally are sold by weight and grade, which is consistent regardless of packaging.
Eliminating all container requirements in the handling regulations enables the industry to ship onions in any and all containers preferred by consumers, buyers, and all retailers, which benefits producers, handlers, buyers, and consumers of Texas onions and enables the industry to compete more effectively in the marketplace. This action continues to help the industry in providing consumers with high quality onions, promoting buyer satisfaction, and improving producer returns. This action does not impact the onion import requirements.
Removing container requirements required that all references to containers and applicable language also be removed from the order's rules and regulations, including references to onions for peeling, chopping, and slicing. Reference to these types of fresh processing methods is only made in the introductory text of § 959.322 in order to avoid confusion with other types of processing, which are exempt from grade, size, and inspection requirements. In addition, several conforming and formatting changes were made to clarify or remove some
In the interim final rule, newly redesignated paragraph (c)(1) of § 959.322 on inspection was revised to include exceptions for activities under paragraphs (d), (e)(1), and (e)(2)(i) of this section. The last reference should have been (e)(2) and it is corrected by this action.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 90 producers of onions in the production area and approximately 35 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000.000.
Most of the handlers are vertically integrated corporations involved in producing, shipping, and marketing onions. For the 2001-02 marketing year, the industry's 35 handlers shipped onions produced on 16,148 acres with the average and median volume handled being 152,446 and 136,810 fifty-pound bag equivalents, respectively. In terms of production value, total revenues for the 35 handlers were estimated to be $39.9 million, with average and median revenues being $1.1 million and $1.0 million, respectively.
The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year.
Based on the SBA's definition of small entities, the Committee estimates that all of the 35 handlers regulated by the order would be considered small entities if only their spring onion revenues are considered. However, revenues from other productive enterprises would likely push a large number of these handlers above the $5,000,000 annual receipt threshold. All of the 90 producers may be classified as small entitles based on the SBA definition if only their revenue from spring onions is considered. When revenues from all sources are considered, a majority of the producers would not be considered small entities because receipts would exceed $750,000.
This rule revises the rules and regulations prescribed under the South Texas onion order. This rule continues to eliminate container requirements on onion shipments in § 959.322 of the order's handling regulations, and several conforming and formatting changes. Removing all container requirements provides the industry expanded flexibility to use any and all types of containers preferred by consumers, buyers, and all retailers, or to ship onions in bulk, which helps handlers compete more effectively in the marketplace, better meet buyers' needs, and helps improve producer returns. All shipments will continue to be required to meet grade, size, and inspection requirements. This rule change allows South Texas onion handlers to supply existing markets and allows the industry to be more competitive in the marketplace. Allowing shipments of onions in all types of containers or in bulk will increase shipments of Texas onions because there are no longer any container restrictions.
In addition, this rule continues to: (1) Remove outdated language from § 959.104; (2) remove all references to containers and applicable language from the order's rules and regulations; (3) remove an incorrectly referenced paragraph in current § 959.322(d)
Section 959.52(b)(4) of the onion order provides authority to regulate size, capacity, weight, dimensions, or pack of the container or containers which may be used in the packaging, transportation, sale, preparation for market, shipment, or other handling of onions. Section 959.52(c) allows for the modification, suspension, or termination of such regulations when warranted.
Previously, § 959.322(c) of the order's rules and regulations outlined container requirements for onions. Section 959.322(c)(1) through (7) of the regulations authorized ten containers (25-pound, 50-pound, 2-pound, 3-pound, 5-pound, and 10-pound bags; 20-pound, 25-pound, 40-pound, and 50-pound cartons) for use by onion handlers.
Section 959.322(f)(2) exempted gift packages of onions not exceeding 25 pounds per package from the container requirements of § 959.322(c) if the onions had not previously been handled. Also, § 959.322(f)(4) authorized the Committee to approve other types of containers for experimental or testing purposes.
In recent years, there has been a proliferation in package requirements from buyers intent on providing either unique packaging for their stores or special carton sizes for their racking or handling equipment. American retailers desiring to emulate European marketing concepts in display developments (and supporting handling systems) in the U.S. and Canadian marketplace have significantly influenced this process. The evolution of the club and discount stores, design alterations tailored to protecting the commodity from damage during shipment and/or store presentation, and the development of new packaging materials, for example, returnable plastic containers (RPCs) have also greatly influenced the marketplace. The supply side, for reasons of efficiency, has resisted this
Because this trend seems certain to continue in the future, the Committee concluded that the best and most economical resolution of the issue concerning the number of containers would be to simply eliminate the container requirements, thereby permitting shippers to respond to buyer requests as they see fit.
The trend toward even more unique and specialized packaging generally is governed by the desire of the retail community to receive produce in “display-ready” packaging consistent with the retailer's image and marketing plan for each type and size or store. At the same time, the packaging must meet the buyer's expectations for structural integrity and consistency with that buyer's handling practices. Although the increased flexibility does complicate the marketplace, and quite obviously results in inefficiencies, it is what retailers think consumers want, and, therefore is prerequisite to selling onions. Maximum efficiency would result from the adoption of a single uniform footprint, but an effort over the past two years to win acceptance of such a footprint has been virtually abandoned because it is contrary to trends in buyer requirements. Furthermore, foodservice buyers also have specialized container requirements often different from retailer requirements. In the end, however, the confusion is held to a minimum by the simple fact that onions normally are sold by weight and grade, which is consistent regardless of packaging.
Eliminating all container requirements in the handling regulations enables the industry to ship onions in any and all containers preferred by consumers, buyers, and all retailers, which benefits producers, handlers, buyers, and consumers of Texas onions and enables the industry to compete more effectively in the marketplace. This action does not impact the onion import requirements. Removing container requirements requires that all references to containers and applicable language also be removed from the order's rules and regulations. References to containers for onions for peeling, chopping, and slicing were also removed. Reference to these types of fresh processing methods only was made in the introductory text of § 959.322 in order to avoid confusion with other types of processing, which are exempt from grade, size, and inspection requirements. In addition, several conforming and formatting changes were made to clarify or remove some outdated language. Specifically, in § 959.104
The opportunities and benefits of this rule will be equally available to all onion handlers regardless of their size of operation. The recommended changes benefit the entire South Texas onion industry.
The alternatives were to suspend the container requirements for a certain period of time or leave the regulations as they are. However, the Committee believed that the best action was to eliminate all requirements completely to provide expanded flexibility.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout the South Texas onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the October 8, 2002, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Also, the Committee has a number of appointed subcommittees to review certain issues and make recommendations to the Committee and these meeting also are open to the public. In this case, a subcommittee met on November 5, 2002, to further discuss this action. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.
An interim final rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, with a minor change, as published in the
Marketing agreements, Onions, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
Food Safety and Inspection Service, USDA.
Direct final rule.
The Food Safety and Inspection Service (FSIS) is announcing that it will add Australia and New Zealand to the list of countries eligible to import poultry products (ratite only) into the United States (U.S.). Reviews by FSIS of Australia's and New Zealand's laws, regulations, and other written materials, as well as the findings of an on-site review of each country's system, show that their regulatory systems that apply to ratite slaughter and processing include requirements that are equivalent to that of the United States under the Poultry Products Inspection Act (PPIA) and its implementing regulations.
Under this direct final rule, ratites slaughtered and processed in certified establishments in Australia and in New Zealand will be permitted to be imported into the U.S. All ratite products imported into the U.S. from Australia and New Zealand will be subject to reinspection at U.S. ports-of-entry by FSIS inspectors.
This rule will be effective August 22, 2003, unless written adverse comments within the scope of this rulemaking or written notice of intent to submit adverse comments within the scope of this rulemaking are received on or before July 23, 2003. If FSIS receives adverse comments, a timely withdrawal will be published in the
Submit adverse comments or notice of intent to submit adverse comments within the scope of this rulemaking to: FSIS Docket Clerk, Docket #02-015DF, Room 102, Cotton Annex, 300 C Street, SW., Washington, DC 20250-3700. Reference materials cited in this document and any comments received will be available for public inspection in the FSIS Docket Room from 8:30 a.m. to 4:30 p.m., Monday through Friday.
Mr. Clark Danford, Acting Director, Import-Export Programs Staff, Office of International Affairs; (202) 720-6400.
Effective April 2001, ratites were officially classified as poultry and subject to mandatory inspection under the PPIA (56 FR 22899). Prior to that time, imported ratites were regulated by the Food and Drug Administration (FDA).
FSIS will amend the Federal poultry products inspection regulations to add Australia and New Zealand to the list of countries eligible to import ratite and ratite products into the U.S. These countries have consistently maintained their eligibility to certify meat slaughter and processing operations.
Section 17 (21 U.S.C. 466(d)) of the PPIA states (1) notwithstanding any other provision of law, all poultry, or parts or products of poultry capable of use as human food offered for importation into the U.S. shall—(A) be subject to inspection, sanitary, quality, species verification, and residue standards that achieve a level of sanitary protection equivalent to that achieved under the U.S. standards; and (B) have been processed in facilities and under conditions that achieve a level of sanitary protection equivalent to that achieved under U.S. standards. (2)(A) The Secretary may treat as equivalent to a U.S. standard a standard of an exporting country described in paragraph (1) if the exporting country provides the Secretary with scientific evidence or other information, in accordance with risk assessment methodologies determined appropriate by the Secretary, to demonstrate that the standard of the exporting country achieves the level of sanitary protection achieved under the U.S. standard. For the purposes of this subsection, the term “sanitary protection” means protection to safeguard public health. (B) The Secretary may (i) determine, on a scientific basis, that the standard of the exporting country does not achieve the level of protection that the Secretary considers appropriate; and (ii) provide the basis for the determination in writing to the exporting country on request. (3) Any such imported poultry article that does not meet such standards shall not be permitted entry into the U.S. (4) The Secretary shall enforce this subsection through (A) random inspections for such species verification and for residues; and (B) random sampling and testing of internal organs and fat of carcasses for residues at the point of slaughter by the exporting country, in accordance with methods approved by the Secretary. Section 17 (21 U.S.C. 466(a)) of the PPIA also prohibits the importation of any slaughtered poultry, or parts or products thereof, of any kind into the U.S. unless they are healthful, wholesome, fit for human food, not adulterated, and contain no dye, chemical, preservative, or ingredient which renders them unhealthful, unwholesome, adulterated, or unfit for human food and unless they also comply with the rules and regulations made by the Secretary of Agriculture to assure that imported poultry or poultry products comply with the standards provided for in this Act.
The importation of ratite products must be in compliance with the Federal poultry products inspection regulations to ensure that they meet the standards provided in the PPIA. 9 CFR 381.196 establishes the procedures by which foreign countries that want to import ratite or ratite products into the U.S. may become eligible to do so.
Section 381.196 requires that authorities in a foreign countries” poultry inspection system certify that (1) the system provides standards equivalent to those of the U.S. and (2) the legal authority for the system and its implementing regulations are equivalent to those of the U.S. Specifically, a country's regulations must impose requirements that are equivalent to those of the U.S. in the following areas: (1) Ante-mortem and post-mortem inspection; (2) official controls by the national government over plant construction, facilities, and equipment; (3) direct and continuous supervision of slaughter activities, where applicable, and product preparation by official inspection personnel; (4) complete separation of establishments certified to export from those not certified; (5) maintenance of a single standard of inspection and sanitation throughout certified establishments; (6) requirements for sanitation at certified establishments and for sanitary handling of poultry products; (7) official controls over condemned material until destroyed or removed and, thereafter, excluded from the establishment; (8) a Hazard Analysis and Critical Control Point system as set out in 9 CFR part 417; and (9) other matters for which requirements are contained in the Act or the regulations of this part.
Section 381.196 also requires that a poultry inspection system maintained by a foreign country, with respect to establishments that prepare products in that country for export to the U.S., ensure that those establishments and their products comply with requirements that are equivalent to the provisions of the PPIA and the poultry products inspection regulations. Besides relying on its initial determination of a country's eligibility, coupled with ongoing system audits to ensure that products shipped to the U.S. are safe, wholesome, and properly labeled and packaged, FSIS reinspects imported ratite and ratite products by randomly sampling the products as they enter the U.S.
In addition to meeting the certification requirements under 9 CFR part 381, a foreign country's inspection system must be evaluated by FSIS before it will be granted eligibility to import ratite products into the U.S. This evaluation consists of two processes: a document review and an on-site review.
The document review is an evaluation of the laws, regulations, and other written materials used by the country to operate its inspection program. To help the country organize its materials, FSIS gives the country questionnaires that ask for detailed information about the country's inspection practices and procedures in five risk areas. These five risk areas, which are the focus of the evaluation, are sanitation, animal disease, slaughter/processing, residues, and enforcement. FSIS evaluates the information to verify that the critical points in the five risk areas are addressed satisfactorily with respect to standards, activities, resources, and enforcement.
If the document review is satisfactory, an on-site review is conducted by an experienced and trained auditor or a multi-disciplinary team that evaluates all aspects of the country's inspection program, including laboratories and individual establishments within the country.
In response to requests from Australia and from New Zealand for approval to import ratite and ratite products into the U.S., FSIS conducted a review of the Australian and New Zealand ratite inspection systems to determine whether they are equivalent to the U.S. ratite inspection system. First, FSIS compared each country's ratite inspection laws and regulations with U.S. requirements. The study concluded that the requirements contained in both countries” ratite inspection laws and regulations are equivalent to those mandated by the PPIA and its implementing regulations. FSIS then conducted an on-site review of the Australian and New Zealand ratite inspection system in operation. Both countries inspect ratites under the same program that FSIS has found equivalent for other species. Both countries were found to be implementing the slaughter and inspection procedures that FSIS found to be equivalent during the document analysis. Therefore, the FSIS review team concluded that the implementation of ratite processing standards and procedures in both countries is equivalent to that of the U.S.
Under this direct final rule, ratite products imported into the U.S. from Australia and from New Zealand will be subject to reinspection at the ports-of-entry for transportation damage, labeling, proper certification, general condition, and accurate count. Other types of inspection will also be conducted, including examining the product to detect organoleptic food safety or quality defects and performing microbiological or chemical analyses to detect pathogens or drug residues.
Products that pass reinspection will be stamped with the official mark of inspection and allowed to enter into U.S. commerce. If they do not meet U.S. requirements, they will be stamped “U.S. Refused Entry” and re-exported, destroyed, or converted to animal food.
Accordingly, FSIS intends to amend section 381.196(b) of the poultry products inspection regulations to add Australia and New Zealand as countries from which ratite and ratite products are eligible for importation into the U.S. As a country eligible to import ratite and ratite products into the U.S., the governments of Australia and of New Zealand will certify to FSIS those establishments that intend to import such products into the U.S. and that operate according to U.S. requirements. FSIS will verify that establishments certified by the Australia or the New Zealand government are meeting the U.S. requirements. This verification will be done through annual on-site audits of the establishments while they are in operation.
Although a foreign country may be listed as eligible to import ratite and ratite products into the U.S., products from that country must also comply with other U.S. requirements, including the restrictions under title 9, part 94 of the Animal and Plant Health Inspection Service's regulations that relate to the importation of ratite and ratite products from foreign countries into the U.S.
This direct final rule has been reviewed under Executive Order 12988, Civil Justice Reform. States and local jurisdictions are pre-empted by the PPIA from imposing any marking, labeling, packaging, or ingredient requirements on federally inspected ratite or ratite products that are in addition to, or different than, those imposed under the PPIA. States and local jurisdictions may, however, exercise concurrent jurisdiction over ratite and ratite products that are outside official establishments for the purpose of preventing the distribution of ratite and ratite products that are misbranded or adulterated under the PPIA, or, in the case of imported articles, that are not at such an establishment, after their entry into the U.S.
This direct final rule is not intended to have a retroactive effect. After this rule is adopted, administrative proceedings will not be required before parties may file suit in court challenging this rule. However, the administrative procedures specified in 9 CFR 381.35 must be exhausted prior to any judicial challenge of the application of the provisions of this direct final rule, if the challenge involves any decision of an FSIS employee relating to inspection services provided under the PPIA.
This direct final rule has been reviewed under Executive Order 12866. It has been determined to be not significant for purposes of E.O. 12866 and therefore, has not been reviewed by the Office of Management and Budget (OMB).
Currently, there are three establishments in Australia and one in New Zealand that import ratite products into the U.S. These establishments would continue to import approximately 160,000 pounds of fresh or frozen whole, cut-up, or deboned ratite meat per year.
If the volume and types of ratite products that are imported increases, as well as competition for the available market, it is expected that benefits from this direct final rule would generally accrue to consumers in the form of lower prices. However, the volume and other changes in trade stimulated by this rule is likely to be so small as to have little effect on supply and farm-level prices for poultry or livestock. Apart from any change in prices, U.S. consumers may still benefit from an increased choice of poultry products in the marketplace.
The costs of this direct final rule will accrue primarily to producers in the form of greater competition from Australia and New Zealand. However, as mentioned in the preceding paragraph, the volume of trade stimulated by this rule would be very small, is unlikely to increase, and is likely to have no effect on supply and farm-level prices. Since Australia and New Zealand already import ratite products into the U.S. under FDA regulations, it is unlikely that U.S. firms that produce products that would compete with Australian and New Zealand's imports of ratite products would face short-run difficulties. In the long run, it is expected that even if certain adjustments need to be made because of changes in the volume or product-type imported, such firms would adjust their product mix in order to compete effectively.
The Administrator, FSIS, has made an initial determination that this direct final rule will not have a significant impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601
The paperwork requirements associated with the development of this direct final rule are approved under OMB number 0583-0094.
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this direct final rule, FSIS will announce it and make copies of this
For more information contact the Congressional and Public Affairs Office, at (202) 720-9113. To be added to the free e-mail subscription service (Listserv) go to the “Constituent Update” page on the FSIS Web site at
Imported poultry products, Ratite and ratite products.
7 U.S.C. 138f; 450; 21 U.S.C. 451-470; 7 CFR 2.18, 2.53
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD), applicable to all Model A321-131 series airplanes, equipped with International Aero Engines (IAE) V25()()-A5 series engines. This action requires revising the Limitations section of the airplane flight manual to incorporate new procedures to follow in the event of an oil filter clog message. This action is necessary to require the flightcrew to follow the procedures necessary to prevent smoke caused by an oil filter clog from entering the cabin during flight. This action is intended to address the identified unsafe condition.
Effective July 8, 2003.
Comments for inclusion in the Rules Docket must be received on or before July 23, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-134-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:
Information pertaining to this amendment may be examined at the FAA, Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington.
Tim Dulin, Aerospace Engineer,
The FAA has previously received a report of a recent incident of dense smoke in the cabin on an Airbus Model A319 series airplane that resulted in an emergency landing. The smoke rapidly filled the cabin and cockpit, reducing the visibility to the point that the flightcrew had difficulty seeing the instruments. Investigation revealed that the smoke was caused by the failure of the number 3 bearing on an International Aero Engines (IAE) V25()()-A5 series engine, resulting in oil being ingested into the cabin air conditioning system through the engine high pressure compressor. The “ENG 1 Oil Filter Clog” message appeared on the electronic centralized aircraft monitoring (ECAM) display about 10-15 minutes prior to the smoke filling the cabin; however, there is currently no pilot action associated with this message. In-service reports have shown that the “oil filter clog” message is frequently a symptom of engine bearing damage that could potentially lead to smoke entering the cabin through the air conditioning pack on the affected side. This condition, if not corrected, could reduce the flightcrew's ability to see and result in the flightcrew having difficulty in controlling the airplane while applying smoke removal procedures.
Model A321-131 series airplanes are equipped with the same IAE V2500-A5 series engines as those on the affected Model A319 series airplanes. Therefore, those Model A321-131 series airplanes may be subject to the unsafe condition identified on the affected Model A319 series airplanes.
We have previously issued AD 2003-10-14, amendment 39-13159 (68 FR 28119, May 23, 2003), applicable to all Airbus Model A319-131, -132, and -133; A320-232 and -233; and A321-231 series airplanes; equipped with IAE V25()()-A5 series engines. That AD currently requires revising the Limitations section of the airplane flight manual (AFM) to incorporate new procedures to follow in the event of an oil filter clog message. The actions required by that AD are intended to require the flightcrew to follow the procedures necessary to prevent smoke caused by an oil filter clog from entering the cabin during flight.
Since issuance of that AD, we have determined that Model A321-131 series airplanes equipped with IAE V25()()-A5 series were inadvertently omitted from the applicability of AD 2003-10-14. Therefore, this AD is being issued to address the identified unsafe condition on those airplanes.
This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design that may be registered in the United States at some time in the future, this AD is being issued to require the flightcrew to follow the procedures necessary to prevent smoke caused by an oil filter clog from entering the cabin during flight. This AD requires revising the Limitations section of the AFM to incorporate new procedures to follow in the event of an oil filter clog message.
We consider this AD interim action. If final action is later identified, we may consider further rulemaking then.
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, only the office authorized to approve AMOCs is identified in each individual AD.
None of the airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.
Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 1 work hour to accomplish the required AFM revision, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AD would be $60 per airplane.
Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the
Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
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 AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
To require the flightcrew to follow the procedures necessary to prevent smoke caused by an oil filter clog from entering the cabin during flight, accomplish the following:
(a) Within 7 days after the effective date of this AD, revise the Limitations section of the Airbus A321 AFM to include the following statements (this may be accomplished by inserting a copy of this AD into the AFM):
The ECAM does not require any pilot action in case of ENG 1(2) OIL FILTER CLOG ECAM warning. However, to minimize the risk of air conditioning system contamination by oil fumes, systematically apply the following procedure in any event of oil filter clog:
In-service reports have shown that this ECAM warning is frequently a symptom of engine bearing damage that could potentially lead to smoke entering the cabin via the pack of the affected side. This procedure aims to avoid air conditioning smoke, while continuing normal engine operation.
If, after the oil filter clog, the engine experiences or has already experienced a surge/stall possibly accompanied by a yaw-effect on the aircraft:
(b) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, is authorized to approve alternative methods of compliance for this AD.
(c) This amendment becomes effective on July 8, 2003.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD), applicable to certain EMBRAER Model EMB-120 series airplanes, that requires either revising the Airplane Flight Manual (AFM) to require a maximum operating altitude of 25,000 feet; or modifying the flight attendant's seat or reworking the oxygen bottle kit, as applicable, and revising the AFM to require a maximum operating altitude of 30,000 feet. This action is necessary to prevent the unavailability of supplemental oxygen to the flight attendant in the event of cabin decompression, which could result in loss of consciousness of the flight attendant. This action is intended to address the identified unsafe condition.
Effective July 28, 2003.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 28, 2003.
The service information referenced in this AD may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. This information may be examined at the Federal Aviation
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-120 series airplanes was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received.
The commenter requests that the proposed AD be revised to allow for flight above 30,000 feet if a first-row, right-hand aisle seat is reserved for the flight attendant. By way of justification, the commenter explains that this altitude is the cruise phase of the flight, when the flight attendant is usually serving passengers in the cabin. In the event of rapid depressurization of the airplane, the attendant could use one of the extra masks in the cabin. The flight attendant, although unable to reach the interphone from the first-row, right-hand aisle seat to communicate with the flight crew or passengers, could unlatch the seatbelt and move to the flight attendant station to operate the interphone.
The FAA does not concur with the request. During a rapid depressurization of the airplane, the flightcrew would conduct an emergency descent to lower altitudes. The appropriate procedures for the flight attendant during an emergency descent include returning to the flight attendant station, buckling the seatbelt, and establishing communication with the flightcrew or passengers. Therefore, during an emergency descent, seatbelt removal by a flight attendant seated in the first-row, right-hand aisle seat would be inappropriate, and the interphone would not be readily accessible. No change to the final rule is necessary.
After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
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. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.
The FAA estimates that 150 airplanes of U.S. registry will be affected by this AD.
If required, the AFM revision (maximum operating altitude of 25,000 feet) would take approximately 1 work hour per airplane, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AFM revision is estimated to be $60 per airplane.
If required, the modification or rework would take approximately 8 work hours per airplane, at an average labor rate of $60 per work hour. Required parts would cost approximately $3,960 per airplane. Based on these figures, the cost impact of the modification/rework is estimated to be $4,440 per airplane.
If required, the AFM revision (maximum operating altitude of 30,000 feet) would take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AFM revision is estimated to be $60 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area
To prevent the unavailability of supplemental oxygen to the flight attendant in the event of cabin decompression, which could result in loss of consciousness of the flight attendant, accomplish the following:
(a) Within 100 flight hours after the effective date of this AD, accomplish either paragraph (a)(1) or (a)(2) of this AD.
(1) Revise the Limitations Section of EMBRAER EMB120 Brasilia Airplane Flight Manual AFM-120/794 to include the following information, and operate the airplane per those limitations (this may be accomplished by inserting a copy of this AD into the AFM):
“Maximum operating altitude is limited to 25,000 feet.”
(2) Accomplish either paragraph (a)(2)(i) or (a)(2)(ii) of this AD, as applicable.
(i) For airplanes listed in paragraph 1.1.1., Part I, of the effectivity of EMBRAER Service Bulletin 120-25-0264, Change 01, dated July 22, 2002: Replace the shock absorber of the flight attendant's seat with a new part, and install an oxygen bottle kit under the seat (including installing placards); per paragraph 2.1 of the Accomplishment Instructions of that service bulletin.
(ii) For airplanes listed in paragraph 1.1.2., Part II, of the effectivity of EMBRAER Service Bulletin 120-25-0264, Change 01, dated July 22, 2002: Rework the oxygen bottle kit (including installing placards and attaching the oxygen mask hose to the oxygen bottle), per paragraph 2.2 of the Accomplishment Instructions of that service bulletin.
(b) Before further flight following the accomplishment of paragraph (a)(2) of this AD: Revise the Limitations Section of EMBRAER EMB120 Brasilia Airplane Flight Manual AFM-120/794 to include the following information, and operate the airplane per those limitations (this may be accomplished by inserting a copy of this AD into the AFM):
“Maximum operating altitude is limited to 30,000 feet.”
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(e) Unless otherwise specified in this AD, the actions shall be done in accordance with EMBRAER Service Bulletin 120-25-0264, Change 01, dated July 22, 2002. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
The subject of this AD is addressed in Brazilian airworthiness directive 2001-11-03 R1, dated September 13, 2002.
(f) This amendment becomes effective on July 28, 2003.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is revising its regulations concerning FDA's procedures for determining which component within FDA will have primary jurisdiction for the premarket review and regulation of a product composed of a combination of a drug, device, or biological product; or any drug, device, or biological product where the agency component with jurisdiction is unclear or in dispute. FDA is taking this action to implement the requirement of the Medical Device User Fee and Modernization Act of 2002 (MDUFMA) (Public Law 107-250) that FDA establish an office within FDA's Office of the Commissioner to ensure the prompt assignment of combination products to agency centers.
This rule is effective June 23, 2003.
Mark D. Kramer, Office of Combination Products (HFG-3), Food and Drug Administration, 15800 Crabbs Branch Way, suite 200, Rockville, MD 20855, 301-827-9229, e-mail:
A combination product is a product containing a combination of a drug, a device, or a biological product. The Safe Medical Devices Act of 1990 (Public Law 101-629) added new section 503(g) (21 U.S.C. 353(g)) to the Federal Food, Drug, and Cosmetic Act (the act)), relating to combination products. This section requires that the agency assign a component of FDA to have primary jurisdiction for the premarket review and regulation of a product that constitutes a combination of a drug, device, or biological product. It further requires FDA to make this assignment based upon a determination of the primary mode of action of the combination product. In the
MDUFMA amended section 503(g) of the act to require that FDA establish within its Office of the Commissioner an office to ensure: (1) The prompt assignment of combination products to agency centers, (2) the timely and effective premarket review of such products, and (3) consistent and appropriate postmarket regulation of like products subject to the same statutory requirements to the extent permitted by law. New section 503(g)(4) further states that, in carrying out its duties, this office shall:
• Promptly assign an agency center with primary jurisdiction for the premarket review of the product. The office, in determining whether a product
• Ensure timely and effective premarket reviews by overseeing the timeliness of and coordinating reviews involving more than one agency center;
• Ensure the consistency and appropriateness of postmarket regulation of like products subject to the same statutory requirements to the extent permitted by law;
• Address any dispute regarding the timeliness of the premarket review of a combination product, unless the dispute is clearly premature.
New section 503(g)(4)(F) of the act also directs the Secretary of Health and Human Services, through the new office, to review each agreement, guidance, or practice specific to the assignment of combination products to agency centers and to report annually to the appropriate committees of Congress on the activities and impact of the office.
On December 24, 2002, FDA established the Office of Combination Products to carry out the responsibilities under section 503(g) of the act and to perform other activities related to combination products. More information about the office is available at
To enhance the efficiency of agency operations, the Office of Combination Products is assuming responsibility from the Office of the Ombudsman for designating the component of FDA with primary jurisdiction for the premarket review and regulation of any product requiring a jurisdictional designation under this part. Such decisions may involve determinations of: (1) The regulatory identity of a product as a drug, device, biologic, or combination product; (2) the agency component that will have jurisdiction for any drug, device, or biological product where such jurisdiction is unclear or in dispute; and (3) the primary mode of action and assignment of a lead center for a combination product. The act requires the office, in determining whether a product is appropriately classified as a combination product, to consult with the component within the Office of the Commissioner that is responsible for such determinations. Since the Office of the Commissioner has now assigned to the Office of Combination Products the responsibility for such determinations, no separate consultation is necessary.
FDA is making the following changes to part 3 to establish rules of agency organization, procedure, and practice, that are consistent with new section 503(g)(4) of the act and are otherwise clear and appropriate:
(1) FDA is amending § 3.1 to cite MDUFMA as an additional authority.
(2) FDA is amending § 3.2 to modify the definition of “agency component” to be consistent with definition of “agency center” provided in MDUFMA.
(3) FDA is amending § 3.6 to identify the Office of Combination Products as the agency's product jurisdiction officer.
(4) FDA is amending § 3.7 to provide information related to the submission of electronic copies of requests for designation concurrent with the submission of the official request.
(5) FDA is amending § 3.9 to reflect that a nonconsensual change in the designated agency component requires the concurrence of the Principal Associate Commissioner. This change reflects the current organizational structure of FDA's Office of the Commissioner.
This rule provides an administrative mechanism to determine which agency component has responsibility for the review of an application. The agency determined that this is “a matter relating to agency management” and a rule of “agency organization, procedure, or practice” and, as such, is exempt from notice and comment under the Administrative Procedure Act (5 U.S.C. 553(a)(2) and (b)(A)). FDA also finds good cause under 5 U.S.C. 553(b)(B) and § 10.40(e) (21 CFR 10.40(e)) to forego notice and comment as it would be unnecessary and contrary to the public interest to delay implementation of this rule. As provided under FDA's administrative practices and procedures regulation (§ 10.40(e)), FDA is providing an opportunity for public comment on whether the regulation should be modified or revoked.
The agency has determined under 21 CFR 25.30(h) that this rule 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.
Because this is a rule of agency organization, procedure, practice, and management that is issued as a final rule, and not as a proposed rule, the requirements of Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) do not apply. However, FDA has examined the impacts of this final rule under those provisions. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety and other advantages; distributive impacts; and equity). The agency believes that this final rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. When applicable, the Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. This rule is merely procedural in nature and imposes no new burdens on small entities. Indeed, the purpose of the procedures embodied in this rule is to expedite the review of combination products, and this final rule will not have a significant economic impact on a substantial number of small entities. Finally, a summary statement or analysis under section 202(a) of the Unfunded Mandates Reform Act of 1995 is required only for nonprocedural rules that impose costs of $110 million or more on either the private sector or state, local, and tribal governments in the aggregate. This rule imposes no such costs.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that this final rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
This final rule contains no collections of information. Therefore, clearance by
Administrative practice and procedure, Biologics, Drugs, Medical devices.
1. The authority citation for 21 CFR part 3 continues to read as follows:
21 U.S.C. 321, 351, 352, 353, 355, 360, 360c-360f, 360h-360j, 360gg-360ss, 371(a), 379(e), 381, 394; 42 U.S.C. 216, 262.
* * * The first is to implement section 503(g) of the act, as added by section 16 of the Safe Medical Devices Act of 1990 (Public Law 101-629) and amended by section 204 of the Medical Device User Fee and Modernization Act of 2002 (Public Law 107-250), by specifying how FDA will determine the organizational component within FDA designated to have primary jurisdiction for the premarket review and regulation of products that are comprised of any combination of a drug and a device; a device and a biological; a biological and a drug; or a drug, a device and a biological.* * *
(b)
The Office of Combination Products (HFG-3), Food and Drug Administration, 15800 Crabbs Branch Way, suite 200, Rockville, MD 20855, 301-827-9229, e-mail:
(d) * * *Concurrent submissions of electronic copies of Requests for Designation may be addressed to
(b) * * * A nonconsensual change in the designated agency component requires the concurrence of the Principal Associate Commissioner.
Mine Safety and Health Administration (MSHA), Labor.
Final rule.
MSHA is amending the existing regulation by allowing the optional use of alternative locking devices to secure battery plugs to receptacles. The final rule eliminates the need to file petitions for modification to use this alternative means of securing battery plugs to receptacles.
MSHA initially proposed using direct final rulemaking for this action because the Agency expected that there would be no significant adverse comments on the rule. However, MSHA received four comments, one of which was considered a significant adverse comment, resulting in MSHA withdrawing the direct final rule and proceeding with rulemaking based on the concurrently published proposed rule on this subject.
This regulation is effective August 22, 2003.
Marvin W. Nichols, Jr., Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, Room 2352, Arlington, Virginia 22209-3939. Mr. Nichols can be reached at
Currently, under § 18.41 of Title 30, Code of Federal Regulations, MSHA sets forth design and construction requirements for plug and receptacle-type connectors used with permissible electric equipment approved under part 18. These technical requirements were last revised in March of 1968, which represented the latest advances in battery connector technology considered appropriate for use on mining equipment at that time.
Over the past thirty years, there have been technological improvements to the methods used for securing battery plugs to receptacles. Since the provisions of existing § 18.41(f) do not reflect the latest state-of-the-art technology, mine operators must file petitions for modification under section 101(c) of the Mine Act to take advantage of the technological advancements. Since 1980, there have been approximately 300 petitions filed and granted under section 101(c) requesting modification to 30 CFR 75.503 (Permissible electric face equipment; maintenance) and 18.41(f)(Plug and receptacle-type connectors) to allow the use of alternate locking devices. The means of securing battery connectors permitted under this final rule allow for the use of padlocks and other equally effective mechanical devices that preclude the inadvertent separation of the battery plug from the receptacle. The alternate locking devices permitted under this final rule also provide for at least the same measure of protection, as set forth in the existing regulation, and do not reduce protection to miners as required by section 101(a)(9) of the Mine Act.
In some operations, mine operators encountered difficulties with padlocks in both normal and emergency situations. The use of padlocks requires the maintenance of keys by authorized personnel. Due to the nature of mining operations, padlocks may become filled with mining debris, rendering them difficult or impossible to open with a key. Padlock keys can be misplaced, broken, or bent and may become unusable. This can go unnoticed by the operator until an emergency occurs, when the key may be unavailable or unusable. The removal of a padlock to
In 1987, to address the problems encountered with the use of padlocks, MSHA issued a policy allowing use of an alternative to padlocks. This policy permits the use of a device that is captive and requires a special tool (
The requirement for the warning tag, along with part 48 task training requirements, provide for appropriate hazard recognition when using alternative locking devices in lieu of a padlock. Existing § 48.7 (Training of miners assigned to a task in which they have had no previous experience; minimum courses of instruction), requires that miners be instructed in safe operating procedures applicable to new or modified machines or equipment to be installed or put into operation in the mine, which require new or different operating procedures. A padlock not only serves as a mechanical means to prevent inadvertent separation of the plug from the receptacle; it also precludes the disconnection of the battery plug from the receptacle by unauthorized persons, unfamiliar with the potential hazards associated with disconnecting the plug from the receptacle under load. The warning tag serves as a deterrent, like the padlock, for separation of the plug and receptacle under load. For the purposes of this final rule, a warning tag can be either a metal plate or a label with permanent lettering on a wear-resistant material. It must be prominently displayed on or attached to an exterior surface of the battery connector housing.
Since 1980, mine operators have also been granted permission, through the petition for modification process under section 101(c) of the Mine Act, to use a spring-loaded locking device. MSHA has determined that spring-loaded locking devices provide at least the same measure of protection as padlocks and captive locking devices. These devices maintain constant pressure on the threaded ring or equivalent mechanical fastening to prevent the plug from accidentally disengaging from the receptacle. The use of this method also requires that a warning tag be attached near the locking device to remind the user not to disengage the plug from the receptacle under load. MSHA is unaware of any adverse incidents involving alternate locking devices.
By issuing this final rule, MSHA is responding to the requirements of the Regulatory Flexibility Act and Executive Order 12866 that agencies review their regulations to determine their effectiveness and to implement any changes indicated by the review that will make the regulation more flexible and efficient for stakeholders and small businesses while maintaining needed protections for workers. The final rule will maintain the protection afforded by the existing standard.
Section 18.41 addresses connectors used on battery and non battery-powered machines. Section 18.41(f) specifies requirements for plug and receptacle-type connectors used on permissible mobile battery-powered machines employed in underground gassy mines. This final rule modifies paragraph (f) of 30 CFR 18.41 by adding two new provisions allowing the use of devices that provide at least the same protection as that afforded by the existing standards, and does not reduce safety. The Agency recognizes that battery-powered machine designs differ from conventional machine designs employing trailing cables. The energy to battery-powered equipment is carried on-board the machine with rechargeable battery assemblies, rather than being transmitted via a trailing cable from a section power center. Because of the inherent design limitations of battery-powered machines, there is no practical way to automatically remove all electrical power from battery-powered machines. Machines powered by trailing cables have circuit-interrupting devices that can be used to de-energize them, whereas most battery-powered machines rely on a plug and receptacle for de-energization. The proper procedure for removing power from a battery-powered machine is to first open the main machine disconnect device and then to disengage the plug from the receptacle. This effectively isolates the battery power from the machine.
Another acceptable alternative to padlocked connectors, permitted under existing § 18.41(a), is the use of connectors in which the mating or separation of the male and female electrodes occurs within an explosion-proof enclosure and an electrical interlock circuit is provided to cause automatic interruption of the circuit before the male and female electrodes are separated. These types of connectors do not require a warning tag or a locking ring held captive by an external device.
Public comments have been received under the proposed rule and resulted in a change to the rule language. The change is made in §§ 18.41(f)(2) and (f)(3). An explicit statement for use on warning tags is provided in the two paragraphs. However, equivalent statements comparable to “DO NOT DISENGAGE UNDER LOAD,” which indicates a hazard exists when disengaging plugs from receptacles, are allowed. Judgement of an alternate statement as to the equivalency in safety will be provided by the MSHA's Approval and Certification Center during the standard approval process of equipment.
30 CFR 18.41(f)(1) retains the existing provision that a plug padlocked to the receptacle is acceptable in lieu of an interlock provided the plug is held in place by a threaded ring or equivalent mechanical fastening in addition to the padlock. This paragraph also retains the provision that a connector within a padlocked enclosure is acceptable.
A padlock used on a battery plug and receptacle-type connector serves a dual purpose. It secures the threaded ring or equivalent mechanical fastening in place. A padlock is also a means to prevent the removal of the plug from the receptacle by unauthorized personnel. In this respect, only those persons having keys are considered authorized to remove the plug from the receptacle. No comments were received on § 18.41(f)(1). Therefore the final
30 CFR 18.41(f)(2) is a new provision that provides for an alternate method for securing the battery plug to the receptacle. The final rule specifies that a plug which is held in place by a threaded ring or equivalent mechanical fastening will be acceptable provided that the threaded ring is secured in place with a device that is captive. It also requires a special tool to disengage the device and allows for the separation of the connector. It further requires a warning tag that states: “DO NOT DISENGAGE UNDER LOAD,” or an equivalent statement.
One commenter questioned the requirement for using a “special tool” to separate the plug from the receptacle. The commenter questioned whether a special tool is necessary and whether an allen wrench would be considered a special tool.
Under the A&CC's 1987 policy that initially permitted the use of an alternate captive locking device in lieu of a padlock, it required that a special tool be used to ensure that the alternate device was locked in place. The requirement of a special tool also prevents the removal of the plug from the receptacle by unauthorized personnel. In order for a captive locking device to provide at least the same measure of protection as the padlock, it was determined that a special tool be required to remove the plug from the receptacle. An allen wrench has been determined by MSHA to be an acceptable special tool.
A commenter expressed concern about the requirement for a clearly visible warning tag that states “DO NOT DISENGAGE UNDER LOAD.” The commenter alleged that it may be difficult to maintain such tags. Another commenter indicated that the language should be modified to be “less prescriptive and more performance oriented.”
Warning tags are often used in association with safety related equipment. They are considered an acceptable means of mitigating potential hazards. It is MSHA's experience that, if good maintenance practices are followed, warning tags can be maintained with minimal difficulty.
In response to the commenter's concern about the specific warning tag language, MSHA has added language to §§ 18.41(f)(2) and 18.41(f)(3) to permit wording that is equivalent to “DO NOT DISENGAGE UNDER LOAD.” One example of equivalent wording that would be considered acceptable is “DO NOT DISCONNECT UNDER LOAD.”
A commenter stated that a warning tag should not be required on each connector on a machine that could have two connectors, but that one in the “vicinity of the battery connectors” should be required.
MSHA does not agree with the commenter. A warning tag is only effective if it is at the location where the potential hazard exists. If the warning tag is provided on the battery connector, it would be located in the field of vision of the miner attempting to disconnect the plug from the receptacle. This would not be the case if the warning tag was provided somewhere “in the vicinity” of the connector.
Another commenter stated that the final rule must “provide and maintain the same level of protection to miners as required by section 101(a)(9) of the Federal Mine Safety and Health Act of 1977.” No specific provisions of the final rule were addressed in this comment. MSHA evaluated both alternate locking devices allowed by this final rule and determined that, as stated previously, the alternate devices do not reduce the protection afforded by the existing standard.
30 CFR 18.41(f)(3) is a new provision that provides for another alternate method for securing the battery plug to the receptacle. The rule states that a plug held in place by a spring-loaded or other locking device that maintains constant pressure against a threaded ring or equivalent mechanical fastening is acceptable provided that it secures the plug and prevents accidental separation. It further requires a warning tag that states: “DO NOT DISENGAGE UNDER LOAD,” or an equivalent statement.
This section allows for the use of other locking devices that may become available in the future. The Agency has included this language to allow for acceptance of equally effective devices. Devices not explicitly defined in this rulemaking must be equally effective and provide at least the same measure of protection as those incorporated under this section. Innovative battery connector designs not covered by the provisions of § 18.41(f) will be evaluated for compliance under the provisions of existing § 18.20(b).
A commenter recommended a wording change to the final rule that would allow for future advancements in connector locking device technology. MSHA already had the necessary language in the proposed rule to address the commenter's concern. Section 18.41(f)(3) allows for “other locking devices” that are equally effective. The A&CC investigators will determine equal effectiveness during evaluations of new designs for alternate locking devices.
Neither of the alternatives in §§ 18.41(f)(2) and (f)(3) imposes additional requirements to the 1987 MSHA policy or the petitions for modification granted since 1990.
A commenter questioned the need for warning tags stating that they have battery-powered machines under several previously granted petitions for modification that did not require such warning tags. Under petitions granted prior to 1990, the conditions on the Proposed Decision and Order (PDO) emphasized training on the hazards associated with disconnecting the plug from the receptacle under load. This final rule is based on petitions granted since 1990 which all require a warning tag specifically stating “Do Not Disengage Under Load.”
On the effective date of the direct final rule, all existing petitions for modification for alternate locking devices for plug and receptacle-type connectors on mobile battery-powered machines will be superseded by this rule.
All existing mobile battery-powered machines must be in compliance with this final rule as of the effective date of the rule. All machines incorporating alternate locking devices that were accepted under petitions for modification will be considered in compliance provided that a warning tag is attached to the connector and meets the requirements of this rule. This is a change from the proposed rule (68 FR 2941) which would have allowed all equipment modified by previously granted petitions for modification to be in compliance with this rule. This change was precipitated when a commenter provided MSHA with several previously granted petitions for modification that allowed alternate locking devices but did not require warning tags. MSHA anticipates that this change will affect approximately 5% of the total granted petitions. All of these affected petitions were granted before 1990. MSHA has determined that warning tags are an essential safety requirement that must be provided when alternate locking devices for plug and receptacle-type connectors on mobile battery-powered machines are used.
MSHA is amending 30 CFR 18.41(f), concerning plug and receptacle-type connectors for mobile battery-powered equipment. The final rule revises and updates the existing regulation by allowing the use of alternate locking devices to secure battery plugs to receptacles. Two alternate locking devices are addressed in this final rule:
(1) Captive locking devices requiring use of a special tool. These devices have been accepted since 1987 under an MSHA policy allowing their usage.
(2) Spring-loaded or other locking devices. Spring-loaded locking devices have been accepted by MSHA under the 101(c) Petition for Modification process.
The final rule eliminates the need to file petitions for modification (PFM) to use spring-loaded locking devices to secure battery plugs to receptacles. It also codifies the 1987 MSHA policy of allowing acceptance of captive locking devices.
Executive Order (E.O.) 12866 requires that regulatory agencies assess both the costs and benefits of intended regulations. MSHA has fulfilled this requirement for this final rule, and based upon its economic analysis, has determined that the final rule will not have an annual effect of $100 million or more on the economy. Therefore, it will not be an economically significant regulatory action pursuant to section 3(f)(1) of E.O. 12866.
The final rule eliminates the need for mine operators of underground gassy mines, who choose to use plug and receptacle-type connectors for mobile battery-powered equipment, to file PFMs, and thereby will generate cost savings.
From 1999 to 2001, 66 petitions were filed and granted to modify the application of 30 CFR 75.503 (permissible electric face equipment; maintenance) and 30 CFR 18.41(f) (plug and receptacle-type connectors). From January 2002 through November 20, 2002, 23 petitions have been filed, for a total of 89 filed petitions from 1999 to 2002. On average, 22 petitions were filed during each of the past 4 years.
The final rule applies to all underground gassy mines. All underground coal mines are considered gassy mines and are affected by this final rule. This final rule also applies to gassy metal and nonmetal (M/NM) mines. Currently there are no battery-powered machines of the type covered by the final rule in any of the gassy M/NM mines. Since these devices have not been used in M/NM mines, for purposes of this economic analysis, MSHA assumes that M/NM mines will not be affected by this rule. MSHA estimates that, on average, 22 underground coal mines per year will be affected by this rule.
MSHA has qualitatively determined that the final rule, which will permit the use of alternate locking devices on mobile battery-powered equipment instead of using padlocks, will yield safety benefits relative to the existing rule, which does not permit use of alternate locking devices on mobile battery-powered equipment. The use of alternate locking devices in lieu of padlocks on mobile battery-powered equipment will eliminate the problems associated with difficult removal of padlocks.
Cost savings from the final rule will accrue to underground coal mines that choose to use spring-loaded locking devices on mobile battery-powered equipment since they will no longer have to file a PFM.
Gross cost savings from the final rule are estimated to be $9,747 per year.
The cost savings are based upon the elimination of the filing of an average of 22 petitions per year. The companies filing the petitions may own more than one mine. However, cost savings associated with elimination of the petition process are assumed not to depend on the number of mines at which the petitioned modification will be implemented. It is projected that of the 22 companies, 19 will employ 20 to 500 workers, and 3 will employ fewer than 20 workers. For the 3 companies that employ fewer than 20 workers these cost savings will be $1,329. For the remaining 19 companies that employ 20 to 500 workers the cost savings will be $8,418.
The cost savings of $1,329 for companies employing fewer than 20 workers are derived in the following manner. On average, a mine supervisor, earning $54.92 per hour, takes 8 hours to prepare a petition (3 petitions × 8 hours × $54.92 per hour = $1,318). In addition, a clerical worker, earning $19.58 per hour, takes 0.1 hours to copy and mail a petition (3 petitions × 0.1 hours × $19.58 per hour = $6). Furthermore, MSHA estimates that, on average, each petition is 5 pages long, photocopying costs are $0.15 per page, and postage is $1 [3 petitions × ((5 pages × $0.15 per page) + $1) = $5].
The cost savings of $8,418 for companies that employ 20 to 500 workers are derived in the following manner. On average, a mine supervisor, earning $54.92 per hour, takes 8 hours to prepare a petition (19 petitions × 8 hours × $54.92 per hour = $8,348). In addition, a clerical worker, earning $19.58 per hour, takes 0.1 hours to copy and mail a petition (19 petitions × 0.1 hours × $19.58 per hour = $37). Furthermore, MSHA estimates that, on average, each petition is 5 pages long, photocopying costs are $0.15 per page, and postage is $1 [19 petitions × ((5 pages × $0.15 per page) + $1) = $33].
As described below, the gross cost savings every year of $9,747 will be slightly offset by additional costs of $808 in the first year the rule takes effect. The costs are influenced by the number of mines per petition that adopt the modification. MSHA assumes that 1.4 mines per petition adopt the modification. MSHA estimates that 18 petitioners, or 25 mines (18 petitions × 1.4 mines/petition), that were approved to have alternate locking devices through the petition process but were not required to have warning tags would have to install these tags, costing $8 each, during the first year. The agency assumes that there are, on average, 1.4 mines per petition, two machines per mine, and two warning tags per machine (there are typically two connectors per machine with each requiring a warning tag). The agency estimates the total cost for warning tags would be $808 [(18 petitions × 1.4 mines/petition × 2 machines/mine × 2 warning tags/machine) or 101 tags @ $8 each]. The agency assumes that the cost for warning tags will be borne by 3 mines with fewer than 20 employees and by 22 mines with 20 to 500 employees. Thus, the cost of installing tags will be $112 for mines with fewer than 20 employees and $696 for mines with 20 to 500 employees.
Net benefits for the first year will be $8,939. Assuming that the first year cost for warning tags of $808 is annualized over the life of the alternate locking devices, the annualized costs for the warning tags will be $57 ($808 × .07, where .07 is the annualization factor for an investment with a 7 percent discount rate and an infinite life). Therefore, the yearly net benefits will be $9,690 ($9,747−$57).
There are no substantive changes to this final rule that apply to any mine that chooses not to use alternate locking devices on mobile battery-powered equipment. Thus, these mines will not incur costs or generate cost savings as a result of the final rule.
Pursuant to the Regulatory Flexibility Act (RFA) of 1980 as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the final rule on small businesses. Further, MSHA has made a determination with respect to whether or not the Agency can certify that the final rule will not have a significant economic impact on a substantial number of small entities that are covered by these rulemakings. Under SBREFA amendments to the RFA, MSHA must include in the rule a factual basis for this certification. If the final rule will have a significant economic impact on a substantial number of small entities, then the Agency must develop an initial regulatory flexibility analysis.
Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the SBA definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the
The SBA defines a small entity in the mining industry as an establishment with 500 or fewer employees (13 CFR 121.201). All of the mines affected by this rulemaking fall into this category and hence can be viewed as sharing the special regulatory concerns which the RFA was designed to address.
Traditionally, the Agency has also looked at the impacts of its rules on a subset of mines with 500 or fewer employees—those with fewer than 20 employees, which the mining community refers to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also, among other things, in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, their costs of complying with MSHA rules and the impact of MSHA rules on them will also tend to be different. It is for this reason that “small mines,” as traditionally defined by the mining community, are of special concern to MSHA.
This analysis complies with the legal requirements of the RFA for an analysis of the impacts on “small entities” while continuing MSHA's traditional look at “small mines.” MSHA concludes that it can certify that the final rule will not have a significant economic impact on a substantial number of small entities that are covered by this rulemaking. The Agency has determined that this is the case both for mines covered by this rulemaking with fewer than 20 employees and for mines covered by this rulemaking with 500 or fewer employees.
The Agency's analysis of impacts on “small entities” begins with a “screening” analysis. The screening compares the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for those small entities. When estimated compliance costs are less than one percent of the estimated revenues, or they are negative (that is, they provide a cost savings), the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, it tends to indicate that further analysis may be warranted. Using either MSHA's or SBA's definition of a small mine, the final rule will result only in cost savings to affected mines. Therefore, the final rule will not have a significant economic impact on a substantial number of small entities using either MSHA's or SBA's definition of a small mine.
The final amendments to 30 CFR 18.41(f) will not introduce any new paperwork requirements that are subject to OMB approval under the Paperwork Reduction Act. In addition, the third-party disclosure requirements for 30 CFR 18.41(f)(2) and (3) are not considered a “collection of information” because the standard provides language for warning tags (
As a result of the final rule, the number of petitions for modification filed annually related to battery plugs will be reduced. Therefore, the final rule will result in reducing burden hours and costs in the ICR 1219-0065 paperwork package, which concerns the filing of petitions for modification.
The final rule will result in 178.2 burden hour savings annually and associated annual burden cost savings of $9,709 related to the elimination of 22 petitions annually for alternate locking devices to secure battery plugs to receptacles. Of this total, for the 3 mines that employ fewer than 20 workers, there will be 24.3 burden hour savings annually and associated annual burden cost savings of $1,324. For the 19 mines that employ 20 to 500 workers, there will be 153.9 burden hour savings annually and associated annual burden cost savings of $8,385.
The annual reduction of 24.3 burden hours and the $1,324 cost savings that will occur for the 3 mines that employ fewer than 20 workers are derived in the following manner. On average, a mine supervisor takes 8 hours to prepare a petition (3 petitions × 8 hours = 24 hours). In addition, on average, a clerical worker takes 0.1 hours, 6 minutes, to copy and mail a petition (3 petitions × 0.1 hours = 0.3 hours). The hourly wage rate for a mine supervisor is $54.92 ($54.92 × 24 burden hours = $1,318.10). The hourly wage rate for a clerical worker is $19.58 ($19.58 × 0.3 burden hours = $5.90).
The annual reduction of 153.9 burden hours and the $8,385 cost savings that will occur for the 19 mines that employ 20 to 500 workers are derived in the following manner. On average, a mine supervisor takes 8 hours to prepare a petition (19 petitions × 8 hours = 152 hours). In addition, on average, a clerical worker takes 0.1 hours, 6 minutes, to copy and mail a petition (19 petitions × 0.1 hours = 1.9 hours). The hourly wage rate for a mine supervisor is $54.92 ($54.92 × 152 burden hours = $8,347.84). The hourly wage rate for a clerical worker is $19.58 ($19.58 × 1.9 burden hours = $37.20).
For purposes of the Unfunded Mandates Reform Act of 1995, as well as E.O. 12875, the final rule will not include any Federal mandate that might result in increased expenditures by State, local, or tribal governments, or increased expenditures by the private
The final rule is not subject to Executive Order 12630 because it does not involve implementation of a policy with takings implications.
MSHA has reviewed Executive Order 12988 and determined that the final rule will not unduly burden the Federal court system. The Agency wrote the final rule to provide a clear legal standard for affected conduct and has reviewed it carefully to eliminate drafting errors and ambiguities.
In accordance with Executive Order 13045, MSHA has evaluated the environmental health and safety effects of the final rule on children and has determined that it will have no adverse effects on children.
MSHA has reviewed the final rule in accordance with Executive Order 13132 regarding federalism and has determined that it will not have federalism implications.
MSHA certifies that the final rule will not impose substantial direct compliance costs on Indian tribal governments.
In accordance with Executive Order 13211, MSHA has reviewed the final rule and has determined that it will have no adverse effect on the production or price of coal. Consequently, it will have no significant adverse effect on the supply, distribution, or use of energy, and no reasonable alternatives to this action are necessary.
In accordance with Executive Order 13272, MSHA has thoroughly reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. As discussed in section V in this preamble, MSHA has determined that the final rule will not have a significant economic impact on a substantial number of small entities.
Mine Safety and Health, Underground mining.
30 U.S.C. 957, 961.
(f) For a mobile battery-powered machine, a plug and receptacle-type connector will be acceptable in lieu of an interlock provided:
(1) The plug is padlocked to the receptacle and is held in place by a threaded ring or equivalent mechanical fastening in addition to a padlock. A connector within a padlocked enclosure will be acceptable; or,
(2) The plug is held in place by a threaded ring or equivalent mechanical fastening, in addition to the use of a device that is captive and requires a special tool to disengage and allow for the separation of the connector. All connectors using this means of compliance shall have a clearly visible warning tag that states: “DO NOT DISENGAGE UNDER LOAD,” or an equivalent statement; or,
(3) The plug is held in place by a spring-loaded or other locking device, that maintains constant pressure against a threaded ring or equivalent mechanical fastening, to secure the plug from accidental separation. All connectors using this means of compliance shall have a clearly visible warning tag that states: “DO NOT DISENGAGE UNDER LOAD,” or an equivalent statement.
Mine Safety and Health Administration (MSHA), Labor.
Final rule.
This final rule removes the application requirement and associated paperwork burden for approval of sanitary toilets in underground and surface coal mines. The final rule provides notice to miners, miners' representatives, mine operators, MSHA compliance specialists, and manufacturers of which sanitary toilets are approved without requiring applications for approval. The rule has no substantive effect on the sanitation standards. The types of approved toilets are drawn from the American National Standards Institute (ANSI)
This final rule is effective July 23, 2003.
Marvin W. Nichols, Director; Office of Standards, Regulations, and Variances, MSHA; Phone: 202-693-9440; FAX: 202-693-9441; E-mail:
The Office of Management and Budget's (OMB's) current approval for §§ 71.500 and 75.1712-6 under control number 1219-0101 expires on November 30, 2003. OMB approval was contingent upon MSHA initiating rulemaking “to update and simplify this standard with the goal of eliminating unnecessary requirements and reducing the unnecessary burdens.” In response to OMB concerns, MSHA published a direct final rule (68 FR 19347) and a companion proposed rule (68 FR 19477) on April 21, 2003 to eliminate the
As a result of comments received, MSHA has withdrawn the direct final rule (68 FR 19347) by a document publishing in the
A significant adverse comment is one that explains (1) why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach, or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, MSHA will consider whether it warrants a substantive response in a notice and comment process.
Most comments addressed sanitation issues that are outside the scope of this limited rule; however, MSHA has fully considered and responded below to two issues that warrant a substantive response.
Section 75.1712-6(c) of the direct final rule specifically prohibited use of combustion or incinerating toilets underground. Certain comments challenged this prohibition. These comments contend that electronic incinerating toilets can be safely installed underground in areas where MSHA allows non-permissible electrical equipment.
MSHA has fully considered this comment. Incineration, by definition, is disposal by burning. MSHA has never approved an application for this method of waste disposal in an underground coal mine. Although the ignition source is electric, and the toilets could be located in areas where non-permissible electric equipment may be allowed underground, incineration involves combustion of an organic compound and would introduce an ignition source.
The comments suggest that MSHA address the hazards of incinerator toilets underground in the following ways. The toilets should be located in “well rock-dusted” areas. Fire extinguishers should be provided. The toilets should be located in areas other than the return air course. The toilets should be inspected during pre-shift and on-shift exams. And finally, electrical breakers and ground fault monitoring systems should be required.
MSHA has fully considered and rejected these suggestions. Under the approval application process replaced by this rule, MSHA never imposed requirements concerning the location and examination of toilets, or made approval contingent upon use of supplemental equipment. Consequently, the final rule retains the prohibition against combustion and incinerating toilets in underground coal mines.
MSHA recognizes that further developments in waste-disposal technology could preclude the need for these supplemental requirements. Technological developments will be guided by the need to avoid the introduction of ignition sources underground. Technological advances in non-sewered waste disposal for underground coal mines should not be restricted by the broad categories of approved toilets in the final rule. Future technology can be addressed in subsequent rulemaking.
Comments opposed the elimination of the MSHA and MSHA and NIOSH approval processes for underground and surface coal mines, respectively. One of these comments stated that sanitary toilets approved by MSHA are “stamped” or “marked” as approved upon completion of the application process. Although certain mine operators and manufacturers may have chosen to affix such labels, MSHA has never imposed such a requirement for sanitary toilets nor provided such labels.
The approval criteria used by MSHA (underground) and MSHA and NIOSH (surface) remains the same under the final rule. Under the final rule, the mining community will have notice of the types of toilets which are permitted. This information will provide better protection by notifying miners, miners' representatives, MSHA compliance specialists, mine operators, and manufacturers of which types of toilets are approved and by referring directly to the ANSI standard from which the criteria were drawn. The final rule does not change any other sanitation standards. For these reasons, we have rejected these comments.
Other comments addressed sanitation issues unrelated to the toilet application approval process. The comments include discussions of the biological hazards of human feces, the Hazard Communication standard and Material Safety Data Sheets, labeling requirements, issuance of an Emergency Temporary Standard concerning sanitary toilets, and amendment of other sanitation standards not the subject of this rule.
None of these comments addressed the underlying premise or approach of the rule, or explained why eliminating the application requirement would be ineffective or unacceptable without a change. Consequently, these are not significant adverse comments and no changes to the final rule were considered based upon these comments.
The United States Department of the Interior, Mining Enforcement and Safety Administration (MESA), MSHA's predecessor, originally promulgated sanitation standards requiring approval of sanitary toilets under the Federal Coal Mine Health and Safety Act of 1969. MESA promulgated 30 CFR 75.1712-6 on November 20, 1970 (35 FR 17890) and 30 CFR 71.500 on March 28, 1972 (37 FR 6368). MSHA retained these regulations under the authority of the Federal Mine Safety and Health Act of 1977, which became effective on March 9, 1978. No substantive changes have been made to either provision since they were promulgated.
Under those standards, MSHA approved sanitary toilets for use in underground coal mines, and MSHA and the National Institute for Occupational Safety and Health (NIOSH) jointly approved sanitary toilets for use in surface coal mines. MSHA and NIOSH based their approval on criteria drawn from the American National Standard Institute's (ANSI's)
This final rule removes the application requirement while retaining the same criteria for the sanitary toilets permitted at coal mines. By stating which sanitary toilets meet the standard, the rule eliminates the need for manufacturers or mine operators to file an individual application for approval. Removing the application requirements has no substantive effect on the sanitation standards.
MSHA and NIOSH approval criteria are drawn from the American National Standard Institute's (ANSI's)
The following table contains excerpts from ANSI Z4.3-1987 (Reaffirmed 1995) for the types of sanitary toilets approved for use in coal mines. Sanitary toilets meeting these criteria are in compliance with the standard.
The following discussion explains the final rule's provisions.
Section 71.500 requires all surface coal mine operators to provide at least one approved sanitary toilet at a location convenient to each surface work site and one additional approved sanitary toilet for each 10 miners working at a location. Only those types of toilets listed in this section are approved. Sanitary toilets must have a toilet paper holder with an adequate supply of toilet paper and a toilet seat with a hinged lid, as is required in Section 3 of ANSI Z4.3-1987 (Reaffirmed 1995). Use of privies is prohibited.
Section 75.1712-6 requires all underground coal mine operators to provide and maintain one approved sanitary toilet in a dry location under protected roof within 500 feet of each working place where miners regularly work. Only those types of toilets listed in this section are approved. Sanitary toilets, except for unenclosed toilet facilities provided in accordance with § 75.1712-6(b), must have a toilet paper holder with an adequate supply of toilet paper, and a toilet seat with a hinged lid, as is required in Section 3 of ANSI Z4.3-1987 (Reaffirmed 1995). Privies and combustion or incinerating toilets are prohibited underground.
In accordance with Executive Order (E.O.) 12866, MSHA has analyzed the estimated costs and benefits associated with this final rule, and has included its Regulatory Economic Analysis (REA) in this preamble. This final rule includes no additional costs for the mining industry and eliminates the costs associated with filing an application for approval. This final rule is not an economically significant regulatory action under § 3(f)(1) of E.O. 12866.
In accordance with § 605 of the Regulatory Flexibility Act (RFA), MSHA certifies that this final rule does not have a significant economic impact on a substantial number of small entities. Under the Small Business Regulatory Enforcement Fairness Act (SBREFA) amendments to the RFA, the Agency must include the factual basis for this certification in the final rule. Accordingly, the Agency is publishing the factual basis for its regulatory flexibility certification statement in the
MSHA is issuing a final rule amending 30 CFR parts 71 and 75, concerning applications for approval of sanitary toilets. The Agency is amending its regulations to state which sanitary toilets meet the standard in order to eliminate the need for manufacturers or mine operators to file an application for approval and to avoid the associated cost and paperwork burden.
Manufacturers are the primary applicants for MSHA or MSHA/NIOSH approval of sanitary toilets. In the last four years, seven manufacturers of portable toilets filed applications to request approval of sanitary toilets. During this same period, only one mine operator filed an application to request approval of sanitary toilets. MSHA expects that the number and distribution of applications over the past four years is representative of future applications in the absence of this final rule. MSHA estimates that, on average, in the absence of the final rule, portable toilet manufacturers will file 1.75 applications each year, and mine operators will file 0.25 applications each year.
Traditionally, MSHA has considered a small mine to be one with fewer than 20 employees. Based on MSHA's definition, the mine operator is
Cost savings from this final rule accrue to sanitary toilet manufacturers and mine operators because they will no longer have to file an application for approval of sanitary toilets. Cost savings from this rule are estimated at $407 annually. The cost savings are based upon the elimination of the filing of an average of 1.75 applications per year by manufacturers and 0.25 applications per year by mine operators. For the manufacturers, cost savings will be $296 annually. For mine operators, cost savings will be $111 annually.
The annual cost savings of $296 for manufacturers is derived in the following manner. On average, a first-line supervisor at a toilet manufacturing facility, earning $20.82 per hour,
The annual cost savings of $111 for the mine operator is derived in the following manner. On average, a mine supervisor, earning $54.92 per hour, takes 8 hours to prepare an application (0.25 application × 8 hours × $54.92 per hour = $109.84). In addition, a clerical worker, earning $19.58 per hour, takes 0.1 hour to copy and mail an application (0.25 application × $0.1 hour × $19.58 per hour = $ 0.49). Furthermore, MSHA estimates that, on average, each application is two pages long, photocopying costs are $0.15 per page, and postage is $1 [0.25 application × ((2 pages × $0.15 per page) + $1) = $0.33].
This final rule eliminates the application process and provides simple compliance information directly to the public, thus eliminating the annual cost burden.
This final rule contains no additional information collections subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. Consequently, the information collection currently approved by OMB under control number 1219-0101 will no longer be necessary and will be withdrawn.
This final rule will result in 16 annual burden hour savings and associated annual burden cost savings of $404 related to elimination of 2 applications annually for sanitary toilets. Of this total, for the 1.75 portable toilet manufacturers, there will be 14 burden hours savings annually and associated annual burden costs savings of $294. For the 0.25 mine operators, there will be 2 burden hours savings annually and associated annual burden cost savings of $110.
The annual reduction of 14 burden hours and the $294 annual burden costs savings for the 1.75 portable sanitary toilet manufacturers are derived in the following manner. On average, a first-line supervisor at a toilet manufacturing facility, takes 8 hours to prepare an application (1.75 applications × 8 hours = 14 hours). In addition, a clerical worker takes 0.1 hour (or 6 minutes) to copy and mail an application (1.75 applications × 0.1 hour = 0.18 hours). The hourly wage rate for a first-line supervisor at a portable toilet manufacturing facility is $20.82 ($20.82 × 14 burden hours = $291.48). The hourly wage rate for a clerical worker (billing and posting clerks) is $12.66 ($12.66 × 0.18 burden hours = $2.28).
The annual reduction of 2 burden hours and the $110 annual burden costs savings for the 0.25 mines are derived in the following manner. On average, a mine supervisor takes 8 hours to prepare an application (0.25 applications × 8 hours = 2 hours). In addition, a clerical worker takes 0.1 hour (or 6 minutes) to copy and mail an application (0.25 applications × 0.1 hour = 0.03 hour). The hourly wage rate for a mine supervisor is $54.92 ($54.92 × 2 hours = $109.84). The hourly wage rate for a clerical worker is $19.58 ($19.58 × 0.03 hours = $0.58).
This final rule removes this burden by eliminating the application process and providing information directly to the public.
The National Environmental Policy Act (NEPA) (42 U.S.C. 4321
We have determined, for purposes of § 202 of the Unfunded Mandates Reform Act of 1995, that this final rule does not include any Federal mandate that may result in increased expenditures by state, local, or tribal governments in the aggregate of more than $100 million, or increased expenditures by the private sector of more than $100 million. We also determined, for purposes of § 203, that this final rule does not significantly or uniquely affect these entities.
This final rule is not subject to Executive Order 12630 because it does not involve implementation of a policy with “takings” implications.
In accordance with Executive Order 12988, we have determined that this final rule will not unduly burden the Federal court system. We wrote the final rule to provide a clear legal standard for affected conduct and have reviewed it to eliminate drafting errors and ambiguities.
In accordance with Executive Order 13045, we have evaluated the environmental health and safety effects of this final rule and have determined that it has no adverse effects on children.
In accordance with Executive Order 13132, we have reviewed this final rule and have determined that it does not have “federalism” implications.
In accordance with Executive Order 13175, we certify that this final rule does not impose substantial compliance costs on Indian tribal governments.
In accordance with Executive Order 13211, we have reviewed this final rule and have determined that it has no effect on the production or price of coal. Consequently, it has no significant adverse effect on the supply, distribution, or use of energy, and no reasonable alternatives to this action are necessary.
In accordance with Executive Order 13272, MSHA has thoroughly reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. As discussed previously in this preamble, MSHA has determined that the final rule does not have a significant economic impact on a substantial number of small entities.
Coal mines, Mine safety and health, Surface mining.
Coal mines, Mine safety and health, Underground mining.
30 U.S.C. 811, 951, 957.
(a) Each operator of a surface coal mine shall provide and install at least one sanitary toilet in a location convenient to each surface work site. A single sanitary toilet may serve two or more surface work sites in the same surface mine where the sanitary toilet is convenient to each such work site.
(b) Where 10 or more miners use such toilet facilities, sufficient toilets shall be furnished to provide approximately one sanitary toilet for each 10 miners.
(c) Sanitary toilets shall have an attached toilet seat with a hinged lid and a toilet paper holder together with an adequate supply of toilet tissue.
(d) Only flush or nonflush chemical or biological toilets, combustion or incinerating toilets, sealed bag toilets, and vault toilets meet the requirements of this section. Privies are prohibited.
30 U.S.C. 811.
(a) Except as provided in § 75.1712-7, each operator of an underground coal mine shall provide and maintain one sanitary toilet in a dry location under protected roof, within 500 feet of each working place in the mine where miners are regularly employed during the mining cycle. A single sanitary toilet may serve two or more working places in the same mine, if it is located within 500 feet of each such working place.
(b) Sanitary toilets shall have an attached toilet seat with a hinged lid and a toilet paper holder together with an adequate supply of toilet tissue, except that a toilet paper holder is not required for an unenclosed toilet facility.
(c) Only flush or nonflush chemical or biological toilets, sealed bag toilets, and vault toilets meet the requirements of this section. Privies and combustion or incinerating toilets are prohibited underground.
Environmental Protection Agency (EPA).
Final rule.
In compliance with the Paperwork Reduction Act (PRA), this technical amendment updates the table that lists the Office of Management and Budget (OMB) control numbers issued under the PRA for information collection requirements contained in EPA's regulations that are promulgated in title 40 of the Code of Federal Regulations (CFR). This technical amendment adds new approvals published in the
This rule is effective June 23, 2003.
Angela F. Hofmann, Director, Regulatory Coordination Staff, Office of Prevention, Pesticides and Toxic Substances (7101M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-0258; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to those persons who are concerned about OMB approval for information collections required by EPA regulations. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
This document updates the OMB control numbers listed in 40 CFR part 9 for various actions published in the
The information collection activities included in this document were previously subject to public notice and comment prior to OMB approval, as part of the OMB approval or rulemaking process. Therefore, EPA finds that publication of a proposed rule is unnecessary and would waste public tax dollars. This technical amendment is effective upon publication under the “good cause” clause found in section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) which allows a regulatory action to become final without prior notice and comment.
The following changes are being made to the table in § 9.1:
1.
2.
3.
EPA is removing several entries because the SNURs have been revoked. Specifically, in the
EPA is adding several entries to reflect the promulgation of the SNURs. Specifically, in the
This final rule implements technical amendments to 40 CFR part 9 to reflect changes to OMB approvals under the PRA. It does not otherwise impose or amend any requirements. As such, this action is not a “significant regulatory action” under Executive Order 12866, entitled
Because this action is not economically significant as defined by section 3(f) of Executive Order 12866, this action is not subject to Executive Order 13045, entitled
This rule does not contain any new information collection requirements that require review or approval by OMB pursuant to the PRA. The information collection activities associated with the OMB control numbers contained in this document have already been approved by OMB.
Since the Agency has made a “good cause” finding that this action is not subject to notice and comment requirements under the APA or any other statute (
In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled
This action does not involve any technical standards that require the Agency's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
This rule is not subject to Executive Order 13211, entitled
This action will not result in environmental justice related issues and does not therefore, require special consideration under Executive Order 12898, entitled
The Congressional Review Act (CRA), 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
7 U.S.C. 135
Environmental Protection Agency (EPA).
Final rule; correcting amendment.
This action corrects language in title 40 of the Code of Federal Regulations that was promulgated in final rules published in the
This rule is effective on June 23, 2003.
On August 6, 2002 (67 FR 50805) and May 7, 2003 (68 FR 24368), EPA published final rulemaking actions approving redesignation requests of the California State Implementation Plan (SIP). Both of these actions contained amendments to the PM-10 table found in 40 CFR part 81, § 81.305.
The August 6, 2002 action omitted the designation and classification dates and types for a portion of San Bernardino County. The May 7, 2003 action failed to note the designation of the Indian Wells Valley planning area as attainment with an effective date.
With this action, we are also correcting the list of counties in the San Joaquin Valley Planning Area (SJVPA). The table will now contain all counties within the SJVPA in alphabetical order. The entry will now read: Fresno, Kern,
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4), or require prior consultation with State officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994).
Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of this rule in today's
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
Coast Guard, DHS.
Direct final rule.
The Coast Guard is amending its procedures for the appeal of decisions or actions taken by the Director, Great Lakes Pilotage (G-MW-1). It has determined that the Assistant Commandant for Marine Safety, Security and Environmental Protection (G-M) should exercise this authority in place of the Director of Waterways Management (G-MW). This way, G-MW will be able to supervise more closely the work of G-MW-1 without also sitting in judgment on that work.
This rule is effective August 22, 2003, unless an adverse comment, or notice of intent to submit an adverse comment, reaches the Docket Management Facility on or before July 23, 2003. If an adverse comment, or notice of intent to submit an adverse comment reaches the Facility within the time allowed, we will withdraw this direct final rule and publish a timely notice of withdrawal in the
To make sure that your comments and related material do not enter the docket [USCG 2003-15137] more than once, please submit them by only one of the following means:
(1) By mail to the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(3) By fax to the Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management System at
The Facility maintains the public docket for this rulemaking. Comments and related material received from the public, as well as documents mentioned in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
If you have questions on this rule, call Mr. Tom Lawler, Coast Guard, telephone 202-267-1241. If you have questions on viewing or submitting material to the docket, call Ms. Dorothy Beard, Chief, Dockets, Department of Transportation, telephone 202-366-5149.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [USCG 2003-15137], indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, delivery, fax, or electronic means to the Docket Management Facility at the address under
We are publishing a direct final rule under 33 CFR 1.05-55, because we do not expect an adverse comment. Unless we receive an adverse comment or notice of intent to submit one within the comment period specified under
A comment counts as “adverse” if it explains why this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change.
A review of our rules indicates that our policy and practice of permitting a party to appeal any decision or action of the Director, Great Lakes Pilotage (G-MW-1), in accordance with the procedures at 46 CFR Part 1.03, should be changed from the Director, Waterways Management (G-MW) to the Assistant Commandant for Marine Safety, Security and Environmental Protection (G-M). This way, G-MW will be able to more closely supervise the work of G-MW-1 without also sitting in judgment on that work.
To codify this rule entails (1) amending 46 CFR 1.03-15 to take account of 46 U.S.C. Chapter 93 and 46 CFR Chapter III and identifying the particular Coast Guard office for appeals; and (2) amending 46 CFR 1.03-50 to describe the appellate process for decisions or actions of the Director, Great Lakes Pilotage (G-MW-1).
This change shifts the authority to review any decision or action of the Director, Great Lakes Pilotage (G-MW-1), from the Director of Waterways Management (G-MW) to the Assistant Commandant for Marine Safety, Security and Environmental Protection (G-M).
This direct final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS) [44 FR 11040 (February 26, l979)]. Because this rule is administrative in nature, we expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DHS is unnecessary.
Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we considered whether this direct final rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule does not affect any small entities.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. We will evaluate, under the criteria in “Regulatory Information”, any comments submitted in response to this finding.
This direct final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].
We have analyzed this direct final rule under Executive Order 13132 and have determined that it 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 regulatory actions not specifically required by law. 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 direct final rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This direct final rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This direct final rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation,
We have analyzed this direct final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This direct final 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The Coast Guard considered the environmental impact of this direct final rule and concluded that, under figure 2-1, paragraph (34)(a) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. It is “procedural” within the meaning of that paragraph. A Determination of Categorical Exclusion is available in the docket where indicated under
Administrative practice and procedure, Organization and functions (Government agencies), Reporting and recordkeeping requirements.
5 U.S.C. 552; 14 U.S.C. 633; 46 U.S.C. 7701; 46 U.S.C. Chapter 93; Public Law 107-296, 116 Stat. 2135; Department of Homeland Security Delegation No. 1070; § 1.01-35 also issued under the authority of 44 U.S.C. 3507.
(h) * * *
(5) Commandant (G-M) for appeals involving decisions or actions of the Director, Great Lakes Pilotage.
Any person directly affected by a decision or action of the Director, Great Lakes Pilotage, may make a formal appeal of that decision or action to Commandant (G-M), in accordance with the procedures contained in § 1.03-15 of this subpart.
Federal Communications Commission.
Petition for rulemaking; denial.
This document denies the Petition for Reconsideration filed by Warren C. Havens and Telesaurus Holdings GB, LLC, d/b/a LMS Wireless (“Havens”) of the Commission's
Neal McNeil, Office of Engineering and Technology, (202) 418-2408.
This is a summary of the Commission's
1. In the
2. On July 25, 2002, Havens filed a petition for reconsideration asking the Commission to defer the rule changes noted above in the 915 MHz band, pending resolution of two rulemaking petitions: One filed by Progeny LMS LLC (“the Progeny petition”), and one that Havens intended to file at a later date. The Progeny petition seeks rule changes for the Location and Monitoring Service (“LMS”) in the 915 MHz band. Specifically, Progeny seeks elimination of restrictions baring a single licensee from holding all LMS licenses in a given area, elimination of the restriction on real-time interconnection, elimination of the restriction on the types of services LMS licensees may offer, and the substitution of technical limits, as
3. We note that Havens has not shown sufficient cause for delaying the implementation date of the rules adopted in the
4. Finally, we decline to delay implementation of rule changes on the mere speculation that a Petition for Rulemaking may be filed that may affect use of the band. We note that the rule changes adopted in the
5. Pursuant to sections 4(i), 302, 303(e), 303(f), 303(g), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(e), 303(f), 303(g), 303(r), and 405, it is ordered that the Petition for Reconsideration filed by Warren C. Havens and Telesaurus GB, LLC is denied.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for species that comprise the shallow-water species fishery by vessels using trawl gear in the Gulf of Alaska (GOA), except for vessels fishing for pollock using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. This action is necessary because the second seasonal apportionment of the 2003 Pacific halibut bycatch allowance specified for the shallow-water species fishery in the GOA has been reached.
Effective 1200 hrs, Alaska local time (A.l.t.), June 19, 2003, through 1200 hrs, A.l.t., June 29, 2003.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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 Pacific halibut bycatch allowance for the GOA trawl shallow-water species fishery, which is defined at § 679.21(d)(3)(iii)(A), as established by the final 2003 harvest specifications for groundfish of the GOA (68 FR 9924, March 3, 2003) for the second season, the period April 1, 2003, through 1200 hrs, A.l.t., June 29, 2003, is 100 metric tons.
In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the second seasonal apportionment of the 2003 Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the shallow-water species fishery by vessels using trawl gear in the GOA, except for vessels fishing for pollock using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. The species and species groups that comprise the shallow-water species fishery are: pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species.”
Maximum retainable amounts may be found in the regulations at § 679.20(e) and (f).
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 second seasonal apportionment of the 2003 Pacific halibut bycatch allowance, and therefore reduce the public's ability to use and enjoy the fishery resource.
The AA for Fisheries, NOAA, 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 § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Opening.
The Administrator, Alaska Region, NMFS (Regional Administrator) is opening the Chiniak Gully Research Area in the Gulf of Alaska (GOA) to directed fishing for groundfish using trawl gear from August 1, 2003, through September 20, 2003. NMFS' Alaska Fisheries Science Center (AFSC) will not conduct research in this area in 2003. Therefore, the closure of the Chiniak Gully Research Area is not needed. This action is intended to relieve an unnecessary restriction on groundfish trawl fisheries and allow the optimum utilization of fishery resources, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Effective 1200 hrs, Alaska local time (A.l.t.), August 1, 2003, through 2400 hrs, A.l.t., September 20, 2003.
Copies of the environmental assessment/regulatory impact review/final regulatory flexibility analysis (EA/RIR/FRFA) for the regulatory amendment to permit an investigation of the effect of commercial fishing on Walleye pollock distribution and abundance in localized areas off the east side of Kodiak Island, may be obtained from Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.
Melanie Brown, Sustainable Fisheries Division, Alaska Region, 907-586-7228 or email at
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) and approved by the Secretary of Commerce under authority of the Magnuson-Stevens 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.
In April 2001, the Council endorsed a research project proposed by the AFSC in the Chiniak Gully off Kodiak Island to determine the effect of pollock fisheries on pollock school dynamics and the likelihood of localized depletions of Steller sea lion pollock prey. The research project requires the closure of the Chiniak Gully Research Area to trawl fishing from August 1 to no later than September 20 in the years 2001 through 2004. The Chiniak Gully Research Area is described at 50 CFR 679.22(b)(3)(i). A detailed description of the research project is provided in the EA/RIR/FRFA. For copies of this document, please contact NMFS (see
Pursuant to 50 CFR 679.22(b)(3)(ii)(B), the Regional Administrator may rescind the trawl closure of the Chiniak Gully Research Area by publishing notification in the
Two comments were received regarding the proposed rescission of the area closure. Both comments were in favor of rescinding the closure.
This action responds to the best available information recently obtained from the AFSC. Without this inseason adjustment, NMFS could not allow directed fishing for groundfish using trawl gear in the Chiniak Gully Research Area from August 1 through September 20, unnecessarily restricting the groundfish trawl fisheries.
This action is pursuant to 50 CFR 679.22 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correction.
This document corrects a January 7, 2003, final rule that implemented changes to regulations governing the North Pacific Groundfish Observer Program (Observer Program) under 50 CFR part 679. The action is necessary to correct an error in cross reference that occurred in the final rule.
Effective June 20, 2003.
Patsy A. Bearden, 907-586-7008.
A final rule implementing changes to regulations governing the Observer Program was published in the
The renumbering of paragraphs in the final rule erroneously affected a cross reference. Paragraph 679.50(a) is corrected by removing the reference to “(d)(4)” and adding in its place “(d)(5).”
Pursuant to 5 U.S.C. 553(b)(3)(B), the Assistant Administrator of Fisheries (AA), NOAA, finds good cause to waive
Alaska, Fisheries, Recordkeeping and reporting requirements.
1. The authority citation for part 679 continues to read as follows:
16 U.S.C. 773
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule invites comments on revisions to pack requirements currently prescribed for California kiwifruit under the California kiwifruit marketing order (order). The order regulates the handling of kiwifruit grown in California and is administered locally by the Kiwifruit Administrative Committee (Committee). This rule would: Remove the requirement that the count must equal three times the size designation for shipments in volume filled containers in which the quantity is specified by count; continue to suspend, for the 2003-04 season, the standard packaging requirement that requires volume filled containers of kiwifruit designated by weight to hold 22-pounds (10-kilograms) net weight of kiwifruit, unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit; and exempt the “Hort16A” kiwifruit variety from the “tightly packed” standard pack requirement. These changes were recommended by the Committee and are expected to help handlers compete more effectively in the marketplace, better meet the needs of retailers, and to improve grower returns.
Comments must be received by July 8, 2003.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or e-mail:
Rose Aguayo, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or e-mail:
This proposal is issued under Marketing Order No. 920 as amended (7 CFR part 920), regulating the handling of kiwifruit grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposal will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This proposed rule invites comments on revisions to pack requirements currently prescribed for California kiwifruit under the order. This rule would: (1) Remove the requirement that the count must equal three times the size designation for shipments in volume filled containers in which the quantity is specified by count; (2) continue to suspend, for the 2003-04 season, the standard packaging requirement that requires volume filled containers of kiwifruit designated by weight to hold 22-pounds (10-kilograms) net weight of kiwifruit, unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit; and (3) exempt the “Hort16A” kiwifruit variety from the “tightly packed” standard pack requirement. The Committee recommended these changes at its March 12, 2003, meeting. This rule is expected to help handlers compete more effectively in the marketplace, better meet the needs of retailers, and to improve grower returns.
Under the terms of the order, fresh market shipments of kiwifruit grown in California are required to be inspected and meet grade, size, maturity, pack, and container requirements.
Section 920.52(a)(1) and (3) of the order authorizes the establishment of pack requirements for California kiwifruit.
Section 920.302(a)(4) of the order's administrative rules and regulations outlines specific pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(iv) provides that for volume filled containers in which the quantity is specified by count, the count must equal three times the size
During the early 1990's handlers packed kiwifruit into several styles of containers: trays, bins, consumer packs, and volume filled containers. (Volume filled containers are those in which kiwifruit are loosely packed without cell compartments, cardboard fillers, or molded trays). Volume filled containers were designated by size and also either net weight or count. It was a customary industry practice to pack the equivalent of three single layer trays into a volume filled container and to specify the quantity of the kiwifruit placed into the volume filled container by count.
In 1993, the Committee recommended and the USDA established a pack requirement under the order's administrative rules and regulations which specified that for shipments in volume filled containers in which the quantity is specified by count, the count must equal three times the size designation in accordance with tolerances specified in 7 CFR 51.2328(c)(2) of the Grade Standards, (58 FR 43243, April 16, 1993). This requirement was established to ensure that volume filled containers designated by size and count held a consistent number of pieces of kiwifruit.
During the 1993-94 season handlers realized that it was more labor intensive and more expensive to pack volume filled containers designated by count than by net weight. They also realized that the difference in the average FOB values for each type of volume filled container was negligible. Retailers were unwilling to pay a higher price for volume filled containers designated by count and handlers were unwilling to pack these more labor-intensive and more expensive containers, if they could not recoup the extra handling costs. As a result, the amount of kiwifruit packed into volume filled containers designated by count and size declined to 2 percent during the 1995-96 season. While kiwifruit handlers have not used volume filled containers designated by count and size since the 1995-96 season, they continue to use volume filled containers designated by net weight and size.
Recently, retailers have requested new, smaller containers of kiwifruit designated by count and size. Some handlers in the industry, including those that are packing a new variety, “Hort16A”, would like the flexibility to pack these smaller containers of kiwifruit. These handlers are currently unable to meet retailer's requests for smaller volume filled containers of kiwifruit, as the order's administrative rules and regulations require the count to equal three times the size designation in volume filled containers in which the quantity is specified by count. For example, if a retailer requests containers of Size 20 fruit with 50 pieces of kiwifruit in each container, the handler would not be able to meet the retailer's requirements because the order's administrative rules and regulations require that 60 pieces of kiwifruit (a count equal to three times the size designation) be packed into the container.
Thus, the Committee, at its March 12, 2003, meeting, unanimously recommended removing this requirement as it is obsolete and no longer meets the industry's needs. This relaxation in pack requirements is expected to enable handlers to compete more effectively in the marketplace and to improve grower returns.
Section 920.52(a)(3) of the order authorizes the establishment of weight requirements for containers of California kiwifruit.
Section 920.302(a)(4) of the order's administrative rules and regulations outlines pack requirements for fresh shipments of California kiwifruit.
Prior to the issuance of an interim final rule on August 22, 2002 (67 FR 54327), § 920.302 (a)(4)(v) specified that all volume filled containers of kiwifruit designated by weight had to hold 22-pounds (10-kilograms) net weight of kiwifruit unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit. This standard packaging requirement was unanimously recommended by the Committee and established under the order's administrative rules and regulations by a final rule issued on October 25, 1994, (59 FR 53563).
During the 1994-95 season 52 percent of the total crop was packed into volume filled containers. The percentage of the total crop packed into volume filled containers increased to 85 percent during the 2001-02 season. In 2001-02, imports from the Northern hemisphere (Greece, Italy, and France) totaled approximately 17 percent of the U.S. market share. The majority of imported kiwifruit was shipped in 19.8-pound (9-kilogram) net weight volume filled containers, whereas the order limited California handlers to 22-pound (10-kilogram) net weight volume filled containers. Retailers do not differentiate between imported 19.8-pound (9-kilogram) and 22-pound (10-kilogram) net weight volume filled containers from California. Because buyers pay the same price for each container, the effect is not favorable for California handlers.
At its April 9, 2002, meeting, the Committee unanimously recommended and the USDA approved suspending the standardized packaging requirement of 22-pounds (10-kilograms) net weight for volume filled containers for the 2002-03 season. This suspension was implemented by an interim final rule published on August 22, 2002 (67 FR 54327) and will be in effect until July 31, 2003. This was made final on November 21, 2002 (67 FR 76140).
To date during the 2002-03 season, handlers shipped 87 percent of the crop in volume filled containers (73 percent in 22-pounds (10-kilograms) net weight volume filled containers, 13 percent in 19.8-pounds (9-kilograms) net weight containers, and less than 1 percent in volume filled containers of other weights).
At its March 12, 2003, meeting, the Committee discussed three options for volume filled containers: (1) Establishing a standard packaging requirement of 19.8-pounds (9-kilograms) net weight, (2) reestablishing a standard packaging requirement of 22-pounds (10-kilograms) net weight and (3) continuing the suspension of the standardized packaging requirement for the 2003-04 season, thus allowing flexibility to pack any net weight volume filled container. In its deliberations, the Committee discussed grower returns and the ability to meet buyer's preferences for alternate containers. Committee members mentioned that 10 percent more containers could be packed if the standard were set at 19.8-pounds (9-kilograms) net weight. Others mentioned that the increased number of containers would not offset the increased handler costs of packing more, smaller containers and would result in decreased grower returns. Many retailers do not differentiate between 19.8-pounds (9-kilograms) net weight volume filled containers and 22-pounds (10-kilograms) net weight volume filled containers and pay the same price for each. Thus, packaging 19.8-pounds (9-kilograms) net weight containers may not be beneficial for growers and handlers.
The Committee also discussed reestablishing the 22-pounds (10-
The majority of the Committee members agreed that the suspension of the standard packaging requirement for volume filled containers by net weight should be continued for the 2003-04 season. Of the twelve members present, eight voted for this change and four voted against it. Opponents of this recommendation preferred standard packaging, but could not agree whether the 22-pound (10-kilogram) or 19.8-pound (9-kilogram) net weight containers should be the standard. The majority of the Committee believes that handlers and growers would benefit by being able to meet buyer's preferences for alternate containers. Small and large growers and handlers are expected to continue benefiting from this change. This suspension would be in effect until July 31, 2004.
Section 920.52(a)(2) of the order authorizes the establishment of grade standards.
Section 920.302(a)(1) of the order's administrative rules and regulations states the minimum grade shall be at least KAC No. 1 quality.
Section 920.302(b) defines the term KAC No. 1 quality as kiwifruit that meets the requirements of U.S. No. 1 grade as defined in 7 CFR 51.2335 through 51.2340 of the Grade Standards, except that the kiwifruit shall be “not badly misshapen” and an additional 7 percent tolerance is provided for “badly misshapen” fruit. Section 51.2338(a) of the Grade Standards defines standard pack requirements, requires containers to be well filled; and requires the contents to be tightly packed, but not excessively or unnecessarily bruised by overfilling or oversizing.
The Grade Standard's “tightly packed” provisions were established under the order to ensure that the “Hayward” variety (the predominant kiwifruit variety produced in the production area) fits tightly into the tray-liner cups (55 FR 42179, October 18, 1990). Kiwifruit that is packed tightly into the cups of the tray-liners is less subject to movement and therefore less damage.
Recently, a new kiwifruit cultivar, the
Therefore, the Committee, at its March 12, 2003, meeting, unanimously recommended an exemption for all “gold” kiwifruit varieties from the order's “tightly packed” requirement. However, the “Hort16A” with its unique “beak” is currently the only known commercially produced “gold” kiwifruit. Because it is not known whether other “gold” kiwifruit varieties would experience the same difficulty in meeting the “tightly packed” standard pack requirement, this proposal would limit the exemption to the “Hort16A” variety.
This change is expected to enable handlers to be more competitive in the marketplace and to provide consumers with higher quality “Hort16A” kiwifruit.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 46 handlers of California kiwifruit subject to regulation under the marketing order and approximately 300 growers in the production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those whose annual receipts are less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000. None of the 46 handlers subject to regulation have annual kiwifruit sales of at least $5,000,000. In addition, six growers subject to regulation have annual sales exceeding $750,000. Therefore, a majority of the kiwifruit handlers and growers may be classified as small entities.
This proposed rule invites comments on revisions to pack requirements prescribed under the California kiwifruit order. This rule would: (1) Remove the requirement that the count must equal three times the size designation for shipments in volume filled containers in which the quantity is specified by count; (2) continue to suspend, for the 2003-04 season, the standard packaging requirement that requires volume filled containers of kiwifruit designated by weight to hold 22-pounds (10-kilograms) net weight of kiwifruit, unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit; and (3) exempt the “Hort16A” kiwifruit variety from the “tightly packed” standard pack requirement.
The Committee recommended these changes at its March 12, 2003, meeting. These changes are expected to help handlers compete more effectively in the marketplace, better meet the needs of retailers, and to improve grower returns. Authority for these actions is provided in § 920.52 of the order.
Section 920.302(a)(4) of the order's administrative rules and regulations outlines specific pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(iv) of the order's administrative rules and regulations provides that for volume filled containers in which the quantity is specified by count, the count must equal three times the size designation in accordance with tolerances specified in the Grade Standards listed in 7 CFR 51.2328(c)(2). For example, if the fruit has a size designation of “30” marked on the container, then three times the size designation or 90 pieces of kiwifruit must be packed into the container and the container must be marked with “90 count.”
During the early 1990's handlers packed kiwifruit into several styles of containers: trays, bins, consumer packs, and volume filled containers. Volume filled containers were designated by size
In 1993, the Committee recommended and the USDA established a pack requirement under the order's administrative rules and regulations which specified that for shipments in volume filled containers in which the quantity is specified by count, the count must equal three times the size designation in accordance with tolerances specified in 7 CFR 51.2328(c)(2) of the Grade Standards, (58 FR 43243, April 16, 1993). This requirement was established to ensure that volume filled containers designated by size and count held a consistent number of pieces of kiwifruit.
During the 1993-94 season handlers realized it was more labor intensive and more expensive to pack volume filled containers by count than by net weight. They also realized that the difference in the average FOB values for each type of volume filled container was negligible. Retailers were unwilling to pay a higher price for volume filled containers designated by count and handlers were unwilling to pack these more labor-intensive and more expensive containers, if they could not recoup the extra handling costs. As a result, the amount of kiwifruit packed into volume filled containers designated by count and size declined to 2 percent during the 1995-96 season. While kiwifruit handlers have not used volume filled containers designated by count and size since the 1995-96 season, they continue to use volume filled containers packed by net weight and size designation.
Recently, retailers have requested new, smaller containers of kiwifruit designated by count and size. Some kiwifruit handlers in the industry, including those that are packing a new variety, “Hort16A”, would like the flexibility to pack these smaller containers of kiwifruit. These handlers are currently unable to meet retailer's requests for smaller volume filled containers of kiwifruit, as the order's administrative rules and regulations require the count to equal three times the size designation in volume filled containers in which the quantity is specified by count. For example, if a retailer requests containers of Size 20 fruit with 50 pieces of fruit in each container, the handler would not be able to meet the retailer's requirements because the order's administrative rules and regulations require that 60 pieces of fruit (a count equal to three times the size designation) be packed into the container.
Thus, the Committee, at its March 12, 2003, meeting, unanimously recommended removing the requirement as it is obsolete and no longer meets the industry's needs. The Committee discussed alternatives to this change, including not removing this requirement from the order's administrative rules and regulations, but concluded that small and large growers and handlers would benefit from this change. This change would not affect volume filled containers packed by net weight and is expected to help handlers compete more effectively in the marketplace and to improve grower returns.
Section 920.302(a)(4) of the order's administrative rules and regulations outlines pack requirements for fresh shipments of California kiwifruit.
Prior to the issuance of an interim final rule on August 22, 2002 (67 FR 54327), § 920.302(a)(4)(v) specified that all volume filled containers of kiwifruit designated by weight shall hold 22-pounds (10-kilograms) net weight of kiwifruit unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit. This standard packaging requirement was unanimously recommended by the Committee and established under the order's administrative rules and regulations by a final rule issued on October 25, 1994, (59 FR 53563).
During the 1994-95 season, 52 percent of the total crop was packed into volume filled containers. The percentage of the total crop packed into volume filled containers increased to 85 percent during the 2001-02 season. In 2001-02, imports from the Northern hemisphere (Greece, Italy, and France) totaled approximately 17 percent of the U.S. market share. The majority of imported kiwifruit was shipped in 9.8-pound (9-kilogram) net weight volume filled containers, whereas the order limited California handlers to 22-pound (10-kilogram) net weight volume filled containers. Retailers do not differentiate between imported 19.8-pound (9-kilogram) and 22-pound (10-kilogram) net weight volume filled containers from California. Because buyers pay the same price for each container, the effect is not favorable for California handlers.
At its April 9, 2002, meeting, the Committee, unanimously recommended and the USDA approved suspending the standardized packaging requirement of 22-pounds (10-kilograms) net weight for volume filled containers for the 2002-03 season. This suspension was implemented by an interim final rule published on August 22, 2002 (67 FR 54327) and will be in effect until July 31, 2003. This was made final on November 21, 2002 (67 FR 76140). To date, relaxation of these packaging requirements during the 2002-03 season enabled handlers to ship 73 percent of the crop in 22-pound (10-kilogram) net weight volume filled containers, 13 percent of the crop in 19.8-pound (9-kilogram) net weight containers and less than 1 percent in volume filled containers of other weights.
The Committee concluded that while suspending the standard packaging requirements for the 2002-03 season had enabled handlers to compete more effectively in the marketplace, it would like to gather more data to further evaluate the benefits of nonstandard pack requirements for another season, the 2003-04.
Therefore, the majority of the Committee members agreed that the suspension of the standard packaging requirement for volume filled containers by net weight should be continued for the 2003-04 season. Of the twelve members present, eight voted for this change, and four voted against it. Opponents of this recommendation preferred standard packaging, but could not agree whether the 22-pound (10-kilogram) or the 19.8-pound (9-kilogram) net weight container should be the standard. Small and large growers and handlers are expected to benefit from the continued suspension of the standard packaging requirements. The majority of the Committee believes that handlers and growers would benefit by being able to meet buyer's preferences for alternate containers. This suspension would be in effect until July 31, 2004.
The Committee discussed alternatives to this change including reinstating the 22-pound (10-kilogram) net weight standard packaging requirement for the 2003-04 season. Committee members also suggested two other alternatives. One alternative was to establish a standard packing requirement that would require volume filled containers of kiwifruit designated by weight to hold 19.8-pounds (9 kilograms) net weight of kiwifruit, unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit. The other alternative suggested would establish a standard packing requirement that would require volume filled containers of kiwifruit designated by weight to hold 19.8-pounds (9-kilograms) net weight of kiwifruit, unless such containers hold less than 15-pounds or more than 35-
Section 920.302(a)(1) of the order's administrative rules and regulations states the minimum grade shall be at least KAC No. 1 quality.
Section 920.302(b) defines the term KAC No. 1 quality as kiwifruit that meets the requirements of U.S. No. 1 grade as defined in 7 CFR 51.2335 through 51.2340 of the Grade Standards, except that the kiwifruit shall be “not badly misshapen” and an additional 7 percent tolerance is provided for badly misshapen fruit. Section 51.2338(a) of the Grade Standards defines standard pack requirements, requires containers to be well filled; and requires the contents to be tightly packed, but not excessively or unnecessarily bruised by overfilling or oversizing.
The Grade Standard's “tightly packed” provisions were established in the order to ensure that the “Hayward” variety (the predominant kiwifruit produced in the production area) fits tightly into the tray-liner cups (55 FR 42179, October 18, 1990). Kiwifruit that is packed tightly into the cups of the tray-liners is less subject to movement and therefore less damage.
As previously mentioned, a new kiwifruit cultivar, the
Therefore, the Committee, at its March 12, 2003, meeting, unanimously recommended an exemption for all “gold” kiwifruit varieties from the order's “tightly packed” requirement. However, the “Hort16A” with its unique “beak” is currently the only known commercially produced “gold” kiwifruit. Because it is not known whether other “gold” kiwifruit varieties would experience the same difficulty in meeting the “tightly packed” standard pack requirement, this proposal would limit the exemption to the “Hort16A” “gold” variety.
This change is expected to enable handlers to be more competitive in the marketplace and to provide consumers with higher quality “Hort16A” kiwifruit.
The Committee discussed alternatives to this change, including exempting all kiwifruit packs from the “tightly packed” requirement, but did not adopt this suggestion because eliminating the requirement for the “Hayward” variety is unnecessary and is still a pack standard desired by the industry for the vast majority of kiwifruit currently packed in California. It is anticipated that within the next 5 to 10 years more than 1,000 acres of “Hort16A” will be planted in California with production exceeding one million tray equivalents (one tray equivalent equals approximately 7 pounds). Small and large growers and handlers are expected to benefit from this change. These changes are expected to help handlers compete more effectively in the marketplace and to improve grower returns.
These proposed rule changes would relax pack requirements under the kiwifruit order. Accordingly, these actions would not impose any additional reporting or recordkeeping requirements on either small or large kiwifruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule. However, as previously stated, California kiwifruit must meet the “tight-fill” requirements, as specified in the U.S. Standards for Grade of Kiwifruit (7 CFR 51.2335 through 51.2340) issued under the Agricultural Marketing Agreement Act of 1946 (7 U.S.C. 1621 through 1627).
In addition, the Committee's meeting was widely publicized throughout the kiwifruit industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the March 12, 2003, meeting, was a public meeting and all entities, both large and small, were able to express their views on these issues. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at
A 15-day comment period is provided to allow interested persons to respond to this proposal. Fifteen-days is deemed appropriate because the fiscal period for kiwifruit begins on August 1, 2003, and these changes, if adopted, should be made as soon as possible. All written comments timely received will be considered before a final determination is made on this matter.
Kiwifruit, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 920 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 920 continues to read as follows:
7 U.S.C. 601-674.
2. Section 920.302 is amended as follows:
A. Paragraph (a)(4)(iv) is removed;
B. Paragraph (a)(4)(v) is redesignated as paragraph (a)(4)(iv);
C. The existing suspension of newly designated paragraph (a)(4)(iv) is extended until July 31, 2004;
D. Paragraph (b) is revised to read as follows:
(b)
Agricultural Marketing Service, Agriculture.
Referendum order.
This document directs that a referendum be conducted among eligible producers of honey and importers of honey or honey products to determine whether they favor continuance of the Honey Research, Promotion, and Consumer Information Order (Order).
The referendum will be conducted from July 25, 2003, through August 22, 2003. To vote in this referendum, producers and importers must have been producing honey or importing honey or honey products during the period from January 1, 2001, through December 31, 2002.
Copies of the Order may be obtained from: Referendum Agent, Research and Promotion Branch (RP), Fruit and Vegetable Programs (FV), AMS, USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244.
Kathie Birdsell, RP, FV, AMS, USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244, telephone 888-720-9917 (toll free), fax 202-205-2800, e-mail
Pursuant to the Honey Research, Promotion, and Consumer Information Act, as amended (Act) (7 U.S.C. 4601-4613), it is hereby directed that a referendum be conducted to ascertain whether continuance of the Order is favored by producers of honey and importers of honey or honey products. The Order is authorized under the Act.
The representative period for establishing voter eligibility for the referendum shall be the period from January 1, 2001, through December 31, 2002. Persons who are producers of honey or importers of honey or honey products at the time of the referendum and during the representative period are eligible to vote. Persons who received an exemption from assessments for the entire representative period are ineligible to vote. The referendum shall be conducted by mail ballot from July 25, 2003, through August 22, 2003.
Section 13 of the Act provides that the Department of Agriculture (Department) shall conduct a referendum every five years or when 10 percent or more of the eligible voters petition the Secretary of Agriculture to hold a referendum to determine if persons subject to assessment favor continuance of the Order. Previous continuance referenda were conducted in 1991, 1996, and 2002. On February 10, 2003, a petition was filed containing the requisite number of eligible voter signatures to call for another continuance referendum.
Sections 12(b)(1)(A) and (B) of the Act provide that the Department shall continue the Order if continuance of the Order is approved by a majority of the producers and importers voting in the referendum and that the producers and importers comprising this majority produce or import not less than 50 percent of the quantity of the honey or honey products produced or imported during the representative period by those voting in the referendum.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the referendum ballot has been approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0093. It has been estimated that there are approximately 3,290 producers and importers who will be eligible to vote in the referendum. It will take an average of 15 minutes for each voter to read the voting instructions and complete the referendum ballot.
Kathie M. Birdsell and Margaret B. Irby, RP, FV, AMS, USDA, Stop 0244, Room 2535-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244, are designated as the referendum agents to conduct this referendum. The referendum procedures (7 CFR 1240.200 through 1240.207), which were issued pursuant to the Act, shall be used to conduct the referendum.
The referendum agents will mail the ballots to be cast in the referendum and voting instructions to all known producers and importers prior to the first day of the voting period. Persons who are producers or importers at the time of the referendum and during the representative period are eligible to vote. Persons who received an exemption from assessments during the entire representative period are ineligible to vote. Any eligible producer or importer who does not receive a ballot should contact the referendum agents no later than one week before the end of the voting period. Ballots must be received by the referendum agents on or before August 22, 2003, in order to be counted.
Advertising, Agricultural research, Honey, Imports, Reporting and recordkeeping requirements.
7 U.S.C. 4601-4613 and 7 U.S.C. 7401.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to adopt a new airworthiness directive (AD) that would apply to certain Eagle Aircraft (Malaysia) Sdn. Bhd. (Eagle) Model 150B airplanes. This proposed AD would require you to modify the canard rear spar and the rear spar attachment bracket. This proposed AD is the result of mandatory continuing
The Federal Aviation Administration (FAA) must receive any comments on this proposed rule on or before July 25, 2003.
Submit comments to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-CE-23-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may view any comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. You may also send comments electronically to the following address:
You may get service information that applies to this proposed AD from Eagle Aircraft (Malaysia) Sdn. Bhd., Composites Technology City, Batu Barendam Airport, 75350 Batu Barendam, Melaka, Malaysia. You may also view this information at the Rules Docket at the address above.
Fredrick A. Guerin, Aerospace Engineer, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Blvd., Lakewood, CA 90712; telephone: (562) 627-5232; facsimile: (562) 627-5210.
The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the proposed rule's docket number and submit your comments to the address specified under the caption
The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.
If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2000-CE-23-AD.” We will date stamp and mail the postcard back to you.
The Civil Aviation Safety Authority (CASA), which is the airworthiness authority for Australia, notified FAA that an unsafe condition may exist on certain Eagle Model 150B airplanes. The CASA reports that the rear spar attachment bracket does not meet required strength specifications for installation on composite airplanes. These strength specifications are necessary to ensure that the rear spar does not detach from the canard rear spar.
The manufacturer has redesigned these parts in order meet required strength specifications.
This condition, if not corrected, could result in failure of the canard rear spar. Failure of the canard rear spar could result in failure of the canard and loss of control of the airplane.
Eagle has issued Service Bulletin No. 1074, Revision 1, dated October 19, 1999.
The service bulletin includes procedures for:
The CASA classified this service bulletin as mandatory and issued Australian AD No. X-TS/3, dated December 24, 2000, in order to assure the continued airworthiness of these airplanes in the Australia.
The affected airplanes were manufactured in Australia and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.
Pursuant to this bilateral airworthiness agreement, CASA had kept FAA informed of the situation described above.
The FAA has examined the findings of the CASA; reviewed all available information, including the service information referenced above; and determined that:
This proposed AD would require you to incorporate the actions in the previously-referenced service bulletin.
On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.
We estimate that this proposed AD affects 7 airplanes in the U.S. registry.
We estimate the following costs to accomplish this proposed modification:
The proposed modification to the rear spar and the rear spar attachment bracket would require 25 hours for cure and post cure time.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. FAA amends § 39.13 by adding a new airworthiness directive (AD) to read as follows:
(a)
(b)
(c)
(d)
(e)
(f)
The subject of this AD is addressed in Australian AD No. X-TS/3, dated December 24, 2000.
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD), applicable to certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, that would have required replacing the existing pressure relief valve on the potable water tank with a new, improved pressure relief valve, which is made of stainless steel and is non-adjustable. For certain airplanes, that earlier proposed AD also would have required modification of certain piping to re-locate the pressure relief valve. For certain other airplanes, this new action would revise the earlier proposed AD by correcting procedures for performing the proposed replacement of the pressure relief valve. The actions specified by this new proposed AD are intended to prevent rupture of the potable water tank during flight of the airplane, which could result in structural damage to the airplane and inability to sustain flight loads. This action is intended to address the identified unsafe condition.
Comments must be received by July 18, 2003.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-422-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 Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Don Eiford, Aerospace Engineer, ANM-130S, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6465; fax (425) 917-6590.
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
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-422-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-422-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, was published as a notice of proposed rulemaking (NPRM) in the
Since the issuance of the earlier NPRM, the FAA has reviewed and approved Boeing Service Bulletin 737-38A1047, Revision 2, dated July 18, 2002. Revision 1 of that service bulletin, dated September 27, 2001, was referenced in the earlier NPRM as the appropriate service information for removing the existing pressure relief valve from the potable water tank, and replacing the valve with a new pressure relief valve. Revision 2 of that service bulletin was issued to more closely align certain airplane effectivity groups with the correct figures in the Accomplishment Instructions. Revision 2 of that service bulletin describes the procedures in a new Figure 9 for airplanes specified as “Group 9,” and also describes procedures in Figure 5 for airplanes specified as “Group 10.” Revision 2 of that service bulletin states that no more work is necessary if the actions described in the initial issuance or Revision 1 of that service bulletin were accomplished. Therefore, we have specified that accomplishment of the actions in this supplemental NPRM be done per Revision 2 of Boeing Service Bulletin 737-38A1047.
Due consideration has been given to the comments received in response to the earlier NPRM.
One commenter notes that Boeing Service Bulletin 737-38-1047, Revision 1, dated September 27, 2001, is specified as the appropriate service information in the earlier NPRM for removing pressure relief valves having part number (P/N) 520A-6DB-50 or P/N D524TP6D60 and replacing the valves with new pressure relief valves. The commenter suggests that the FAA clarify that, after the effective date of the AD, installation of pressure relief valves having P/N 520A-6DB-50 or P/N D524TP6D60 is prohibited. The commenter states that such clarification would prevent any unintended “demodification” of the airplane.
The FAA agrees with the commenter and has added a new paragraph (g) of this supplemental NPRM to specifically prohibit installation of those certain pressure relief valves.
One commenter notes that the earlier NPRM would require certain airplanes to be modified per Boeing Service Bulletin 737-38-1029, Revision 1, dated August 19, 1993, followed by replacement of the pressure relief valve per Boeing Service Bulletin 737-38A1047, Revision 1, dated September 27, 2001. However, the commenter points out that each of the service bulletins describes a different leak check procedure. The commenter requests that the earlier NPRM specify that either leak check procedure is acceptable or state that neither leak check procedure is mandated.
The FAA acknowledges that the two service bulletins describe two different leak test (check) procedures. We have determined that the leak test described in Boeing Service Bulletin 737-38A1047 is the appropriate procedure. Therefore, we have specified in paragraph (a)(1)(ii) of this supplemental NPRM that the leak test procedure specified in Boeing Service Bulletin 737-38-1029 is not required to be performed.
One commenter, the manufacturer, states that Note 2 of the earlier NPRM could be interpreted to be an acceptable alternative to the entire content of paragraph (a)(1) of the NPRM, including the instructions in paragraph (a)(1) of the earlier NPRM to perform the requirements of paragraph (a)(2) of the NPRM. (Note 2 of the earlier NPRM specifies that modification of the potable water pressurization system done in accordance with Boeing Service Bulletin 737-38-1029, dated June 6,
The FAA concurs that clarification is needed to ensure that the existing pressure relief valves are replaced with new, improved valves for those airplanes identified in the effectivity section of Boeing Service Bulletin 737-38-1029. (For reasons other than those discussed in this response (see explanation under the heading below labeled “Editorial Changes”), we have incorporated the intent of the previously designated Notes 2, 3, and 4 of the NPRM into paragraphs (a), (d), and (f), respectively, of this supplemental NPRM.)
This supplemental NPRM revises paragraph (a)(1) of the earlier NPRM to specify that paragraph (a)(1) must be accomplished in accordance with Boeing Service Bulletin 737-38-1029, dated June 6, 1991, or Revision 1, dated August 19, 1993. Including Boeing Service Bulletin 737-38-1029, dated June 6, 1991, in paragraph (a)(1) of this supplemental NPRM makes it unnecessary to provide the “credit” wording specified in Note 2 of the earlier NPRM. The supplemental NPRM further revises paragraph (a)(2) of the earlier NPRM (replacing the valve with a new pressure relief valve having part number P/N RV05-362) to specify that paragraph (a)(2) must be accomplished in accordance with Boeing Service Bulletin 737-38A1047, Revision 2, dated July 18, 2002.
One commenter requests that the applicability section of the NPRM be revised to include the words, “except those airplanes that have the potable water systems removed or deactivated.” The commenter states that it operates two cargo airplanes that have had the potable water systems deactivated. The commenter explains that the servicing port has a cap installed and the potable water tank fill and transfer lines have been disconnected and plugged. Also, the water tank is vented to prevent it from pressurizing during flight.
The FAA does not agree that the applicability should be revised. The FAA has determined that this supplemental NPRM is applicable to certain Model 737-100, -200, -200C, -300, -400, and “500 series airplanes. We consider that, while there is currently no potable water system on the commenter's fleet, a potable water system could be installed at a later date. Therefore, no change to the supplemental NPRM is necessary in this regard. For those airplanes that currently may not have a potable water system installed, the operators may request approval of an alternative method of compliance as provided in paragraph (h) of this AD.
Because the language in Notes 2, 3, and 4 of the earlier NPRM is regulatory in nature, the intent of those notes has been incorporated into paragraphs (a), (d), and (f) of this supplemental NPRM.
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 systems. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOC). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. Therefore, paragraphs (c) and (d) and Note 1 of the original NPRM have been removed from this supplemental NPRM.
Since these changes expand the scope of the earlier proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
There are approximately 2,049 Model 737-100, -200, -200C, -300, -400, and -500 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,144 airplanes of U.S. registry would be affected by this proposed AD.
The FAA estimates that, of the 1,144 airplanes of U.S. registry, 2 would be affected by the proposed modification of piping to re-locate the pressure relief valve, that it would take approximately 6 work hours per airplane to accomplish the proposed modification, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed modification of piping on U.S. operators is estimated to be $720, or $360 per airplane.
The FAA estimates that all of the 1,144 airplanes of U.S. registry would be affected by the proposed replacement of the pressure relief valve, that it would take approximately 2 work hours per airplane to accomplish the replacement, and that the average labor rate is $60 per work hour. Required parts would cost approximately $300 per airplane. Based on these figures, the cost impact of the replacement of the pressure relief valve on U.S. operators is estimated to be $480,480, or $420 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 AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations 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
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 rupture of the potable water tank during flight of the airplane, which could result in structural damage to the airplane and inability to sustain flight loads, accomplish the following:
(a) For those airplanes listed in the effectivity section of Boeing Service Bulletin 737-38-1029, Revision 1, dated August 19, 1993, on which the modification of the potable water pressurization system specified in the service bulletin has not been accomplished: Within 18 months after the effective date of this AD, except as specified in paragraph (d) of this AD, perform the requirements of paragraphs (a)(1) and (a)(2) of this AD.
(1) Except as specified in paragraphs (a)(1)(i) and (a)(1)(ii) of this AD, modify the potable water pressurization system; in accordance with Boeing Service Bulletin 737-38-1029, dated June 6, 1991, or Revision 1, dated August 19, 1993.
(i) Do not reinstall the existing pressure relief valve having part number (P/N) 520A-6DB-50.
(ii) Do not perform the leak test procedures specified in the service bulletin.
(2) Install a new pressure relief valve having part number P/N RV05-362, in accordance with Boeing Service Bulletin 737-38A1047, Revision 2, dated July 18, 2002.
(b) For those airplanes listed in the effectivity section of Boeing Service Bulletin 737-38-1029, dated June 6, 1991, or Revision 1, dated August 19, 1993, on which the modification of the potable water pressurization system specified in that service bulletin has been accomplished: Within 18 months after the effective date of this AD, remove the existing pressure relief valve from the potable water tank, and replace the valve with a new pressure relief valve having part number P/N RV05-362; in accordance with Boeing Service Bulletin 737-38A1047, Revision 2, dated July 18, 2002.
(c) For all other airplanes having line numbers 1 through 2523 inclusive: Within 18 months after the effective date of this AD unless previously accomplished, remove the existing pressure relief valve from the potable water tank, and replace the valve with a new pressure relief valve having part number P/N RV05-362, in accordance with Boeing Service Bulletin 737-38A1047, Revision 2, dated July 18, 2002.
(d) With the exception of airplanes specified as “Group 9” or “Group 10” in Boeing Service Bulletin 737-38A1047, Revision 2, dated July 18, 2002, having line numbers 1 through 2523 inclusive: Installation of a new pressure relief valve having P/N RV05-362, in accordance with Boeing Service Bulletin 737-38A1047, dated November 9, 2000, or Revision 1, dated September 27, 2001, is acceptable for compliance with paragraph (a)(2), (b), or (c) of this AD.
(e) For airplanes having line numbers 2524 through 2696 inclusive, with the exception of those airplanes specified in paragraph (f) of this AD: Within 18 months after the effective date of this AD, remove the existing pressure relief valve from the potable water tank and replace the valve with a new pressure relief valve having P/N RV05-362, in accordance with Boeing Service Bulletin 737-38A1038, Revision 2, dated September 25, 1997.
(f) For those airplanes having line numbers 2524 through 2696 inclusive and having air compressors installed in the potable water tank pressurization system: Within 18 months after the effective date of this AD, remove the existing pressure relief valve from the potable water tank and replace the valve with a new pressure relief valve having P/N RV05-362, in accordance with Boeing Service Bulletin 737-38A1038, dated December 1, 1994; or Revision 1, dated February 2, 1995.
(g) As of the effective date of this AD, no person may install a pressure relief valve having P/N 520A-6DB-50, 520A6DB60, or P/N D524TP6D60 on any airplane.
(h) In accordance with 14 CFR 39.19, the Manager, Seattle Aircraft Certification Office, FAA, is authorized to approve alternative methods of compliance for this AD.
National Aeronautics and Space Administration (NASA).
Notice of proposed rulemaking.
NASA is proposing this rule to facilitate the efficient use of Government resources during temporary duty travel. Specifically, this rule would permit a NASA employee who is authorized to use a Government motor vehicle for temporary duty travel to be issued such a vehicle at the close of business of the preceding day so that the vehicle could be taken to the employee's residence for use on the following day. Likewise, if the NASA employee returns from official travel after the close of working hours, the vehicle could be returned on the next regular working day. This authority may be exercised only if there would be significant savings in time.
All comments should be submitted by August 22, 2003.
All comments should be addressed to William Gookin, Code JG, National Aeronautics and Space Administration, Washington, DC 20546-0001.
William Gookin, 202-358-2306, FAX: 202-358-3235; e-mail:
This proposed rule is designed to remedy a situation that often arises at certain NASA Installations. Employees who are authorized to use motor vehicles for temporary duty travel must pick up their vehicles at the Installation at the start of the travel period, even in cases where the employees' residence is closer to the temporary duty destination than to the Installation. Such unnecessary travel can sometimes result in a significant waste of official time and resources. This proposed rule would allow such employees to be issued vehicles at the close of the preceding working day, so that they could commence travel from their residences immediately on the next day. Such authority may only be exercised, however, if the authorizing official determines that there will be a significant savings in time. Likewise, if
Government employees, Government property, and Government property management.
For the reasons discussed above, NASA proposes to amend 14 CFR part 1204 as follows:
Add subpart 16 to read as follows:
31 U.S.C. 1344
When a NASA employee on temporary duty travel is authorized to travel by Government motor vehicle, and the official authorizing the travel determines that there will be a significant savings in time, a Government motor vehicle may be issued at the close of the preceding working day and taken to the employee's residence prior to the commencement of official travel. Similarly, when a NASA employee is scheduled to return from temporary duty travel after the close of working hours, the motor vehicle may be taken to the employee's residence and returned the next regular working day.
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), Department of Justice.
Proposed rule; reopening of comment period.
This notice reopens the comment period for Notice No. 968, a notice of proposed rulemaking, published in the
Comments must be received on or before July 7, 2003.
Send written comments to: James P. Ficaretta, Program Manager; Room 5150; Bureau of Alcohol, Tobacco, Firearms, and Explosives; P.O. Box 50221; Washington, DC 20091-0221;
E-mail comments may be submitted to:
James P. Ficaretta; Firearms, Explosives and Arson; Bureau of Alcohol, Tobacco, Firearms, and Explosives; U.S. Department of Justice; 650 Massachusetts Avenue, NW., Washington, DC 20226, telephone (202) 927-8203.
On January 29, 2003, ATF published in the
The comment period for Notice No. 968 closed on April 29, 2003. Prior to the close of the comment period, ATF received three requests to extend the comment period. One request came
The International Society of Explosives Engineers (ISEE) provided similar reasons for requesting an extension of the comment period. ISEE stated that it is a technical society and the largest association of commercial explosives users in the United States, representing more than 4500 members engaged in the manufacture, transportation, storage, handling, use, and disposal of commercial explosives and related activities. ISEE requested an extension of the comment period of at least 90 days. A third commenter, citing the magnitude of the proposed amendments in Notice No. 968, also requested an extension of the comment period.
In consideration of the above, the Department of Justice believes that a reopening of the comment period is warranted. However, the comment period is being reopened until July 7, 2003. The Department believes that this is a sufficient amount of time for all interested parties to respond.
You may also submit written comments by facsimile transmission to (202) 927-8525. Facsimile comments must:
ATF will not acknowledge receipt of facsimile transmissions. ATF will treat facsimile transmissions as originals.
Copies of this notice, Notice No. 968, and the comments received will be available for public inspection by appointment during normal business hours at: ATF Reference Library, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC 20226, telephone (202) 927-7890.
The author of this document is James P. Ficaretta; Firearms, Explosives and Arson; Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Administrative practice and procedure, Authority delegations, Customs duties and inspection, Explosives, Hazardous materials, Imports, Penalties, Reporting and recordkeeping requirements, Safety, Security measures, Seizures and forfeitures, Transportation, and Warehouses.
This notice is issued under the authority in 18 U.S.C. 847.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to approve revisions to Rule (R) 336.1216 of Michigan's title V air operating permit program. Michigan has not yet promulgated the rule revision which the State has submitted in draft for EPA action; however, if Michigan finalizes the revision as drafted, the permit shield provisions will no longer apply to certain administrative permit amendments. This rule revision would resolve the deficiency identified in EPA's Notice of Deficiency (NOD), published in the
The EPA is proposing to approve Michigan's operating permit program rule revision at the same time that Michigan is processing the rule revision. The EPA will finalize its approval of Michigan's program revision if Michigan promulgates and submits a final rule identical in substance to the draft rule it is processing.
Written comments on this proposed rule must be received on or before July 23, 2003.
Send comments to: Robert Miller, Chief, Permits and Grants Section, Air Programs Branch (AR-18J), EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal are available for inspection at the following location: EPA Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please contact the person listed below to arrange a time to inspect the submittal.
Beth Valenziano, Permits and Grants Section, Air Programs Branch, 77 West Jackson Boulevard (AR-18J), Chicago, Illinois 60604, (312) 886-2703,
This section provides additional information by addressing the following:
As required under Subchapter V of the Clean Air Act (Act), EPA has promulgated regulations that define the minimum elements of an approvable state operating permit program and the corresponding standards and procedures by which EPA will approve, oversee, or withdraw approval of state operating permit programs (
The Michigan Department of Environmental Quality submitted the State's title V operating permit program for EPA approval on May 16, 1995, with supplements submitted on July 20, 1995, October 6, 1995, November 7, 1995, and January 8, 1996. The EPA granted interim approval of the Michigan title V program on January 10, 1997 (62 FR 1387), and the program became effective on February 10, 1997. Subsequently, based on the interim approval corrections that the State submitted on June 1, 2001 and September 20, 2001, EPA granted full approval of the Michigan title V program, effective November 30, 2001. The EPA published the full program approval in the
Pursuant to its authority at 40 CFR 70.10(b), EPA published an NOD for Michigan's title V operating permit program on December 11, 2001 (66 FR 64038). The NOD was based upon EPA's finding that Michigan's regulation granting a permit shield for certain administrative permit amendments did not meet federal requirements for program approval. On May 7, 2003 and May 21, 2003, Michigan submitted to EPA a revision to its title V program correcting this program deficiency. As discussed in detail below, EPA is proposing to approve Michigan's title V program revision. Final approval of this program revision will resolve the NOD.
Michigan is in the final stages of revising its title V permit modification rule, R 336.1216, to remove the permit shield provision for certain types of administrative permit amendments. Although Michigan's rule revision is not yet final, the State's May 7, 2003 submittal included the draft rule that is awaiting review by Michigan's Joint Legislative Committee on Administrative Rules. The public comment period on the draft rule ended on November 6, 2002, and Michigan did not receive any adverse comment on the administrative amendment rule revision. Michigan expects that the rule will be finalized in the summer of 2003, at which time the State will submit the final rule to EPA.
Michigan's draft administrative permit amendment rule is consistent with 40 CFR 70.7(d)(4), which does not allow a permit shield for the types of changes described below. The permit shield provisions at 40 CFR 70.6(f) offer enforcement protection in certain prescribed situations. Michigan's draft revised R 336.1216(1)(b)(iv) states: “The permit shield provided under R 336.1213(6) does not extend to administrative amendments made pursuant to subdivision (a)(i) to (iv) of this subrule.” R 336.1216(1)(a)(i) through (iv) allow administrative amendments for the following types of changes: a change that corrects typographical errors; a change in the name, address or phone number of the responsible official or other contact person; a change that provides for more frequent monitoring and reporting; and a change in the ownership or operational control of a source where no other changes to the permit are necessary. These types of administrative permit amendments are the same as those specified in the federal rules at 40 CFR 70.7(d)(1)(i)-(iv).
In addition, draft R 336.1216 includes other minor changes to the State permit modification rule, including changes to the citation method for Michigan laws, and a clarification to R 336.1216(1)(b)(iii) regarding the implementation of administrative permit amendment changes made pursuant to R 336.1216(1)(a)(i) through (iv). This clarification is consistent with 40 CFR 70.7(d)(3)(iii) and 70.7(e)(2)(v).
The EPA is proposing to approve revisions to R 336.1216 of Michigan's title V operating permit program at the same time that Michigan is processing the State's rule revision. Michigan's draft regulation R 336.1216(1)(b)(iv) is now consistent with 40 CFR 70.7(d)(4). The EPA will finalize its approval of Michigan's program revision if Michigan promulgates and submits a final rule that is identical in substance to the draft rule it is processing. Upon final EPA approval, Michigan's program revision will resolve the program deficiency identified in EPA's NOD, published on December 11, 2001 (66 FR 64038).
Section 502(i)(2) of the Act and 40 CFR 70.10(b)(3) provide that, if a state has not corrected a deficiency within 18 months after the effective date of an NOD, EPA will apply the sanctions under section 179(b) of the Act, in accordance with section 179(a) of the Act. The sanctions set forth in section 179(b) include a prohibition on highway funding and an increase in the emission offset requirements under part D of title I of the Act. Michigan's 18 month sanctions clock expired on May 30, 2003. However, EPA interprets section 179(a) to mean that section 179(b) sanctions shall not apply until EPA selects the order in which sanctions shall apply through notice-and-comment rulemaking. This interpretation follows the interpretation of section 179(a) set forth in the title I sanctions rule, which selects the order of sanctions following certain State Implementation Plan findings under section 179(a). See EPA's proposed title I sanctions rule, 58 FR 51270, 51272 (October 1, 1993); see also EPA's final title I sanctions rule, 59 FR 39832, 39857 (August 4, 1994). The EPA has not yet promulgated the title V order of sanctions rulemaking, and thus no sanctions go into effect at this time.
Consistent with EPA's final full approval of Michigan's title V program (66 FR 62951), this proposed approval does not extend to sources in Indian Country, as defined in 18 United States Code 1151.
Under Executive Order 12866, “Regulatory Planning and Review” (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
Because this action approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain an unfunded mandate nor does it significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000).
This action also does not have federalism implications because it does
This proposed approval 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 a significant regulatory action under executive order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing program submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a program submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.
As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order, and has determined that the rule's requirements do not constitute a taking.
This action 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
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Federal Communications Commission.
Proposed rule; termination.
This document terminates this proceeding. We find that with the passage of time, the record in this proceeding has become outdated. There does not appear to be a need for further Commission action at this time, we are terminating this proceeding without prejudice to its substantive merits.
Hugh Van Tuyl, Office of Engineering and Technology, (202) 418-7506.
This is a summary of the Commission's
1. On April 1, 1998, the Commission adopted a
2. We find that with the passage of time, the
3. Pursuant to sections 4(i) and 4(j) of the Communications Act, 47 U.S.C.
Natural Resources Conservation Service, USDA.
Notice of a Finding of No Significant Impact.
Pursuant to section 102[2][c] of the National Environmental Policy Act of 1969, the Council on Environmental Quality Regulations (40 CFR part 1500); and the Natural Resources Conservation Service Regulations (7 CFR part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice that an environmental impact statement is not being prepared for the Yellow River Watershed Structures No. 15 and No. 17, Gwinnett County, Georgia.
Jimmy Bramblett, Water Resources Programs Leader, Natural Resources Conservation Service, Federal Building, 355 East Hancock Avenue, Athens, Georgia 30601, Telephone (706) 546-2073, e-mail
The Environmental Assessment of this federally assisted action indicates that the project will not cause significant local, regional or national impacts on the environment. As a result of these findings, Leonard Jordan, State Conservationist, has determined that the preparation and review of an environmental impact statement is not needed for this project.
The project purpose is continued flood prevention. The planned works of improvements include upgrading two existing floodwater retarding structures.
The notice of a Filing of No Significant Impact (FONSI) has been forwarded to the U.S. Environmental Protection Agency and to various Federal, State, and local agencies and interest parties. A limited number of the FONSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment are on file and may be reviewed by contacting Jimmy Bramblett at the above number.
No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
The Yellow River Watershed is a federally assisted action authorized for planning under Public Law 106-472, the Small Watershed Rehabilitation Act, which amends Public Law 83-566, the Watershed Protection and Flood Prevention Act. An environmental assessment was undertaken in conjunction with development of the watershed plan. This assessment was conducted in consultation with local, State, and Federal agencies as well as with interested organizations and individuals. Data developed during the assessment are available for public review at the following location: U.S. Department of Agriculture, Natural Resources Conservation Service, 355 East Hancock Avenue, Athens, Georgia 30601.
This document describes a plan for upgrading an existing floodwater retarding structure, Yellow River Watershed Structure No. 15 (Y-15) and No. 17 (Y-17), to meet current dam safety criteria in Georgia. The plan calls for construction of a roller-compacted concrete emergency spillway over the top of an existing earthen embankment on each structure. Works of improvement will be accomplished by providing financial and technical assistance through an eligible local sponsor.
The principal project measures for each structure are to:
1. Construct a roller-compacted concrete emergency spillway over the top of an existing earthen embankment. This constructed emergency spillway is designed to bring the existing dam into compliance with current dam safety criteria in Georgia. The current emergency spillway will be removed from service by constructing a berm from material excavated on the existing embankment. The roller-compacted concrete spillway on Y-17 will be covered with grass to accommodate concerns of local residents and project sponsors related to Collins Hill Park, a local county owned and maintained recreational facility.
2. The measures will be planned and installed by developing a contract with the current operator of the dam.
Installing a roller-compacted emergency spillway will bring Yellow River Watershed Structure No. 15 and No. 17 into compliance with current dam safety criteria. This will essentially eliminate the risk to loss of life for individuals in 68 homes, 4 recreational facilities, and 6 roads (5 bridges) downstream. Addition effects will include continued protection against flooding, continued water quality benefits, continued fishing activities, continued recreational opportunities, protected land values, protected road and utility networks, and reduced maintenance costs for public infrastructure.
Wildlife habitat will not be disturbed during installation activities. No wetlands, wildlife habitat, fisheries, prime farmland, or cultural resources will be destroyed or threatened by this project. Some 53 acres of wetland and wetland type wildlife habitat will be preserved. Fishery habitats will also be maintained.
No endangered or threatened plant or animal species will be adversely affected by the project.
There are no wilderness areas in the watershed.
Scenic values will be complemented with improved riparian quality and cover conditions resulting from the installation of conservation animal waste management system and grazing land practices.
Seven alternative plans of action were considered in project planning. No significant adverse environmental impacts are anticipated from installation of the selected alternative. Also, the planned action is the most practical, complete, and acceptable means of protecting life and property of downstream residents.
Original sponsoring Organizations include the Gwinnett County Government, Gwinnett, County Soil and Water Conservation District, and the Upper Ocmulgee River Resource Conservation and Development Council. At
An Interdisciplinary Planning Team provided for the “technical” administration of this project. Technical administration includes tasks pursuant to the NRCS nine-step planning process, and planning procedures outlined in the NRCS-National Planning Procedures Handbook. Examples of tasks completed by the Planning Team include, but are not limited to, Preliminary Investigations, Hydrologic Analysis, Reservoir Sedimentation Surveys, Economic Analysis, Formulating and Evaluating Alternatives, and Writing the Watershed Plan—Environmental Assessment. Data collected from partner agencies, databases, landowners, and others throughout the entire planning process, were evaluated at Planning Team meetings held on various dates throughout the planning process. Informal discussions amongst planning team members, partner agencies, and landowners were conducted throughout the entire planning period.
A Technical Advisory Group was developed to aid the Planning Team with the planning process.
The following agencies were involved in developing this plan and provided representation on the Technical Advisory Group:
• Gwinnett County Government;
• Gwinnett County Soil and Water Conservation Districts;
• Georgia Department of Natural Resources, Environmental Protection Division [EPD], Safe Dams Program;
• Georgia Department of Natural Resources, Wildlife Resources Division [WRD], Game and Fisheries Section;
• Georgia Soil and Water Conservation Commission;
• United States Environmental Protection Agency (EPA), Region IV;
• USDA, Natural Resources Conservation Service (NRCS);
• USDI, Fish and Wildlife Service (F&WS);
• US Army Corps of Engineers (COE).
A meeting and field tour with the Technical Advisory Group was held on February 27, 2002, to assess proposed measures and their potential impact on resources of concern. A review of National Environmental Policy Act (NEPA) concerns was initiated at this meeting. Effects of proposed measures on NEPA concerns reviewed were documented. Additional field tours were held with the COE on March 11, 2002, to determine the most efficient 404 permitting process.
Suzanne Kenyon, Cultural Resources Specialist with the NRCS-National Water Management Center, visited the project site in the fall of 2001. She provided a methodology for considering culturally significant resources, which was followed in this planning process. An inventory of the watershed, and associated downstream impacted area was completed with no culturally important or archaeological sites noted. The area of potential effect was provided to the Georgia State Historic Preservation Office with passive concurrence provided.
A second round of public meetings was held on March 27, 2003, and April 3, 2003, to summarize planning accomplishments, convey results of the reservoir sedimentation survey, and present various structural alternatives. The roller compacted concrete alternative was identified as the most complete, acceptable, efficient, and effective plan for the watershed.
The Environmental Assessment summarized above indicates that this Federal action will not cause significant adverse local, regional, or national impacts on the environment. Therefore, base on the above findings, I have determined that an environmental impact statement for the recommended plan of action on Yellow River Watershed Structure No. 15 and No. 17 is not required.
Import Administration, International Trade Administration, Department of Commerce.
On November 1, 2002 the Department published the initiation of the four new shipper reviews of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China covering the period September 1, 2001, through August 31, 2002. These new shipper reviews covered four exporters: Zhoushan Huading Seafood Co., Ltd.; Hubei Qianjiang Houhu Frozen & Processing Factory; Qingdao Jin Yong Xiang Aquatic Foods Co., Ltd.; and Siyang Foreign Trading Corporation (Siyang).
June 23, 2003.
Sean Carey or Dana Mermelstein at (202) 482-3964 and (202) 482-1391, respectively; AD/CVD Enforcement, Office 7, Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On September 30, 2002 the Department received a timely request for a new shipper review of the antidumping duty order on freshwater crawfish tail meat from the PRC from Siyang, an exporter of subject merchandise to the United States. In this request, Siyang identified Anhui Golden Bird Agricultural Products Development Co., Ltd. (Golden Bird) as the producer who supplied the subject merchandise to Siyang. Pursuant to section 351.214(b)(2)(ii)(B) of the Department's regulations, Siyang included, in addition to its own certifications, a certification from the general manager of Golden Bird stating that Golden Bird was the producer and certifying that Golden Bird did not export subject merchandise during the period of investigation (POI). Furthermore, pursuant to sections 351.214(b)(2)(iii)(A) and (B) of the Department's regulations, Golden Bird also certified that it had never been affiliated with any other producer or exporter of subject merchandise to the United States during the POI, and that its activities are not controlled by the PRC central government. On November 1, 2002, the Department initiated this new shipper review covering the period September 1, 2001 through August 31, 2002.
Siyang provided responses to the Department's original and supplemental questionnaires on January 6, and April
On May 22, 2003, the Domestic Interested Parties
Siyang did not provide the Department with the correct certifications required under section 351.214(b)(2) of the Department's regulations for a new shipper review. Specifically, section 351.214(b)(2)(ii)(B) of the Department's regulations states that, if the company requesting the review is the exporter but not the producer of the subject merchandise, then the request from this company must contain a certification stating that the producer did not export subject merchandise to the United States during the POI. In addition, section 351.214(b)(2)(iii)(A) of the Department's regulations requires that the request for the new shipper review contain a certification that the producer has never been affiliated with any exporter or producer that exported subject merchandise to the United States during the POI. Moreover, section 351.214(b)(2)(iii)(B) of the Department's regulations further specifies that in an antidumping proceeding involving imports from a nonmarket economy country, the request for a new shipper review must also contain a certification that the export activities of the exporter or producer are not controlled by the central government.
As noted above, Siyang failed to identify the correct name of the producer of the subject merchandise for purposes of its required certifications. Furthermore, an official of Golden Bird submitted certifications that did not accurately identify the company's name. Therefore, we find it appropriate to rescind Siyang's new shipper review based on its failure to provide the proper certifications pursuant to 19 CFR 351.214(b)(2).
The Department will notify Customs that bonding is no longer permitted to fulfill security requirements for shipments using the Siyang/Golden Bird exporter/producer combination antidumping duty rate for freshwater crawfish tail meat from the PRC entered, or withdrawn from warehouse, for consumption in the United States on or after the publication of this rescission notice in the
This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(2)(B) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Antidumping Duty Determination of Sales at Less Than Fair Value and Affirmative Critical Circumstances.
June 23, 2003.
Alex Villanueva or James C. Doyle, AD/CVD Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3208, or (202) 482-0159, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (“the Act”') by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations at 19 CFR 351 (2001).
We determine that certain frozen fish fillets from the Socialist Republic of Vietnam are being, or are likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Act. The estimated margins of sales at LTFV are shown in the “Suspension of Liquidation” section of this notice.
We published in the
On January 29, 2003, An Giang Fisheries Import and Export Joint Stock Company (“Agifish”), Vinh Hoan Company Limited (“Vinh Hoan”), Nam Viet Company Limited (“Nam Viet”) and Can Tho Agricultural and Animal Products Import Export Company (“CATACO”), hereinafter collectively referred to as “Mandatory Respondents,” timely filed allegations that the Department made ministerial errors in the
On January 29, 2003, for purposes of a preliminary critical circumstances determination, the Department requested monthly shipment data from An Giang Agriculture and Food Import Export Company (“Afiex”), Can Tho Animal Fishery Products Processing Export Enterprise (“Cafatex”), Da Nang Seaproducts Import-Export Corporation (“Da Nang”), Mekongfish Company (“Mekonimex”), QVD Food Company Limited (“QVD”), Viet Hai Seafood Company Limited (“Viet Hai”), and Vinh Long Import-Export Company (“Vinh Long”), hereinafter referred to collectively as the “Voluntary Section A Respondents”.
On January 30, 2003, the Voluntary Section A Respondents, the Mandatory Respondents, and the Vietnam Association of Seafood Exporters and Producers (“VASEP”), hereinafter referred to collectively as the “Respondents,” requested a one-week extension for the critical circumstances monthly shipment data. The Department granted this request on February 3, 2003. The Voluntary Section A Respondents requested a further two-day extension on February 7, 2003, which was granted by the Department on February 10, 2003. Also, on February 3, 2003, the Department granted to the Voluntary Section A Respondents and the Mandatory Respondents a one-week extension for submission of the Sales Reconciliation information.
On February 3, 2003, Catfish Farmers of America (“CFA”) and the individual U.S. catfish processors America's Catch Inc.; Consolidated Catfish Co., L.L.C.; Delta Pride Catfish, Inc.; Harvest Select Catfish, Inc.; Heartland Catfish Company; Pride of the Pond; Simmons Farm Raised Catfish, Inc.; and Southern Pride Catfish Co., Inc., hereinafter referred to collectively as “Petitioners,” timely filed allegations that the Department made ministerial errors in the preliminary determination.
On February 6, 2003, the Ministry of Trade of the Socialist Republic of Vietnam (“MOT”) requested a two-week extension of the deadline to submit a request for an agreement suspending the present antidumping duty investigation. On February 10, 2003, the Department granted that request, making the deadline February 25, 2003.
On February 7, 2003, Petitioners submitted comments outlining the information relevant to the Department for an additional supplemental questionnaire.
On February 10, 2003, CATACO, Agifish, and Vinh Hoan submitted sales reconciliation information. Nam Viet requested a three-day extension to submit its sales reconciliation, which was granted by the Department on February 11, 2003. Also on February 10, 2003, the Voluntary Section A Respondents submitted monthly shipment data pursuant to the Department's January 29, 2003 request.
On February 11, 2003, the Department issued a request for information and supplemental questionnaire in three sections, with a deadline of February 25, 2003. Section I contained a request for comments or information from all interested parties regarding the Department's methodology for calculating normal value in the
In a letter dated February 12, 2003, the MOT protested the surrogate values and methodologies the Department used in the
On February 13, 2003, Nam Viet requested a one-day extension to file its sales reconciliation information, which was granted by the Department on February 14, 2003. On February 14, 2003 Nam Viet submitted its sales reconciliation.
On February 19, 2003, the Department requested a more detailed sales reconciliation from the Mandatory and Voluntary Section A Respondents, including monthly sales data to allow the Department to reconcile the companies' reported U.S. sales figures to their annual financial statements and sales ledgers.
On February 21, 2003, the Mandatory and Voluntary Section A Respondents requested one-week extensions of the deadlines to file the more detailed Sales Reconciliation information and the February 11, 2003 request for comments and supplemental questionnaire. On February 21, 2003, Petitioners requested a one-month extension of the deadline to file comments related to Section I of the February 11, 2003 request for information.
On February 24, 2003, the Department granted the Petitioners and the Respondents a one-week extension of the deadline to file information related to the February 11, 2003 request for information and supplemental questionnaire, until March 4, 2003. Finally, the Department granted a one-week extension to the Respondents to file the more detailed sales reconciliation information, until March 5, 2003.
On February 25, 2003, the Department granted to the Government of Vietnam (“GOV”) a second extension of the deadline to file a proposed agreement to suspend the present antidumping duty investigation, for ten days until March 7, 2003.
On February 28, 2003, the Respondents submitted a letter requesting a public hearing pursuant to section 351.310 of the Department's regulations.
On March 3, 2003, Sunnyvale Seafood Corporation, an importer, requested a scope clarification to determine whether Basa “cutlets” are included in the scope of this investigation.
On March 3, 2003, the Department granted the Petitioners' request of an extension of the deadline to submit comments on the Department's use of factor input valuations in the
On March 3, 2003, the Petitioners submitted a letter requesting a hearing
On March 4, 2003, the Mandatory Respondents submitted their supplemental questionnaire responses related to Section II and Section III of the February 11, 2003 request for information.
On March 5, 2003, the Respondents submitted the more detailed sales reconciliation information for the four mandatory and seven voluntary respondents, as requested by the Department on February 19, 2003.
On March 5, 2003, we published the amended preliminary determination in the Federal Resister.
On March 7, 2003, the Department issued the verification outlines to the Mandatory Respondents.
On March 7, 2003, the GOV submitted a proposal for an agreement to suspend the current antidumping duty investigation in accordance with section 734(l) of the Act and section 351.208 of the Department's regulations.
On March 7, 2003, the Respondents submitted a response to Section I of the Department's February 11, 2003 request for information, regarding the appropriate methodology for calculating the normal value in the final determination, in which the Respondents argue that the Department should value the subject merchandise using the upstream factors, as reported by Respondents.
On March 7, 2003, the Petitioners also submitted their response to the Department's request for comments regarding the normal value methodology. The Petitioners argued the Department should continue to apply a surrogate value to the live fish input, as in the
On March 7, 2003, the Respondents submitted factors of production databases for the Mandatory Respondent companies, reflecting both the gross and net-weight factors of production, as requested by the Department.
On March 10, 2003, the Petitioners submitted a letter certifying that they omitted certain pages from their March 7, 2003 methodology comments. In a separate filing on March 10, 2003, the Petitioners filed the replacement pages for those comments.
On March 10, 2003, Nam Viet submitted additional factor consumption information. Nam Viet previously had overlooked its consumption of coal, and reported the total consumption of coal for the twelve-month period reported in the March 4, 2003 supplemental questionnaire response.
On March 10, 2003, Agifish submitted additional factor consumption information.
On March 12, 2003, the Petitioners submitted a request for a one-week extension of the deadline to submit publicly available factor value information. On March 13, 2003, the Department granted the request.
On March 13, 2003, the Petitioners submitted verification comments for the Mandatory Respondents.
On March 14, 2003, Sunnyvale Seafood Corporation, an importer, requested a scope clarification to determine whether certain Basa “nuggets” are included in the scope of this investigation.
The Department conducted verification of the responses submitted to the record by the Mandatory Respondents from March 17 through March 28, 2003.
On March 19, 2003, in a memo to the file, the Department placed on the record information gathered in the course of this investigation, including information from Respondents' web sites, statistical and trade information, and other information relevant to this investigation. Also on March 19, 2003, in a separate memo to the file, the Department extended the due date for case briefs and rebuttal briefs to April 16, 2003, and April 23, 2003, respectively.
On March 27, 2003, the Respondents certified that they served the Petitioners copies of the verification exhibits for CATACO. On April 7, 2003, the Respondents served the verification exhibits for Agifish and Vinh Hoan, and on April 8, 2003, they served the verification exhibits for Nam Viet.
On March 28, 2003, the Petitioners and the Respondents submitted to the record additional comments on the valuation of factors of production for the final determination.
On April 10 and April 11, 2003, the Department released the verification reports for CATACO and Vinh Hoan, and Nam Viet and Agifish, respectively.
On April 11, 2003, the Petitioners requested extensions of the deadlines to submit case and rebuttal briefs. On April 14, 2003, the Department granted these extensions until April 30, 2003 and May 7, 2003, respectively.
On April 14, 2003, the Department requested that the Respondents submit missing information from Vinh Hoan's verification Exhibits. On April 15, 2003, the Department requested that the Respondents submit Nam Viet's missing verification exhibit 50.
On April 24, 2003, the Petitioners requested a one-week extension for the purposes of submitting their final case and rebuttal briefs.
On May 1, 2003, the Department placed information gathered during the course of this investigation on the record.
On May 5, 2003, the Petitioners, the Respondents, and the GOV filed their respective case briefs. On May 6, 2003, the Petitioners filed certain replacement pages for Petitioners' May 5, 2003 case brief. The Respondents and Petitioners submitted their respective rebuttal case briefs on May 12, 2003.
On May 12, 2003, the Department placed on the record letters from importers Picadilly Cafeterias, Inc. and Ryan Family Steakhouses, Inc. commenting on the present antidumping duty investigation.
On May 23, 2003, the Department held a public hearing in accordance with section 351.310(d)(l) of the Department's regulations. Representatives for the Respondents, the Petitioners, the GOV, and Piazza Seafood World, an importer, were present.
On May 28, 2003, we published the preliminary critical circumstances determination for the Section A Voluntary Respondents.
As discussed above under “Case History,” on March 7, 2003, the GOV submitted a proposed suspension agreement in accordance with the Department's regulations at 19 CFR 351.208. The Department and the GOV engaged in lengthy, intensive discussions regarding a possible suspension agreement, and both sides
The Department has clarified the scope for purposes of the final determination to read as follows:
For purposes of this investigation, the product covered is frozen fish fillets, including regular, shank, and strip fillets and portions thereof, whether or not breaded or marinated, of the species
The subject merchandise will be hereinafter referred to as frozen “basa” and “tra” fillets, which are the Vietnamese common names for these species of fish. These products are classifiable under tariff article codes 0304.20.60.30 (Frozen Catfish Fillets), 0304.20.60.96 (Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen Freshwater Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of the Harmonized Tariff Schedule of the United States (“HTSUS”). This investigation covers all frozen fish fillets meeting the above specification, regardless of tariff classification. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
The period of investigation (“POI”) is October 1, 2001 through March 31, 2002. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the Petition (June 28, 2001).
All issues raised in the case brief by parties to this investigation are addressed in detail in the
On November 8, 2002, the Department determined under section 771(18)(A) of the Act, after analyzing comments from interested parties, that based on the preponderance of evidence on the record related to economic reforms in Vietnam to date, analyzed as required under section 771(18)(B) of the Act, that Vietnam should be treated as a non-market economy country under the U.S. antidumping law, effective July 1, 2001.
A designation as a non-market economy remains in effect until it is revoked by the Department (see section 771(18)(C) of the Act).
In our
Based on new information on the record of this investigation and information provided in our preliminary affirmative critical circumstances determinations, we have determined for purposes of the final determination, that critical circumstances exist for Nam Viet, Afiex, Cafatex, QVD, Da Nang, and the Vietnam-wide entity. For further details, see the
Additionally, because we have determined that Vinh Long had sales of subject merchandise during the POI and merits a separate rate, we must therefore, conduct a critical circumstances analysis for Vinh Long. We have found that critical circumstances exist for Vinh Long. For a more detailed discussion, please see the
All exporters and the GOV were given an opportunity to provide information showing they qualify for separate rates. Consequently, we are applying a single antidumping rate the Vietnam-wide rate to all producers/exporters that failed to respond to the Department's Q&V questionnaire and demonstrate entitlement to a separate rate.
For the reasons set forth in the
For purposes of the final determination, we continue to find that Bangladesh is the appropriate primary surrogate country. For further discussion and analysis regarding the surrogate country selection,
As provided in section 782(i) of the Act, we verified the information submitted by each respondent for use in our final determination. We used standard verification procedures including examination of relevant accounting and production records, and original source documents provided by the Respondents. For company-specific changes from the
For purposes of this final determination, we have determined that the use of facts available is appropriate for certain elements of the Respondents' dumping margin calculations. Section 776(a)(2) of the Act provides that if an interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act; (C) significantly impedes a determination under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. For a further discussion of the facts available applied to the Respondents, please see the
Based on our findings at verification, additional information placed on the record of this investigation, and analysis of comments received, we have made adjustments to the calculation methodology in calculating the final dumping margin in this proceeding. For discussions of the company-specific changes made since the preliminary determination to the final margin programs, see Final Analysis Memo for Agifish, Final Analysis Memo for Nam Viet, Final Analysis Memo for Vinh Hoan, and Final Analysis Memo for CATACO.
For those exporters who responded to Section A of the Department's antidumping questionnaire and had sales of the merchandise under investigation, but were not selected as Mandatory Respondents in this investigation, the Department has calculated a weighted-average margin based on the rates calculated for those exporters that were selected to respond in this investigation, excluding any rates that are zero,
The Department made changes to the surrogate values used to calculate the normal value from the
In accordance with section 735(c)(1)(B) of the Act, we are directing the U.S. Bureau of Customs and Border Protection (“Customs”) to continue to suspend liquidation of all entries of subject merchandise from Vietnam, that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of the
We determine that the following weighted-average dumping margins exist for the period October 1, 2001 through March 30, 2002:
In accordance with section 735(d) of the Act, we have notified the International Trade Commission (ITC) of our determination. As our final determination is affirmative, the ITC will determine, within 45 days, whether these imports are materially injuring, or threaten material injury to, the U.S. industry. If the ITC determines that material injury, or threat of material injury does not exist, the proceeding will be terminated and all securities posted will be refunded or cancelled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing Customs officials to assess antidumping duties on all imports of subject merchandise entered for consumption on or after the effective date of the suspension of liquidation.
This notice also serves as a reminder to parties subject to APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with section 351.305 of the Department's regulations. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the terms of an APO is a sanctionable violation. This determination is issued and published in accordance with sections 735 (d) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final court decision and amended final results of antidumping duty administrative reviews.
June 23, 2003.
Thomas Martin or Mark Manning at (202) 482-3936 or (202) 482-5253, respectively; AD/CVD Enforcement Office IV, Group II, Import Administration, Room 1870, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On March 18, 2003, the Court of Appeals for the Federal Circuit (CAFC) denied a petition for panel rehearing subsequent to its decision affirming the United States Court of International Trade (CIT), which had sustained the remand determination of the Department of Commerce (the Department) in the administrative review of the antidumping duty orders on heavy forged hand tools (HFHTs) from the People's Republic of China (PRC), covering the period February 1, 1998, through January 31, 1999.
On July 13, 2000, the Department published the final results of its eighth antidumping duty administrative review of HFHTs from the PRC.
Following the publication of the
On October 30, 2001, the CIT sustained the redetermination made by the Department pursuant to the remand.
The time period for appealing the CAFC's final decision has expired and no party has appealed this decision. As there is now a final and conclusive court decision with respect to litigation for Huarong, LMC, and TMC, we are amending the final results of review to reflect the findings of the remand results, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act). The amended weighted-average margins are:
The Department will determine, and the BCBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an importer-specific assessment rate for merchandise subject to this review. Where the importer-specific assessment rate is above de minimis, we will instruct the BCBP to assess antidumping duties on that importer's entries of subject merchandise. The Department will issue appropriate assessment instructions directly to the BCBP within 15 days of publication of these amended final results of review. We will direct the BCBP to assess the resulting assessment rates for the subject merchandise on each of the importer's entries during the review period.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
These final results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(i)(1)).
Import Administration, International Trade Administration, Department of Commerce.
Notice of final affirmative countervailing duty determination.
The Department of Commerce has made a final determination that countervailable subsidies are being provided to certain producers and exporters of dynamic random access memory semiconductors from the Republic of Korea. For information on the estimated countervailing duty rates, please see the “Suspension of Liquidation” section, below.
June 23, 2003.
Ryan Langan, Jesse Cortes, or Daniel J. Alexy, Office of Antidumping/Countervailing Duty Enforcement, Group 1, Import Administration, U.S. Department of Commerce, Room 3099, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone(202) 482-2613, (202) 482-3986, and (202) 482-1540, respectively.
The petitioner in this investigation is Micron Technology, Inc. (“the petitioner”).
The period for which we are measuring subsidies, or period of investigation, is January 1, 2001 through June 30, 2002.
The following events have occurred since the publication of the preliminary determination in the
On April 7, 2003, the petitioner submitted comments alleging that Samsung Electronics Co., Ltd., (“SEC”) was uncreditworthy during the period 1997 through 1999. SEC filed rebuttal information relating to this allegation on April 10 and 17, 2003. The Department of Commerce (“the Department”) initiated an investigation of SEC's creditworthiness for 1998 only in an April 17, 2003 memorandum to Louis Apple entitled “Samsung Electronics Co., Ltd. Uncreditworthiness Allegation,” which is on file in the Department's Central Records Unit in Room B-099 of the main Department building (“CRU”). SEC and the petitioner filed further comments on this creditworthiness investigation subsequent to its initiation.
On April 8, 2003, Hynix Semiconductor, Inc. (“Hynix”) submitted ministerial error allegations relating to the
We issued supplemental questionnaires to SEC, Hynix, and the Government of the Republic of Korea (“GOK”) on April 8, and May 5, 6, and 20, 2003. We received responses to these supplemental questionnaires on April 14 and 16, and May 13, 15, and 22, 2003. The respondents, the petitioner, and interested parties also submitted factual information, comments, and arguments at numerous instances prior to the final determination based on various deadlines for submissions of factual and information and/or arguments established by the Department subsequent to the
From April 21 to May 3, 2003, we conducted verification of the questionnaire responses submitted by the GOK, Hynix, and SEC.
On May 28, 2003, the Department issued a memorandum entitiled “Preliminary Determination on New Subsidy Allegations and New Subsidies Discovered in the Course of Investigation” (“
We received case briefs from the GOK, SEC, Hynix, Infineon Technologies North America Corporation and Infineon Technologies Richmond, LP (a domestic producer and an interested party in this proceeding), and the petitioner on May 22, 2003. The parties submitted rebuttal briefs on May 30, 2003. On June 2, 2003, the petitioner and the GOK/SEC submitted supplemental case briefs on the issues addressed in the Department's
The products covered by this investigation are dynamic random access memory semiconductors (“DRAMS”) from the Republic of Korea (“ROK”), whether assembled or unassembled. Assembled DRAMS include all package types. Unassembled DRAMS include processed wafers, uncut die, and cut die. Processed wafers fabricated in the ROK, but assembled into finished semiconductors outside the ROK are also included in the scope. Processed wafers fabricated outside the ROK and assembled into finished semiconductors in the ROK are not included in the scope.
The scope of this investigation additionally includes memory modules containing DRAMS from the ROK. A memory module is a collection of DRAMS, the sole function of which is memory. Memory modules include single in-line processing modules, single in-line memory modules, dual in-line memory modules, small outline dual in-line memory modules, Rambus in-line memory modules, and memory cards or other collections of DRAMS, whether unmounted or mounted on a circuit board. Modules that contain other parts that are needed to support the function of memory are covered. Only those modules that contain additional items which alter the function of the module to something other than memory, such as video graphics adapter boards and cards, are not included in the scope. This investigation also covers future DRAMS module types.
The scope of this investigation additionally includes, but is not limited to, video random access memory and synchronous graphics random access memory, as well as various types of DRAMS, including fast page-mode, extended data-out, burst extended data-out, synchronous dynamic RAM, Rambus DRAM, and Double Data Rate DRAM. The scope also includes any future density, packaging, or assembling of DRAMS. Also included in the scope of this investigation are removable memory modules placed on motherboards, with or without a central processing unit, unless the importer of the motherboards certifies with the U.S. Bureau of Customs and Border Protection (“Customs”) that neither it, nor a party related to it or under contract to it, will remove the modules from the motherboards after importation. The scope of this investigation does not include DRAMS or memory modules that are re-imported for repair or replacement.
The DRAMS subject to this investigation are currently classifiable under ubheadings 8542.21.8005 and 8542.21.8021 through 8542.21.8029 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The memory modules containing DRAMS from the ROK, described above, are currently classifiable under subheadings 8473.30.10.40 or 8473.30.10.80 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the scope of this investigation remains dispositive.
Because the ROK is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act effective January 1, 1995 (“the Act”), the International Trade Commission (“ITC”) is required to determine whether imports of the subject merchandise from the ROK materially injure, or threaten material injury to, a U.S. industry. On December 13, 2002, the ITC made its preliminary determination that there is a reasonable indication that an industry in the United States is being materially injured by reason of imports from the ROK of the subject merchandise.
All issues raised in the case and rebuttal briefs by parties to this investigation are addressed in the “Issues and Decision Memorandum” from Jeffrey May, Deputy Assistant Secretary, Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary, Import Administration, dated June 16, 2003 (“
As a result of our
In accordance with section 705(c)(1)(C) of the Act, we are directing Customs to continue to suspend liquidation of all imports of the subject merchandise from the ROK that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
We determine the total estimated net subsidy rate for each company to be the following:
In accordance with sections 777A(e)(2)(B) and 705(c)(5)(A) of the Act, we have set the “all others” rate as Hynix' rate because the rate for SEC, the only other investigated company, is
We will issue a countervailing duty order if the ITC issues a final affirmative injury determination and we will instruct Customs to require a cash deposit of estimated countervailing duties for such entries of merchandise in the amounts indicated above. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an Administrative Protective Order (“APO”), without the written consent of the Assistant Secretary for Import Administration.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Modification of agency practice regarding privatizations.
On January 8, 2003, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) adopted the report of the WTO Appellate Body in
Greg Campbell, Office of Policy, Import Administration, U.S. Department of Commerce, Room 3712, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-2239.
Unless otherwise indicated, all citations to the statute are references to the Tariff Act of 1930, as amended (the Act). Citation to “section 123” refers to section 123 of the URAA.
On February 2, 2000, the U.S. Court of Appeals for the Federal Circuit in
Pursuant to the Federal Circuit's finding, the Department developed a new change-in-ownership methodology, first announced in a remand determination on December 4, 2000, following the Federal Circuit's decision in
This “same-person” privatization methodology is currently the subject of appeals to the Federal Circuit in three cases:
On August 8, 2001, the European Communities requested that the DSB establish a dispute settlement panel to examine the practice of the United States of imposing countervailing duties on certain products exported from the European Communities by privatized companies. A panel was established, the case was briefed and argued, and the Panel circulated its final report on July 31, 2002.
Section 123 of the URAA is the applicable provision governing the actions of the Department when a WTO dispute settlement panel or the Appellate Body finds that a regulation or practice of the Department is inconsistent with any of the Uruguay Round agreements. Specifically, section 123(g)(1) provides that, “[i]n any case in which a dispute settlement panel or the Appellate Body finds in its report that a regulation or practice of a department or agency of the United States is inconsistent with any of the Uruguay Round Agreements, that regulation or practice may not be amended, rescinded, or otherwise modified in the implementation of such report unless and until * * * (C) the head of the relevant department or agency has provided an opportunity for public
To provide a context for the discussion of changes to our new privatization methodology, we first review the statutory provisions governing the Department's analysis of changes in ownership in the countervailing duty context, as explained in the Statement of Administrative Action (SAA) and interpreted by the Court. The statute provides, at section 771(5)(F), that “[a] change in ownership of all or part of a foreign enterprise or the productive assets of a foreign enterprise does not by itself require a determination by the administering authority that a past countervailable subsidy received by the enterprise no longer continues to be countervailable, even if the change in ownership is accomplished through an arm's length transaction.” The SAA explains that “the term ‘arm's-length transaction’ means a transaction negotiated between unrelated parties, each acting in its own interest, or between related parties such that the terms of the transaction are those that would exist if the transaction had been negotiated between unrelated parties.” SAA, at 258. The SAA further explains that
The Federal Circuit reviewed the statute's change-in-ownership provisions in
Had Commerce fully examined the facts, it might have found that [the respondent] paid full value for the assets and thus received no benefit from the prior owner's subsidies, or Commerce might have found that [the respondent] did not pay full value and thus did indirectly receive a ‘financial contribution’ and a ‘benefit’ from the government by purchasing its assets from a subsidized company ‘for less than adequate remuneration.’ * * * Commerce might have reached the conclusion that [the respondent] indirectly received a subsidy by other means.
In light of the SAA and the Federal Circuit's findings, we believe the statute grants the Department flexibility and discretion in the countervailing duty context for analyzing changes in ownership, including privatizations.
We now turn to the findings of the Panel and Appellate Body. At the outset, the Panel clarified that its findings apply only to changes in ownership that involve privatizations in which the government retains no controlling interest in the privatized producer and transfers all or substantially all the property.
While the Appellate Body agreed with the Panel that the same-person methodology is contrary to the requirements of the Subsidies Agreement, it clarified that
The Appellate Body identified examples of circumstances where the conditions necessary for “market prices” to fairly and accurately reflect subsidy benefits are not present, or are “severely affected” by the government's economic and other policies
Markets are mechanisms for exchange. Under certain conditions (
Of course, every process of privatizing public-owned productive assets takes place within the concrete circumstances prevailing in the market in which the sale occurs. Consequently, the outcome of such a privatization process, namely the price that the market establishes for the state-owned enterprise, will reflect those circumstances. However, governments may choose to impose economic or other policies that, albeit respectful of the market's inherent functioning, are intended to induce certain results from the market. In such circumstances, the market's valuation of the state-owned property may ultimately be severely affected by those government policies, as well as by the conditions in which buyers will subsequently be allowed to enjoy property.
The Panel's absolute rule of “no benefit” may be defensible in the context of transactions between two private parties taking place in reasonably competitive markets; however, it overlooks the ability of governments to obtain certain results from markets by shaping the circumstances and conditions in which markets operate. Privatizations involve complex and long-term investments in which the seller—namely the government—is not necessarily always a passive price taker and, consequently, the “fair market price” of a state-owned enterprise is not necessarily always unrelated to government action. In privatizations, governments have the ability, by designing economic and other policies, to influence the circumstances and the conditions of the sale so as to obtain a certain market valuation of the enterprise.
Accordingly, the Appellate Body reversed the Panel's conclusion that once an importing Member has determined that a privatization has taken place at arm's length and for fair
The Department's final modification of its practice regarding privatizations of state-owned enterprises in the countervailing duty context is basically the same as the proposed modification, but with some revisions that are discussed below in the Department's response to the comments. This new practice is fully consistent with the statute, which gives the Department broad discretion in analyzing changes in ownership.
The methodology is based on certain rebuttable presumptions, reflecting the conclusions of the Panel and Appellate Body. The “baseline presumption” is that non-recurring subsidies can benefit the recipient over a period of time (
In considering whether the evidence presented demonstrates that the transaction was conducted at arm's length, we will be guided by the SAA's definition of an arm's-length transaction, noted above, as a transaction negotiated between unrelated parties, each acting in its own interest, or between related parties such that the terms of the transaction are those that would exist if the transaction had been negotiated between unrelated parties.
In analyzing whether the transaction was for fair market value, the basic question is whether the full amount that the company or its assets (including the value of any subsidy benefits) were actually worth under the prevailing market conditions was paid, and paid through monetary or equivalent compensation.
(1) Objective analysis: Did the government perform or obtain an objective analysis in determining the appropriate sales price? Did it implement the recommendations of such objective analysis for maximizing its return on the sale, including in regard to the sales price recommended in the analysis?
(2) Artificial barriers to entry: For example, did the government impose restrictions on foreign purchasers or purchasers from other industries, or overly burdensome or unreasonable bidder qualification requirements, or any other restrictions that artificially suppressed the demand for, or the purchase price of, the company?
(3) Highest bid: For example, was the highest bid accepted and was the price paid in cash or close equivalent? Why or why not?
(4) Committed investment: For example, were there price discounts or other inducements in exchange for promises of additional future investment that private, commercial sellers would not normally seek (
If we determine that the evidence presented does not demonstrate that the privatization was at arm's length for fair market value, the baseline presumption will not be rebutted and we will find that the unamortized amount of any pre-sale subsidy benefit continues to be countervailable. Otherwise, if it is demonstrated that the privatization was at arm's length for fair market value, any pre-sale subsidies will be presumed to be extinguished in their entirety and, therefore, non-countervailable.
A party can, however, obviate this presumption of extinguishment by demonstrating that, at the time of the privatization, the broader market conditions
Some factors,
1. Basic Conditions: For example, are the basic requirements for a properly functioning market sufficiently present in the economy in general as well as in the particular industry or sector, including free interplay of supply and demand, broad-based and equal access to information, sufficient safeguards against collusive behavior, effective operation of the rule of law, and adequate enforcement of contracts and property rights?
2. Legal and Fiscal Incentives: Has the government used the prerogatives of government in a special or targeted way that makes possible, or otherwise significantly distorts the terms of, a sale in a way that a private seller could not,
Where a party demonstrates that these broader market conditions were severely distorted by government action and that the transaction price was meaningfully different from what it would otherwise have been absent the distortive government action, the baseline presumption will not be rebutted and the unamortized amount of any pre-sale subsidy benefit will continue to be countervailable. Where a party does not make such a demonstration with regard to an arm's-length sale for fair market value, we will find all pre-sale subsidies to be extinguished by the sale and, therefore, to be non-countervailable.
Numerous comments and rebuttal comments were submitted in response to the proposed modification. We have carefully considered each of the comments submitted. While we have not adopted or made revisions reflecting all of the comments, the comments were nevertheless useful in helping to clarify the concepts underlying our privatization analysis and in refining the proposed modification. As such, we are grateful to those who took the time to comment on this aspect of the Department's countervailing duty methodology. Specific comments are summarized below, along with the Department's position on each. For more detail on the comments submitted,
Some commenters argue that the Department's methodology is inconsistent with the statute, the SAA, and
Other commenters counter that this argument was based on a misunderstanding of the statutory provision and of the methodology. Specifically, they state that the statute in no way questions the fundamental criterion of fair market value; the point of Section 771(5)(F) is that a sale by a governmental seller, even if at arm's length, is not necessarily a sale for fair market value. Accordingly, examination of a privatization must consider evidence that the governmental seller did not seek, and in turn the purchaser did not pay, fair market value.
Several commenters state that the burden of proof on the respondent under the new methodology is inconsistent with the requirements under U.S. law, and corresponding international agreements, permitting the imposition of countervailing duties. Specifically, they believe that this methodology unfairly and illegally shifts the burden of proof onto the respondent to demonstrate that there was a privatization at arm's length and for fair market value in order to rebut the presumption of a continuing benefit. Some commenters argue that the only burden that can properly be placed on the respondents is the burden of showing that there has been a privatization. Once this burden has been met, it is the petitioners' or the Department's responsibility to affirmatively demonstrate that the conditions exist to allow the subsidy benefit to continue after the privatization. One commenter suggests that once the petitioners have come forward with evidence to raise a genuine issue of current subsidization, the Department may then shift the burden to the respondent to counter with opposing evidence that the subsidy it received was extinguished.
The implication at the heart of these commenters' arguments is that the occurrence of a privatization itself creates a presumption of subsidy extinguishment. This contention is without any support under U.S. law or even under the relevant WTO decisions. Neither the Federal Circuit nor the WTO has indicated that the baseline presumption ceases to apply simply because a privatization has occurred, regardless of its nature and terms, and that somehow it becomes the petitioners' or the Department's responsibility to demonstrate that such a privatization was not at arm's length for fair market value.
As a practical matter, we anticipate that, in most if not all of the privatizations we examine, one party or
Several commenters agree that an analysis of the privatization process is pertinent, if not central, to determining whether the sale was for fair market value. One commenter suggests that a price determined through a fair and open sales process is, by definition, the fair market value. Some commenters caution that merely because a fair and open process can result in fair market value, it does not necessarily follow that a process that is less than ideal cannot result in fair market value. In such less-than-ideal sales, all circumstances of the sale, including the objective analysis, must be considered.
Other commenters argue that an emphasis on the process through which the government sold the company would represent an illegal cost-to-government approach. The government's actions or motives in selling the company, they argue, are irrelevant to whether the purchaser received a benefit by paying less than fair market value (
Likewise, the proposed “private seller” standard, several commenters contend, is illegal and impractical. One commenter argues that such a standard effectively and improperly collapses the financial contribution finding (
For this final modification, we have concluded that a useful and appropriate standard for determining whether a transaction was for fair market value is to assess its consistency with the normal sales practices of private, commercial sellers in that country. Preferably, in making a fair-market-value determination, we will compare the price paid for the company or its assets to a contemporaneous, benchmark price actually observed in the marketplace for a comparable company or assets. Where clear information on such a comparable, market-benchmark value is available, we will normally consider it to be highly probative in our fair-market-value analysis (though we may still consider other information regarding factors, where available and appropriate).
One useful alternative approach is to examine the process through which the sale was made. As with the direct comparison with comparable market benchmarks, the purpose of examining the “process-oriented” factors is to determine whether the buyer ultimately paid less for the company or its assets than the buyer otherwise would have had to pay in the marketplace. In lieu of a more concrete and directly comparable benchmark price, we would have to evaluate what the buyer actually paid by examining whether the conditions and circumstances of the sale reflect those that the buyer would have faced if the buyer were purchasing the company or its assets from a private, commercial seller in the marketplace. If the conditions and circumstances of the sale reflect those the buyer would otherwise have faced in the market, and absent more concrete evidence to the contrary, it is reasonable to determine that the price paid is what the buyer would otherwise have had to pay.
While it is true that, under this approach, there is an emphasis on the government's actions, this does not necessarily make it a cost-to-government standard. Rather, this emphasis merely reflects the reality that the seller is usually the party that determines the process and circumstances through which a company will be sold. In a privatization, the government happens to be the seller and, therefore, the one making those decisions.
We have, however, revised the wording of our final modification to de-emphasize the importance of government motives or intent. We continue to believe that, in some cases, statements from the government about what it was attempting to achieve by structuring a sale in a particular way may provide useful insight into what actions the government actually took, and what impact those actions had on the purchase price. However, we are clarifying that any determination regarding fair market value will normally not be based primarily on the government's motives or intent, as those are generally difficult to establish precisely and, in any case, are not necessarily indicative of whether the transaction price was less than fair market value.
We note that the approach we are taking in this new methodology is, in fact, similar in many fundamental respects to the Department's established equity infusion methodology. Consistent with the statute, we determine whether a benefit to the recipient has been conferred as the result of a government equity infusion by examining whether “the investment decision is inconsistent with the usual investment practice of private investors, including the practice regarding the provision of risk capital, in the country in which the equity infusion is made.” Section 771(5)(E)(I). Under section 351.507(a) of the Department's regulations, we will generally determine whether an equity infusion confers a benefit by reference to market prices for comparable shares.
However, where such benchmark prices are not available, our equity benefit determination will depend on whether we find the infusion recipient to have been equityworthy. Equityworthiness will be determined with reference to “the perspective of a reasonable private investor examining the firm at the time the government-provided equity infusion was made.” Section 351.507(a)(4). In other words,
Finally, the relevance of the government's actions to whether subsidies are extinguished during a privatization was recognized by the
At least one commenter expresses a view that an arm's-length transaction is not, in and of itself, a criterion for determining that subsidy benefits are extinguished. Rather, the commenter suggests that the existence of an arm's-length privatization is strong evidence of—and should create a presumption of—the payment of market value. The commenter notes that there are circumstances where the Department may find a transaction price to be fair market value even though the sale was not at arm's length. The commenter also suggests that where a private-to-private transaction is found to have occurred at arm's length, the sale was, by definition, for fair market value.
Another commenter states that the Department should not apply an arm's-length sale analysis unless the parties to the transaction are truly unrelated. In particular, the commenter believes that reorganizations of the structure of joint ventures or similar business entities are not transactions to which this proposed modification should be applied.
Others disagree, emphasizing that a sales price consistent with the recommendations of an independent or objective analysis should be the primary consideration in analyzing the sale. Some commenters propose further criteria that could be included in the evaluation process,
Other commenters state that, although entry barriers may be one relevant factor, they cautioned that a transaction should not be ruled to be not at fair market value solely because there were restrictions on the bidders. One commenter suggests that “overly burdensome” and “unreasonable” bidder qualifications are too ambiguous and could result in unpredictable determinations. Another emphasizes that limitations on eligibility matters only if the pool of eligible participants is insufficient to create a market driven transaction and if the limitations are not based on economic considerations. Finally, an additional commenter urges the Department to abandon this factor altogether because it would be too difficult to quantify the effect of such barriers on bid prices.
Other commenters, however, argue that whether the highest bid was selected is an appropriate consideration, and suggested additional scenarios (
Similarly, several commenters object to “profit maximization” as a necessary condition for determining that the government's actions were consistent with that of a private, commercial seller. One commenter believes that a focus on profit maximization is contrary to WTO obligations and United States law. Many argue that merely because a government “repackaged” the company's assets differently, thus resulting in a lower cash price, this does not mean that the purchaser paid less than fair market value for what it received.
Several commenters note that even private sellers of companies may place conditions on a sale that go beyond a mere listing of assets to be sold. For example, these conditions may govern the timing or form of payment, or may involve pre-existing obligations to workers. Moreover, some commenters explained that in many cases, the government-imposed conditions or required investments do not even necessarily affect the sales price, particularly if the requirements are actions the purchaser would have taken anyway. Furthermore, one commenter recalls, the purpose of the countervailing duty law is not to correct market distortions caused by previously bestowed subsidies but, simply, is to provide remedial relief to offset subsidies. Accordingly, these commenters urge the Department to eliminate this factor from the items to be examined in the determination of fair market value.
Another commenter urges the Department to retain the emphasis from its proposed modification on whether a benefit is actually conferred through committed investments. Specifically, unless there is both a required committed investment and a clearly demonstrable effect of that requirement on the price of the sale, the Department should find,
In response, other commenters contend that where the agency is confronted with behavior such as the government's imposition of conditions on a sale, it should find such actions inconsistent with those of a commercial seller. Furthermore, they urge the Department to recognize that by seeking such commitments from the purchaser, the government is accepting less than full market value for the company. One commenter, although agreeing generally with the inclusion of this factor, suggests that it should not be necessary to identify explicit price discounts or other inducements in order to establish that the committed investment was not a normal commercial selling practice.
With regard to barriers to entry, as we noted in the proposed modification, the fundamental consideration here is not necessarily the number of bidders, but rather whether the market is contestable,
With regard to an objective or independent analysis, we disagree that a sales price at or above the value cited in such an analysis is necessarily a dispositive indicator that the sale was for fair market value, other aspects of the sales process notwithstanding. We do not believe that private, commercial sellers normally follow or adopt such analyses blindly without a fuller understanding of,
However, we do believe that the absence of such an analysis, in circumstances where private, commercial sellers would normally
We wish to clarify, however, that though such objective analysis can serve as one useful benchmark for the sales price and can provide useful information about whether the process the government pursued was consistent with that of a private, commercial seller, we must exercise caution in how we use such an analysis given that it is often speculative and subjective in nature. The Department has experience in considering similar types of independent studies and objective analyses in the related context of government equity infusions, and we intend to follow a similar approach here, to the extent appropriate. We discussed this issue at length in the preamble to our equity infusion regulations, wherein we stated,
We will closely examine such studies. In order to be considered in our equityworthiness analysis, any study must have been prepared prior to the government's approval of the infusion and must be sufficiently objective and comprehensive. We intend to review such studies carefully to determine whether the government acted like a reasonable private investor, subjecting both the assumptions and the analysis to scrutiny. This will enable us to decide whether the decision to invest was commercially sound given the information at the disposal of the government.
Some independent studies commissioned to analyze the merits of a given investment may present an assessment of the company's expected returns and risks that is predicated on certain future actions by the company in question. For instance, a study might conclude that the investment in a company planning to close one outmoded plant and construct a new one in a different location is commercially viable so long as the company also reduces its workforce by half. In this case, the Department would take into consideration whether the downsizing will actually occur. If the company has known for a long time that a reduction in its workforce was a necessary condition for improved financial performance, but has consistently shown itself unwilling or incapable of making that reduction, this may prove sufficient cause to believe that the projected return is unattainable.
Some commenters cautioned the Department about relying too heavily on independent studies given their inherently speculative and subjective nature. We are well aware of the potential difficulties in using independent analyses, not least of which is the fact that independent experts often fundamentally disagree about the prospects of a given investment. In other instances, the objectivity of some studies is called into question. However, private investors are likewise usually faced with a similar variety of competing views and must exercise their own judgement with respect to the objectivity of information before them. When considering the suitability of a submitted study, we will seek to ensure the study is accurate and reliable, and exercise our own judgement with respect to a study's objectivity. Specifically, we will take into consideration the extent to which the study's premises and conclusions differ from those of other independent studies, accepted financial analysis principles, or market sentiment in general (
With regard to the acceptance of the highest bid, we disagree that this is not an important factor when considering whether the sale was for fair market value. This factor goes hand-in-hand with our “primary consideration” of whether the government maximized its return on what it sold, and is an important consideration in whether the government acted like a private, commercial seller. We recognize that there may be situations where a private, commercial seller will accept something other than cash or close equivalent as payment in a sale, but we believe those circumstances are exceptional and not the norm. We will, however, examine any information a party presents in demonstrating that the government's acceptance of non-cash or close-equivalent payment is consistent with private, commercial selling practice in the relevant market (
We clarify that the phrase “cash or close equivalent” is intended to include normal types of payment that may take the form of a variety of financial instruments other than cash (
We believe that the criterion of profit maximization is an appropriate consideration in our fair-market-value analysis. It is a basic principle of corporate finance and management that the primary function of a commercial enterprise is to maximize the financial return on its owners' investment.
The government has different concerns from those of a private seller. Unlike a private seller who seeks the highest market price for its assets, the government may have other goals, such as employment, national defense, and political concerns, which may affect the terms of a privatization transaction. Thus a case involving privatization does not necessarily govern a private-to-private situation.
The profit-maximization standard is also fully consistent with the WTO findings. For example, the Panel noted that “* * * in a market-based economy, the value of a company depends on its ability to generate returns for its shareholders.”
Regarding committed investment, we note that this appears to have been one of the most complicated and controversial parts of the proposed modification. In general, the numerous comments we received on this issue can be roughly divided into those that consider any committed investment to disqualify the sale automatically from being found to be at fair market value, and those arguing that any committed investment will be fully reflected in the purchase price. For this final modification, we have not adopted either argument as a
We would first like to clarify that by the term committed investment, we are referring to a range of possible restrictions or requirements that the government, as the seller, imposes on the future operation of, or investment in, the company or its assets. Some commenters noted that there are some practices which, on their surface, may appear to be committed investment, but are in fact actions which are sometimes taken by private, commercial sellers as well. As a threshold issue, therefore, we will first examine any evidence presented by parties that purports to demonstrate that a particular action is fully consistent with the normal sales practices of private, commercials sellers in the relevant market, even if that action would otherwise appear to fall within the scope of typical committed investment practices that the Department has encountered. Where such a demonstration is made, we normally will not regard such a practice as evidence that fair market value was not paid.
With regard to the impact a committed investment has on a sale, we disagree with the proposition that the presence of any committed investment necessarily means the sale is not for fair market value. As noted elsewhere in this notice, our analysis of fair market value under this new methodology is based on a benefit-to-recipient standard. The key question is whether, in purchasing the company or its assets, the buyer got something of value for which the buyer did not pay. In the relatively straightforward, hypothetical case of a requirement to maintain the workforce size at current levels for three years, we agree that, normally, a potential buyer will incorporate the cost (if any) of that restriction into the price the buyer offers to pay. Although this price may be lower than what the buyer would have been willing to pay absent the requirement, this does not necessarily mean that the buyer is receiving any net value that has not already been reflected in the transaction price.
In this hypothetical example, all other things being equal, our analysis and reasoning regarding this straightforward committed investment would resemble that of our analysis and approach to concurrent subsidies. Similar to concurrent subsidies, when making a finding that the value of the committed investment was fully reflected in the transaction price of an arm's-length privatization and, therefore, is fully extinguished in such a transaction, we will require the following criteria to be met: (1) The precise details of the committed investment were fully transparent to all potential bidders and, therefore, reflected in the final bid values of the potential bidders, (2) there is no implicit or explicit understanding or expectation that the buyer will be relieved of the requirement or commitment after the sale, and (3) there is no evidence otherwise on the record indicating that the committed investment was not fully reflected in the transaction price.
We also disagree, however, that a lowering of bid prices in the face of committed investments is necessarily a result of an increase in anticipated costs. In the hypothetical case above, our analysis and findings would likely be different if, for example, it were also shown that the government offers bidders an automatic discount
This hypothetical case can be further expanded to reflect a situation where the bidding pool begins with relatively few potential bidders,
We recognize that these scenarios just presented are complex and hypothetical (though they are not necessarily unusual). They are useful illustrations, however, of possible instances where, as a result of the government's imposition of requirements or restrictions that private, commercial sellers would not normally impose, a buyer might pay a lower price for a company or its assets than that buyer would otherwise pay even though such requirements or restrictions impose no additional cost on the buyer. This shows why any fixed rule one way or the other, as suggested by many of the commenters, would be inappropriate when analyzing committed investment. Accordingly, we will examine, on a case-by-case basis, whether the presence of committed investment resulted in the buyer paying less-than-fair-market-value for the company or its assets.
As to the additional factors some commenters suggested, we have not incorporated any of them explicitly into our non-exhaustive list at this time because we do not expect that they will have broad applicability across most of the privatizations we examine. However, we may consider these and any other relevant factors on a case-by-case basis where they are pertinent to the analysis of a particular privatization.
Some commenters argue for the Department to consider identifying a “safe harbor” with explicit guidelines for when a privatization will be deemed to eliminate the continuing benefit of past nonrecurring subsidies. Such a safe harbor, these commenters continue, would be desirable not only to simplify proceedings before the Department, but also to advance the U.S. policy of encouraging privatization, especially in developing countries. One approach, for example, would be to develop a clear rule that a privatization carried out under independent private advisors through commercial auction procedures, and/or that used post-privatization audits, would normally be deemed to be for fair market value. Other commenters suggest additional “safe harbor” rules, including a simple safe harbor for private-to-private sales.
In response to these suggestions, other commenters state that it is important that the Department maintain flexibility in its privatization methodology to consider the facts and circumstances of each case before it determines whether subsidies have been extinguished following a privatization. They find, therefore, that it would be premature for the Department to attempt to define “safe harbors” at this point without reviewing the various factual scenarios that accompany privatization. At least one commenter objects strongly, arguing that a safe harbor would merely become a “roadmap” for subsidization.
Moreover, several commenters find the Department's proposed market distortion criteria in general to be too vague and sweeping, and therefore, unpredictable and impractical. Other commenters suggest that the macroeconomic distortions contemplated under this analysis would be too general to meet the specificity requirements of a countervailable subsidy, and that only those actions that specifically affect the value of the privatized entity may be relevant.
Some commenters also view the Department's “reasonable basis for believing” in regard to proof of severe market distortion as too low a standard. Instead, one commenter proposes that the Department restate the standard so that the presumption of extinguishment could only be rebutted with clear and convincing evidence that severe market distortion exists; in the absence of such evidence, the Department should not overturn the presumption of extinguishment that follows an arm's length sale at fair market value. Some commenters further argue that such distortions must be quantified in order to prove that such distortions are material.
Some commenters supported the Department's proposed approach to market distortions, but urged the Department to leave itself discretion to adapt its analysis to the circumstances of each case. Another commenter suggested that the distortion factors be preceded by a preamble allowing for general consideration of market distortion issues that may not be covered by the specific factors listed. One commenter also suggests that post-sale conditions be added to the proposed list of factors in evaluating market distortions.
With regard to the comment that the factors we have listed as potentially relevant are too broad, we disagree. We believe that it is important to leave room for flexibility in this analysis and not to circumscribe artificially or prematurely the nature of the factors that could be found to distort a market. Such distortions can be specific to the unique circumstances of particular countries or markets, and it is especially difficult for the Department to foresee at this time all of the factors that may be relevant to this analysis, particularly without obtaining more experience in this area. Therefore, we intend that this analysis will be conducted on a case-by-case basis, and that we will be able to refine such analysis over time building on our accumulated experience.
That said, we recognize that perfect markets seldom exist outside of economics textbooks. We do not intend to “fail” a privatization merely because the broader environment in which it took place did not perfectly conform to some market paradigm. Rather, we will be balanced and realistic in our analysis, focusing on those severe distortions that would have a meaningful impact on the transaction in question.
We further disagree with the suggestion that our “basic conditions” analysis and our market distortions analysis should generally be limited to those countries that have non-market or transitional economies. First, to limit this analysis to non-market economies would reduce this aspect of our new methodology to redundancy and irrelevance given that the Department's practice is not to countervail subsidies in countries it finds to have non-market economies. Moreover, we will not necessarily limit the basic-conditions analysis to economy-wide distortions, but may, where appropriate, examine distortions that primarily affect particular industries or sectors of the economy. Furthermore, there is no indication that the Appellate Body's reasoning in this regard was limited solely to the circumstances of a non-market or transitional economy.
After consideration of the comments regarding the standard of proof in this analysis, we have removed the reference to “reasonable basis for believing” when demonstrating that the transaction price is meaningfully different from what it otherwise would have been. Such language unnecessarily complicated and confused the standard. It will take more than mere speculation to demonstrate that market distortions exist. That said, we are mindful of the fact that it may be very difficult to identify “hard data” that conclusively demonstrates the extent of such distortions or their impact on the transaction price. It is inherently difficult to show and, more so, to quantify precisely what the price would otherwise have been had there been a properly functioning market and regulatory regime.
Several commenters state that this new privatization methodology should not be applied where the privatization at issue occurs at the level of a holding company or parent company several levels removed from the actual respondent in the case. Some commenters argue that such privatizations do not extinguish subsidies provided to the subsidiary company that is the respondent in the case. Another commenter argues that the Department should carefully analyze the facts of each transaction and determine whether a particular subsidiary is benefitting from assistance received at the parent company level.
In the proposed modification, the Department invited comment on what percentage of shares or assets sold should be the threshold for triggering application of the methodology and, similarly, how incremental sales should be treated. Some commenters state that the partial sale of shares or assets does not provide any basis for reexamining an allocated benefit stream, noting that nothing in the WTO's decisions addresses partial sales and, therefore, the agency is not required to revise its methodology to address this situation.
Other commenters argue that restricting the circumstances in which the baseline presumption can be rebutted to full privatizations represents an arbitrary limitation that violates the fundamental principle that countervailing duties can only be imposed upon a company's products if
Turning to the issue of control, some commenters believe that the Department should apply its methodology when a government has relinquished effective control, even if the privatization has not been completed. Several commenters, however, argue that the mere fact that the government retains some control in a privatized company cannot automatically justify the imposition of countervailing duties based upon the full amount of subsidies bestowed on the state-owned enterprise prior to privatization.
Assuming that the release of control is relevant to when the Department should apply its methodology, several commenters suggested that the “use or direct” standard in the Department's cross-ownership regulations might be applicable. Another commenter suggested that the nature and relevance of control should be determined by the Department on a case-by-case basis, taking into account all of the various means by which parties may exercise control over the corporation—the inquiry may well require the Department to examine factors beyond the level of share ownership.
Other commenters disagreed, stating that the issue should not be whether the government has relinquished control of a company, but instead the Department should require that the government has no ownership whatsoever of the company and no right in any way to exert control over the company in order for the prior subsidies to be considered extinguished. Moreover, the “use or direct” standard of cross ownership is not necessarily appropriate because cross-ownership issues are very different from privatization issues.
Finally, some commenters argue that any final modification should not be applicable to private-to-private sales as well as government-to-private sales (
In this regard, we encourage parties to address whether, if the government remains in a position of control over a privatized company, that company may continue to be operated in a manner that furthers the government's agenda. Further, at what point does a change away from government ownership cause the subsidy recipient to become a full profit maximizer? Is it where the government holds only a minority ownership in the company? Where the government retains only latent control (
Moreover, parties might wish to explain why becoming a profit maximizer is relevant to the extinguishment of prior subsidies in a sale. How does this logic apply, if at all, to a private-to-private sale where, presumably, the seller was already a profit maximizer? Would the application of this final modification to private-to-private sales be consistent with the
[t]he government has different concerns from those of a private seller. Unlike a private seller who seeks the highest market price for its assets, the government may have other goals, such as employment, national defense, and political concerns, which may affect the terms of a privatization transaction. Thus a case involving privatization does not necessarily govern a private-to-private situation.
We ask that any additional comments on these specific issues be submitted to the Department within 60 days of publication of this final modification.
Regarding subsidies that may have been provided to encourage or facilitate privatization, some commenters argue that an analysis should be undertaken to determine the role of that subsidization in the transaction in question. Specifically, they state that the new methodology should recognize that the provision of subsidies prior to or during privatization proves that the market was distorted and that the privatization did not occur at fair market value. At a minimum, subsidies provided in the context of privatization are new subsidies to the new company and are therefore countervailable. Another commenter proposes that any subsidies provided within two years of a company's privatization should be considered as subsidies to the new owners, since they were, or may presumed to have been, provided to benefit the new owners at the time of sale. One commenter cited to Article 27.13 of the Subsidies Agreement to support its contention that concurrent subsidies are a unique type of subsidy that is not necessarily extinguished in a fair market value sale. Any failure to countervail concurrent subsidies, some
Other commenters disagree, stating that the Department should make clear that the fact that a government provides companies with subsidies to make them marketable should not prevent the extinguishment of the subsidy by an arm's-length sale at fair market value. As the WTO and U.S. courts have recognized, when a party pays fair market value for an asset (even if the asset is a whole company), all prior subsidies, regardless of when given, are extinguished. Several commenters maintain that as long as the assistance, such as debt forgiveness, is negotiated by the parties as part of the privatization transaction, any value of the assistance will be reflected in the purchase price paid by the new owners and there would therefore be no countervailable benefit accruing to the newly privatized company from the assistance. However, if the government provided the debt forgiveness after the bids were finalized, according to one commenter, the debt forgiveness would not necessarily have been reflected in the bid price, and therefore the debt forgiveness should be treated as a new subsidy.
Another commenter states that, where the government offers certain inducements (
[w]hile we have not developed guidelines on how to treat this category of subsidies, we note a special concern because this class of subsidies can, in our experience, be considerable and can have a significant influence on the transaction value, particularly when a significant amount of debt is forgiven in order to make the company attractive to prospective buyers. As our thinking on changes in ownership continues to evolve we will give careful consideration to the issue of whether subsidies granted in conjunction with planned changes in ownership should be given special treatment.
For the purposes of this new methodology, the Department intends to scrutinize very carefully any instances of concurrent subsidies, and will normally determine that the value of a concurrent subsidy is fully reflected in the fair market value price of an arm's-length change privatization and, therefore, is fully extinguished in such a transaction, if the following criteria are met: (1) The nature and value of the concurrent subsidies were fully transparent to all potential bidders and, therefore, reflected in the final bid values of the potential bidders, (2) the concurrent subsidies were bestowed prior to the sale, and (3) there is no evidence otherwise on the record demonstrating that the concurrent subsidies were not fully reflected in the transaction price.
We believe that this approach is consistent with analyzing a privatization from the point of view of the purchaser. All other things being equal, in a normally functioning and transparent market, we would expect that potential investors would be willing to increase the value of their offer prices to reflect the additional value that such concurrent subsidies are expected to contribute to the overall value of the company or its assets. Such additional value is therefore properly considered to be “paid for” in the purchase price, barring clear evidence to the contrary.
We are sympathetic to the argument that concurrent subsidies may be special in the sense that, in certain cases, without such subsidies, bidders may not be willing to purchase the company or its assets, and that capacity which would otherwise cease to exist is thereby allowed to continue producing. This is a particularly important consideration for industries characterized by chronic overcapacity and excess production. It is for this reason, among others, that we intend to scrutinize very closely all instances where subsidies are given to facilitate or induce a privatization.
We recognize, however, that most concurrent subsidies are given in an effort to increase the attractiveness of the company or assets as an investment. In other words, normally these subsidies increase the value and, therefore, in a normally functioning market, increase the price the purchaser pays over what he or she would otherwise pay. Thus, normally, there would be no reason to believe that a concurrent subsidy would lead to a purchaser paying less than fair market value.
With regard to the suggestion that concurrent subsidies be considered to be
We caution that our rationale for addressing concurrent subsidies should only be understood to apply to the circumstances of concurrent subsidies in the privatization context. If pushed to an extreme beyond these circumstances, such reasoning may lead to absurd conclusions that undermine the very effectiveness of the countervailing duty remedy. The Department would not consider the extreme argument, for example, that because the bid of a new owner reflected a recurring tax benefit that the company is expected to receive indefinitely into the future, that those future tax benefits are not countervailable. Any actionable subsidy bestowed subsequent to the privatization will be countervailed in full.
In instances in which the privatization was for less than fair market value and, therefore, did not result in the extinguishment of the benefits of pre-privatization subsidies, the Department sought comments on how it should quantify the amount of the benefit from those subsidies the company continues to enjoy. Some commenters state that, in such circumstances, the unallocated portion of the subsidy must continue to be countervailed at the same level as if no privatization had occurred. This is the only logical result where the baseline presumption of continuing benefit has not been rebutted. Other commenters propose formulas,
This approach is also fully consistent with the WTO findings.
We also note that there are practical reasons for finding that subsidy benefits continue in their entirety under such circumstances. For example, some commenters suggested that we determine that the amount of continuing benefit is the difference between the actual transaction price and the (higher) fair market value. However, in circumstances where our analysis is focused on the
Moreover, the shortfall approach resembles more an analysis of a new subsidy, with an identification of financial contribution (
Several commenters note that the Department made arm's-length, fair-market-value findings in certain recent CIT remands involving some of the same privatizations currently before the WTO. Many commenters raise case-specific facts and analysis, arguing for a particular result in a specific case when this new methodology is applied to the case facts. Other commenters object to the argument that any earlier determinations by the Department are now binding on the Department's implementation of the new methodology.
As to commenters' arguments regarding the application of this new methodology to the particular facts of specific cases, we do not believe that this notice is the appropriate context for considering and responding to particular claims regarding particular determinations. Rather, as noted elsewhere in this notice, we intend to apply this new methodology in separate “section 129” proceedings for each case before the WTO. In the context of those proceedings, we will provide all interested parties opportunity to present evidence and argument as to the appropriate determination in each case given the case-specific facts and the application of this methodology.
One commenter urged that the final modification clarify that, as a general matter, the new privatization methodology would apply immediately to any pending investigations and reviews, except to the extent that the privatization issues have already been resolved by court decisions interpreting the current U.S. statutory provisions. In addition, in order to ensure that countervailing measures are not improperly imposed on merchandise that is not benefitting from subsidies, this commenter urged the Department to consider self-initiation of changed circumstance reviews of any countervailing duty orders in which the alleged subsidy recipient had been privatized after the subsidies were received.
This methodology will be used in implementing the WTO's findings in
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The National Marine Fisheries Service (NMFS) publishes this notice to amend the application deadline for the
Your application must be received by close of business (5 p.m. EDT June 25, 2003). Applications received after that time will not be considered for funding.
You can obtain an application package from, National Marine Fisheries Service, State/Federal Liaison Office, 9721 Executive Center Drive N., St. Petersburg, FL 33702. Send completed applications to this same address. You may also obtain forms from:
Ellie Francisco Roche, Chief, State/Federal Liaison Office at (727) 570-5324 or at
This notice amends the
The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the
Intergovernmental Review—Applications under this program are subject to the provisions of Executive Order 12372, Intergovernmental Review of Federal Programs. Applicants must contact their State's Single Point of Contact (SPOC) to find out about and comply with the State's process under Executive Order 12372. The names and addresses of the SPOCs are listed in the Office of Management and Budget's Home page at
Prior notice and an opportunity for public comment are not required by the Administrative Procedure Act for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because notice and 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
This notice contains collection-of-information requirements subject to the Paperwork Reduction Act. The use of Standard Forms 424, and 269 has been approved by OMB under the respective control numbers 0348-0043, and 0348-0039. 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 Paperwork Reduction Act, unless that collection displays a currently valid Office of Management and Budget (OMB) control number.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that the Marine Mammal Research Program, Pacific Islands Fisheries Science Center, Honolulu Laboratory, 2570 Dole Street, Honolulu, HI 96822 (Principal Investigator, Dr. Bud Antonelis), has been issued a permit to take Hawaiian monk seals (
The permit and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)713-0376; and
PProtected Species Coordinator, Pacific Islands Regional Office, NMFS, 1601 Kapiolani Blvd., Rm, 1110, Honolulu, HI 96814-4700; phone (808)973-2935; fax (808)973-2941.
Amy Sloan or Ruth Johnson, (301)713-2289.
On January 22, 2003, notice was published in the
The permit authorizes the Holder to take Hawaiian monk seals in the Hawaiian Archipelago and Johnston Atoll over a 5-year period for purposes of (1) population assessment (ground monitoring and aerial surveys, flipper tagging and retagging, bleach marking, genetics analyses) to determine survivorship, reproductive rates, pup production, incidence and causes of injury or mortality, and abundance; (2) disease and health assessment (health screening of healthy and ill animals, lancing of abscesses, analyses of parasites, dietary analyses, satellite and VHF tag deployment, euthanasia of moribund animals, necropsies) to gain information on pathogens and other
An unlimited number of specimens (hard and soft parts including but not limited to blood serum, blubber biopsy, and placentae) may be exported to countries (including but not limited to Canada, the Netherlands, Scotland, and Australia) for scientific analyses related to health assessment of monk seals; samples not used in analyses may be re-imported. An unlimited number of specimens (hard and soft parts) from Mediterranean monk seals (
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.
Department of Education.
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Interested persons are invited to submit comments on or before July 23, 2003.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Lauren Wittenberg, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or should be electronically mailed to the Internet address
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Office of Elementary and Secondary Education, Office of Indian Education.
Notice inviting applications, including applications for Integration of Services projects under section 7116 of the Elementary and Secondary Education Act of 1965 (ESEA), as amended, for awards for fiscal year (FY) 2003, Indian Education Formula Grants to Local Educational Agencies.
The Department is not bound by any estimates in this notice.
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
Individuals with disabilities may obtain a copy of the application package in an alternative format, also, by contacting that person. However, the Department is not able to reproduce in an alternative format the standard forms included in the application package.
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20 U.S.C. 7421.
Department of Education.
List of correspondence from January 2, 2003 through March 31, 2003.
The Secretary is publishing the following list pursuant to section 607(d) of the Individuals with Disabilities Education Act (IDEA). Under section 607(d) of IDEA, the Secretary is required, on a quarterly basis, to publish in the
Melisande Lee or JoLeta Reynolds. Telephone: (202) 205-5507.
If you use a telecommunications device for the deaf (TDD), you may call (202) 205-5637 or the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain a copy of this notice in an alternative format (
The following list identifies correspondence from the Department issued from January 2, 2003 through March 31, 2003.
Included on the list are those letters that contain interpretations of the requirements of IDEA and its implementing regulations, as well as letters and other documents that the Department believes will assist the public in understanding the requirements of the law and its regulations. The date and topic addressed by a letter are identified, and summary information is also provided, as appropriate. To protect the privacy interests of the individual or individuals involved, personally identifiable information has been deleted, as appropriate.
• Letter dated March 25, 2003 to American Samoa Special Education Division Director Moeolo Vaatausili, regarding whether the purchase of vehicles to meet the transportation needs of children with disabilities using Part B funds is an allowable cost.
• Letter dated March 21, 2003 to Louisiana Department of Education Director Virginia Beridon, regarding criteria for determining whether use of Part B funds for international travel is an allowable cost.
• Letter dated February 14, 2003 to Bergen County, New Jersey Freeholder Louis A. Tedesco, clarifying that rights under the confidentiality provisions of the Family Educational Rights and Privacy Act (FERPA) and the IDEA vest with the parent or eligible student and that FERPA does not provide for these rights to be vested in a third party that has not suffered an alleged violation.
• Letter dated February 26, 2003 to Vermont Director of Special Education Dennis Kane, regarding issues the State needs to review and resolve pursuant to State complaint procedures and the complaint requirements in the part B regulations at 34 CFR 300.660-300.662.
• Letter dated March 6, 2003 to individual, (personally identifiable information redacted), regarding the change in the Part B regulations that removed the Secretarial review process under the State complaint procedures effective May 11, 1999.
• Letter dated March 24, 2003 to Connecticut Commissioner of Education Theodore S. Sergi, regarding the State's due process hearing procedures and compliance with the Special Conditions on its Federal fiscal year 2002 grant award under Part B.
• Letter dated March 20, 2003 to Vermont Department of Education Legal Counsel Geoffrey A. Yudien, clarifying (1) that a school district may not override parental consent for the initial provision of special education and related services, (2) that a school district is not required to obtain separate parental consent for additional services that the individualized education programs team deems necessary or for a continuation of services after the parent has previously consented to the initial provision of services, and (3) that the protections under the IDEA, including the discipline procedures at 34 CFR 300.520-300.529, would not apply to children whose parents have refused consent for the initial provision of special education and related services.
• Letter dated February 11, 2003 to New Jersey Director of Special Education Barbara Gantwerk, clarifying (1) the ways in which school districts can document efforts to obtain parental consent for the initial provision of special education and related services and reevaluations, and (2) that school districts are not required to provide the Part B discipline protections to children who are not receiving special education because their parents have refused to consent.
• Letter dated February 4, 2003 to West Virginia Advocate Susan Given, regarding factors that States may use in determining when extended school year services are appropriate under Part B.
• Letter dated March 20, 2003 to Arkansas Volunteer Educational Advocate David Young, clarifying that a school district's practice of maintaining and requiring a parent to use a list of qualified independent educational evaluation (IEE) examiners is not inconsistent with the parent's right to an IEE.
• Letter dated March 11, 2003 to Vermont Department of Education Legal Counsel Geoffrey A. Yudien, regarding the authority of the State and the role of the surrogate parent in making educational decisions for children with disabilities placed in State custody.
• Letter dated March 25, 2003 to Connecticut Birth to Three System Director Linda Goodman, regarding whether assistive technology can be provided under Part C.
• Letter dated March 13, 2003 to South Carolina Part C Coordinator David K. Steele, clarifying that although the provision of respite or other care arrangements may be necessary for some families to participate in appropriate early intervention activities, the term “respite” is not intended to serve as child-care or “baby-sitting” assistance in ordinary circumstances.
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American PowerNet Management, LP (APN) 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. APN is a limited partnership located in Pennsylvania that intends to engage in the wholesale trading of electricity. APN also requested waiver of various Commission regulations. In particular, APN requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by APN.
On June 6, 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 APN should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is July 7, 2003.
Absent a request to be heard in opposition by the deadline above, APN 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 APN, 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 APN'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 22, 2003, Richard Blumenthal, Attorney General for the State of Connecticut (CTAG), and the Connecticut Department of Public Utility Control (CDPUC) (collectively, the Connecticut Representatives) tendered for filing with the Federal Energy Regulatory Commission (Commission) pursuant to Rule 206 of the Commission's Rules of Practice and Procedure, 18 CFR 385.206, a clarification of complaint. The Connecticut Representatives state that this filing supplements and incorporates by reference the complaint and motion for an emergency stay of NRG Power Marketing Inc.'s (NRG-PMI) threatened termination of its competitively bid wholesale power sale contract with the Connecticut Light and Power Company (CL&P) filed by the Connecticut Representatives on May 16, 2003.
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 clarification of 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
This document was received at the Office of the Federal Register June 18, 2003.
On May 27, 2003, NRG Power Marketing Inc. (NRG) filed a Motion for Summary Disposition by May 29, 2003 Vacating the May 16 Order, Dismissing the Amended Complaint, and Terminating the Proceeding, in the above-docketed proceeding. By this notice, the date for filing answers to NRG's motion is shortened to and including June 6, 2003.
This document was received at the Office of the Federal Register June 18, 2003.
Take notice that on May 27, 2003, The Connecticut Light and Power Company (CL&P) tendered for filing with the Federal Energy Regulatory Commission (Commission) a Petition for Declaratory Order and Request for Expedited Treatment, pursuant to Rule 207 of the Commission's Rules of Practice and Procedure, 18 CFR 385.207(a)(2).
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
This document was received at the Office of the Federal Register June 18, 2003.
El Dorado Irrigation District (El Dorado) 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. El Dorado also requested waiver of various Commission regulations. In particular, El Dorado requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by El Dorado.
On June 6, 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 El Dorado 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 July 7, 2003.
Absent a request to be heard in opposition by the deadline above, El Dorado 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 El Dorado, 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 El Dorado'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
Innovative Technical Services, L.L.C. (InTech-LLC) 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 and the reassignment of transmission capacity. InTech-LLC also requested waiver of various Commission regulations. In particular, InTech-LLC requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by InTech-LLC.
On June 6, 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 InTech-LLC 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 July 7, 2003.
Absent a request to be heard in opposition by the deadline above, InTech-LLC 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 InTech-LLC, 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 InTech-LLC'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
New Athens Generating Company, LLC, New Covert Generating Company, LLC, New Harquahala Generating Company, and New Millennium Power Partners, LLC (collectively, “Applicants”) filed applications for market-based rate authority, with accompanying tariffs. The proposed tariffs provide for the sale of capacity, energy and ancillary services at market-based rates, resale of firm transmission rights, and reassignment of transmission capacity. Applicants also requested waiver of various Commission regulations. In particular, Applicants requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Applicants.
On June 6, 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 Applicants should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214).
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is July 7, 2003.
Absent a request to be heard in opposition by the deadline above, Applicants are authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Applicants, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Applicants' issuances of securities or assumptions of liability.
Copies of the full text of the Order 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 June 10, 2003, Northern Border Pipeline Company (Northern Border) tendered for filing to become part of its FERC Gas Tariff, First Revised Volume No. 1, Fourth Revised Sheet Number 124, to become effective July 10, 2003.
Northern Border proposes to revise its tariff to allow firm shippers an opportunity to work with the Company to establish a mutually agreeable contract term extension time period prior to the issuance of a notice of termination under subsection 5.3 of Rate Schedule T-1.
Northern Border states that copies of this filing have been sent to all of Northern Border's contracted shippers and interested state regulatory commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's rules and regulations. All such motions or protests must be filed in accordance with § 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
a.
b.
c.
d.
e.
f. All local, State, and Federal agencies, Indian tribes, and other interested parties are invited to participate. Please call Mike Henry at (503) 552-2762 by June 19, 2003, for instructions on how to participate in person or by phone.
Take notice that on June 10, 2003, Questar Pipeline Company (Questar) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 3, Fourth Revised Sheet No. 3, to be effective March 1, 2003.
Questar states that, on May 8, 2003, it filed tariff sheets in compliance with the Commission's order issued April 24, 2003, in Docket No. CP03-59-000, which approved the abandonment of Rate Schedule X-34 of Questar's FERC Gas Tariff, Original Volume No. 3. This compliance filing was accepted to be effective March 1, 2003, by the Commission's June 2, 2003, letter order. Questar explains that an additional tariff sheet in the Table of Contents has been affected by this acceptance and is being tendered in this filing to reflect the cancellation of Rate Schedule X-34.
Questar states that a copy of this filing has been served upon Questar's Original Volume No. 3 customers, the Public Service Commission of Utah and the Public Service Commission of Wyoming.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 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
RMKG, LLC (RMKG) 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. RMKG is a Texas corporation that intends to engage in the wholesale trading of electricity. RMKG also requested waiver of various Commission regulations. In particular, RMKG requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by RMKG.
On June 6, 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 RMKG 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 July 7, 2003.
Absent a request to be heard in opposition by the deadline above, RMKG 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 RMKG, 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 RMKG'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 June 12, 2003, Sierra Pacific Industries (SPI), filed with the Federal Energy Regulatory Commission an errata to its May 2, 2003, application for approval of its initial tariff (FERC Electric Tariff Original Volume No. 1), and for blanket approval for market-based rates pursuant to part 35 of the Commission's
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on June 10, 2003, Southern Natural Gas Company (Southern) tendered for filing a Refund Report reflecting its refund of certain amounts to its eligible firm shippers.
Southern states that the refund represents amounts collected as overrun charges for a firm shipper's use of receipt points in zones downstream of its contracted delivery zone(s), but within its Transportation Demand, plus interest calculated in accordance with section 154.501(d) of the Commissions's regulations. The report states that Southern credited $373,674.21 to its eligible shippers on June 10, 2003, per the Commission's Order dated May 6, 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 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 June 10, 2003, Texas Gas Transmission, LLC (Texas Gas), formerly Texas Gas Transmission Corporation, tendered for filing as part its FERC Gas Tariff, Second Revised Volume No.1, the tariff sheets as shown on Appendix A to the filing, to reflect a name change to become effective on May 16, 2003.
Texas Gas states that copies of its transmittal letter and appendices have been mailed to all parties on the Commission's Official Service list, all of its jurisdictional customers, and applicable 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
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on June 11, 2003, Fresno Power Investors, L.P. (FPILP), Harold E. Dittmer, and Hanover Power (Gates), LLC (HPG) (collectively, the Applicants), filed with the Federal
Take notice that on June 10, 2003, California Independent System Operator Corporation (ISO), tendered for filing a report on “Neutrality Adjustment” pursuant to Commission Order of March 12, 2003.
Take notice that on June 11, 2003, the California Electricity Oversight Board (CEOB), the California Public Utilities Commission (CPUC), and Allegheny Energy Supply Company, LLC (AESC) and Allegheny Trading Finance Company (ATF) (jointly or individually Allegheny), submitted for Commission approval a Settlement Agreement by and among the Governor of the State of California, acting on behalf of the agencies, departments, subdivisions, boards, and commissions of the executive branch of the State of California (including the California Department of Water Resources (CDWR); the CEOB, the CPUC; and the People of the State of California, by and through the Attorney General). Allegheny states that the Settlement Agreement resolves, among other things, complaints against Allegheny filed with the Commission by the CPUC and the CEOB in Docket Nos. EL02-60-000 and EL02-62-000.
Initial comments on the Settlement Agreement are to be filed with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, on or before the comment date stated at the end of this notice. Reply comments to the initial comments on the Settlement Agreement shall be filed on or before July 1, 2003.
As required by the Settlement Agreement, in Docket No. ER01-1847-001, ATF also tendered for filing an amendment to its Service Agreement No. 121, under which it provides firm delivery of power to the CDWR. The revised rates and volumes to be provided by ATF to CDWR are set forth in the amended and restated contract. ATF requests an effective date of June 10, 2003, for the Amended and Restated Service Agreement No. 121. Comments on the amended and restated contract shall be filed on or before the comment date.
Allegheny states that copies of the filing were served upon CDWR, the CPUC, the CEOB, the California Attorney General's Office, the West Virginia Public Service Commission, the Public Utilities Commission of Ohio, the Pennsylvania Public Utility Commission, the Virginia State Corporation Commission, and the Maryland Public Service Commission.
Take notice that on June 10, 2003, Entergy Services, Inc. (Entergy), on behalf of Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New Orleans, Inc., filed a Petition for Declaratory Order. Entergy seeks Commission guidance with respect to a weekly procurement process proposed to facilitate the continued integration of merchant generation and other wholesale suppliers into the procurement processes Entergy uses to serve Entergy's native load customers, and to establish an additional mechanism for granting short-term firm transmission service.
Take notice that on June 5, 2003, the above referenced entities (collectively the Applicants), submitted for filing with the Federal Energy Regulatory Commission a triennial market power update pursuant to the Commission orders granting them market-based rate authorizations. Applicants state that they are all direct or indirect subsidiaries of Cinergy Corp.
Take notice that on June 5, 2003, Exelon Corp., tendered for filing an Interim Report of the services the PJM Interconnection, L.L.C. will be performing for ComEd between June 1, 2003, and October 1, 2003, the transition period before ComEd is integrated into PJM in accordance with the Commission's Order of April 1, 2003, in Docket No. ER03-262-000.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Environmental Protection Agency (EPA).
Notice.
This notice announces that as of January 21, 2003, pursuant to EPA's title V operating permits program regulations, interim approval of the title V operating permits program in Antelope Valley Air Pollution Control District (Antelope Valley APCD or the District) has expired. EPA was unable to grant full approval to the District's title V program before the expiration date because the District could not resolve EPA's finding that California's agricultural permitting exemption in Health and Safety Code Section 42310(e) unduly restricts the District's ability to adequately administer and enforce the title V program. As a result of the expiration of the interim approval of the District's program, EPA will implement the federal operating permits program for all major stationary sources in Antelope Valley APCD.
Correspondence with the Region IX Air Permits Office should be mailed to EPA Region 9, Air Division, Permits Office (AIR-3), 75 Hawthorne Street, San Francisco, California, 94105.
Gerardo Rios, EPA Region 9, Air Division, Permits Office (AIR-3), at (415) 972-3974 or
Throughout this document, “we,” “us,” or “our” means EPA.
Title V of the Clean Air Act (CAA or Act) requires all state permitting authorities to develop operating permits programs that meet certain federal criteria codified at 40 Code of Federal Regulations (CFR) part 70. California has delegated responsibility for adopting and implementing the required title V permitting programs to the local air pollution control districts. On November 30, 2001, EPA approved the permitting programs for 34 air districts in the State. 66 FR 63503 (December 7, 2001). Our approval, however, was challenged by several groups alleging that the approval was unlawful based in part on a State law provision (Health and Safety Code Section 42310(e)), which precludes local air districts from permitting major agricultural sources that would otherwise be subject to title V permitting. Because of this permitting exemption, EPA determined that the title V programs in these 34 districts were inadequate and published this determination in a Notice of Deficiency (NOD). 67 FR 35990 (May 22, 2002). The State had 90 days to take corrective action. Since the State did not take corrective action, EPA partially withdrew approval of the title V programs in these 34 districts, with the final rule effective November 14, 2002. 67 FR 63551 (October 15, 2002). In conjunction with this partial withdrawal, EPA announced that we would implement a federal title V permitting program in these districts for major agricultural sources.
Antelope Valley APCD is a relatively new air pollution control district in California, created by the State legislature in 1997. As a result, review of the District's title V program has been independent from review of the other 34 districts' programs. Antelope Valley APCD's title V operating permits program was granted interim approval, effective January 18, 2001. 65 FR 79314 (December 19, 2000). EPA identified three deficiencies in the District's program which prevented full approval.
Of the three deficiencies noted by EPA, two were corrected by Antelope Valley APCD in a timely manner (submittal dates of October 22, 2001, and June 17, 2002). The third deficiency—EPA's finding that the State's agricultural permitting exemption at Health and Safety Code Section 42310(e) unduly restricts the local district's ability to adequately administer and enforce its title V program—has not been corrected by the State. This is the same deficiency identified in the NOD regarding the inadequacy of the title V programs for the 34 other districts (
As a result of the expiration of the interim approval, EPA began implementation of the part 71 program for major stationary sources in the Antelope Valley APCD, effective January 21, 2003. EPA is not promulgating a part 71 program with today's notice, since such a program has already been promulgated by the Agency.
Pursuant to 40 CFR 71.5(a)(1)(i), major stationary sources which do not have an existing operating permit issued by a State (or local permitting authority) under an approved part 70 program, and which are applying for a part 71 permit for the first time, must submit an application within 12 months after becoming subject to the permit program or on or before such earlier date as the permitting authority may establish. For Antelope Valley APCD, the deadline will be 12 months after January 21, 2003. Therefore, major stationary sources (including major stationary agricultural sources) that do not have a title V permit are required to submit part 71 permit applications to the EPA Region IX Permits Office (
The deadline for submitting fees depends on the type of source or, more specifically, on the source's SIC code. Pursuant to 40 CFR 71.9(f)(1)(i), agricultural sources have six months from the effective date of the part 71 program. Therefore, agricultural sources
As we noted in the final rulemaking for the 34 other districts in California, EPA is committing to provide additional guidance on the implementation of the part 71 program for new major stationary agricultural sources. The additional guidance, which EPA will make widely available through direct outreach to potentially subject sources and through other means, will provide clearer direction as to the types and sizes of operations that are presumptively major under the title V program.
In line with this commitment, EPA is developing streamlined application forms
If you have questions, EPA has also implemented a toll-free voicemail hotline as well as a dedicated e-mail address for any agricultural-permit-related questions. The phone number and e-mail address are listed below and can also be found on the Web site.
An owner or operator of a source may request a part 71 applicability determination from EPA. Pursuant to 40 CFR 71.3(e), the written request shall be made by the source's responsible official to the EPA Region IX Regional Administrator, shall include identification of the source and relevant facts about the source, and shall meet the certification requirements of 40 CFR 71.5(d).
Section 71.4(g) requires that, in taking action to implement and enforce a part 71 program, EPA shall publish a notice in the
In addition to today's
Environmental Protection Agency (EPA).
Notice of availability; extension of comment period.
The EPA is hereby extending for 8 days the public comment period established by the May 23, 2003, notice of availability of a dispersion modeling analysis of Prevention of Significant Deterioration (PSD) increment consumption in North Dakota and eastern Montana. EPA's air quality modeling analysis is contained in a report titled
Comments must be received on or before July 1, 2003.
Written comments may be mailed to Richard R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202. The Report and supporting documentation are available on EPA's Web site at
Carl Daly, EPA, Region VIII, (303) 312-6416.
This document extends the public comment period established in the
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) is establishing a panel to review the EPA's Environmental Economics Research Strategy. The panel will consist of members of the EPA SAB Environmental Economics Advisory Committee (EEAC) to which will be added additional experts to constitute the Advisory Panel on the Environmental Economics Research Strategy (APEERS).
Nominations should be submitted no later than July 14, 2003.
Nominations should be submitted in electronic format through the Form for Nominating Individuals to Panels of the EPA Science Advisory Board provided on the SAB Web site,
Any member of the public wishing further information regarding this Request for Nominations may contact Thomas O. Miller, Designated Federal Officer (DFO), via telephone/voice mail at (202) 564-4558; or via e-mail at
The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice, consultation, and recommendations to the EPA Administrator on the technical basis for Agency positions and regulations. General information about the SAB can be found in the SAB Web site at
The project the panel will undertake is expected to be no more than a six-month effort. Over that period, the panel will comply with the provisions of FACA and all appropriate SAB procedural policies, including the SAB process for panel formation described in the Overview of the Panel Formation Process at the Environmental Protection Agency Science Advisory Board, which can found on the SAB's Web site at:
The “Strategy” integrates together all relevant research conducted by EPA offices and laboratories and provides a blueprint for economic research priorities for the agency. The Strategy “* * * identifies priorities and research gaps, evaluates research tools, sets out strategic research objectives and suggests responsibilities and sequences for conducting or sponsoring research.” These research needs were developed from an initial survey of EPA economists who identified research topics for consideration. The top ten categories identified were: Valuation of reduced morbidity benefits; environmental behavior and decision-making; valuation of ecological benefits; benefits of environmental information disclosure; valuation of mortality benefits; market mechanisms and incentives other than trading; green accounting-international trade-finance; market mechanisms and incentives—trading; discounting-intergenerational equity; and risk and uncertainty techniques-integration with valuation. Research will be conducted externally through cooperative agreements, grants, contracts, and internally at EPA's National Center for Environmental Economics and in relevant EPA Office of Research and Development (ORD) National Laboratories and Centers.
The identified research priorities were evaluated by EPA staff in relation to four criteria in order to select the areas that EPA would emphasize in its research program. The selection criteria used require that research must: be needed by EPA, state, or other clients; reflect a gap in the existing knowledge base (
(a) Is the characterization of each of the major research gaps in the literature for the key subject areas of relevance to EPA's economic sciences, as identified in the EERS adequate? Will these priorities and implementation approaches effectively address the areas of greatest scientific uncertainty?
(b) Given the implementation strategy laid out in the EERS;
(c) What improvements in the design and implementation of the EERS would make each research project more useful to EPA and other environmental management agencies?
In the valuation areas, EPA's expressed needs are primarily practical: better values for ecological and human health impacts of environmental policies. However, most grant proposals (and most journal articles) investigate practical questions as well as methodological or other questions (
(a) Environmental (compliance) behavior and decision-making (
(b) Benefits of environmental information disclosure;
(c) Ecological valuation;
(d) Human health valuation;
(e) Market mechanisms and incentives;
(f) Cost analysis;
(g) Benefit-Cost analysis and Uncertainty analysis in BCA;
(h) Discounting and intergenerational equity.
Anyone who is unable to submit nominations in electronic format may contact Thomas O. Miller as indicated in this FR notice. Nominations should be submitted before July 14, 2003. Any questions concerning either this process or any other aspects notice should be directed to Thomas O. Miller, as indicated in this FR notice.
The EPA Science Advisory Board will acknowledge receipt of these nominations to the nominators. From the nominees identified by respondents to this
For the EPA SAB, a balanced review panel (
Short List candidates will also be required to fill-out the “Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency” (EPA Form 3110-48). This confidential form, which is submitted by EPA SAB Members and Consultants, allows Government officials to determine whether there is a statutory conflict between that person's public responsibilities (which includes membership on an EPA Federal advisory committee) and private interests and activities, or the appearance of a lack of impartiality, as defined by Federal regulation. The form may be viewed and downloaded from the following URL address:
Environmental Protection Agency (EPA).
Notice of document availability.
EPA is announcing availability of a memorandum entitled “Allocation of Fiscal Year 2003 Operator Training Grants” issued on June 6, 2003. This memorandum provides National guidance for the allocation of funds under section 104(g)(1) of the Clean Water Act. Each
Municipal Assistance Branch, (4204-M), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Gary Hudiburgh. (202) 564-0626 or
The subject memorandum may be viewed and downloaded from EPA's home page,
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a premanufacture notice (PMN) or an application for a test marketing exemption (TME), and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from April 28, 2003 to May 23, 2003, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Comments identified by the docket ID number OPPT-2003-0030 and the specific PMN number or TME number, must be received on or before July 23, 2003.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Barbara Cunningham, Director, Environmental Assistance Division, Office of Pollution Prevention and Toxics (7408M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address:
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the premanufacture notices addressed in the action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number and specific PMN number or TME number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the specific PMN number you are commenting on in the subject line on the first page of your response. You may also provide the name, date, and
Section 5 of TSCA requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a PMN or an application for a TME and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from April 28, 2003 to May 23, 2003, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
This status report identifies the PMNs pending or expired, and the notices of
In Table I of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: the EPA case number assigned to the PMN; the date the PMN was received by EPA; the projected end date for EPA's review of the PMN; the submitting manufacturer; the potential uses identified by the manufacturer in the PMN; and the chemical identity.
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the Notices of Commencement to manufacture received:
Environmental protection, Chemicals, Premanufacturer notices.
Notice of a partially open meeting of the Board of Directors of the Export-Import Bank of the United States.
Thursday, June 26, 2003 at 11 a.m. The meeting will be held at Ex-Im Bank in Room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
Extension of Ex-Im Bank's Environmental Procedures & Guidelines and the Nuclear Procedures & Guidelines.
The meeting will be open to public participation for Item No. 1 only.
For further information contact: Office of the Secretary, 811 Vermont Avenue, NW., Washington, DC 20571 (Tele. No. 202-565-3957).
Federal Communications Commission.
Notice.
This document seeks public comment on a petition for interim waiver requesting that all Telecommunication Relay Service (“TRS”) calls placed using a wireless phone be reimbursed from the Interstate TRS Fund and requesting a rulemaking to decide how relay calls should be reimbursed where the jurisdiction of the call cannot be determined from the automatic number identification system.
Interested parties may file comments in this proceeding on or before July 14, 2003. Reply comments may be filed on or before July 30, 2003. Parties that may have already submitted comments in this proceeding need not resubmit those comments unless they choose to update them.
Federal Communications Commission, 445 12th St., SW., Washington, DC 20554.
Erica Myers, Consumer & Governmental Affairs Bureau, Disability Rights Office at (202) 418-2429 (voice), (202) 418-0464 (TTY), or e-mail at
This is a summary of the Commission's
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
This
Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act of 1995.
In accordance with requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
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The information is collected from FDIC-supervised banks and from officers, directors and shareholders subject to the securities registration requirements of the Securities Exchange Act of 1934, as amended. The information is considered necessary for actual and potential investors making investment decisions concerning securities issued by reporting banks.
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In order to permit the FDIC to detect discrimination in residential mortgage lending, certain insured state nonmember banks are required by FDIC regulation 12 CFR 338 to maintain various data on home loan applicants.
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12 CFR 350 requires a bank to notify the general public, In order to permit the FDIC to detect discrimination in residential mortgage lending, certain insured state nonmember banks are required by FDIC regulation 12 CFR 338 to maintain various data on home loan applicants.
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The collection requires insured state nonmember banks to comply with the Bank Protection Act and to review bank security programs.
Information about this submission, including copies of the proposed collections of information, may be obtained by calling or writing the FDIC contact listed above.
Federal Deposit Insurance Corporation
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 17, 2003.
Board of Governors of the Federal Reserve System, June 17, 2003.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by August 22, 2003.
Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)), requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This regulation relates to agency management and organization and has two purposes. The first is to implement section 503(g) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 353(g)), as added by the Safe Medical Devices Act of 1990 (Public Law 101-629), and amended by the Medical Device User Fee and Modernization Act of 2002 (Public Law 107-250), by specifying how FDA will determine the organizational component within FDA assigned to have primary jurisdiction for the premarket review and regulation of products that are comprised of any combination of: (1) A drug and a device; (2) a device and a biological; (3) a biological and a drug; or (4) a drug, a device, and a biological. The second purpose of this regulation is to enhance the efficiency of agency management and operations by providing procedures for classifying and determining which agency component is designated to have primary jurisdiction for any drug, device, or biological product where such jurisdiction is unclear or in dispute.
The regulation establishes a procedure by which an applicant may obtain an assignment or designation determination. The regulation requires that the request include the identity of the applicant, a comprehensive description of the product and its proposed use, and the applicant's recommendation as to which agency component should have primary jurisdiction, with an accompanying statement of reasons. The information submitted would be used by FDA as one
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry and FDA staff entitled “Compliance With Section 301 of the Medical Device User Fee and Modernization Act of 2002—Identification of Manufacturer of Medical Devices.” Section 301 of the Medical Device User Fee and Modernization Act of 2002 (MDUFMA) requires that a device, or an attachment to the device, bear prominently and conspicuously the name of the manufacturer, a generally recognized abbreviation of such name, or a unique and generally recognized symbol that identifies the manufacturer. Section 301 becomes effective on April 26, 2004, for devices introduced or delivered for introduction into interstate commerce after that date. This draft guidance provides that the agency, in the exercise of enforcement discretion, does not intend to object if a manufacturer has not yet fully implemented the changes required by section 301 of MDUFMA for devices introduced or delivered for introduction into interstate commerce after April 26, 2004, for a period of up to 18 months after FDA issues final guidance on its interpretation and implementation of section 301. This draft guidance is neither final, nor is it in effect at this time.
Submit written or electronic comments by September 22, 2003.
Submit written requests for single copies on a 3.5″ diskette of the draft guidance entitled “Compliance With Section 301 of the Medical Device User Fee and Modernization Act of 2002—Identification of Manufacturer of Medical Devices” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send two self-addressed adhesive labels to assist that office in processing your request, or fax your request to 301-443-8818. Submit written comments concerning this draft guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Casper E. Uldriks, Center for Devices and Radiological Health (HFZ-300), Food and Drug Administration, 2098 Gaither Rd., Rockville, MD 20850, 301-594-4692, or Leonard Wilson, Center for Biologics Evaluation and Research (HFM-25), Food and Drug Administration, 8800 Rockville Pike, Bethesda, MD 20892, 301-827-0799.
MDUFMA (Public Law 107-250) added a provision to the Federal Food, Drug, and Cosmetic Act that requires a device, or an attachment to the device, to bear prominently and conspicuously the name of the manufacturer, a generally recognized abbreviation of such name, or a unique and generally recognized symbol that identifies the manufacturer. The requirement may be waived based on a determination that compliance is not feasible or would compromise the provision of reasonable assurance of safety and effectiveness for the device. Failure to comply with the new requirement misbrands the device (section 301 of MDUFMA (21 U.S.C. 352(u))). This provision is effective April 26, 2004, with respect to devices introduced or delivered for introduction into interstate commerce after that date.
This draft guidance provides that, in the exercise of enforcement discretion, FDA does not intend to object if a manufacturer has not yet fully implemented the changes required by section 301 of MDUFMA for devices introduced or delivered for introduction into interstate commerce after April 26, 2004, the effective date of the provision, for a period of up to 18 months after FDA issues final guidance on the implementation of section 301.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the agency's current thinking on the compliance with section 301 of MDUFMA. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Interested persons may submit to the Division of Dockets Management (see
To receive the draft guidance for industry and FDA staff entitled “Compliance With Section 301 of the Medical Device User Fee and Modernization Act of 2002-Identification of Manufacturer of Medical Devices” by fax machine, call the CDRH Facts-On-Demand system at 800-899-0381 or 301-827-0111 from a touch-tone telephone. Press 1 to enter the system. At the second voice prompt, press 1 to order a document. Enter the document number (1217) followed by the pound sign (#). Follow the remaining voice prompts to complete your request.
Persons interested in obtaining a copy of the draft guidance may also do so by using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes device safety alerts,
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) plans to implement a 6-month pilot program in which we (FDA) will post on our Internet Web site certain responses to warning letters. The pilot program is part of our ongoing efforts to keep the public informed regarding agency activities and to make information publicly available. During this pilot, we will post copies of certain responses to warning letters if the recipient requests that the response be posted on our Web site and submits the response in an appropriate electronic format. We will review the responses and redact certain information to ensure that the responses comply with protections available under the Freedom of Information Act (FOIA).
The pilot program will begin on September 22, 2003.
Philip L. Chao, Office of Policy and Planning, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-0587.
FDA traditionally receives many requests under FOIA (5 U.S.C. 552) for warning letters issued to FDA-regulated entities. In compliance with the Electronic Freedom of Information Act Amendments of 1996 (EFOIA), we post on our Web site warning letters that are, or are likely to be, frequently requested documents under FOIA. Updated information regarding a specific issue discussed in a warning letter, however, may not be available on the Web site. In a citizen petition dated May 26, 1999, we were asked to draft regulatory procedures that would require us to promptly post, to the extent permitted under FOIA, agency records related to any previously posted warning letters. The petition requested that this policy extend to agency memoranda or letters that relate, refer, or pertain to any resolution of any of the issues in the warning letters and, where applicable, updates to the firm profile. We declined to post all materials related to warning letters on our Internet Web site, but decided to initiate a 6-month pilot program in which we will post certain responses to warning letters.
The pilot program is part of our ongoing efforts to keep the public informed regarding agency activities and to make information available in a manner that is accessible and fair. Accordingly, we plan to test, for 6 months, a pilot program that provides warning letter recipients the opportunity to have their responses to warning letters posted on our Web site. For purposes of this pilot only, we consider warning letter recipients to be the addressee and any other individuals or entities specifically named in a warning letter.
When the pilot program begins, responses submitted to us: (1) With request that the response be posted, and (2) in the format described in the following paragraphs, will be considered for the pilot program. After 180 days, we will evaluate the pilot and determine whether the program should become permanent. However, if we experience undue burden in dealing with the process, find that the process is too resource-intensive, or determine that misleading information is being conveyed to the public as a result of the pilot, we may discontinue the program.
We will post a warning letter recipient's response on our Web site if the recipient: (1) Requests that the response be posted, and (2) submits to us a copy of the response in a word processing format on a disk or CD-ROM. (The disk or CD-ROM should be submitted to the FDA office that issued the warning letter and should be submitted with the response.) We will review the response and redact certain information to ensure that the response complies with protections available under FOIA. For purposes of this pilot program only, we consider a warning letter recipient to be the addressee and any other individual or entity specifically named in a warning letter. If a warning letter recipient wishes to participate in this pilot, the recipient should submit a copy of the response on a computer disk in a word processing format. We will electronically redact and also convert the document to a format that is consistent with 29 U.S.C. 794d. Warning letter recipients submitting a response should clearly identify the warning letter to which they are responding by noting the date of the warning letter and the company(ies) or individual(s) involved.
We reserve the right not to post responses in some cases, such as when a response would likely mislead the public concerning the safety or efficacy of a company's product(s). During this pilot program, we also intend to place a disclaimer on our Web site stipulating the following:
The Food and Drug Administration cannot assure the accuracy of information submitted to the agency without a complete review of the submitted materials and resolution of the issues discussed therein. To make certain information available to the public, the agency has undertaken a pilot program to post responses to warning letters before evaluating the documents and resolving the issues. The responses are redacted to the extent permitted by the Freedom of Information Act.
We believe the disclaimer allows us to properly inform the public about the information contained on our Web site. We reserve the right to change the language in the disclaimer should we consider it appropriate to do so.
Once we have had sufficient opportunity to assess our experience in implementing the pilot program, we will decide whether to make the program permanent.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the Cardiovascular and Renal Study Section, June 23, 2003, 8 a.m. to June 25, 2003, 1 p.m., Holiday Inn Select Bethesda, 8120 Wisconsin Ave, Bethesda, MD, 20814 which was published in the
The meeting will be held at the Holiday Inn Chevy Chase, 5520 Wisconsin Avenue, Chevy Chase, MD,20815. The meeting date and time remains the same. The meeting is closed to the public.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
We give notice of our reinterpretation of section 102(9) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act and of our regulations at 44 CFR 206.221(e) and as a result the change in our policy concerning private nonprofit facilities.
Effective date: June 23, 2003. Applicability date: This applies to all disasters declared on or after January 20, 2001.
James A. Walke, FEMA, 500 C Street, SW., Washington, DC 20472, (202) 646-2751, or email
In response to the September 11, 2001, terrorist attacks, we have been working to expeditiously provide assistance to as many disaster victims are possible. In order to do so, we have looked at our authorities and determined that in some cases, our interpretation of those authorities has been too restrictive. We give notice of our reinterpretation of the authority regarding eligibility of private nonprofit facilities in section 102(9) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5122(9) and of our regulations at 44 CFR 206.221(e).
The definition of “private nonprofit facility” (PNP) in the Stafford Act is a “private nonprofit educational, utility, irrigation, emergency, medical, rehabilitational, and temporary or permanent custodial care facilities (including those for the aged and disabled), other private nonprofit facilities which provide essential services of a governmental nature to the general public, and facilities on Indian reservations as defined by the President.” We have interpreted that provision to mean all private nonprofit facilities must be open to the general public.
1. The following change to the PNP definition is effective immediately and applies to all disasters declared on or after January 20, 2001. This affects eligibility for the Public Assistance Program, as well as for the Hazard Mitigation Grant Program (HMGP) (
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A. Applicants—Basic Statutory and Regulatory Requirements.
(1) The applicant must have a ruling letter from the U.S. Internal Revenue Service or satisfactory evidence from the State that it is a nonprofit organization doing business under State law.
(2) The applicant must meet requirements as listed in 44 CFR 206.221—44 CFR 206.226, including the need to own or operate an eligible facility and to be legally responsible for disaster-related repairs.
(3)The applicant must meet the requirements of the Civil Rights Act of 1964.
B. Facilities—Basic Statutory and Regulatory Requirements/Information.
(1) The facility, at a minimum, must meet the criteria outlined in 44 CFR 206.221(e).
(2) The facility must be
(3) Certain types of facilities are not required to be open to the general public if they meet the definition of an educational, utility, emergency, medical, or custodial care facility (enumerated in § 206.221(e)(1), (2), (4), (5), (6)). Other types of private nonprofit facilities that provide certain essential government type services to the general public, which include PNP irrigation facilities (as defined in § 206.221(e)(3)) and facilities that provide “other essential government services” as defined in § 206.221(e)(7), and as listed in 4(g) below, must be open to the general public.
(4)
(a) Educational facilities (as defined in § 206.221(e)(1)),
(b) Utilities (as defined in § 206.221(e)(2)),
(c) Irrigation facilities (as defined in § 206.221(e)(3)),
(d) Emergency facilities (as defined in § 206.221(e)(4)),
(e) Medical facilities (as defined in § 206.221(e)(5) (which includes, rehabilitational facilities)),
(f) Custodial care facilities (as defined in § 206.221(e)(6)),
(g) Facilities that provide essential governmental services and which must be open to the general public (as defined in § 206.221(e)(7)), such as:
(i) Museums,
(ii) Zoos,
(iii) Community centers,
(iv) Libraries,
(v) Homeless shelters,
(vi) Senior citizen centers,
(vii) Shelter workshops, and
(viii) Health and safety services of a governmental nature, including, for example:
• Low-income housing (as defined by Federal, State or local law or regulation),
• Alcohol and drug treatment centers,
• Residences and other facilities offering programs for battered spouses,
• Animal control facilities directly related to public health and safety,
• Facilities offering food programs for the needy, and
• Daycare centers for children, or individuals with special needs (
(5)
(a) Recreation facilities,
(b) Job counseling and training centers,
(c) Facilities for advocacy groups not directly providing health services,
(d) Public housing (other than low-income),
(e) Cemeteries,
(f) Performing arts facilities,
(g) Parking garages,
(h) Conference facilities,
(i) Facilities maintained by property owners' associations such as roads and recreational facilities (except those facilities that could be classified as utilities or emergency facilities), and
(j) Daycare centers for purposes other than those described in paragraph 4 above.
C.
(1) A facility must have over 50% of its space dedicated to eligible uses in order for any of the facility to be eligible. Common space (lobbies, restrooms, utility closets, janitorial closets, elevators, stairs, parking, etc.) is not included in calculating the proportion of eligible use. A facility is assessed as an entire structure and not its individual parts such as a basement, floor or building wing.
(2) When space is not dedicated to specific activities, or is used for eligible and ineligible purposes, primary use is determined by the amount of time used for eligible services.
(3) Space dedicated to or primarily used for religious purposes is not eligible for Public Assistance Program assistance under the governing statutes and regulations.
(4) FEMA will consider damages to the entire facility, not just to the portion occupied by the eligible services. However, the assistance is in direct proportion to the percentage of space dedicated to eligible services. The balance of costs to repair damages or replace a facility will not be funded by FEMA.
(5) Contents that are the responsibility of an ineligible occupant are not eligible for reimbursement if damaged.
D.
(1)
(a) If the facility meets the 50% threshold, then the eligibility of the repairs is in direct proportion to the percentage of space dedicated to its eligible purpose/mission. In any event, the applicant must repair the entire building. Exceptions to repairing the entire building may be granted in unusual situations.
(b) A facility that does not meet the 50% space threshold is not an eligible PNP facility.
(c) A section 406 Hazard Mitigation grant would be eligible at the same percentage as the repair. However, the applicant must mitigate the entire building if the applicant opts to request the pro-rated mitigation project funding.
(2)
(a) The eligible applicant: (1) Must own more than 50% of the facility, and (2) must occupy and use for eligible services more than 50% of the facility's space at the time of the disaster. If the eligible space meets that threshold, funding is in direct proportion to the percentage of space dedicated to the eligible use.
(b) The percentage eligible cannot exceed the percentage represented by the space being occupied by the applicant. For example, if the applicant owns 70% of the building but only uses 60% for its eligible purposes, then the maximum eligible percentage is 60%.
(c) A section 406 Hazard Mitigation grant would be eligible at the same percentage as the repair. However, the applicant and/or other owners must mitigate the entire building if the pro-rated mitigation project funding is requested.
(d) Alternate project or improved project funding may be approved but reimbursement is based on the eligible funding of the original repairs. A section 406 Hazard Mitigation grant is not eligible for either of these funding options with the exception of an improved project that maintains the same facility for which the mitigation is approved.
(e) If a partnership agreement states the repair responsibilities of each partner, the eligible reimbursement will be based on the percentage of responsibility.
E.
(1) A private nonprofit facility that provides “other essential governmental services” (defined in § 206.221(e)(7)) is likely to meet the “open to the general public” requirement if:
(a) It is open to the general public;
(b) Membership fees, if any, are nominal;
(c) Membership fees, if any, are waived in instances in which someone can show inability to pay the fee.
(2) A private nonprofit facility that provides “other essential governmental services” (defined in § 206.221(e)(7)) is not likely to meet the “open to the general public” requirement if:
(a) A membership fee is of such magnitude as to preclude access to the facility by a significant portion of the community.
(b) The membership fee clearly exceeds what would be considered an appropriate user fee based upon a reasonable assumed use of a facility.
(c) Membership is limited to a certain number of people in the community.
(d) Membership is limited to a defined group of individuals who have a financial interest in the facilities managed by the PNP (for example, a condominium association).
(e) Membership discriminates against certain discrete classes of people, or is limited to individuals from some geographic area that is more restrictive than the community from which the facility in question could normally be expected to draw users.
F.
1. If the PNP is declined for an SBA loan, the PNP may then apply to FEMA for public assistance.
2. If the SBA loan fully covers eligible damages from the disaster event, then no assistance from FEMA is available.
3. If the maximum SBA loan for which the facility is eligible does not fully cover eligible damages, the PNP may then apply to FEMA for the excess eligible damages.
G.
H.
8.
A. RR Policy #9521.3, “ Private Nonprofit (PNP) Facility Eligibility” dated April 25, 2000.
B. All other relevant provisions of other public assistance policy documents on this subject.
9.
10.
11.
Below are examples of private nonprofit facilities that could be expected to request eligibility determinations.
Parkland Hospital is an eligible PNP that owns a medical office building and leases a portion of it to doctors and laboratories that are providing for-profit services. The for-profit leases are 70% of the floor space excluding the common area floor space as defined in this policy.
Analysis: The building is
The PNP Springtown Recreation Center claims that it provides eligible essential government services in addition to its recreation activities and should be eligible for assistance. The organization claims that its services now include day care for elderly adults, senior citizen center programs, programs for battered spouses, and shelter workshops. These programs are provided by the recreation center staff and offered five days a week. Recreation activities are limited to evenings and weekends. The entire center is used for the eligible services.
Analysis: The organization would not appear to be eligible based upon its name and presumed mission. A detailed examination is necessary to determine the eligibility of the organization and its facility based upon the eligible services provided. In cases where space is not dedicated to any specific activity, the amount of time dedicated to eligible purposes in such spaces will determine eligibility and the level of assistance. Therefore, even though the entire facility is used for eligible purposes, the level of FEMA assistance will be pro-rated based on the proportion of the total time it is used for eligible services.
The Community Church operates a State certified school offering first through eighth grades. The teaching curriculum includes math, science, English, history, physical education and religious doctrine. The school has an average attendance of 500 students. The church has constructed three education buildings that are used exclusively by the school. The church occasionally uses the education buildings for religious activities. The school occasionally uses the church, but that use is always substantially less than 50%.
Analysis: Look at the church and three education buildings separately. The three education buildings are eligible because: (a) The school meets FEMA requirements to be considered an eligible education institution; (b) the buildings generally are not used for ineligible purposes and their primary purpose is to serve the school; and (c) the few religious classes in the curriculum is not sufficient to influence the primary use for secular education. However, in the spaces used for eligible
The parking garage is owned by an eligible PNP hospital to support its nearby hospital facility. The ground floor that faces a busy public street is leased to retail businesses. The leased space occupies 15 percent of the total space of the garage.
Analysis: 44 CFR 206.221(e) authorizes assistance for administrative and support facilities essential to the operation of medical facilities and emergency facilities, which in this example includes Southlake Hospital's parking garage. Since the hospital uses more than 50% of the parking garage, the facility is eligible based on primary use. The leased space does not make the garage ineligible because it only represents 15% of the total space in the facility. FEMA assistance would be pro-rated based on the percentage of space used for the eligible parking purpose. If the leased space had exceeded 50% of the facility space, the primary use of the facility would become ineligible. The parking garage is eligible only because of its association with the hospital.
The Woodlands Homeowners' Association is a PNP organization responsible for providing certain services for a two hundred home development. The Homeowners' Association's services are local neighborhood streets, water system, sewage system, fire station, medical clinic, neighborhood park, community center and a recreational lake and dam.
Analysis: The Homeowners' Association operates facilities that provide essential government services and therefore is an eligible PNP. The lake and dam, park and streets do not meet the definition of eligible facilities. The water and sewage systems meet the definition of a utility and are eligible for assistance. The fire station and medical clinic are eligible as emergency and medical facilities. The community center might be eligible if it is open to the general public outside the Homeowners' Association community and if it is established and primarily used as a gathering place for a variety of social, educational enrichment and community service activities (
The University is a private nonprofit education facility as defined in the Stafford Act, section 102. It is supported by the United Methodist Church organization and offers both secular and religious education. The State's Department of Education officially recognizes the University as a school of higher education offering courses such as history, math, English, science, theology, religious education and religious counseling. The University offers undergraduate and graduate degrees in all fields of study. The campus consists of a large number of buildings for education, administration and religious worship.
Analysis: Damaged buildings that are primarily used for secular courses normally found on university campuses are eligible. Buildings containing student and administrative services also are eligible because they support educational, emergency, or medical facilities (as outlined in 44 CFR 206.221). The damaged buildings with religious courses must be carefully reviewed for eligibility. If a damaged building is primarily used for religious worship or religious instruction, it is not eligible because a peripheral eligible service is not sufficient to establish the eligibility of a facility.
Office of the Assistant Secretary for Administration/Chief Information Officer, HUD.
Notice of order of succession.
In this notice, the Assistant Secretary for Administration/Chief Information Officer designates the Order of Succession for the Office of Administration. This Order of Succession supersedes the Order of Succession for the Assistant Secretary for Administration, published on August 22, 2000.
June 13, 2003.
Nancy Brennan, Director, Management Operations Division, Office of Administration, Department of Housing and Urban Development, Room 2182, 451 Seventh Street, SW., Washington, DC 20410-3000, telephone (202) 708-1583. (This is not a toll-free number.) This number may be accessed through TTY by calling the toll-free Federal Information Relay Service number at 1-800-877-8339.
The Assistant Secretary for Administration/Chief Information Officer is issuing this Order of Succession of officials authorized to perform the duties and functions of the Office of the Assistant Secretary for Administration/Chief Information Officer, when by reason of absence, disability, or vacancy in the office, the Assistant Secretary for Administration/Chief Information Officer is not available to exercise the powers or perform the duties of the Office. This Order of Succession is subject to the provisions of the Vacancy Reform Act of 1998 (5 U.S.C. 3345-3349d). This publication supersedes the Order of Succession notice on August 22, 2000 (65 FR 51014).
Accordingly, the Assistant Secretary for Administration/Chief Information Officer designates the following Order of Succession:
Subject to the provisions of the Vacancy Reform Act of 1998, during any period when, by reason of absence, disability, or vacancy in office, the Assistant Secretary for Administration/Chief Information Officer is not available to exercise the powers or perform the duties of the Office of the Assistant Secretary for Administration/Chief Information Officer, the following officials within the Office of Administration are hereby designated to exercise the powers and perform the duties of the Office:
(1) General Deputy Assistant Secretary for Administration;
(2) Deputy Assistant Secretary for Operations;
(3) Deputy Assistant Secretary for Human Resource Management;
(4) Chief Procurement Officer;
(5) Chief Technology Officer;
(6) Director, Administrative Service Center 2;
(7) Director, Administrative Service Center 1;
(8) Director, Administrative Service Center 3
The officials shall perform the functions and duties of this Office in the order specified herein, and no official shall serve unless all the other officials, whose position titles precede his or hers in this order, are unable to act by reason of absence, disability, or vacancy in office.
This Order of Succession supersedes the Order of Succession for the Assistant Secretary for Administration, published on August 22, 2000 (65 FR 51014).
Sec. 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Office of the General Counsel, HUD.
Notice of amendment of redelegation of authority.
This notice amends a redelegation of authority under the Privacy Act from HUD's General Counsel to certain Associate General Counsels. The amendment reflects a change in the organizational structure of the Office of General Counsel that created a new position.
June 12, 2003.
Dane Narode, Assistant General Counsel for Administrative Proceedings, Office of the General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room B-133, CEP, Washington, DC 20410-0500, telephone (202) 708-2350. (This is not a toll-free number.) For those needing assistance, this number may be accessed through TTY by calling the toll-free Federal Information Relay Service number at 1-800-877-8339.
On October 11, 1996 (61 FR 53382), the Department published a notice delegating and redelegating certain authority under the Privacy Act, as specified in the redelegation of authority, to the General Counsel and to certain Associate General Counsels. In order to assist in enforcement activities carried out by the Office of General Counsel on behalf of the Department, the delegation provides the General Counsel with the authority under the Privacy Act of 1974 to make written requests, for purposes of law enforcement activities, to other agencies for the transfer of records or copies of records maintained by such other agencies, as the General Counsel deems necessary. The General Counsel redelegated this authority to various Associate General Counsels in the Department. This delegation and redelegation are necessary to assist in enforcement activities carried out by the Office of General Counsel on behalf of the Department. This amendment makes the redelegation consistent with a reorganization within the Office of General Counsel. The redelegation of authority is being amended to replace the Associate General Counsel for Litigation and Fair Housing Enforcement with the Associate General Counsel for Litigation and the Associate General Counsel for Fair Housing.
Accordingly, the redelegation of authority published on October 11, 1996 (61 FR 53382) is amended as follows:
Section B of the delegation and redelegation of authority published on October 11, 1996 (61 FR 53382) is amended to read as follows:
The General Counsel of the Department of Housing and Urban Development hereby redelegates all of the power and authority delegated in Section A., above, to the following Associate General Counsels:
The Associate General Counsel for Program Enforcement;
The Associate General Counsel for Finance and Regulatory Enforcement;
The Associate General Counsel for Litigation; and
The Associate General Counsel for Fair Housing.
Sec. 7(d) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Fish and Wildlife Service, Interior.
Notice of document availability.
The Fish and Wildlife Service (Service) announces the availability of the Draft Handbook for Candidate Conservation Agreements with Assurances and Enhancement of Survival Permit Processing. This draft document provides internal guidance for conducting the Candidate Conservation Agreement with Assurances permit program under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (Act). Its purpose is to provide policy and guidance for section 10(a)(1)(A) procedures to promote efficiency and nationwide consistency within the Service. The Service seeks public comment on this draft guidance document.
Comments on the Draft Handbook for Candidate Conservation Agreements with Assurances and Enhancement of Survival Permit Processing must be received on or before August 22, 2003 to be considered during preparation of a final guidance document.
Persons wishing to review the Draft Handbook for Candidate Conservation Agreements with Assurances and Enhancement of
Chris Nolin, Chief, Division of Conservation and Classification, U.S. Fish and Wildlife Service, at the above address (703) 358-2105.
The Candidate Conservation Agreements with Assurances Policy, dated June 17, 1999 (64 FR 32726), is intended to facilitate the conservation of species proposed for listing under the Endangered Species Act (Act), species that are candidates for listing, and species that become candidates, by giving non-Federal property owners incentives to implement conservation measures for declining or at-risk species. The incentives available through Candidate Conservation Agreements with Assurances involve the Service providing property owners certainty that no further land, water, or resource use restrictions beyond those agreed to in the Candidate Conservation Agreement with Assurances will be imposed if the species later becomes listed under the Act. If the species does become listed, the property owner is authorized, through an enhancement of survival permit that is issued in association with the Candidate Conservation Agreement with Assurances, to take the covered species as long as the level of take is consistent with the level identified and agreed upon in the Agreement. Before entering into a Candidate Conservation Agreement with Assurances, however, the Service must determine that the benefits of the conservation measures to be implemented, when combined with the benefits that would be achieved if it is assumed that conservation measures were also to be implemented on other necessary properties, would preclude or remove any need to list the covered species. “Other necessary properties” are other properties on which conservation measures would have to be implemented in order to preclude or remove any need to list the covered species. These assurances will be provided in the property owner's Candidate Conservation Agreement with Assurances and in an associated enhancement of survival permit issued under section (10)(a)(1)(A) of the Act.
The purpose of the Candidate Conservation Agreements with Assurances Program is to facilitate the conservation of proposed and candidate species, and species that may become candidates. Much of the property containing our nation's fish and wildlife and their habitat is owned by private citizens, States, local governments, Native American Tribal governments, conservation organizations, and other non-Federal entities. The future of many of these declining species is dependent upon conservation efforts on these non-Federal lands, but conservation efforts for these species will be most effective and efficient when initiated early in a species' decline. Early conservation efforts can, in some cases, preclude or remove any need to list species as threatened or endangered under the Act. By preventing or removing the need to list a species through early conservation efforts, property owners can maintain land use flexibility. Specifically, initiating or expanding conservation efforts before a species and its habitat are critically imperiled increases the probability that simpler and less expensive conservation options will be available and that conservation of the species will more likely be successful.
This draft handbook provides consistent procedures and policies for the Service's compliance with the enhancement of survival permit provisions of section 10(a)(1)(A) of the Act. Consistency in the section 10(a)(1)(A) program will be achieved by (1) providing national procedural and policy guidance; (2) providing standardized guidance to our offices and personnel who participate in the Candidate Conservation Agreements with Assurances program and review and process enhancement of survival permit applications; (3) ensuring uniform Service compliance with section 10(a)(1)(A) of the Act associated with a Candidate Conservation Agreement with Assurances; (4) providing assistance to applicants in the non-Federal sector who wish to apply for enhancement of survival permits; and (5) providing for conservation of federally proposed, candidate, and other at-risk species.
We intend that a final decision on the Draft Handbook for Candidate Conservation Agreement with Assurances and Enhancement of Survival Permit Processing will take advantage of information and recommendations from all interested parties. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this draft document are hereby solicited. All comments and materials received will be considered prior to the approval of a final document.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
This Draft Handbook for Candidate Conservation Agreements with Assurances and Enhancement of Survival Permitting Process will not have an annual economic effect of $100 million or more, or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required.
a. The purpose of the draft handbook is to clarify concepts previously discussed in the CCAA Policy and is intended as guidance for the Service and applicants to use with the existing CCAA and enhancement of survival permitting process. Any economic effects associated with enhancement of survival permits and the CCAAs under which they are issued would be attributable as effects of the Agreements under section 10(a)(1)(A) of the ESA. We are issuing the guidance to assist applicants with filing adequate CCAAs under section 10(a)(1)(A) and would not expect to generate economic effects. Further, this notice concerns a handbook being issued for education purposes which is expected to assist applicants by promoting a better understanding of application requirements. As such, the Government expects a positive effect on the environment because the guidance improves the CCAA development and enhancement of survival permitting processes by addressing the various concepts associated with these processes.
As of December 2002, the Service has issued 5 enhancement of survival permits, and approximately 30 CCAAs are currently under development. Any economic effects associated with the 30 CCAAs under current review would be attributable to the implementation of the CCAA policy itself and not to this
The burden of time spent on filling out the application for a CCAA depends on the complexity of the Agreement. The Service does not have an estimate of time spent on an average CCAA. However, it is reasonable to expect that the time cost of filling out as many as 30 applications per year (assuming the current number of CCAAs under review is indicative of an annual number of applications) is relatively small and certainly below the $100 million threshold for a major rule. In accordance with the criteria in Executive Order 12866, this draft handbook is not significant and, therefore, not subject to Office of Management and Budget review.
b. This draft handbook will not create inconsistencies with other agencies' actions. This handbook is expected to increase consistency within the Fish and Wildlife Service. Additionally, the CCAA permit process under section 10 of the ESA does not apply to Federal agency actions.
c. This draft handbook will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients, not does it apply to them.
d. This draft handbook will not raise novel legal or policy issues. This handbook provides internal guidance for and clarifies the CCAA process.
The Department of the Interior certifies that this document will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The current holders of the 5 enhancement of survival permits, as well as the 30 applications pending, are made up of State and county governments, companies, and private individuals. We assume that many would qualify as small entities under the Regulatory Flexibility Act. The economic impact of the draft CCAA handbook would be a benefit to these entities. The guidance provided is expected to reduce the time spent developing the CCAA and therefore reduce the time before implementation of the CCAA. Therefore, this draft handbook would have a positive effect on entities. If all of the 5 current permits were held by small entities and the additional 30 under current review were also from small entities, the combined total would not comprise a significant proportion of the number of State/county governments, small businesses, and private landowners in the United States who would all be potential applicants for CCAAs. Therefore, this draft handbook would not have a significant economic effect on a substantial number of small entities.
This draft handbook is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. As noted above under the Regulatory Flexibility Act, the issuance of this draft handbook is not expected to have economic effects of $100 million annually or to affect a significant number of small entities.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
a. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
b. This draft handbook will not produce a Federal mandate of $100 million or greater in any year,
In accordance with Executive Order 12630, the draft handbook does not have significant takings implications.
In accordance with Executive Order 13132, the draft handbook does not have significant Federalism effects. The draft handbook will not have a substantial direct effect on the States, in the relationship between the Federal Government and the States, or on the distribution of power or responsibilities among the various levels of government. Since States have been and will be potential CCAA permit applicants, the guidance will improve the CCAA process for States.
In accordance with Executive Order 12988, the draft handbook does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. With the guidance provided in the draft handbook, requirements under section 10(a)(1)(A) of the ESA will be clarified to enhancement of survival permit applicants.
This handbook does not require an information collection under the Paperwork Reduction Act. The Service has examined this handbook under the Paperwork Reduction Act of 1995 and found it to contain no requests for additional information or increase in the collection requirements associated with enhancement of survival permits other than those already approved for enhancement of survival permits. Currently we have approval from OMB to collect information under OMB control number 1018-0094. This approval expires July 31, 2004. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless we display a currently valid OMB number.
We have analyzed this draft handbook in accordance with the criteria of the National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). This draft handbook does not constitute a major Federal action significantly affecting the quality of the human environment. The Service has determined that the issuance of the handbook is categorically excluded under the Department of the Interior's NEPA procedures in 516 DM 2, Appendix 1.10 and 516 DM 6.6, Appendix 1.4 A (1).
The Service does not need to complete a section 7 consultation on this draft handbook as it is a guidance document and not an action. Individual enhancement of survival (CCAA) permits under section 10(a)(1)(A) of the ESA are actions that may affect a listed species. Therefore, an intra-Service consultation is completed prior to issuing incidental take permits.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations
This draft handbook does not directly affect tribal resources. The draft handbook contains guidance on public participation in the development of CCAAs, including tribes according to Secretarial Order #3206 on Federal-Tribal trust responsibilities and the Endangered Species Act. Therefore, the effect of this guidance on Native American Tribes would be determined on a case-by-case basis with individual CCAAs. Although the development of a CCAA is the applicant's responsibility, we will recommend the inclusion of Native American tribes during the development of the CCAA if tribal resources are affected. Under Secretarial Order 3206, the Service will, at minimum, share with the applicant any information provided by the tribes, through the public comment period or formal submissions, and advocate the incorporation of measures that will restore or enhance Tribal trust resources. In those instances where permit applicants choose not to invite affected tribes to participate in those negotiations, the Service will consult with the affected tribes to evaluate the effects of the proposed CCAA on tribal trust resources and will provide the information resulting from such consultation to the CCAA applicant prior to the submission of the draft CCAA for public comment. After consultation with the tribes and the non-federal landowner and after careful consideration of the tribe's concerns, the Service must clearly state the rationale for the recommended final decision and explain how the decision relates to the Service's trust responsibility. Accordingly:
a. We have not yet consulted with the affected tribe(s). This will be addressed with individual CCAAs.
b. We have not yet treated tribes on a government-to-government basis. This will be addressed with individual CCAAs.
c. We will consider tribal views in the development of individual CCAAs.
d. We have not yet consulted with the appropriate bureaus and offices of the Department about the identified effects of this draft handbook on Indian tribes. This will be addressed with individual CCAAs.
Bureau of Land Management, Interior.
Notice of Intent to amend the Northeast National Petroleum Reserve-Alaska (NPR-A) Integrated Activity Plan (IAP) and to prepare an accompanying Environmental Impact Statement (EIS), Request for Information, and Call for Nominations and Comments.
In accordance with the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
Responses to this request for information and comments, and call for nominations must be received no later than September 30, 2003. Nominations must be submitted in envelopes labeled “Nominations Related to the NPR-A IAP/EIS” to protect the confidentiality of the nominations. Information, comments, and nominations submitted in response to this publication will assist in early scoping and later development of alternatives for the IAP/EIS. Comments are sought on activities and measures to protect surface resources within the planning area, including the Teshepuk Lake and Colville River Special Areas, fish and wildlife, and historical and scenic values. Comments are sought on subsistence uses and needs within the plan area and possible impacts on subsistence from other uses of the area. Comments should include recommendations for particular sections of the plan area that are of value for surface and subsurface resources, as well as conditions, and restrictions that would protect surface resources. Comments are also sought on any potential conflicts with approved coastal management plans (CMPs) and other land use plans that may result from possible future activities in the area. These comments should identify specific policies of concern as listed in CMPs or other plans, the nature of the conflicts foreseen, and steps that BLM could take to avoid or mitigate the potential conflicts. Comments may be in terms of broad areas or restricted to particular townships of concern.
Comments should be submitted to the Northeast NPR-A Amendment Planning Team Leader, 222 West 7th Avenue, #13 Anchorage, Alaska 99513-7599. The original Call map with nominations must be submitted to the NPR-A Planning Team Leader at the above address.
Curt Wilson, (907) 271-5546, by e-mail at
The BLM published a Record of Decision (ROD) October 7, 1998, for the Northeast National Petroleum Reserve-Alaska Integrated Activity Plan/Environmental Impact Statement. Among other decisions, this document makes 589,000 acres in the Teshekpuk Lake area unavailable for leasing and restricts an additional 268,862 acres to leasing, but with no permanent facilities and no exploratory wells. The ROD also contains a set of prescriptive stipulations that are very specific and in some cases may be inappropriately or needlessly restrictive.
The BLM initiated an oil and gas leasing program for the planning area in May of 1999 and has conducted two successful lease sales. Many lease tracts were sold around the perimeter of the Teshekpuk Lake area. In the four years since the initial lease sale industry has completed many miles of additional seismic lines and drilled 14 exploratory wells after environmental assessments
Pursuant to 43 CFR 3131.1 and 3131.2, relevant information related to possible oil and gas leasing is requested for the plan area. Oil and gas companies are specifically requested to nominate within the plan area, areas that they would like to have considered for oil and gas leasing. Nominations must be depicted on the Call map by outlining the area(s) of interest along township lines. Nominators are asked to submit a list of townships nominated to facilitate correct interpretation of their nominations on the Call map. Although the identities of those submitting nominations for oil and gas leasing become a matter of public record, the individual nominations will be held confidential consistent with applicable law.
Nominators also are requested to rank townships nominated for oil and gas leasing according to priority of interest [(
The regulations at 43 CFR part 3130 limit the size of an oil and gas lease tract within the NPR-A boundaries to no more than 60,000 acres (43 CFR 3130.4-1). Although nominations are to be submitted along township lines, comments are also being sought on the preferred size of tracts for leasing in this area, not to exceed 60,000 acres.
Tentative Schedule: Approximate dates for actions and decisions in the planning process for this proposal are:
Bureau of Land Management, Interior.
Notice of meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Canyons of the Ancients National Monument (Monument) Advisory Committee (Committee), will meet as directed below.
The meeting will be held July 29, 2003 at the Anasazi Heritage Center in Dolores, Colorado at 9 a.m. The public comment period will begin at approximately 3:30 p.m. and the meeting will adjourn at approximately 4:30 p.m.
LouAnn Jacobson, Monument Manager or Stephen Kandell, Monument Planner, Anasazi Heritage Center, 27501 Hwy 184, Dolores, Colorado 81323; Telephone (970) 882-4811.
The eleven member committee provides counsel and advice to the Secretary of the Interior, through the BLM, concerning development and implementation of a management plan developed in accordance with FLMPA, for public lands within the Monument. At this meeting, topics we plan to discuss include:
All meetings will be open to the public and will include a time set aside for public comment. Interested persons may make oral statements at the meetings or submit written statements at any meeting. Per-person time limits for oral statements may be set to allow all interested persons an opportunity to speak.
Summary minutes of all Committee meetings will be maintained at the Anasazi Heritage Center in Dolores, Colorado. They are available for public inspection and reproduction during regular business hours within thirty (30) days of the meeting. In addition, minutes and other information concerning the Committee can be obtained from the Monument Web site at:
Bureau of Land Management, USDI.
Meeting notice for the Salem, Oregon, Bureau of Land Management (BLM) Resource Advisory Committee under Section 205 of the Secure Rural Schools and Community Self Determination Act of 2000 (PL 106-393).
This notice is published in accordance with section 10(a)(2) of the Federal Advisory Committee Act. Meeting notice is hereby given for the Salem Oregon BLM Resource Advisory Committee pursuant to Section 205 of the Secure Rural Schools and Community Self Determination Act of 2000, Public Law 106-393 (the Act). Topics to be discussed by the Salem BLM Resource Advisory Committee include: reviewing 2004 project applications, developing funding recommendations for 2004 projects, and monitoring progress of previously approved projects and scheduling field reviews of projects.
The Salem Resource Advisory Committee will meet at the BLM Salem District Office, 1717 Fabry Road, Salem, Oregon 97306, 8:30 a.m. to 4 p.m., on August 7, 2003. Additional meeting dates are scheduled for August 14, 2003 and August 28, 2003.
Pursuant to the Act, five Resource Advisory Committees have been formed for western Oregon BLM districts that contain Oregon & California (O&C) Grant Lands and Coos Bay Wagon Road lands. The Act establishes a six-year payment schedule to local counties in lieu of funds derived from the harvest of timber on federal lands, which have dropped dramatically over the past 10 years.
The Act creates a new mechanism for local community collaboration with federal land management activities in the selection of projects to be conducted on federal lands or that will benefit resources on federal lands using funds under Title II of the Act. The BLM Resource Advisory Committees consist of 15 local citizens (plus 6 alternates) representing a wide array of interests.
Additional information concerning the Salem BLM Resource Advisory Committee may be obtained from Trish Hogervorst, Salem BLM Public Affairs, 1717 Fabry Road SE, Salem, Oregon 97306. (503-375-5657).
Bureau of Land Management, Interior.
Public Land Order.
This order revokes 14 public land orders in their entirety as they affect approximately 150.37 acres of public and Revested Oregon and California Railroad Grant lands withdrawn and reserved for the Department of Agriculture for constructed Forest Service roads. The reservations are no longer needed. This action will open the lands to all forms of appropriation under the public land laws, including location and entry under the mining laws. The lands have been and will remain open to mineral leasing.
July 23, 2003.
Michael L. Barnes, BLM Oregon/Washington State Office, P.O. Box 2965, Portland, Oregon 97208-2965, 503-808-6155. Copies of the withdrawal orders being revoked are available from this location.
The Forest Service has determined that the withdrawals are no longer needed and has requested the revocations. The lands are located in several counties throughout Oregon and Washington.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), it is ordered as follows:
1. The following Public Land Orders are hereby revoked in their entirety: (a). Public Land Orders Nos. 4521, 4626, 4874, 4876, 5065, 5089, and 5092, affecting approximately 40.80 acres of Revested Oregon and California Railroad Grant Lands. (b). Public Land Orders Nos. 4392, 4598, 4846, 4858, 4878, 4993, and 5560, affecting approximately 109.57 acres of public lands.
2. At 8:30 a.m. on July 23, 2003 the lands referenced in paragraph 1(a) will be opened to such uses as may by law be made of Revested Oregon and California Railroad Grant lands, subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law.
3. At 8:30 a.m. on July 23, 2003, the lands referenced in paragraph 1(b) will be opened to all forms of appropriation under the public land laws generally, subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law.
4. At 8:30 a.m. on July 23, 2003, the lands referenced in paragraph 1(a) and 1(b) will be opened to location and entry under the United States mining laws, subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law. Appropriation of any of the lands described in this order under the general mining laws prior to the date and time of restoration is unauthorized. Any such attempted appropriation, including attempted adverse possession is governed by State law where not in conflict with Federal law. The Bureau of Land Management will not intervene in disputes between rival locators over possessory right since Congress has provided for such determination in local courts.
30-Day Notice of Information Collection Under Review: Revision of a currently approved collection; Application for explosives license or permit.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in
The purpose of this notice is to allow for an additional 30 days for public comment until July 23, 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.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that 10,000 respondents will complete a 1 hour and 30 minute form.
(6) An estimate of the total public burden (in hours) associated with the collection; There are an estimated 15,000 annual total burden hours associated with this collection.
Mrs. Brenda E. Dyer, Deputy Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 1600, Patrick henry Building, 601 D Street NW., Washington, DC 20530.
Notice is hereby given that, on June 3, 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 Animas Corporation intends to file additional written notification disclosing all changes in membership.
On September 27, 2001, Animas Corporation and Sarnoff Corporation filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The following parties have filed petitions to modify the application of existing safety standards under section 101(c) of the Federal Mine Safety and Health Act of 1977.
Anker West Virginia Mining Company, Inc., 22 Hampton Road, Buckhannon, West Virginia 26201 has filed a petition to modify the application of 30 CFR 75.364(b)(1) (Weekly examination) to its Spruce Fork Mine No. 1 (MSHA I.D. No. 46-08622) located in Upshur County, West Virginia. The petitioner proposes to establish an evaluation point to be examined weekly to monitor quality, quantity and direction of air flow through the A Mains intake air course starting at spad 428 and ending at spad 388, a distance of 3100 feet (Hereinafter “A Mains air course”). The evaluation point will be established at the inby end of this intake air course near spad 388 to test for methane accumulation, oxygen deficiency, quantity of air and for the proper direction of air flow. The results of these tests will be recorded in a book provided on the surface. The petitioner states that a pre-shift examination of the belt side of the intake stopping line separating the belt from the intake air course will be made every 8 hours, and any hazardous conditions found will be recorded in a book provided on the surface. The petitioner asserts that the proposed
Rivers Edge Mining, Inc., 1970 Barrett Court, PO Box 1990, Henderson, Kentucky 42419-1990 has filed a petition to modify the application of 30 CFR 75.1909(b)(6) (Nonpermissible diesel-powered equipment; design and performance requirements) to its Rivers Edge Mine (MSHA I.D. No. 46-08890) located in Boone County, West Virginia. The petitioner requests a modification of the existing standard to allow the mine to use the Getman Diesel grader underground with rear wheel brakes only. The petitioner proposes to: (i) Limit the diesel grader speed to 10 miles per hour maximum; (ii) physically block higher gear ratios on the Getman diesel grader in order to limit the speed to 10 miles per hour maximum; and (iii) provide training to the grader operators on how to drop the grader blade in the event the brakes fail and the machine needs to be stopped. The petitioner states that the modification will provide the same protection that is realized from the current standard in that the grader can be stopped using the blade as a brake system. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Pine Ridge Coal Company, 1970 Barrett Court, P.O. Box 1990, Henderson, Kentucky 42420 has filed a petition to modify the application of 30 CFR 75.1909(b)(6) (Nonpermissible diesel-powered equipment; design and performance requirements) to its Big Mountain No. 16 Mine (MSHA I.D. No. 46-07908) located in Boone County, West Virginia. The petitioner requests a modification of the existing standard to allow the mine to use the Getman Diesel grader underground with rear wheel brakes only. The petitioner proposes to: (i) Limit the diesel grader speed to 10 miles per hour maximum; (ii) physically block higher gear ratios on the Getman diesel grader in order to limit the speed to 10 miles per hour maximum; and (iii) provide training to the grader operators on how to drop the grader blade in the event the brakes fail and the machine needs to be stopped. The petitioner states that the modification will provide the same protection that is realized from the current standard in that the grader can be stopped using the blade as a brake system. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
R & D Coal Company, 214 Vaux Avenue, Tremont, Pennsylvania 17981 has filed a petition to modify the application of 30 CFR 75.311(b)(2) and (b)(3) (Main mine fan operation) to its Buck Mountain Slope Mine (MSHA I.D. No. 36-02053) located in Schuylkill County, Pennsylvania. The petitioner requests a modification of the existing standard to permit the electrical circuits entering the underground mine to remain energized to the mine's pumps, while the main fan has been intentionally shut down during idle shifts when no miners are working underground. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Orchard Coal Company, Inc., 214 Vaux Avenue, Tremont, Pennsylvania 17981 has filed a petition to modify the application of 30 CFR 75.311(b)(2) and (b)(3) (Main mine fan operation) to its Orchard Slope Mine (MSHA I.D. No. 36-08346) located in Schuylkill County, Pennsylvania. The petitioner requests a modification of the existing standard to permit the electrical circuits entering the underground mine to remain energized to the mine's pumps, while the main fan has been intentionally shut down during idle shifts when no miners are working underground. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Canyon Fuel Company, LLC, PO Box 1029, Wellington, Utah 84542 has filed a petition to modify the application of 30 CFR 75.1700 (Oil and gas wells) to its Dugout Canyon Mine (MSHA I.D. No. 42-01890) located in Carbon County, Utah. The petitioner requests a modification of the existing standard to allow mining through one abandoned gas well (Drill Hole No. TD-3). The petitioner has listed specific procedures in this petition that would be followed when its proposed alternative method is implemented. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Persons interested in these petitions are encouraged to submit comments via e-mail to
10 a.m., Thursday, June 26, 2003.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Open.
1. Proposed Rule: Section 701.22 of NCUA's Rules and Regulations, Loan Participations.
2. Proposed Rule: Part 745 of NCUA's Rules and Regulations, Share Insurance.
3. Notice and Request for Comment as Required by the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA).
Becky Baker, Secretary of the Board, Telephone: 703-518-6304.
The NSF management officials having responsibility for the advisory committees listed below have determined that renewing these groups for another two years is necessary and in the public interest in connection with the performance of duties imposed upon the Director, National Science Foundation (NSF), by 42 U.S.C. 1861
Effective date for renewal is July 1, 2003. For more information, please contact Susanne Bolton, NSF, at (703) 292-7488.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
U. S. Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to OMB and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
Information pertaining to the requirement to be submitted:
1.
2.
3.
4.
5.
6.
7.
Submit, by August 22, 2003, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F23, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide web site:
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Brenda Jo. Shelton, U.S. Nuclear Regulatory Commission, T-5 C3, Washington, DC 20555-0001, by telephone at 301-415-7233, or by Internet electronic mail at
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission is considering amending The Dow Chemical Company (Dow Chemical) Byproduct Material License Number 21-00265-06 to authorize the use a new incinerator for the disposal of radioactive waste at its facility in Midland, Michigan and has prepared an Environmental Assessment (EA) in support of this action in accordance
An EA has been prepared to evaluate the environmental impacts of the proposed amendment to Dow Chemical Byproduct Material License to authorize the licensee to use a new incinerator for the disposal of radioactive waste at its facility in Midland, Michigan. The amendment would reflect that radioactive waste will be disposed of using a new 33 Incinerator instead of either the 703 or 830 Incinerators. Pursuant to 10 CFR 20.1302 and 10 CFR 20.2002, the license has been authorized since 1966 to dispose of licensed material by incineration, provided the gaseous effluents from incineration did not exceed ten percent of the limits specified in Appendix B, Table II, 10 CFR Part 20.
On October 28, 2002, Dow Chemical notified the NRC that, to meet U.S. Environmental Protection Agency (EPA) requirements, it was in the process of upgrading its Incineration Complex from two existing rotary kilns (703 Incinerator and 830 Incinerator) which are currently used to incinerate waste, to a single story rotary kiln. The new kiln is close to completion, and is expected to begin operation by October 1, 2003. Although both existing kilns are licensed to incinerate radioactive waste, only the 703 Incinerator has been used for that purpose. The 830 Incinerator had been licensed to burn radioactive waste in 1998 in anticipation of it being upgraded to meet the new EPA requirements, but Dow Chemical subsequently decided to build a new incinerator in place of upgrading the 830 Incinerator.
The NRC staff has evaluated Dow Chemical's request in an EA (summarized above). On the basis of the EA, NRC has concluded that there will not be a significant effect on the quality of the human environment resulting from the incineration of radioactive waste in the 32 Incinerator at its facility in Midland, Michigan. Accordingly, NRC has concluded that a FONSI is appropriate and has determined not to prepare an Environmental Impact Statement for the proposed action.
The Environmental Assessment and other documents related to this proposed action, including the application for the license amendment and supporting documentation, are available for inspection at NRC's Public Electronic Reading Room at
Securities and Exchange Commission.
Notice of OMB approval of collections of information.
The Commission adopted, on May 7, 2003, rule and form amendments to mandate the electronic filing, and website posting by issuers with corporate websites, of beneficial ownership reports filed by officers, directors and principal security holders (collectively, “insiders”) under section 16(a) of the Securities Exchange Act of 1934, generally as required by Section 403 of the Sarbanes-Oxley Act of 2002. The Commission has implemented changes to the EDGAR system in order to facilitate electronic filing. In addition, the Commission also adopted rule changes to eliminate magnetic cartridges as a means of electronic filing. The Commission expected certain provisions of the amendments, as proposed, to change existing “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The effective date of the amendments is June 30, 2003.
Mark W. Green, Senior Special Counsel (Regulatory Policy), at (202) 942-1940, Division of Corporation Finance, U.S. Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20459-0301.
On May 7, 2003,
The Commission expected certain provisions of the amendments, as proposed,
The intended general effect of mandating electronic filing and website posting is to facilitate compliance with the will of Congress, as reflected in section 16(a),
Form ID is used by registrants, individuals, third party filers or their agents to request the assignment of access codes that permit the electronic filing of securities documents on the Commission's Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). The Commission expects the amendments to increase the collection of information burden of Form ID by causing additional respondents to file a Form ID as a result of initially being subject to the mandated filing rules and by causing additional respondents to file a Form ID each year on a recurrent basis.
Form SE is used by an EDGAR filer when submitting paper format exhibits either under a hardship exemption under Regulation S-T Rules 201 and 202
Form TH is used by an EDGAR filer to give notice that it claims a temporary hardship exemption under Rule 201. A filer must submit the Form TH along with the required number of copies of the paper format securities document. The information provided on Form TH enables the Commission to determine whether the filer's circumstances justify the grant of a temporary hardship exemption. The Commission expected the proposed amendments to increase the collection of information burden of Form TH by causing a small number of additional respondents to file a Form TH. That expectation, however, was based on the assumption that the temporary hardship exemption would be available to section 16 reports. As noted above, however, the amendments, as adopted, make the temporary hardship exemption unavailable to section 16 reports. As a result, the amendments will not cause additional respondents to file a Form TH. The Commission has submitted additional documentation to OMB to reflect that the amendments will not affect the collection of information burden imposed by Form TH (which returns to 23 hours).
On May 22, 2003, OMB approved the revised collections of information imposed by Forms ID, SE and TH (OMB Control Nos. 3235-0328, 3235-0327 and 3235-0425, respectively). The amendments were adopted under the Securities Act, the Exchange Act, the Public Utility Act, the Trust Indenture Act, the Investment Company Act and the Sarbanes-Oxley Act. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. The Commission is providing this Notice to inform the public that the Commission has received OMB approval for these revised collections.
Impac Mortgage Holdings, Inc., a Maryland corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Issuer stated in its application that it has met the requirements of Amex Rule l8 by complying with all applicable laws in the State of Maryland, in which it is incorporated, and with the Amex's rules governing an issuer's voluntary withdrawal of a security from listing and registration.
The Issuer states that it is taking such action because the Issuer believes that listing its Security on the New York Stock Exchange, Inc. (“NYSE”) will provide greater liquidity and visibility. The Issuer states that trading in its Security on the NYSE became effective on June 11, 2003.
The Issuer's application relates solely to the withdrawal of the Securities from listing on the Amex and from registration under section 12(b) of the Act
Any interested person may, on or before July 8, 2003, submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the Amex and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to amend Rule 17.2 of its Disciplinary Rules concerning the initiation of investigations of possible violations within the disciplinary jurisdiction of the Exchange.
Below is the text of the proposed rule change, as amended. Proposed new language is
(a) Initiation of Investigation. The Exchange shall investigate possible violations within the disciplinary jurisdiction of the Exchange upon order of the Board, the Business Conduct Committee, the President or other Exchange officials designated by the President,
(b)-(d) No change.
.01-.02 No change.
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Exchange Rule 17.2(a) describes the basis on which the Exchange initiates investigations of possible violations within the disciplinary jurisdiction of the Exchange. Specifically, paragraph (a) of Exchange Rule 17.2 states that the Exchange shall investigate possible violations within the disciplinary jurisdiction of the Exchange upon order of the Board, the Business Conduct Committee (“BCC”), the President or other Exchange officials designated by the President. Exchange Rule 17.2(a) also provides that the Exchange shall investigate possible violations within the disciplinary jurisdiction of the Exchange upon receipt of a complaint alleging such violations filed by a member or any other person alleging injury as a result of such violations. Exchange Rule 17.2(a) states that all complaints should be in writing signed by the complainant and shall specify in reasonable detail the facts constituting the violation, including the specific statutes, by-laws, rules, interpretations or resolutions allegedly violated.
The Exchange proposes to amend paragraph (a) of Exchange Rule 17.2 to clarify and make express in the rule the basis on which the Exchange represents
First, the Exchange proposes to amend Exchange Rule 17.2(a) to make express what it represents is the Exchange's Regulatory Division's longstanding practice of initiating investigations of possible rule violations on its own whenever there is a reasonable basis to do so. For instance, among the reasons the Exchange's Regulatory Division may determine that there is a reasonable basis to initiate an investigation are: Results from the automated surveillance programs that the Regulatory Division operates that are designed to highlight particular types of misconduct, observations of the Regulatory Division's Trading Floor Liaison unit that has a consistent presence on the trading floor, regulatory referrals from Exchange committees or other self-regulatory organizations, and oral complaints from members or customers. The Exchange believes that the current language of Exchange Rule 17.2(a) could be read to suggest that the Exchange's Regulatory Division should only initiate investigations upon the order of the Board of Directors, the BCC, the President, or upon receipt of a written complaint. Although the CBOE represents that it has never interpreted Exchange Rule 17.2(a) in such a limited fashion, and believes such a reading would be inconsistent with the Exchange's obligations as a self-regulatory organization under the Act,
Second, the Exchange proposes to amend Exchange Rule 17.2(a) to provide that the Exchange shall investigate possible violations within its disciplinary jurisdiction upon receipt of a complaint, whether the complaint is written or oral, provided such complaint specifies in reasonable detail the facts constituting the alleged violation. The Exchange also proposes to add an interpretation to Exchange Rule 17.2 stating that, to assist the Exchange in investigating possible violations within its disciplinary jurisdiction, complainants should identify themselves when making a complaint, whether written or oral, and identify the specific statutes, by-laws, rules, interpretations or resolutions that allegedly have been violated. In addition, the Exchange represents that its Regulatory Services Division currently maintains, and will continue to maintain, a log of all oral complaints that it receives alleging possible violations within the disciplinary jurisdiction of the Exchange.
The Exchange believes that this proposed change to Exchange Rule 17.2 is consistent with its longstanding practice of considering whether to investigate complaints, whether oral or written, and is consistent with its practice of requesting, but not requiring, that complainants identify themselves and identify the specific statutes, by-laws, rules, interpretations or resolutions that allegedly have been violated.
The Exchange believes that the proposed rule change, as amended, is consistent with the provisions of section 6(b) of the Act,
The CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) by order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to File No. SR-CBOE-2003-15 and should be submitted by July 14, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On June 13, 2002, The Depository Trust Company (“DTC”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change
DTC's rule change will clarify the procedures under which DTC's nominee, Cede & Co., will exercise certain rights as the recordholder of securities on deposit at DTC where Cede & Co. is required to act with respect to 100% of the securities on deposit or not act at all. Such an event is known as a “Unitary Action.”
When involved in a situation that requires a Unitary Action under applicable law, DTC will attempt to follow its normal procedures for actions that are not Unitary Actions. Specifically, for solicitations when an issuer has announced an annual or special shareholders meeting or consent solicitation and where a record date has been established, DTC will assign applicable Cede & Co. voting rights or consenting rights to its participants that have securities credited to their accounts on the record date, will issue an omnibus proxy, and will forward it to the issuer or trustee. DTC also will assist its participants in exercising other rights available to Cede & Co. as the recordholder of securities on deposit at DTC. Examples of the rights that participants may exercise through DTC are the right to dissent and seek an appraisal of stock, the right to inspect a stock ledger, and the right to accelerate a bond. Participants may seek DTC's assistance in exercising such rights on their own behalf or on behalf of their customers. DTC will act in these matters only upon written instructions from participants with securities credited in their DTC free accounts.
However, if, for example, a foreign bankruptcy court stated that it would accept votes for approval of a plan of bankruptcy from bondholders holding through DTC but only in the form of a 100% yes or no vote or not at all, DTC will attempt to assign its voting rights to its participants or otherwise act in accordance with its participants' instructions.
DTC will not be liable for any losses arising from actions it takes or fails to take in connection with Unitary Actions other than those losses that are directly caused by DTC's gross negligence or willful misconduct.
In Unitary Action situations, DTC may incur unusual expenses (
Section 17A(b)(3)(F)
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Nasdaq is proposing to extend the pilot program of the NASD short sale rule from June 15, 2003, until December 15, 2003. Nasdaq is also seeking to continue the suspension of the effectiveness of the Primary Market Maker (“PMM”) standards currently set forth in NASD Rule 4162 also from June 15, 2003, until December 15, 2003. The text of the proposed rule change is below. Proposed new language is italicized; deletions are [bracketed]. NASD Rule 3350
(a)-(k) No Change.
(l) This section shall be in effect until
In its filing with the Commission, the NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The NASD has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Section 10(a) of the Act
The Rule employs a “bid” test rather than a tick test because Nasdaq trades are not necessarily reported to the tape in chronological order. The Rule prohibits short sales at or below the inside bid when the current inside bid is below the previous inside bid. Nasdaq calculates the inside bid from all market makers in the security (including bids for exchanges trading Nasdaq securities on an unlisted trading privileges basis), and disseminates symbols to denote whether the current inside bid is an “up-bid” or a “down-bid.” To effect a “legal” short sale on a down-bid, the short sale must be executed at a price at least $.01 above the current inside bid. The Rule is in effect from 9:30 a.m. until 4 p.m. each trading day.
To reduce the compliance burdens on its members, the Rule also incorporates seven exemptions contained in Rule 10a-1 of the Act,
To ensure that market maker activities that provide liquidity and continuity to the market are not adversely constrained when the short sale rule is invoked, NASD Rule 3350 provides an exemption for “qualified” market makers (
Since the Rule has been in effect, Nasdaq has used three methods to determine whether a market maker is eligible for the market maker exemption. Specifically, from September 4, 1994 through February 1, 1996, Nasdaq market makers that maintained a quotation in a particular NNM security for 20 consecutive business days without interruption were exempt from the Rule for short sales in that security, provided the short sales were made in connection with bona fide market making activity (“the 20-day” test). From February 1, 1996 until the February 14, 1997, the “20-day” test was replaced with a four-part quantitative test known as the PMM standards.
On February 14, 1997, the PMM standards were waived for all NNM securities due to the impacts of the Commission's Order Handling Rules and corresponding NASD rule change and system modifications on the operation of the four quantitative standards.
In March 1998, Nasdaq proposed PMM standards that received substantially negative comments.
On July 29, 1999, members of the Nasdaq staff conducted a conference
Nasdaq suspended development of PMM standards in late-1999 after the Commission signaled to the securities industry that it is considering fundamental changes to Rule 10a-1 of the Act,
Nasdaq believes that it is in the best interest of investors to extend the short sale regulation pilot program. When the Commission approved the NASD's short sale rule on a pilot basis, it made specific findings that the Rule was consistent with sections 11A,
Similarly, the concerns that caused the Commission to waive the PMM standards in February 1997 continue to exist today. Nasdaq and the Commission agreed to waive the PMM standards for three reasons that were discovered only after the Order Handling Rules were implemented.
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A of the Act,
The Nasdaq does not believe that the proposed rule change will impose any burden on competition.
The Nasdaq neither solicited nor received written comments with respect to the proposed rule change.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-98-26 and should be submitted by July 14, 2003.
After careful consideration, the Commission finds, for the reasons set forth below, that the extension of the Short Sale Rule Pilot until December 15, 2003, and the suspension of the existing PMM standards until December 15, 2003, are consistent with the requirements of the Act and the rules and regulations thereunder. In particular, the extension is consistent
The Commission finds that the continuation of the Short Sale Rule Pilot and the continued suspension of the PMM standards will maintain the status quo while the Commission is considering amending Rule 10a-1 of the Act.
Accordingly, the Commission finds good cause for approving the extension of the Short Sale Rule Pilot and the suspension of existing PMM standards prior to the 30th day after the date of publication of notice of the filing in the
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASD proposes to establish the General Securities Principal Sales Supervisor Module (“Series 23”) examination program, and is filing with the Commission the selection specifications and study outline for the Series 23 examination.
A description of the Series 23 examination is included in the study outline that was attached to the proposed rule change. Additional information on the examination is included in the Series 23 selection specifications, which NASD omitted from this filing, but has submitted with a request for confidential treatment under separate cover to the Commission's Secretary pursuant to Rule 24b-2 under the Act.
In its filing with the Commission, NASD 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. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On October 9, 2002, the SEC approved a proposed rule change to NYSE Rule 342 (“Offices—Approval, Supervision and Control”) that recognized NASD's Series 24 examination as an acceptable qualification alternative to the Series
Pursuant to section 15A(g)(3) of the Act,
The Series 23 examination is a limited qualification examination that covers those subject matters that are covered on the Series 24 examination, but not included on the Series 9/10 examination. The Series 23 examination program tests a candidate's knowledge of securities industry rules and regulations pertaining to the supervision of investment banking, securities markets and trading, as well as financial responsibility requirements. A committee of industry representatives that oversees the Series 24 examination program, together with NASD staff, compared the subject matters covered on the Series 9/10 and Series 24 examinations to determine the topics that should be extracted from the Series 24 examination to create the Series 23 examination program. The committee, including NASD staff, developed the selection specifications, study outline, and question bank for the Series 23 examination.
The Series 23 examination will be divided into five topical sections. The topical sections and the number of questions designated to each such section are as follows: Supervision of Investment Banking Activities (25); Supervision of Trading and Market Making Activities (29); Supervision of Brokerage Office Operations (16); Sales Supervision, General Supervision of Employees, Regulatory Framework of NASD (19); and Compliance with Financial Responsibility Rules (11). The selection specifications for the Series 23 examination, which NASD has omitted from this filing and has submitted with a request for confidential treatment under separate cover to the Commission's Secretary pursuant to Rule 24b-2 under the Act,
The Series 23 examination will be a 2
NASD believes that the proposed rule change is consistent with the provisions of sections 15A(b)(6)
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
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, it has become effective pursuant to section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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 NASD. All submissions should refer to file number SR-NASD-2003-91 and should be submitted by July 14, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On April 22, 2002, the Pacific Exchange, Inc. (“PCX” or “Exchange”), filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Current PCX Rule 6.82 requires the Options Allocations Committee (“OAC”) to allocate option issues to LMMs based on an overall evaluation of such factors as a candidate's adequacy of capital, operational capacity, support personnel, trading crowd evaluations and history of adherence to Exchange rules and securities laws. However, absent extraordinary circumstances, no LMM may be allocated more than 15% of the number of issues traded on the options floor.
The Exchange now proposes to eliminate this fixed concentration limit. Instead, PCX would add the number and quality of issues already allocated to an LMM to the list of factors considered by the OAC. Additionally, PCX would adopt a guideline requiring the OAC to consider the concentration of an LMM's issues if an event or proposal would cause the LMM to meet either of the following criteria: (i) The number of issues allocated to it (and any affiliated LMM) is 25% or more of the total number of issues traded on the PCX; or (ii) the volume in the issues allocated to it (and any affiliated LMM) is 50% or more of the total volume of the PCX or 25% or more of the total volume in equity option issues of the PCX. If an LMM met either of these criteria, the guideline would require the OAC to evaluate whether the event or proposal would result in an unacceptable level of concentration. If so, the OAC could exercise its discretion and take action to lower the resulting level of concentration or to deny the subject proposal. The OAC would also retain the discretion to review an LMM's level of concentration at any time, regardless of whether the above criteria are met.
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 Commission has previously noted that PCX's concentration limits serve the purpose of minimizing the disturbance to a fair and orderly market that might otherwise result from the failure of an LMM.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The PCX is proposing to change its marketing fee for certain options and to adopt new marketing fees for recently listed options. The text of the proposed change is available at the PCX and at the Commission.
In its filing with the Commission, the PCX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it had received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The PCX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The PCX recently adopted a payment-for-order-flow program under which it charges a marketing fee ranging from $0 to $1.00 per contract on a per issue basis.
The PCX is proposing to change the marketing fee for certain options as set forth in the Schedule of Rates beginning at the commencement of the June trade month and continuing until further notice. The PCX proposes to change only the amounts of the fees that it charges for transactions in the options that are included in the proposed Schedule of Rates. Any fees currently being charged for transactions in options that are not listed in this amendment to the Schedule of Rates would not be affected by the proposed rule change. The PCX believes that its proposed rule change is reasonable and equitable because it is designed to enable the PCX to compete with other markets in attracting options business. Only the amount of the fee is being changed.
The PCX believes that the proposal is consistent with section 6(b) of the Act
The PCX does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The PCX neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-2003-26 and should be submitted by July 14, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The PCX is proposing to amend its Schedule of Fees and Charges by modifying its Order Cancellation Fees. The text of the proposed rule change is set forth below. Proposed new language is in
Transactions: No change.
Order Cancellation: $1.00 per MFI order canceled.
Ticket Data Entry: No change.
On-Line Comparison: No change.
LMM Book Operation Credit: No change.
In its filing with the Commission, the PCX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange has established an Order Cancellation Fee in order to address operational problems and costs resulting from the practice of market participants canceling orders immediately after they place such orders through the Exchange's Member Firm Interface (“MFI”).
The Exchange believes that the proposal is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-2003-25 and should be submitted by July 14, 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”)
PCX is proposing to amend its rules to extend the Automatic Execution System (“Auto-Ex”) Book Function Pilot Program to June 30, 2004. The text of the proposed rule change is available at the principal office of the PCX and at the Commission.
In its filing with the Commission, the PCX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. PCX has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
On June 17, 2002, the Commission approved, on a one-year basis, the Exchange's proposal to amend Rule 6.87, which governs the operation of its Auto-Ex
The Auto-Ex Book Function of POETS permits orders in the Limit Order Book to be executed via the Auto-Ex system when those orders become marketable subject to certain procedures. The function may be used when one or more orders in the Limit Order Book become marketable, as indicated by a locked or crossed market being displayed on the trading floor. When this occurs, the Lead Market Maker may direct the Order Book Official to initiate the Auto-Ex Book Function, which will cause marketable orders in the Limit Order Book to be automatically executed against the accounts of Market Makers who are participating on the Auto-Ex system at the time.
The Exchange is requesting an additional extension of the pilot program to June 30, 2004, when the Exchange's new trading platform for options, “PCX Plus”, will become completely operative. The added time permits the Exchange to phase in PCX Plus on an issue-by-issue basis.
PCX believes that this proposal is consistent with section 6(b) of the Act,
PCX does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
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 PCX. All submissions should refer to File No. SR-PCX-2003-15 and should be submitted by July 14, 2003.
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, and, in particular, the requirements of section 6 of the Act.
The Commission further finds good cause for approving the proposed rule change prior to the 30th day after the date of publication of notice thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Phlx proposes to amend its schedule of dues, fees, and charges to increase its technology fee from $150 per month to $950 per month for Phlx members. The text of the proposed rule change is available at the Office of the Secretary, the Phlx, and the Commission.
In its filing with the Commission, the Phlx 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 and is set forth in sections A, B, and C below.
The Phlx proposes to amend its schedule of dues, fees, and charges to increase its technology fee from $150 per month to $950 per month for Phlx members. The technology fee is currently assessed on members as well as on foreign currency options participants who do not also hold legal title to a Phlx membership.
In addition, the Exchange intends to amend a footnote related to its technology fee, which appears on its schedule of dues, fees, and charges, to clarify that foreign currency options participants that hold legal title to an Exchange membership are assessed the technology fee in their capacity as a Phlx member and not additionally in their capacity as a foreign currency options participant.
The Phlx states that the technology fee was originally instituted to reflect the costs of needed upgrades to the operating systems on the Exchange's trading floors, system software modifications, year 2000 modifications, and hardware upgrades. Also, system development costs for new risk management systems, order handling rule revisions, specialized quote feeds, and new products were captured by this fee.
The Exchange believes an increase in the technology fee is reasonable and necessary to support the ongoing efforts and deployment of technology to facilitate trading and remain competitive. In addition, the Exchange believes that assessing the $950 per month technology fee on members and the $150 per month technology fee on foreign currency options participants who do not hold legal title to a Phlx membership is equitable in that the additional revenue generated from the increased technology fee is intended to be mainly used to facilitate trading on the equity and options floors, and not the foreign currency options trading floor.
The purpose of amending the footnote that accompanies the technology fee entry on the fee schedule is to clarify that foreign currency options participants that hold legal title to a Phlx membership are assessed the
The Exchange believes that its proposed rule change is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
The foregoing proposed rule change has been designated as a fee change 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 Phlx. All submissions should refer to File No. SR-Phlx-2003-41 and should be submitted by July 14, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On April 28, 2003, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of section 6 of the Act
For this reason, 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The text of the proposed rule change is available at the Phlx and at the Commission.
The Phlx proposes to amend its payment-for order flow fees imposed on the transactions of Phlx Registered Options Traders (“ROTs”) for the equity options currently ranked two through fifty.
The Phlx intends to implement the attached payment for order flow fees for trades settling June 1, 2003 through July 31, 2003.
In its filing with the Commission, the Phlx included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it had received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Phlx previously filed a proposed rule change with the Commission to reinstate its payment for order flow program.
The purpose of the proposed rule change is to encourage additional volume in the most actively traded equity options ranked two through fifty by decreasing the payment for order flow fee assessed on ROTs from the current rate of $0.50 per contract to $0.40 per contract. The reduced fee, applicable to trades settling from June 1, 2003 through July 31, 2003, should promote additional liquidity in those options by reducing the ultimate costs incurred by the ROTs in connection with trading these options.
The Exchange believes that its proposal to amend its schedule of dues, fees and charges is consistent with section 6(b) of the Act
The Phlx does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Phlx neither solicited nor received written comments with respect to the proposal.
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,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Small Business Administration.
Notice of reporting requirements submitted for OMB review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before July 23, 2003. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to: Agency Clearance Officer, Jacqueline White, Small Business Administration, 409 3rd Street, SW., 5th Floor, Washington, DC 20416; and OMB Reviewer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
As a result of the President's major disaster declaration for Public Assistance on June 6, 2003, the U.S. Small Business Administration is activating its disaster loan program only for private non-profit organizations that provide essential services of a governmental nature. I find that Chicot, Cleburne, Conway, Craighead, Cross, Independence, Jackson, Madison, Newton, Perry, Poinsett, St. Francis, Van Buren, White and Woodruff Counties in the State of Arkansas constitute a disaster area due to damages caused by severe storms, tornadoes and flooding occurring from May 2, 2003, and continuing. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on August 5, 2003 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 3 Office, 4400 Amon Carter Blvd., Suite 102, Ft. Worth, TX 76155.
The interest rates are:
The number assigned to this disaster for physical damage is P01011.
In accordance with notices received from the Department of Homeland Security—Federal Emergency Management Agency, effective June 12 and June 13, 2003, the above numbered declaration is hereby amended to include Estill, Madison, Owsley and Perry Counties in the State of Kentucky as disaster areas due to damages caused by severe storms, flooding, mud and rock slides, and tornadoes occurring on May 4 through May 27, 2003.
In addition, applications for economic injury loans from small businesses located in the contiguous counties of Breathitt, Clark, Clay, Harlan, Jackson, Knott, Lee, Leslie, Letcher and Powell in the State of Kentucky 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,
Caldwell and Watauga Counties and the contiguous counties of Alexander, Ashe, Avery, Burke, Catawba and Wilkes in the State of North Carolina; and Johnson County in the State of Tennessee constitute an economic injury disaster loan area as a result of the closure of a section of U.S. Highway
The interest rate for eligible small businesses and small agricultural cooperatives is 3.189 percent. The number assigned for economic injury for this disaster is 9V8300 for North Carolina; and 9V8400 for Tennessee.
Department of State.
Notice.
The U.S. Department of State, Bureau of Administration, is issuing this notice in order to comply with the Energy Policy Act of 1992 and 42 U.S.C. 13218(b).
The purpose of this notice is to announce the public availability of the Department of State's Fiscal Year 2002 report at the following Web site:
Questions regarding reports on the AFV report web site should be addressed to the Domestic Fleet Management and Operations Division (A/OPR/GSM/FMO) [Attn: Barry Shpil], 2201 C Street NW. (Room B258), Washington, DC 20520, phone 202-647-3628.
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.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier
Permits were filed under subpart b (formerly subpart Q) of the Department of Transportation's Procedural Regulations (
Department of Transportation.
Notice of Order to Show Cause (Order 2003-6-23), Docket OST-02-13937.
The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding that Cool Tours, Inc. d/b/a San Juan Aviation is fit, willing, and able under 49 U.S.C. 41738 to provide scheduled passenger service as a commuter air carrier and issue to it a Commuter Air Carrier Authorization.
Persons wishing to file objections should do so no later than July 7, 2003.
Objections and answers to objections should be filed in Docket OST-02-13937 and addressed to the Department of Transportation Dockets (M-30, Room PL-401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Mr. Howard Serig, Air Carrier Fitness Division (X-56, Room 6401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-4822.
Federal Aviation Administration (FAA), DOT.
Notice.
The Federal Aviation Administration's (FAA) electronic Aircraft Registration System will be augmented to reflect the observed status of an aircraft's certificate of registration.
June 20, 2003.
Walter Binkley, Manager, Aircraft Registration Branch (AFS-750), Mike Monroney Aeronautical Center, Federal Aviation Administration (AFS-750), Post Office Box 25504, Oklahoma City, OK 73125. Telephone (405) 954-3131.
Section 47.41(a) of the Federal Aviation Regulations (14 CFR part 47) enumerates circumstances under which a certificate of aircraft registration becomes ineffective. The most commonly observed event is receipt of information indicating the aircraft ownership has changed. The change of aircraft ownership renders the certificate of registration ineffective for operations (see 14 CFR 91.203(a)(2)). The FAA believes it is in the interest of national security, safety, and accuracy that the Aircraft Registration System reflect the observed status of an aircraft's registration.
On the effective date stated herein, aircraft records containing information that would render a certificate of registration ineffective if true, will be changed to reflect a status of “In Question”.
Such status is informational in nature and should not be construed as a legal determination that the certificate of registration is ineffective.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption from the vision standard; request for comments.
This notice publishes the FMCSA's receipt of applications from 36 individuals for an exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. If granted, the exemptions will enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce without meeting the vision standard prescribed in 49 CFR 391.41(b)(10).
Comments must be received on or before July 23, 2003.
You may submit comments identified by DOT DMS Docket Number FMCSA-2003-15268 by any of the following methods:
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Ms. Sandra Zywokarte, Office of Bus and Truck Standards and Operations, (202) 366-2987, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the agency to renew exemptions at the end of the 2-year period. The 36 individuals listed in this notice have recently requested an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety.
Mr. Adams, 64, has amblyopia in his right eye. His best-corrected visual acuity in the right eye is 20/70 and in the left, 20/20. Following an examination in 2003, his optometrist certified, “It is my professional opinion that Mr. Adams has adequate vision to operate a commercial vehicle.” Mr. Adams reported that he has driven straight trucks for 46 years, accumulating 138,000 miles, and tractor-trailer combinations for 23 years, accumulating 2.5 million miles. He holds a Class AMV CDL from Alabama. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Beebe, 36, has a damaged retina in his right eye due to injury at age 6. His visual acuity in the right eye is 20/80 and in the left, 20/20. Following an examination in 2002, his optometrist certified, “It is my belief that Morris has sufficient vision and visual field perception in both eyes to be able to operate with a CDL license.” Mr. Beebe reported that he has driven straight trucks for 4 months, accumulating 38,000 miles, and tractor-trailer combinations for 2 years 8 months, accumulating 350,000 miles. He holds a Class A CDL from Colorado. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Beekler, 59, had a branch artery occlusion in his right eye in 1993. His visual acuity in the right eye is hand motions and in the left, 20/20 with correction. His optometrist examined him in 2003 and certified, “In my opinion, Mr. Beekler has sufficient visual function required to operate a commercial vehicle.” Mr. Beekler submitted that he has driven straight trucks and tractor-trailer combinations for 42 years, accumulating 840,000 miles in the former and 4.2 million miles in the latter. He holds a Class A CDL from New Jersey. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Branning, 58, lost his left eye due to trauma in 1983. His visual acuity in the right eye is 20/20. Following an examination in 2003, his optometrist certified, “In my opinion Mr. Branning has sufficient vision to exercise the privileges and responsibilities of operating a commercial vehicle.” Mr. Branning reported that he has driven straight trucks for 28 years, accumulating 4.8 million miles. He holds a Class A CDL from New Mexico. His driving record for the last 3 years shows no accidents and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 10 mph.
Mr. Burda, 55, has amblyopia in his right eye. His best-corrected visual acuity in the right eye is 20/400 and in the left, 20/20. Following an examination in 2003, his optometrist certified, “It is our judgment that Mr. Burda's vision is good enough to operate a commercial vehicle with no restrictions day or night.” Mr. Burda submitted that he has driven straight trucks for 37 years, accumulating 742,000 miles, and tractor-trailer combinations for 5 years, accumulating 101,000 miles. He holds a Class A CDL from California. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr Busbin, 48, has an enlarged blind spot in his right eye resulting from an injury at age 4. His best-corrected visual acuity in the right eye is 20/50 and in the left, 20/16. Following an examination in 2003, his optometrist certified, “In my opinion, this individual has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Busbin reported that he has driven straight trucks for 3 years, accumulating 150,000 miles. He holds a Class DM driver's license from Alabama. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Carassai, 44, has amblyopia in his right eye. His visual acuity in the right eye is 20/70 and in the left, 20/20. His ophthalmologist examined him in 2002 and stated, “In our opinion, Mr. Carassai's vision is good enough to operate a commercial vehicle.” Mr. Carassai reported that he has driven straight trucks for 15 years, accumulating 360,000 miles. He holds a Class A CDL from New Jersey. His driving record shows no accidents or convictions for moving violations in a CMV during the last 3 years.
Mr. Cozat, 60, lost his right eye at age 10 due to a congenital birth defect. His visual acuity in the left eye is 20/20. Following an examination in 2003, his optometrist certified, “In my medical opinion he has the vision to operate a commercial vehicle safely, as he has done so, for the past 29 years with a reportedly clean driving record.” Mr. Cozat reported that he has driven tractor-trailer combinations for 9 years, accumulating 900,000 miles. He holds a Class CA CDL from Michigan. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Dewey, 35, has had optic nerve hypoplasia in his right eye for 4 years. His best-corrected visual acuity in the right eye is 20/400 and in the left, 20/30. Following an examination in 2002, his optometrist certified, “Based on the above findings, Mr. Dewey appears to have sufficient vision to perform the driving tasks associated with driving a commercial motor vehicle.” Mr. Dewey reported that he has driven straight trucks for 14 years, accumulating 345,000 miles. He holds a Class B CDL from Florida. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Dougherty, 59, has amblyopia in his right eye. His best-corrected visual acuity in the right eye is 20/60 and in the left, 20/20. Following an examination in 2003, his optometrist stated, “Mr. Dougherty, due to his congenital refractive amblyopia does have reduced acuity and peripheral vision. Binocular vision quality is also reduced due to the amblyopia. These
Mr. Duran, 49, has decreased vision in his left eye due to injury at the age of 9. His visual acuity in the right eye is 20/15 and in the left, 20/100. His ophthalmologist examined him in 2002 and stated, “I certify that in my opinion, Fred Duran has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Duran reported that he has driven straight trucks for 2 years, accumulating 25,000 miles, and tractor-trailer combinations for 26 years, accumulating 975,000 miles. He holds a Class A CDL from Mississippi. His driving record shows no accidents or convictions for moving violations in a CMV during the last 3 years.
Mr. Edwards, 65, developed a serous detachment of the macula in his left eye in 1977. His best-corrected visual acuity in the right eye is 20/25 and in the left, counting fingers. His ophthalmologist examined him in 2002 and certified, “I believe he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Edwards reported that he has driven straight trucks and tractor-trailer combinations for 20 years, accumulating 100,000 miles in the former and 1.8 million miles in the latter. He holds a Class A CDL from Virginia. His driving record for the last 3 years shows one accident and two convictions for moving violations in a CMV. The moving violations were “failure to obey highway sign” and exceeding the speed limit by 17 mph. The accident occurred when another driver changed lanes, striking Mr. Edward's vehicle. The other driver was charged with “improper lane change.” Mr. Edwards was not cited.
Mr. Evridge, 38, has optic atrophy of the left eye resulting from trauma at age 9. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/200. Following an examination in 2003, his optometrist certified, “It is my opinion that Mr. Evridge has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Evridge reported that he has driven straight trucks for 3 years, accumulating 30,000 miles, and tractor-trailer combinations for 22 years, accumulating 1.3 million miles. He holds a Class DA CDL from Kentucky. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Fisk, 42, has a cataract in his right eye due to injury at age 7. His best-corrected visual acuity is 20/60 in the right eye and 20/20 in the left. Following an examination in 2003, his ophthalmologist certified, “Given present medical findings in patient's 20-year history of commercial licensure without accident, I would feel the patient has sufficient vision to perform his career tasks.” Mr. Fisk reported that he has driven straight trucks for 3 years, accumulating 225,000 miles, and tractor-trailer combinations for 15 years, accumulating 1.5 million miles. He holds a Class CA CDL from Michigan. His driving record for the last 3 years shows no accidents and two convictions for moving violations—exceeding the speed limit by 10 mph and “impeding traffic”—in a CMV.
Mr. Good, 49, has congenital optic nerve hypoplasia in his left eye. His best-corrected visual acuity in the right eye is counting fingers and in the left, 20/15. Following an examination in 2002, his optometrist certified, “His vision is adequate for safe operation of a commercial vehicle.” Mr. Good reported that he has driven straight trucks for 8 years, accumulating 61,000 miles, and tractor-trailer combinations for 12 years, accumulating 342,000 miles. He holds a Class A CDL from Oregon. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Grens, 56, has reduced vision in his right eye due to trauma in 1979. His best-corrected visual acuity in the right eye is 20/400 and in the left, 20/15. Following an examination in 2002, his optometrist certified, “It appears that Michael Grens has sufficient vision with both eyes to perform the driving tasks required to operate a commercial vehicle.” Mr. Grens submitted that he has driven straight trucks for 25 years, accumulating 1.9 million miles, tractor-trailer combinations for 8 years, accumulating 800,000 miles, and buses for 3 years, accumulating 15,000 miles. He holds a Class A CDL from Illinois. His driving record shows no accidents or convictions for moving violations in a CMV during the last 3 years.
Mr. Hains, 42, has had macular scarring in his left eye since 1999. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/200. His ophthalmologist examined him in 2003 and certified, “It is my opinion that you have sufficient vision to safely operate a commercial vehicle.” Mr. Hains reported that he has driven tractor-trailer combinations for 15 years, accumulating 1.8 million miles. He holds a Class A CDL from North Dakota. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Hemmer, 42, has had a corneal scar in his left eye since birth. His best-corrected visual acuity in the right eye is 20/15 and in the left, 20/200. Following an examination in 2002, his ophthalmologist stated, “In my medical opinion, it is safe for you to drive a commercial vehicle.” Mr. Hemmer submitted that he has driven straight trucks and tractor-trailer combinations for 20 years, accumulating 1.0 million miles in the former and 1.6 million miles in the latter. He holds a Class ABCD CDL from Wisconsin. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Holden, 33, lost his left eye due to trauma at age 9. His visual acuity in the right eye is 20/15. Following an examination in 2003, his optometrist certified, “I do believe he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Holden reported that he has driven straight trucks and tractor-trailer combinations for 11 years, accumulating 165,000 miles in the former and 1.9 million miles in the latter. He holds a Class A CDL from Maryland. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Inlow, 57, has amblyopia in his left eye. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/400. Following an examination in 2003, his optometrist certified, “In my medical opinion, Mr. Inlow has
Mr. Jarvela, 35, has amblyopia in his left eye. His best-corrected visual acuity in the right eye is 20/25 and in the left, 20/200. His optometrist examined him in 2003 and stated, “It is my conclusion based on his visual acuity and his field of vision, that Mr. Jarvela has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Jarvela reported that he has driven tractor-trailer combinations for 10 years, accumulating 400,000 miles. He holds a Class CA CDL from Michigan. His driving record shows no accidents or convictions for moving violations in a CMV during the last 3 years.
Mr. Joiner, 53, has counting fingers vision in his left eye due to a congenital cataract. His best-corrected visual acuity in the right eye is 20/20. Following an examination in 2003, his ophthalmologist certified, “Mr. Joiner has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Joiner reported that he has driven straight trucks and tractor-trailer combinations for 20 years, accumulating 300,000 miles in the former, and 500,000 miles in the latter. He holds a Class A CDL from Mississippi. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Kropf, 28, has amblyopia in his left eye. The visual acuity in his right eye is 20/15 and in the left, 20/400. His optometrist examined him in 2003 and certified, “In my opinion, Mr. Kropf is capable of driving commercial vehicles with the use of outside mirrors.” Mr. Kropf submitted that he has driven tractor-trailer combinations for 4 years, accumulating 300,000 miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no accidents and one conviction for a moving violation—“failure to obey stop sign”—in a CMV.
Mr. Mathna, 45, lost his left eye due to an injury that occurred in 1981. His visual acuity in the right eye is 20/15. Following an examination in 2002, his optometrist certified, “In my opinion, Mr. Mathna is able to operate a commercial vehicle at this time and has sufficient vision to perform the driving tasks required.” Mr. Mathna reported that he has driven tractor-trailer combinations for 27 years, accumulating 2.2 million miles. He holds a Class A CDL from Pennsylvania. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. McClam, 45, has had a history of injury to his left eye since 1971. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/200. Following an examination in 2003, his ophthalmologist certified, “It is my professional opinion Mr. McClam has sufficient vision to continue to perform the driving tasks required to operate a commercial vehicle.” Mr. McClam reported that he has driven tractor-trailer combinations for 24 years, accumulating 1.7 million miles. He holds a Class A CDL from South Carolina. His driving record for the last 3 years shows no accidents and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 9 mph.
Mr. Miller, 42, is blind in his right eye due to an injury 17 years ago. His best-corrected visual acuity in the left eye is 20/20. His optometrist examined him in 2003 and certified, “In my professional opinion, Mr. Miller has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Miller reported that he has driven straight trucks for 7 years, accumulating 52,000 miles, and tractor-trailer combinations for 6 years, accumulating 135,000 miles. He holds a Class A CDL from California. His driving record shows no accidents or convictions for moving violations in a CMV during the last 3 years.
Mr. Nyland, 57, had a retinal detachment in his left eye at the age of 13. His best-corrected visual acuity in the right eye is 20/15 and in the left, light perception. Following an examination in 2002, his optometrist certified, “It is my medical opinion that Mr. Nyland has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Nyland submitted that he has driven straight trucks for 38 years, accumulating 570,000 miles, and tractor-trailer combinations for 15 years, accumulating 75,000 miles. He holds a Class A CDL from Michigan. His driving record shows no accidents or convictions for moving violations in a CMV during the last 3 years.
Mr. Prevas, 46, had a stroke in his left eye in 1983. His visual acuity in the right eye is 20/16 and in the left, hand motions. Following an examination in 2002, his optometrist certified, “I feel Mr. Prevas has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Prevas reported that he has driven tractor-trailer combinations for 18 years, accumulating 630,000 miles. He holds a Class AM CDL from Iowa. His driving record for the last 3 years shows no accidents and one conviction for a moving violation—“following too closely”—in a CMV.
Mr. Pritchett, 55, lost his right eye due to injury at age 11. His visual acuity in the left eye is 20/20 with correction. Following an examination in 2002, his optometrist certified, “In my medical opinion, Terry Pritchett has sufficient vision to perform all tasks necessary for a commercial driver.” Mr. Pritchett reported that he has driven straight trucks for 25 years, accumulating 650,000 miles. He holds a Class B CDL from Georgia. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Riles, 52, has counting fingers vision in his right eye due to an injury in 1956. His best-corrected visual acuity in the left eye is 20/15. Following an examination in 2003, his optometrist certified, “At this time I would certify in my medical opinion that Mr. Riles has more than sufficient vision to perform the driving tasks required to operate a commercial vehicle in a safe manner.” Mr. Riles reported that he has driven straight trucks for 30 years, accumulating 36,000 miles, and tractor-trailer combinations for 6 years, accumulating 600,000 miles. He holds a Class A CDL from Iowa. His driving record for the last 3 years shows no accidents and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 14 mph.
Mr. Sandlin, 43, incurred a macular scar in his left eye due to histoplasmosis in 1996. His best-corrected visual acuity in the right eye is 20/20 and in the left,
Mr. Schwengel, 60, has amblyopia in his left eye. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/100. Following an examination in 2003, his optometrist certified, “He is visually capable of handling driving tasks. I would trust him fully with any multiple axle vehicle.” Mr. Schwengel reported that he has driven tractor-trailer combinations for 10 years, accumulating 800,000 miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Smith, 45, has had a serous maculopathy in his right eye since 1988. His best-corrected visual acuity in the right eye is counting fingers and in the left, 20/20. Following an examination in 2003, his ophthalmologist stated, “In my medical opinion, Mr. Smith has visual acuity sufficient to perform driving tasks required to operate a commercial vehicle.” Mr. Smith reported that he has driven straight trucks for 18 years, accumulating 198,000 miles, tractor-trailer combinations for 14 years, accumulating 1.5 million miles, and buses for 1 year, accumulating 57,000 miles. He holds a Class A CDL from Idaho. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
Mr. Tomlinson, 43, experienced a retinal detachment in his right eye in 1974. His best-corrected visual acuity in the right eye is 20/100 and in the left, 20/20. His optometrist examined him in 2003 and certified, “I believe Mr. Tomlinson would have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Tomlinson submitted that he has driven straight trucks for 14 years, accumulating 840,000 miles. He holds a Class A CDL from Kentucky. His driving record for the last 3 years shows no accidents and two convictions for speeding in a CMV. Mr. Tomlinson exceeded the speed limit by 17 mph in one instance and 11 mph in the other.
Ms. van Krieken, 45, lost her right eye due to an accident 20 years ago. Her best-corrected visual acuity in the left eye is 20/20. An ophthalmologist examined her in 2002 and certified, “In my opinion, she has sufficient vision to perform driving tasks as required by an operator of a commercial vehicle.” Ms. van Krieken reported that she has driven straight trucks for 5 years, accumulating 32,000 miles, and tractor-trailer combinations for 11 years, accumulating 275,000 miles. She holds a Class A CDL from Oregon. Her driving record shows no accidents or convictions for moving violations in a CMV during the last 3 years.
Mr. Yocum, 38, has amblyopia in his left eye. His visual acuity in the right eye is 20/20 and in the left, 20/200. Following an examination in 2003, his ophthalmologist certified, “In my medical opinion, Mr. Yocum has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Yocum reported that he has driven straight trucks for 7 years, accumulating 56,000 miles. He holds a chauffeur's license from Indiana. His driving record for the last 3 years shows no accidents or convictions for moving violations in a CMV.
In accordance with 49 U.S.C. 31315 and 31136(e), the FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the notice.
Sierra Railroad Company (SRC)
The transaction is expected to be consummated by June 30, 2003.
The purpose of the transaction is to allow SRC and YSL to combine their resources, to expand their business opportunities, and to develop other railroad and transportation related businesses.
This is a transaction within a corporate family of the type specifically exempted from prior review and approval under 49 CFR 1180.2(d)(3). The parties state that the transaction will not result in adverse changes in service levels, significant operational changes, or a change in the competitive balance with carriers outside the corporate family.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under sections 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before July 23, 2003 to be assured of consideration.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW. Washington, DC 20220.
Written comments should be received on or before July 23, 2003 to be assured of consideration.
The Department of Treasury the has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before July 23, 2003 to be assured of consideration.
In rule 03-14630 beginning on page 35115 in the issue of Wednesday, June 11, 2003 make the following correction:
On page 35115, the agency titled “Department of the Interior” should read, “ Department of Agriculture”.
In notice document 03-14815 beginning on page 35203 in the issue of Thursday, June 12, 2003, make the following correction:
On page 35204, in the first column, above the heading “
In notice document 03-14949 beginning on page 35402 in the issue of Friday, June 13, 2003, make the following correction:
On page 35403, in the second column, under the heading
In proposed rule document 03-14992 beginning on page 35335 in the issue of Friday, June 13, 2003 make the following correction:
On page 35344, starting in the first column, paragraphs (e)(6) and (e)(7) should be presented in italics as set forth below:
(7)
In rule document 03-14282 beginning on page 34319 in the issue of Monday, June 9, 2003, make the following corrections:
1. On page 34321, in §21.3131, in the first table, under the column titled, “Monthly rate”, the sixth line should read, “608.00”.
2. On the same page, in the same section, in the same table, under the same column, the seventh line should be blank.
3. On the same page, in the same section, in the second table, under the column titled “Monthly rate”, the sixth line should read, “670.00”.
4. On page 34322, in § 21.3333(a)(2), in the second column, in the second line, “December 31, 2002” should read, “December 31, 2001”
5. On page 34324, in §21.7136(c)(7), in the first column, in the table, in the column titled “Monthly rate”, in the second line, “402.00” should read, “402.60”.
The Department of State submits the following comprehensive listing of the statements which, as required by law, Federal employees filed with their employing agencies during calendar year 2002 concerning gifts received from foreign government sources. The compilation includes reports of both tangible gifts and gifts of travel or travel expenses of more than minimal value, as defined by statute.
Publication of this listing in the
Fish and Wildlife Service, Interior.
Final rule; notice of availability.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Preble's meadow jumping mouse (
The critical habitat designation defines the width of designated critical habitat as a distance outward from the river or stream edge (as defined by the ordinary high water mark) varying with the size (order) of a river or stream. This publication also provides notice of the availability of the Addendum to the Economic Analysis of Critical Habitat Designation for the Preble's Meadow Jumping Mouse (Addendum to the Economic Analysis) and the final Environmental Assessment for Designation of Critical Habitat for the Preble's Meadow Jumping Mouse (EA) for this final rule.
This final rule is effective July 23, 2003.
Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours at the Colorado Ecological Services Field Office, U.S. Fish and Wildlife Service, 755 Parfet Street, Suite 361, Lakewood, CO 80215. You may obtain copies of this final rule, the Addendum to the Economic Analysis, and the final EA from the field office address above or by calling 303-275-2370.
Field Supervisor, Colorado Ecological Services Field Office, (
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 conservation resources. The Service's present system for designating critical habitat is driven by litigation 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 regarding critical habitat designation, 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 and to comply with the growing number of adverse court orders. As a result, the Service's own to proposals to undertake conservation actions based on biological priorities are significantly delayed.
The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for additional public participation beyond those minimally required by the APA, the Act, and the FWS implementing regulations, or to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed. This in turn fosters a second round of litigation in which those who will suffer adverse impacts from these decisions challenge them. The cycle of litigation appears endless, is very expensive, and in the final analysis provides 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. These costs result in minimal benefits 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.
Much of what is now known about the Preble's meadow jumping mouse is a result of information gained from the early 1990s to the present. Following the Preble's listing as a threatened species in 1998, knowledge about its distribution, habitat requirements, abundance, and population dynamics has grown substantially. However, much of the biology and ecology of the Preble's is still not well understood. Where gaps in knowledge exist, scientists have relied on information from closely related subspecies of the meadow jumping mouse (
The Preble's is a member of the family Dipodidae (jumping mice) with four living genera, two of which,
Edward A. Preble (1899) first documented the meadow jumping mouse from Colorado. Krutzsch (1954) described the Preble's as a separate subspecies of meadow jumping mouse limited to Colorado and Wyoming. The Preble's is now recognized as 1 of 12 subspecies of meadow jumping mouse (Hafner
The Preble's is a relatively small rodent with an extremely long tail, large hind feet, and long hind legs. The tail is bicolored, lightly-furred, and typically twice as long as the body. The large hind feet can be one-third again as large as those of other mice of similar size. The Preble's has a distinct, dark, broad stripe on its back that runs from head to tail and is bordered on either side by gray to orange-brown fur. The hair on the back of all jumping mice appears coarse compared to other mice. The underside hair is white and much finer in texture. Total length of adult Preble's mice is approximately 180 to 250 millimeters (mm) (7 to 10 inches (in)), with the tail comprising 108 to 155 mm (4 to 6 in) of that length (Krutzsch 1954, Fitzgerald
The average weight of 120 adult Preble's mice captured early in their active season (prior to June 18) was 18 grams (g) (0.6 ounce (oz)); included were 10 pregnant females weighing more than 22 g (0.8 oz) (Meaney
While the western jumping mouse is recognized as a separate species from the Preble's, it is similar in appearance and can easily be confused with the Preble's. The range of the western jumping mouse in Wyoming and Colorado is generally west of, and at higher elevations than, the range of the Preble's. However, the two species appear to coexist over portions of their range in southeastern Wyoming and Colorado (Long 1965, Clark and Stromberg 1987, Schorr 1999, Meaney
Riggs
The Preble's is found along the foothills in southeastern Wyoming, southward along the eastern edge of the Front Range of Colorado to Colorado Springs, El Paso County (Hall 1981, Clark and Stromberg 1987, Fitzgerald
In Wyoming, capture locations of mice confirmed as the Preble's, and locations of mice identified in the field as the Preble's and released, extend in a band from the town of Douglas southward along the Laramie Range to the Colorado border, with captures east to eastern Platte County and Cheyenne, Laramie County. In Colorado, the distribution of the Preble's forms a band along the Front Range from Wyoming southward to Colorado Springs, El Paso County, with eastern marginal captures in western Weld County, western Elbert
The Preble's is likely an Ice Age relic (Hafner
The western boundary of Preble's range in both States appears related to elevation along the Laramie Range and Front Range. The Service has used 2,300 meters (m) (7,600 feet (ft)) in elevation as the general upward limit of Preble's habitat in Colorado (Service 1998). Recent morphological examination of specimens has confirmed the Preble's to an elevation of approximately 2,300 m (7,600 ft) in Colorado (Meaney
Although there is little information on past distribution or abundance of the Preble's, surveys have identified various locations where the subspecies was historically present but is now absent (Ryon 1996). Since at least 1991, the Preble's has not been found in Denver, Adams, or Arapahoe Counties in Colorado. Its absence in these counties is likely due to urban development, which has altered, reduced, or eliminated riparian habitat (Compton and Hugie 1993, Ryon 1996).
Typical habitat for the Preble's comprises well-developed plains riparian vegetation with adjacent, undisturbed grassland communities and a nearby water source. Well-developed plains riparian vegetation typically includes a dense combination of grasses, forbs, and shrubs; a taller shrub and tree canopy may be present (Bakeman 1997). When present, the shrub canopy is often
The Preble's have rarely been trapped in uplands adjacent to riparian areas (Dharman 2001). However, in detailed studies of the Preble's movement patterns using radio telemetry, the Preble's has been found feeding and resting in adjacent uplands (Shenk and Sivert 1999b, Ryon 1999, Schorr 2001). These studies suggest that the Preble's uses uplands at least as far out as 100 m (330 ft) beyond the 100-year floodplain (Ryon 1999; Tanya Shenk, Colorado Division of Wildlife,
In a rangewide comparison of existing habitat data from Colorado, Clippenger (2002) found that subshrub cover and plant species richness are higher at most sites where meadow jumping mice are present as compared to sites where they are absent, particularly at distances 15 to 25 m (49 to 82 ft) from streams. In a study comparing habitats at Preble's capture locations on the Department of Energy's Rocky Flats Environmental Technology Site (Rocky Flats), Jefferson County, Colorado, and the U.S. Air Force Academy (Academy), El Paso County, Colorado, the Academy sites had lower plant species richness at capture locations but considerably greater numbers of the Preble's (Schorr 2001). However, the Academy sites had higher densities of both grasses and shrubs. It is likely that Preble's abundance is not driven by the diversity of plant species alone, but by the density and abundance of riparian vegetation (Schorr 2001).
The tolerance of the Preble's for invasive exotic plant species is not well understood. Whether or not exotic plant species reduce Preble's persistence at a site may be due in large part to whether plants create a monoculture and replace native species. There is particular concern about nonnative species such as
Fifteen apparent Preble's hibernacula (hibernation nests) have been located through radio telemetry, all within 78 m (260 ft) of a perennial stream bed or intermittent tributary (Bakeman and Deans 1997, Shenk and Sivert 1999a, Schorr 2001). Of these, one was confirmed through excavation (Bakeman and Deans 1997); others were left intact to prevent harm to the mice. Apparent hibernacula have been located under willow, chokecherry, snowberry, skunkbrush,
The Preble's constructs day nests composed of grasses, forbs, sedges, rushes, and other available plant material. They may be globular in shape or simply raised mats of litter, and are most commonly above ground but also can be below ground. They are typically found under debris at the base of shrubs and trees, or in open grasslands (Ryon 2001). An individual mouse can have multiple day nests in both riparian and grassland communities (Shenk and Sivert 1999a), and may abandon a nest after approximately a week of use (Ryon 2001).
Hydrologic regimes that support Preble's habitat range from large perennial rivers such as the South Platte River to small drainages only 1 to 3 m (3 to 10 ft) in width, as at Rocky Flats and in montane habitats. Flooding is a common and natural event in the riparian systems in southeastern Wyoming and along the Front Range of Colorado. This periodic flooding helps create a dense vegetative community by stimulating resprouting from willow shrubs, and allows herbs and grasses to take advantage of newly-deposited soil.
Fire is also a natural component of the Wyoming foothills and Colorado Front Range, and Preble's habitat naturally waxes and wanes with fire events. Within shrubland and forest, intensive fire may result in adverse impacts to Preble's populations. However, in a review of the effects of grassland fires on small mammals, Kaufman
Meadow jumping mice usually have two litters per year, but there are records of three litters per year. An average of five young are born per litter, but the size of a litter can range from two to eight young (Quimby 1951, Whitaker 1963).
The Preble's is long-lived for a small mammal, in comparison with many species of mice and voles that seldom live a full year. Along South Boulder Creek, Boulder County, Colorado, seven individuals originally captured as adults were still alive 2 years later, having attained at least 3 years of age (Meaney
The Preble's has a host of known predators including garter snakes (
Other mortality factors of the Preble's include drowning and vehicle collision (Schorr 2001, Shenk and Sivert 1999a). Mortality factors known for the meadow jumping mouse, such as starvation, exposure, disease, and insufficient fat stores for hibernation (Whitaker 1963) also are likely causes of death in the Preble's subspecies.
White and Shenk (2000) determined that riparian shrub cover, tree cover, and the amount of open water nearby are good predictors of Preble's densities, and summarized abundance estimates from nine sites in Colorado for field work conducted during 1998 and 1999. Estimates of abundance ranged from 4 to 67 mice per km (6 to 110 mice per mi) of stream and averaged 33 mice per km (53 mice per mi) of stream.
While fecal analyses have provided the best data on the Preble's diet to date, they overestimate the components of the diet that are less digestible. Based on fecal analyses the Preble's eats insects; fungus; moss; pollen; willow;
The Preble's is a true hibernator, usually entering hibernation in September or October and emerging the following May, after a potential hibernation period of 7 or 8 months. Adults are the first age group to enter hibernation because they accumulate the necessary fat stores earlier than young of the year. Similar to other subspecies of meadow jumping mouse, the Preble's does not store food, but survive on fat stores accumulated prior to hibernation (Whitaker 1963). Apparent hibernacula of the Preble's have been located both within and outside of the 100-year floodplain of streams (Shenk and Sivert 1999a, Ryon 2001, Schorr 2001). Those hibernating outside of the 100-year floodplain would likely be less vulnerable to flood-related mortality.
Meadow jumping mice are docile to handle and not antagonistic toward one another (Whitaker 1972). Introduced species that occupy riparian habitats may displace or compete with the Preble's. House mice (
The Preble's is primarily nocturnal or crepuscular but also may be active during the day, when they have been seen moving around or sitting still under a shrub (Shenk 1998). Little is known about social interactions and their significance in the Preble's. Jones and Jones (1985) described lively social interactions in which several Preble's mice were observed jumping into the air and squeaking and suggested that they formed a gregarious unit. In a recent study, for the month their radio-collars were active, several Preble's mice came repeatedly from different day-nest locations to meet at one spot at night (Shenk, pers. comm., 2002).
The Preble's is closely associated with riparian ecosystems that are relatively narrow and represent a small percentage of the landscape. If habitat for the Preble's is destroyed or modified, populations in those areas will decline or be extirpated. The decline in the extent and quality of Preble's habitat is considered the main factor threatening the subspecies (Service 1998, Hafner
Despite numerous surveys, the Preble's has not recently been found in the Denver and Colorado Springs metropolitan areas, and is believed to be extirpated from these areas as a result of extensive urban development. Given the overlap of the Preble's range with an area of extensive and rapid urban development along the Colorado Front Range, it is likely that significant losses of Preble's populations and habitats have occurred and may continue to occur.
Conversion of native riparian ecosystems to commercial croplands and grazed rangelands was identified as the major threat to Preble's persistence in Wyoming (Clark and Stromberg 1987, Compton and Hugie 1993). Intensive grazing and haying operations may negatively impact the Preble's by removing food and shelter. While some Preble's populations coexist with livestock operations, overgrazing can decimate riparian communities on which the Preble's depends. Similarly, haying operations that allow significant riparian vegetation to remain in place may be compatible with persistent Preble's populations.
Trail systems frequently parallel or intersect riparian communities and thus are common throughout Preble's range. Trail development can alter natural communities and may impact the Preble's by modifying nest sites, food resources, and hibernation sites, and by fragmenting its habitat. Humans and pets using these trails may alter behavior patterns of the Preble's and cause a decrease in survival and reproductive success.
Habitat fragmentation limits the extent and abundance of the Preble's. In
The structure and function of riparian ecosystems are determined by the hydrology of the waterway. Changes in timing and abundance of water can alter the channel structure, riparian vegetation, and the adjacent floodplain, and may result in changes that are detrimental to the persistence of the Preble's. Similarly, depletion of groundwater also affects the habitat components needed by the Preble's. As groundwater supplies are depleted, more xeric (low moisture) plant communities replace the riparian vegetation. The conversion of habitats from mesic (moderate moisture), shrub-dominated systems to drier grass-dominated systems may preclude the Preble's from these areas.
Alluvial aggregate extraction may produce long-term changes to Preble's habitat by altering hydrology and removing riparian vegetation. In particular, such extraction removes and often precludes reestablishment of habitat components required by the Preble's. Such mining impacts the deposits of alluvial sands and gravels that may be important hibernation locations for the Preble's.
Within the Preble's range, bank stabilization, channelization, and other measures to address flooding and stormwater runoff have increased the rate of stream flow, straightened riparian channels, and narrowed riparian areas (Pague and Grunau 2000). Using riprap and other structural stabilization options to reduce erosion may destroy riparian vegetation, and prevent or delay its re-establishment. In some cases these measures can alter the hydrologic processes and plant communities present to the point where Preble's populations can no longer persist.
Transportation and utility corridors frequently cross Preble's habitat and may negatively affect populations. As new roads are built and old roads are maintained, habitat is destroyed or fragmented. Roads and bridges also may act as barriers to dispersal.
The increasing presence of humans near Preble's habitats may result in increased level of predation that may pose a threat to the Preble's. The striped skunk (
While normal flooding events help maintain the riparian and floodplain communities that provide suitable habitat for the Preble's, increased development and surfaces impervious to water absorption within a drainage can result in more frequent and severe flood events, increase erosion, cause downcutting of channels (lowering of channel grade relative to the banks and adjacent floodplain), and prevent the re-establishment of riparian communities.
Catastrophic fires can alter habitat dramatically and change the structure and composition of the vegetation communities so that the Preble's may no longer persist. In addition, precipitation falling in a burned area may degrade Preble's habitat by causing greater levels of erosion and sedimentation along creeks. Controlled use of fire may be one method to maintain appropriate riparian, floodplain, and upland vegetation within Preble's habitat. However, over the past several decades, as human presence has increased through Preble's range, significant effort has been made to suppress fires. Long periods of fire suppression may result in a build-up of fuel and result in a catastrophic fire.
On July 17, 2002, we published the proposed rule to designate critical habitat for the Preble's (67 FR 47154). In that proposed rule (beginning on page 47518), we included a detailed summary of the previous Federal actions completed prior to publication of the proposal. We now provide updated information on the actions that we have completed since the proposed critical habitat designation. Four public hearings were held during the 60-day public comment period, which closed September 16, 2002. Public hearings were held in Cheyenne, Wyoming, on August 27; Wheatland, Wyoming, on August 28; Castle Rock, Colorado, on August 28; and Loveland, Colorado, on August 29. Because of numerous requests to reopen the comment period and hold additional public hearings in Colorado, the comment period was reopened on November 21, 2002, for 60 days, through January 21, 2003 (67 FR 70202). Two additional public hearings were held in Golden, Colorado, on November 21. On January 28, 2003, the Service announced the availability of the Draft Economic Analysis of Critical Habitat Designation for the Preble's Meadow Jumping Mouse (Draft Economic Analysis) and draft EA for the proposed designation of critical habitat for the Preble's (68 FR 4160), and opened the comment period on all three documents through February 27, 2003.
Restoring an endangered or threatened species to the point where it is recovered is a primary goal of our endangered species program. To help guide the recovery effort, we prepare recovery plans for most of the listed species native to the United States. Recovery plans describe actions considered necessary for conservation of the species, establish criteria for downlisting or delisting the species, and estimate time and cost for implementing the recovery measures needed.
In early 2000, the Recovery Team was established by the Service pursuant to section 4(f)(2) of the Act and our cooperative policy on recovery plan participation, a policy intended to involve stakeholders in recovery planning (59 FR 34272). Stakeholder involvement in the development of recovery plans helps minimize the social and economic impacts that could be associated with recovery of endangered species. Various stakeholders are represented on the Recovery Team and other public participation (including oral comments at recovery team meetings and written comments on the early drafts of the recovery plan) has taken place. The Recovery Team has prepared a series of drafts of a recovery plan for the Preble's. They identify the criteria for reaching recovery and delisting of the Preble's. A draft recovery plan, once completed, will be published in the
In the July 17, 2002, proposed rule, we requested all interested parties to submit comments or information concerning the designation of critical habitat for the Preble's meadow jumping mouse. During the comment period, we held four informational meetings followed by public hearings. We
In accordance with our policy published on July 1, 1994 (59 FR 34270), we seek the expert opinions of at least three appropriate and independent specialists regarding proposed rules. The purpose of such review is to ensure decisions are based on scientifically sound data, assumptions, and analyses. We solicited opinions of four independent experts familiar with the species or the conservation of small mammals to peer review the proposed critical habitat designation. Three of the four peer reviewers provided comments. We also received 170 written and 47 oral comments. Many individuals or organizations commented more than once. Approximately 104 comments were from Colorado and 102 from Wyoming. Additionally, comments were received from 6 other States. Overall, 121 written comments and 38 oral comments opposed designation or favored reduced designation, 28 written comments and 6 oral comments supported designation or favored expanded designation, and 21 written comments and 3 oral comments were deemed neutral. Several neutral comments consisted of requests for extending the comment period or holding additional hearings.
For the purpose of determining whether federal actions may affect the Preble's in areas not designated as critical habitat, we will continue to accept field identification by qualified individuals using established survey guidelines as an adequate basis for determining presence or absence of this subspecies. We do not believe it is appropriate and practical to hold project-specific section 7 consultations to the same level of certainty as a final rulemaking designating critical habitat, nor do we believe it to be sound public policy to require genetic or morphological examination that could substantially delay project review. Federal agencies and project sponsors may voluntarily opt to employ these more detailed and time consuming identification techniques, but it will be at their discretion and not as a requirement of the Service.
We reviewed all comments received for substantive issues and new data regarding critical habitat and the Preble's meadow jumping mouse, the Draft Economic Analysis, and the draft EA. In the following summary of issues we address comments received on all three documents during the comment periods and public hearing testimony.
Comments of a similar nature are grouped into issues.
Frequently used habitat corresponds closely to vegetation currently present, and is dependent on current land use and recent site history. We do not have the time, funding or staffing to map vegetation over all stream reaches designated as critical habitat. The extent of designated critical habitat is designed to protect all primary constituent elements required by the Preble's, including geomorphological and hydrological processes that shape Preble's habitat. When a Federal action takes place that may affect critical habitat, a site-specific determination will be made as to the presence of primary constituent elements and potential adverse impacts. In some cases, it may be determined that the extent of critical habitat into upland areas is more limited than the outward boundary of critical habitat designated.
The Service considered upstream expansion of the Upper Middle Lodgepole Creek subunit. However, this upstream reach contains less of the shrub component and is less complex than the north branch of Middle Lodgepole Creek. Additionally, although the Service recognizes the difficulties in using elevation as a general upper limit to critical habitat (see response to Peer Review comment 2), the Service has generally used 2,300 m (7,600 ft) as the upper bound of critical habitat. This unit is an exception based upon genetic and morphological identification of a specimen in this area from approximately 2,350 m (7,700 ft). However, extension of the critical habitat upstream for 3 km (2 mi) on the south branch of Middle Lodgepole Creek would include elevations up to approximately 2,400 m (7,900 ft). Based on these factors, the Service has decided not to add the suggested additional critical habitat to this subunit.
Comment 82: The protection of Preble's habitat may provide benefits to the public associated with improved ecosystem services, particularly services provided by riparian habitat areas (
In development of this final designation of critical habitat for the Preble's meadow jumping mouse we made several changes to the proposed critical habitat designation based on review of public comments received on the proposed designation, the Draft Economic Analysis, the draft EA, and further evaluation of lands proposed as critical habitat.
In several cases, changes have been made based upon our reevaluation of available data regarding the method of identification of the Preble's (identification in the field versus through genetic or morphological means). Without morphological of genetic verification of the identity of the mice, it is not possible to know whether an area is essential to the conservation of the species. Therefore, we have decided to include in the critical habitat determination only those units occurring in drainages within which there is a specimen verified as Preble's through morphological or genetic means. Accordingly, we removed from final designation those units occurring in drainages where mice were identified as Preble's only through field identification. If, in the future, one or more of these areas is determined to support mice verified as Preble's through morphological or genetic examination, we would consider whether rulemaking to amend critical habitat is warranted.
In the North Platte River drainage, we have removed the Horseshoe Creek unit (NP2), the Friend Creek and Murphy Canyon unit (NP4), and the Horse Creek unit (NP5). Each of these units occurred in a drainage within which no mice had been verified to be Preble's through morphological or genetic means, but rather only through field identification.
Also in the North Platte River drainage, some adjustments were made to the tributaries included in Unit NP3, the Chugwater Creek unit in Albany, Laramie, and Platte Counties, Wyoming. Upon review of additional information obtained through public comment and during site visits to the area, four tributaries were removed from the final designation. These four tributaries include two named Spring Creek, Threemile Creek, and Sand Creek. Reasons why these tributaries were determined not to be critical habitat included limited riparian vegetation, lack of open water through the Preble's active season, arid uplands with limited grasses and forbs, and regular haying across one creek.
In the South Platte River drainage Unit SP2, the Warren Air Force Base unit, in Laramie County, Wyoming, was excluded in its entirety (see Relationship with Department of Defense Lands below).
Also in the South Platte River drainage, the Lone Tree Creek unit (SP3), the Cedar Creek Unit (SP7), and the Cherry Creek unit (SP11) have been removed in their entirety because they support no records of mice verified to be the Preble's through morphological or genetic means, but rather only through field identification.
In the North Fork Cache La Poudre River (SP4) we have amended the outward extent of the critical habitat boundary for two landowners to be consistent with a specific negotiated rural and agricultural conservation zone for the Preble's. Within existing properties belonging to The Nature Conservancy along the North Fork Cache La Poudre River and to Al Johnson along Rabbit Creek, Lone Pine Creek, and the North Fork Cache La Poudre River, designated critical habitat extends from the center line of the stream outward 325 ft (99 m) on both sides.
In the South Platte River drainage, areas of proposed critical habitat addressed in the Denver Water HCP were excluded from the final designation in units the South Boulder Creek unit (SP8), Boulder County, Colorado; the Ralston Creek unit (SP10), Jefferson County, Colorado; the West Plum Creek unit (SP12) in Douglas County, Colorado; and the Upper Platte River (SP13) unit in Douglas and Jefferson Counties, Colorado (see Relationship to Habitat Conservation Plans below).
Also in the South Platte River drainage some adjustments were made to tributaries included in the West Plum Creek unit (SP12), in Douglas County, Colorado. Upon review of additional information obtained through public comment and review of aerial photographs of the area, portions of two tributaries were removed from the final designation. These include portions of one unnamed tributary to West Plum Creek, and the upper portion of Metz Canyon. Reasons why the tributaries were determined not to be critical habitat included limited riparian vegetation, lack of dense vegetation, lack of open water through the Preble's active season, and alterations from human land uses.
In the Upper South Platte River unit (SP13), the proposed Wigwam Creek subunit in Jefferson County, Colorado, was removed from the final designation. This area was intensively burned during the Hayman Fire in the summer of 2002. Upon review of additional information obtained through public comment and a site visit to the area, it was determined that habitat capable of supporting the Preble's was no longer present and not likely to be re-established in the near future.
In the Arkansas River drainage, within the Monument Creek unit (A1), areas of proposed critical habitat addressed in the Lefever Property HCP and the Dahle Property HCP were excluded from the final designation. In the same unit an error occurred in the written description of Kettle Creek. The text accompanying the map of the unit erroneously included a reach of Kettle Creek on the Academy as critical habitat, while the map excluded it. The text has been changed to accurately reflect the intended reach of critical habitat.
Critical habitat is defined in section 3(5)(A) of the Act as (I) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to conserve 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 determination that such areas are essential to conserve the species.
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 with the Service 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 “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery 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.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of added protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation does not result in any regulatory requirement for these actions.
To be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (
Section 4 requires that we designate critical habitat at the time of listing and based on what we know at the time of designation. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we will often not have sufficient information to identify all areas of critical habitat. We are required, nevertheless, to make a decision and thus must base our designations on what, at the time of designation, we know to be critical habitat.
In accordance with sections 3(5)(C) of the Act, not all areas that can be occupied by a species will be designated critical habitat. Within the geographic area occupied by the species we designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to conserve the species. We will not speculate about what areas might be found to be essential if better information becomes available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. We will not designate areas within the geographic area occupied by the species unless at least one of the primary constituent elements are present, as defined at 50 CFR 424.12(b), that provide essential life cycle needs of the species. Moreover, areas occupied by certain known populations of the Preble's have not been proposed as critical habitat. For example, we did not designate critical habitat for some small scattered populations or habitats in areas highly fragmented by human development.
Our regulations state, “The Secretary shall designate as critical habitat areas outside the geographical area presently occupied by a 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)). Based on the best scientific data available, there appears to be no foundation upon which to make a determination that the conservation needs of the Preble's require designation of critical habitat outside of the geographic area occupied by the species, so we have not designated critical habitat outside of the geographic area believed to be occupied.
Our Policy on Information Standards Under the Endangered Species Act, published in the
Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize designation of critical habitat may not include all habitat eventually determined as necessary to recover the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) of the Act, and the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition, as determined on the basis of the best available information at the time of the action. Though unlikely, future federally-funded or assisted projects affecting listed species outside designated critical habitat areas could still result in likely-to-jeopardize 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.
Section 3(5)(A) of the Act defines critical habitat as the specific areas within the geographic area occupied by the species on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations and protection. As such, for an area to be designated as critical habitat for a species it must meet both provisions of the definition. In those cases where an area does not provide those physical and biological features essential to the conservation of the species, it has been Service policy to not include these specific areas in designated critical habitat. Likewise, if we believe, based on an analysis, that an area determined to be biologically essential has an adequate management plan that covers the species, then special management and protection are already being provided, and those areas do not meet the second provision of the definition and are also not proposed as critical habitat.
We consider a current plan to provide adequate management or protection if it
Further, section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data available after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such an area as critical habitat will result in the extinction of the species. Consequently, we may exclude an area from critical habitat based on economic impacts, or other relevant impacts such as preservation of conservation partnerships or military readiness considerations, if we determine that the benefits of excluding an area from critical habitat outweigh the benefits of including the area in critical habitat, provided that exclusion will not result in the extinction of the species.
In summary, we use both the definition in section 3(5)(A) and the provisions of section 4(b)(2) of the Act to evaluate those specific areas that are proposed for designation as critical habitat as well as for those areas that are subsequently finalized (
As discussed below, for designation of critical habitat for the Preble's, we have considered, but have not designated as critical habitat, land covered by: The Denver Water HCP; the Lefever Property HCP in Black Forest, Colorado (Lefever Property HCP); the Dahle Property HCP in Colorado Springs, Colorado (Dahle Property HCP); the Academy's Integrated Natural Resources Management Plan (INRMP); and the F.E. Warren INRMP.
In general, the lands essential to the conservation of the Preble's that are managed by an approved individual HCP do not require special management and protections because their value for conservation has been addressed by the existing protective measures and actions from the provisions of the HCP. Consequently, the areas defined in these individual HCPs do not meet the definition of critical habitat. Further, to the extent that these areas do meet the definition of critical habitat as defined in 3(5)(A)(i)(II), it is additionally appropriate to exclude these areas from critical habitat pursuant to the “other relevant impacts” provisions of section 4(b)(2). Therefore, individual HCPs that cover the Preble's are not being designated as critical habitat.
Section 10(a) of the Act authorizes the Service to issue permits for private actions which result in the taking of listed species that are otherwise lawful activities. Incidental take permit applications must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the requested incidental take. Service-approved HCPs and their associated Incidental Take Permits contain management measures and protections for identified areas that protect, restore, and enhance the value of these lands as habitat for the Preble's. These measures, which include explicit standards to minimize any impacts to the covered species and its habitat, are designed to ensure that the biological value of covered habitat for the Preble's is maintained, expanded, or improved.
In approving these HCPs, the Service has provided assurances to permit holders that once the protection and management required under the plans are in place and for as long as the permit holders are fulfilling their obligations under the plans, no additional mitigation in the form of land or financial compensation will be required of the permit holders. Similar assurances will be extended to future permit holders in accordance with the Service's HCP Assurance (“No Surprises”) rule codified at 50 CFR 17.22(b)(5) and (6) and 17.32(b)(5) and (6).
In light of the intensive investigation and analysis, public comment, and internal section 7 consultations undertaken prior to approval of HCPs, we are confident that individual HCPs identify, protect, and, as appropriate and practicable, provide beneficial adaptive management for essential habitat within the boundary of HCPs. Therefore, we have considered, but not designated as critical habitat lands within approved HCPs that include the Preble's as a covered species. Our analysis of the special management considerations and protections provided by approved HCPs follows below as well as a comparison of benefits of including lands within approved HCPs versus excluding such lands from critical habitat designations.
Large regional HCPs expand upon the basic requirements set forth in section 10(a)(1)(B) of the Act reflecting a voluntary, cooperative approach to large-scale habitat and species conservation planning. The primary goal of such HCPs is to provide for the protection and management of habitat essential for the conservation of the species while directing development to other areas. HCPs provide a package of management considerations that: meet or enhance the conservation of the species and provide an opportunity for data collection and analysis regarding the use of particular habitat areas. HCPs and the accompanying implementation agreements contain management measures and protections for identified areas that protect, restore, and enhance the value of these lands as habitat for the Preble's. These measures, which include explicit standards to minimize any impacts to the covered species and its habitat, are designed to ensure that the value of the conservation lands as suitable habitat for the Preble's is maintained, expanded, and improved.
Approved HCPs provide assurances to permit holders that once the protection and management required under the plans are in place and for as long as the permit is valid and the holders are fulfilling their obligations under the plan, no additional mitigation in the form of land or financial compensation will be required of the permit holders
Because of the similarities between the purposes of regional HCPs and designation of critical habitat, and in light of the intensive investigation and analysis undertaken in conjunction with regional HCP planning processes, regional HCPs currently under development will identify, protect and provide appropriate adaptive management for those specific lands within the boundaries of the plans that are essential for the long-term conservation of the species. Given this coordination, we anticipate that the analysis of these HCPs and proposed permits that will be conducted under section 7 of the Act will show that activities covered under such permits will not result in the destruction or adverse modification of designated critical habitat within the boundaries of the plans when the covered activities are carried out in accordance with the provisions of the HCPs.
For the foregoing reasons, we find that the continued development of the pending HCPs is beneficial. Furthermore, the Service has developed positive conservation relationships with the jurisdictions involved in the pending HCPs. The maintenance of these relationships serves to ensure the eventual completion of these HCPs. The pending HCPs, although at different stages of development, represent substantial biological analysis as well as substantial investment of public and private resources for the benefit of conservation. Exclusion of the lands within the pending HCPs benefits the species by providing an incentive to finalize the HCPs.
Inclusion as critical habitat of the lands in the pending HCPs provides no benefit greater than that which would result from completion of the HCPs. HCPs provide greater actual conservation than the mere designation of critical habitat. Thus, the benefits of excluding these areas from designation as critical habitat outweigh the benefits of including them. The exclusion will not cause the extinction of the species. If any pending HCP is not finalized as currently proposed, we will re-evaluate the need for critical habitat designation on lands not included in finalized HCPs.
Following is our preliminary analysis of the benefits of including lands within approved HCPs versus excluding such lands from critical habitat designation.
On November 19, 2002, GreyStone Environmental Consults Inc. finalized an HCP for the Preble's on the Lefever Property and was issued a section 10 Incidental Take Permit by the Service. This HCP allows for the construction of a single-family residence in Black Forest, El Paso County, Colorado. Construction will directly impact 0.252 ha (0.561 ac) of potential Preble's habitat, including 0.087 ha (0.215 ac) of temporary disturbance and 0.140 ha (0.346 ac) of permanent disturbance. The applicant will preserve and enhance a 1.828 ha (4.515-ac) conservation easement of similar foraging habitat for the mouse in the remaining acres of property. This area has been deeded to El Paso County, Colorado, and shall be managed according to specific requirements laid out in the HCP. The following activities are expressly prohibited by the agreement on the property easement: construction or reconstruction of any building or other structure or improvement on portions of the property; any division or subdivision of the title to the property; commercial timber harvesting; mining or extraction of soil, sand, gravel, rock, oil, natural gas, fuel or any other mineral substance; paving or otherwise covering with concrete, asphalt, or any other paving material; and the dumping or uncontained accumulation of any trash, refuse or debris on the property. As further compensation for the impacted habitat, 0.36 ha (0.89 ac) of the 1.828 ha (4.515 ac) shall be planted with 100 shrubs to serve as Preble's habitat. This enhancement will follow a strict planting and care plan for 2 years to ensure success. A monitoring program will be in effect for three full growing seasons or until success is achieved. At the end of each growing season, a brief letter report will be submitted to the Service describing the status of any remedial work performed. The shrub planting will be considered successful when 67 percent of shrubs are established and able to survive a full growing season without supplemental irrigation.
On July 23, 2002, Lee Dahle finalized an HCP for Preble's on the Dahle Property and was issued a section 10 Incidental Take Permit by the Service on July 29, 2002. This HCP allows for the construction of a single-family residence on a 0.26 ha (0.65 ac) lot at 17 El Dorado Lane in the Thunderbird Estates in Colorado Springs, El Paso County, Colorado. Construction will directly impact 0.06 ha (0.15 ac) of upland Preble's habitat, including less than 0.01 ha (0.01 ac) of temporary disturbance and 0.034 ha (0.085 ac) of permanent disturbance. The applicant will preserve and enhance the remaining 0.2 ha (0.5 ac) of the property in a native and unmowed condition as a corridor for the mouse. As further compensation for the impacted habitat, the preserved 0.2 ha (0.5 ac) will be enhanced through weed control and willow planting. The enhancement area will be monitored for three full growing seasons or until success is achieved. At the end of each growing season, a brief letter report will be submitted to the Service describing the status of any mitigation work performed. The shrub planting will be considered successful when 67 percent of shrubs are established and able to survive a full growing season without supplemental irrigation. The weed control will be considered successful when a 50 percent reduction of individual weed plants is achieved.
On April 16, 2003, Denver Water finalized an HCP for the Preble's and was issued a section 10 Incidental Take Permit by the Service on May 1, 2003. This HCP covers the water facilities and infrastructure owned and operated by Denver Water including: the Foothills, Marston and Moffat treatment plants; 17 pump stations; 29 treated water storage reservoirs; and 3,968 km (2,464 mi) of pipe. The HCP promotes avoidance and minimization, and where practicable, implementation of applicable best management practices that avoid, minimize, and eliminate impacts to occupied and potential habitat. Where impacts occur, Denver Water will conduct mitigation proposed by the HCP. This HCP provides long-term assurances that Denver Water's covered activities are permitted and in compliance with the Act and provides the Service with a tool to minimize and mitigate take on occupied and potential habitat. To accomplish these goals, the plan requires the following special management and protection:
(a) Before conducting a covered activity (principally operations and maintenance activities) on occupied and potential habitat, Denver Water will determine whether avoidance and minimization efforts are applicable, practicable, and can be used to avoid, reduce, or eliminate take. Generally, the use of best management practices will be the most practicable avoidance or minimization tool. Appendix 5 of the HCP lists best management practices that may be applicable to Denver Water's routine operation and maintenance activities and projects. In some cases, the use of best management
(b) As required by section 10 regulations, the HCP requires Denver Water to perform compliance monitoring and effectiveness monitoring to determine whether the terms and conditions of the HCP are being met. Monitoring activities will: document pre- and post-impact site conditions; determine the extent of take of occupied and potential habitat; determine the success of Preble's habitat revegetation efforts; report on additional Denver Water actions, including initiation of mitigation, discussion of best management practices utilized, if any, and other management decisions that address implementation of the HCP; hold an annual meeting between Denver Water and the Service; and prepare an Annual Monitoring Report.
(c) Adaptive management will be employed to gain new data, research or new information regarding the biology of the Preble's. The use of adaptive management in areas of questionable Preble's habitat suitability, Preble's use, or Preble's presence will likely increase the potential for success within the HCP and increase the potential for new and useful information on Preble's biology to be acquired.
(d) The HCP will result in the protection of over 2,700 ha (6,000 ac) of potential and occupied habitat. Denver Water will limit temporary impacts to 10 ha (25 ac) of occupied and potential habitat at any one time. Temporary impacts are not to exceed 30 ha (74 ac) over the term of the HCP. Denver Water will also track all impacts, restore disturbed vegetation, and track all successful restorations to ensure the above limits are not exceeded.
(e) To offset foreseeable permanent impacts to one-acre of habitat, Denver Water will create 0.10 ha (0.25 ac) of riparian shrub, 0.91 ha (2.25 ac) of upland occupied and potential habitat, and revegetate a number of trails and dirt roads. Should permanent impacts exceed the one-acre, this HCP covers a maximum of 4 ha (10 ac) of permanent impacts, and will mitigate this through: a conservation easement at a ratio of 8:1; by enhancements at a ratio of 2:1; or a combination of preservation at 6:1 and enhancements at 1:1.
(f) Other mitigation includes: weed management; education, training, and the distribution of information to Denver Water employees to promote avoidance, minimization, or best management practices as applicable and practicable; restoration of habitat linkage corridors; population monitoring and research; and provide trapping data to the Service.
Based on our evaluation of special management considerations and protection provided by the Denver Water HCP, the Lefever Property HCP, and Dahle Property HCP, and in light of the definition of critical habitat in section 3(5)(A) of the Act, we have considered, but not designated these areas as critical habitat. We believe that the Denver Water HCP, the Lefever Property HCP, and Dahle Property HCP meets the three criteria used by the Service to determine if a plan provides adequate special management or protection to a listed species. First, the HCPs provide a conservation benefit to the species through the various management actions discussed above. Second, the HCP provides assurances that the conservation management strategies and actions will be implemented. Denver Water has budgeted $30,000 in 2003 Operations Plan for activities required by the HCP. In consecutive years, it will have a separate line item in the budget. The Lefever Property HCP has funding assurances in the form of a $10,000 letter of credit, has been secured to ensure all obligations of the HCP are fulfilled. The Dahle Property HCP applicant will provide funding for this agreement. Third, the HCPs provides assurances that the conservation strategies and measures will be effective because they are based on the best scientific data available and they require monitoring and reporting to ensure compliance and success. The Denver Water HCP also employs adaptive management where practicable and appropriate.
The principal benefit of any designated critical habitat is that Federal activities that may affect the habitat require consultation under section 7(a)(2) of the Act. Consultation is designed to ensure that adequate protection is provided to avoid adverse modification or destruction of critical habitat resulting from an action authorized, funded, or carried out by a Federal agency. Where HCPs are in place and lands are covered by a section 10(a)(1)(B) permit, the benefit of designating such lands as critical habitat is negligible when the areas concerned are occupied by the species, because the occupied areas already are subject to section 7 consultation based on the “jeopardy standard.” Permitted HCPs are designed to ensure the long-term survival of listed species within the area covered by the permit. Under an HCP, an area that might be designated as critical habitat will already be protected by the terms of the HCP and the incidental take permit. The HCP and the incidental take permit include management measures and protections for conservation lands that are crafted to protect, restore, and enhance their value as habitat for covered species.
In addition, a section 10(a)(1)(B) permit issued by the Service as a result of an HCP application must itself undergo section 7 consultation. This consultation will address the likelihood of adverse modification or destruction of critical habitat and jeopardy to the listed. Since HCPs address land use within the plan boundaries, habitat issues within the plan boundaries will have been thoroughly addressed in the HCP and the consultation on the HCP.
The development and implementation of HCPs provides other important conservation benefits, including the development of biological information to guide conservation efforts and assist in species recovery and the creation of innovative solutions to conserve species while allowing for compatible land use. The educational benefits of critical habitat, including informing the public of areas that are essential for the long-term survival and conservation of the species, are essentially the same as those that would occur from the public notice and comment procedures required to establish an HCP, as well as the public participation that occurs in the development of all HCPs. For these reasons we believe that the designation of critical habitat has little or no benefit in areas covered by HCPs.
The benefits of excluding HCPs from designation as critical habitat are significant. Benefits of excluding HCPs include relieving landowners, communities, and counties of any additional regulatory review that might be imposed by critical habitat. Many HCPs take considerable time—sometimes years—to develop and, upon completion, become the basis for regional conservation plans that are consistent with the conservation of covered species. Many of these plans benefit both listed and non-listed species. Imposing an additional regulatory review after HCP completion may jeopardize conservation efforts and partnerships in many areas and could be viewed as a disincentive to those developing or considering developing HCPs. Excluding HCPs provides us with an opportunity to streamline regulatory
Another benefit of excluding HCPs is that exclusion encourages the continued development of partnerships with HCP participants, including States, local governments, conservation organizations, and private landowners, that together can implement conservation actions that the Service would be unable to accomplish alone. By excluding areas covered by HCPs from critical habitat designation, we preserve these partnerships, and set the stage for more effective conservation actions in the future.
Specifically, for the lands covered by the Denver Water HCP for the Preble's, in a letter dated January 21, 2003, Jennifer McCurdy, with Denver Water, noted the following: “Denver Water believes that designation of Critical Habitat on Denver Water properties has negligible, if any, benefit to the recovery of the Preble's while the benefits resulting from the exclusion of Critical Habitat on those properties are many. There is little benefit to designating Critical Habitat on Denver Water properties because: (a) Denver Water will have an HCP in place covering the same properties proposed for designation; (b) Denver Water is a private landowner with primarily, if not exclusively, private (non-Federal) actions in these Critical Habitat areas; (c) No portion of designated habitat encompasses an entire unit of proposed habitat, but rather is a small fraction of a unit; (d) Designation of Critical Habitat on private property will discourage private landowners from participating in an HCP, especially when Critical Habitat can be designated on properties already under an HCP or an imminent HCP; and (e) In effect, Critical Habitat will not be treated differently for this species than what is required under Section 9 of the Act. The benefits of exclusion on Denver Water properties, however, are that: (a) Denver Water's HCP will provide greater assurances and conservation benefits to the Preble's than Critical Habitat designation because the HCP will assure the long-term protection (30-year) and management of the species and its habitat, and funding, through the standards in the HCP Handbook, 5-Point Policy, and No Surprises regulations; (b) Exclusion of properties within Denver Water's HCP reduces the requirements for additional regulatory review. Additional review would likely result in additional permitting costs (delays, administrative, consulting and mitigation) for Denver Water. The Service and other federal agencies would also be subject to additional administrative and technical costs resulting from an additional, redundant review process. If only Section 9 or an HCP are required, a greater amount of time and funding could possibly be spent on further conservation measures; (c) Exclusion of Critical Habitat and conservation management based on the HCP will allow more flexibility to a municipal water supplier with private lands and privately owned facilities to operate as it needs in order to meet its mission of supplying high-quality water to its customers; (d) Denver Water's HCP will provide other conservation benefits beyond habitat conservation such as collection and development of additional biological information to assist with conservation and recovery efforts, development of innovative programs, and education regarding the importance of species survival and habitat protection; and (e) The Denver Water HCP will provide an integrated and comprehensive approach to species conservation rather than the “piecemeal” approaches of multiple Section 7 consultations that only address activities with a federal nexus. Exclusion of Denver Water properties from the Critical Habitat listing will not result in the extinction of the Preble's, nor would it preclude conservation or recovery of the species.”
We have weighed the small benefit, if any, of including the lands in the HCP in critical habitat against the benefits of exclusion and determined that the benefit of excluding the land covered by the Denver Water HCP, the Lefever Property HCP, and the Dahle Property HCP from designation as Preble critical habitat outweighs the benefits of including the areas. Thus, as required by section 4(b)(2) of the Act, we have excluded them from the critical habitat designation.
In the event that future HCPs covering the Preble's are developed within the boundaries of designated critical habitat, we will provide technical assistance and work closely with the applicants to identify lands essential for the Preble's, ensure that the HCPs provide for protection and management of the habitat areas essential to the Preble's by either directing development and habitat modification to nonessential areas, or appropriately modifying activities within essential habitat areas so that such activities will not adversely modify the primary constituent elements. The HCP development process provides an opportunity for more intensive analysis and data collection regarding the use of particular habitat areas by the Preble's and a more detailed analysis of the importance of such lands.
The Sikes Act Improvement Act of 1997 (Sikes Act) requires each military installation that includes land and water suitable for the conservation and management of natural resources to complete, by November 17, 2001, an INRMP. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found there. Each INRMP includes an assessment of the ecological needs on the installation, including needs to provide for the conservation of listed species; a statement of goals and priorities; a detailed description of management actions to be implemented to provide for these ecological needs; and a monitoring and adaptive management plan. The Service consults with the military on the development and implementation of INRMPs for installations with listed species. Bases that have completed and approved INRMPs that address the needs of the species generally do not meet the definition of critical habitat discussed above, as they already provide special management or protection. Therefore, we do not include these areas in critical habitat designations if they meet the following three criteria: (a) A current INRMP must be complete and provide a conservation benefit to the species; (b) the plan must provide assurances that the conservation management strategies will be implemented; and (c) the plan must provide assurances that the conservation management strategies will be effective, by providing for periodic monitoring and revisions (adaptive management) as necessary. If all of these criteria are met, then the lands covered under the plan would not meet the second provision of the definition of critical habitat pursuant to section 3(5)(A)(i)(II) and consequently not be proposed as critical habitat for the covered species.
The Academy in El Paso County, CO has in place an INRMP, a 1999 “Conservation and Management Plan for the Preble's Meadow Jumping Mouse at the U.S. Air Force Academy,” and a 2000 programmatic section 7 consultation addressing certain activities at the Academy that may affect the Preble's. The conservation and management plan provides guidance for Air Force management decisions over the 2000 to 2005, five-year period. While it was based upon the most
F.E. Warren in Laramie County, WY also has in place an INRMP. Approved in December 2001, the INRMP provides for the conservation, protection, and management of fish and wildlife resources as required by the Sikes Act. The F.E. Warren INRMP also meets the three criteria for assessing whether the management area should be excluded as critical habitat. First, the INRMP is complete and provides a conservation benefit to the species. F.E. Warren's INRMP provides protection for the Preble by: conducting annual trapping surveys; collecting data on habitat preference; monitoring noxious weed infestation; using biological controls for noxious weeds rather than chemical controls; developing a native seed bank for use in restoration activities in sensitive habitats; designing an elevated nature trail to reduce habitat fragmentation and protect sensitive habitat; providing weekly public awareness briefings to all newcomers; conducting field trips for local elementary schools with emphasis on the Preble's and the Colorado Butterfly plant; and coordinating base projects with the Cheyenne Field Office of the Service. Second, the INRMP provides assurances that the conservation management strategies will be implemented. The Sikes Act requires F.E. Warren to implement its INRMP and provides the basis for the Department of Defense Conservation Program. Implementation of the INRMP is supported by Headquarters Air and Space Command and Headquarters U.S. Air Force through the planning, programming, and budgeting process. F.E. Warren and Headquarters Air and Space Command also conduct annual environmental compliance inspections where INRMP implementation is assessed. The goals of these programs are to provide assurances that the INRMP is implemented in accordance with the Sikes Act and Air Force and Department of Defense policy. F.E. Warren has an annual conservation budget of approximately $200,000 dedicated to monitoring, habitat management, and exotic vegetation control. These requirements have been validated by Headquarters Air and Space Command and are “must fund” items. Finally, the INRMP provides assurances that the conservation management strategies will be effective by providing for periodic monitoring and revisions as necessary. F.E. Warren has implemented an annual monitoring program to track the effectiveness of its management activities and to document population trends and changes in quality and availability of habitat. Additionally, F.E. Warren will continue to partner with the WY Game and Fish Department, the WY Field Office of the Service, and accredited universities and non-profit conservation organizations to ensure that the best science and technology is utilized in conservation efforts. In addition, pursuant to Air Force instructions, the INRMP is reviewed annually and revised at least every five years. Further, there are multiple layers of environmental protection that further lessen the need for special management or protection, including the additional conservation measures provided by implementation of NEPA, the Clean Water Act, Executive Order 11990, Executive Order 11988, and Department of Defense and Air Force policy.
We have reviewed these measures and have determined that they address the three criteria identified above. Therefore, Academy and F.E. Warren lands that are biologically essential to the Preble's, do not meet the second provision of the definition of critical habitat pursuant to section 3(5)(A)(i)(II) as they currently have special management and protection. Consequently, these lands have been considered, but not included in the proposed designation of critical habitat for the species. Further, to the extent that the areas of the Academy and F.E. Warren biologically essential to the Preble's may meet the definition of critical habitat as defined in 3(5)(A)(i)(II), it is additionally appropriate to exclude these areas from critical habitat pursuant to the “other relevant impacts” provisions of section 4(b)(2) as discussed below.
The primary benefit of proposing critical habitat is to identify lands essential to the conservation of the species which, if designated critical habitat, would require consultation with the Service to ensure activities would not adversely modify critical habitat or jeopardize the continued existence of the species. As previously discussed, the Academy and F.E. Warren have completed final INRMPs that provide for sufficient conservation management and protection for the Preble's. Moreover, the INRMPs are themselves, already consulted on for installations with listed species prior to approval. Further, activities authorized, funded, or carried out by Federal agencies in these areas that may affect the Preble's will still require consultation under section 7 of the Act, based on the requirement that Federal agencies ensure that such activities not jeopardize the continued existence of listed species. This requirement applies even without critical habitat designation on these lands. Thus, the Service believes designation of the Academy and F.E. Warren as critical habitat will not appreciably benefit the Preble's beyond protection already afforded the species under the Act and the approved INRMPs.
However, there would be appreciable benefits to excluding these areas from critical habitat pursuant to section 4(b)(2). If designated as critical habitat, both the Academy and F.E. Warren would be required to consult with the Service under section 7(a)(2) on any action likely to result in the destruction or adverse modification of designated critical habitat. Completion of any additional formal section 7(a)(2) biological opinions may require completion of biological assessments that can require extensive lengths of time and thousands of hours to complete. They may also require the employment of consultants. However, given that section 7(a)(2) consultations are still required, as discussed above, and that both areas are implementing approved INRMPs that provide special management and protection, these consultations offer little added benefit.
The added burden of consultations for activities adversely impacting critical habitat could also result in unnecessary delays, disruption of base activities and potentially impair our Nation's military readiness. F.E. Warren is the largest and most modern strategic missile unit in the U.S. and is comprised of four missile squadrons, each with five missile alert facilities and fifty launch facilities. Although the missile alert facilities and the launch facilities are dispersed throughout a large geographical area, most mission support functions are conducted at F.E. Warren, including administrative support, maintenance support, training, and helicopter support. The F.E. Warren area deemed essential to the conservation of the species, but not designated critical habitat totals 134 ha (331 ac) and effectively bisects the installation. This area, managed by an approved INRMP, extends 120m (400 ft) on either side of Crow Creek and includes several pieces of critical infrastructure such as 7 bridges, 6
The Academy's Jack's Valley Training Center is also vital in the training of our armed forces and, ultimately, our national security. This 2,000 acre area is used for training throughout the year, but primarily for Basic Cadet Training. The training facility has a total of nearly 60 different obstacles that provide field training in such topics as survival and evasion, chemical warfare, problem solving, riffle and pyrotechnics, and anti-terrorism. Other training undertaken at the Academy include Combat Survival Training, airmanship programs, and free fall parachuting courses. The added burden of consultations for activities that adversely impact critical habitat could result in unnecessary delays or a disruption in these training activities.
Based on section 4(b)(2) and the consideration of the information described above, we find that the benefits of excluding the areas covered by the Academy and Warren greatly exceed the limited benefits of including these areas in the designation of critical habitat. Exclusion of these lands will not result in the extinction of the species.
The Department of Energy's Rocky Flats site spans portions of the St. Vrain HUC and the Middle South Platte-Cherry Creek HUC. Rocky Flats has been a focus of research on the Preble's and monitoring of populations has taken place for several years. The Department of Energy and the Department of the Interior are concluding an agreement mandated by Congress under which the Rocky Flats site will become part of the National Wildlife Refuge system and will be administered by the Service. The Service will manage the refuge in a manner to conserve the Preble's. For that reason, we find that the Rocky Flats site is not in need of special management measures. Furthermore, there is no benefit to including a National Wildlife Refuge in a critical habitat designation under the circumstances presented here. Given concerns over the cleanup at the facility and the transfer of lands at the site to the Service, we find that the benefit of excluding these areas from designation as critical habitat outweigh the benefits of including them. Therefore we have excluded the Rocky Flats site under sections 3(5)(A) and 4(b)(2) of the Act. The exclusion will not cause the extinction of the species.
In determining areas essential to conserve the Preble's, we used the best scientific and commercial data available. We have reviewed approaches to the conservation of the Preble's undertaken by the Federal, State, and local agencies operating within the species' range since its listing in 1998, and the identified steps necessary for recovery outlined in the Working Draft of the recovery plan for the Preble's. We also reviewed available information that pertains to the habitat requirements of this species, including material received since the listing of the Preble's. The material included research published in peer-reviewed articles, academic theses and agency reports; reports from biologists conducting research under section 10(a)(1)(A) recovery permits; the Working Draft of the recovery plan for the Preble's; information from consulting biologists conducting site assessments, surveys, formal and informal consultations; as well as information obtained in personal communications with Federal, State, and other knowledgeable biologists in Colorado and Wyoming.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat we are required to base critical habitat determinations on the best scientific and commercial data available and to consider physical and biological features (primary constituent elements) that are essential to conservation of the species, and that may require special management considerations and protection. These physical and biological features include, but are not limited to—(1) space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing (or development) of offspring; and (5) habitats protected from disturbance or that are representative of the historic geographical and ecological distributions of a species.
The primary constituent elements for the Preble's include those habitat components essential for the biological needs of reproducing, rearing of young, foraging, sheltering, hibernation, dispersal, and genetic exchange. The Preble's is able to live and reproduce in and near riparian areas located within grassland, shrubland, forest, and mixed vegetation types where dense herbaceous or woody vegetation occurs near the ground level, where available open water normally exists during their active season, and where there are ample upland habitats of sufficient width and quality for foraging, hibernation, and refugia from catastrophic flooding events. While willows of shrub form are a dominant component in many riparian habitats occupied by the Preble's, the structure of the vegetation appears more important to the Preble's than species composition.
Primary constituent elements associated with the biological needs of dispersal and genetic exchange also are found in areas that provide connectivity or linkage between or within Preble's populations. These areas may not include the habitat components listed above and may have experienced substantial human alteration or disturbance.
The dynamic ecological processes that create and maintain Preble's habitat also are important primary constituent elements. Habitat components essential to the Preble's are found in and near those areas where past and present geomorphological and hydrological processes have shaped streams, rivers, and floodplains, and have created conditions that support appropriate vegetative communities. Preble's habitat is maintained over time along rivers and streams by a natural flooding regime (or one sufficiently corresponding to a natural regime) that periodically scours riparian vegetation, reworks stream channels, floodplains, and benches, and redistributes sediments such that a pattern of appropriate vegetation is present along river and stream edges, and throughout their floodplains. Periodic disturbance of riparian areas sets back succession and promotes dense, low-growing shrubs and lush herbaceous vegetation favorable to the Preble's. Where flows are controlled to preclude a natural pattern and other disturbance is limited, a less favorable mature successional stage of vegetation dominated by cottonwoods or other trees may develop. The long-term availability of habitat components favored by the Preble's also depends on plant succession and impacts of drought, fires, windstorms, herbivory, and other natural events. In some cases these naturally-occurring ecological processes are modified or are supplanted by human land uses that include manipulation of water flow and of vegetation.
Primary constituent elements for the Preble's include:
(1) A pattern of dense riparian vegetation consisting of grasses, forbs,
(2) Adjacent floodplains and vegetated uplands with limited human disturbance (including hayed fields, grazed pasture, other agricultural lands that are not plowed or disced regularly, areas that have been restored after past aggregate extraction, areas supporting recreational trails, and urban/wildland interfaces).
(3) Areas that provide connectivity between and within populations. These may include river and stream reaches with minimal vegetative cover or that are armored for erosion control, travel ways beneath bridges, through culverts, along canals and ditches, and other areas that have experienced substantial human alteration or disturbance.
(4) Dynamic geomorphological and hydrological processes typical of systems within the range of the Preble's,
Existing features and structures within the boundaries of the mapped units, such as buildings, roads, parking lots, other paved areas, lawns, other urban and suburban landscaped areas, regularly plowed or disced agricultural areas, and other features not containing any of the primary constituent elements are not considered critical habitat.
The Service's July 17, 2002, proposed rule to designate critical habitat for the Preble's meadow jumping mouse cited the Recovery Team's Draft Discussion Document of February 27, 2002, and the concepts described within it as a source of the best scientific and commercial data available on the Preble's, and used it as a starting point for identifying areas that are essential for the conservation of the Preble's. The proposed rule stated that a draft of the recovery plan would be issued for public comment prior to final designation of critical habitat. For various reasons, including staffing and funding limitations, a draft recovery plan for the Preble's has not yet been finalized or issued for public comment. However, a draft of the recovery continues to evolve. While even a final recovery plan is not a regulatory document (
The Working Draft identifies specific criteria for reaching recovery and the delisting of the Preble's. While elements of this Working Draft may change prior to plan finalization, the concepts described within it continue to represent the best scientific and commercial data available on the Preble's. To recover the Preble's to the point where it can be delisted, the Working Draft identifies the need for a specified number, size, and distribution of wild, self-sustaining Preble's populations across the known range of the Preble's. The distribution of these recovery populations is intended both to reduce the risk of multiple Preble's populations being negatively affected by natural or man-made events at any one time, and to preserve the existing genetic variation within the Preble's. The Working Draft identifies recovery criteria for each of the three major river drainages where the Preble's occurs (the North Platte River drainage in Wyoming, the South Platte River drainage in Wyoming and Colorado, and the Arkansas River drainage in Colorado) and for each subdrainage judged likely to support the Preble's. In some cases the Working Draft identifies recovery criteria for subdrainages where trapping for the Preble's has not yet occurred or where limited trapping has not confirmed the presence of the Preble's. Boundaries of drainages and subdrainages have been mapped by the U.S. Geological Survey (USGS). For the Working Draft, 8-digit HUC boundaries were selected to define subdrainages. A total of 19 HUCs are identified in the Working Draft as occupied or potentially occupied by the Preble's. Of these, 5 are located in the North Platte River drainage, 11 in the South Platte River drainage, and 3 in the Arkansas River drainage. In developing the conservation strategy that underlies this rule we have considered and incorporated aspects of the Working Draft.
One large and one medium Preble's population in Wyoming, and one large Preble's population in Colorado that are designated in the Working Draft as recovery populations, and are consistent with our conservation strategy, are reflected in this critical habitat designation. The Working Draft defines large populations as maintaining 2,500 mice and usually including at least 50 mi (80 km) of rivers and streams. It defines medium populations as maintaining 500 mice over at least 10 mi (16 km) of rivers and streams. While the Working Draft designates the approximate location of these recovery populations, it does not delineate specific boundaries. In addition, in each of the remaining ten HUCs within the Preble's range the Working Draft calls for three small recovery populations but, with the exception of the F. E. Warren in the Crow Creek HUC and Lone Tree Creek in the Lone Tree-Owl HUC, does not attempt designate their locations. In most of these remaining 10 HUCs, the Working Draft only prescribes the need to establish three small recovery populations (or the option of one medium recovery population) within a HUC. The Working Draft anticipates that, in the future, the locations of these remaining recovery populations will be designated and their specific boundaries delineated by State and local governments, and other interested parties, working in coordination with the Service. In contrast, to meet the requirements for this critical habitat designation, we have designated specific boundaries for all critical habitat units. It is probable that new information regarding populations in these areas will alter specific details of any future recovery plan. HUCs where little is know regarding status of the Preble's may be proven not to support viable populations. If such is the case they may be determined to be unnecessary for recovery, and may be deleted from a future recovery plan. Other HUCs may be determined to be necessary for recovery even if they are not included within this critical habitat designation.
Beyond designating critical habitat for sites essential to the conservation of the Preble's because they are important to recovery, we reviewed other sites of Preble's occurrence, especially on Federal lands, for possible designation as critical habitat. Our conservation strategy emphasizes the importance of protecting additional Preble's populations, to provide insurance for the Preble's in the event that designated recovery populations cannot be effectively managed or protected as envisioned by the recovery plan, or are decimated by uncontrollable catastrophic events such as fires or flooding. Our conservation strategy entails directing recovery efforts toward public lands rather than private lands where possible, and calls upon all Federal agencies to protect and manage for the Preble's wherever it occurs on Federal lands. As part of our conservation strategy, we believe that the designation of additional areas of critical habitat on Federal land is essential for the conservation of the Preble's. Should unforseen events cause the continued decline of Preble's populations throughout its range, Preble's populations and the primary constituent elements on which they depend are more likely to persist and remain viable on Federal lands than on non-Federal lands. The likelihood of maintaining stable populations is greatest on these Federal lands, where consistent and effective land management strategies can be more easily employed. Preble's populations on Federal lands could serve as substitute recovery populations should designated recovery populations decline or fail to meet recovery goals. In addition, some Preble's populations on Federal lands have been the subject of ongoing research that could prove vital to the conservation of the Preble's.
For the reasons stated above we have designated selected stream reaches on Federal lands supporting the Preble's that we believe to be essential to the conservation of the Preble's, even if these areas appear unlikely to be selected for initially designated recovery populations based on the Working Draft. These areas of designated critical habitat may include short reaches of intervening non-Federal lands that in some cases support all primary constituent elements needed by the Preble's or, if substantially developed, are likely to provide only connectivity between areas of Preble's habitat on nearby Federal lands.
Designated critical habitat units include only river and stream reaches, and adjacent floodplains and uplands, that are within the known geographic and elevational range of the Preble's, have the primary constituent elements present, and, based on the best scientific data available, are believed to currently support the Preble's.
In Wyoming and at higher elevations along the Front Range in Colorado the geographical distribution of the Preble's has been subject to scrutiny due to the close resemblance, and apparent range overlap, between the Preble's and the western jumping mouse. However, new information obtained since the time of the Preble's listing has not appreciably changed the known range of the Preble's. Based on the most recent information on elevational range of the Preble's we have, with one exception, limited designated critical habitat to 2,300 m (7,600 ft) in elevation and below.
Presence of primary constituent elements was determined through a variety of sources including, but not limited to—Colorado Division of Wildlife mapping of Preble's Habitat Similarity Models derived from interpretation of aerial photographs; the Services' 1998 mapping of sites occupied or potentially occupied by the Preble's produced in conjunction with the Colorado Department of Natural Resources as part of proposed special regulations under section 4(d) of the Act (63 FR 66777); working maps produced by the Recovery Team during development of the Working Draft; National Wetland Inventory maps produced by the Service; results of research conducted on a variety of Federal properties by the Forest Service, the Department of Energy, the Air Force, and the Army Corps of Engineers; results of research conducted by the Colorado Division of Wildlife, Colorado Department of Transportation, and the City of Boulder; field assessments of habitat by Service staff; information amassed to support regional HCPs including those in Boulder, Douglas, and El Paso Counties in Colorado, and for Denver Water properties in Colorado; coordination with Forest Service personnel from the Medicine Bow-Routt, Arapaho-Roosevelt, and Pike-San Isabel National Forests; and, numerous evaluations of potential Preble's habitat by consulting biologists in support of developers, landowners, and other clients.
Presence of the Preble's was determined based largely on the results of trapping surveys, the vast majority of which were conducted in the past 7 years. Sites judged to be occupied by the Preble's include those that—(1) have recently been documented to support jumping mice identified by genetic or morphological examination as the Preble's; or (2) have recently been documented to support jumping mice and for which historical verification of the Preble's exists. While in some cases designated critical habitat units extend well beyond these capture locations, boundaries of these critical habitat units include only those reaches that we believe to be occupied by the Preble's based on the best scientific data available regarding capture sites, the known mobility of the Preble's, and the quality and continuity of habitat components along stream reaches. Where appropriate, we have included details on the known status of the Preble's within specific subdrainages in the Critical Habitat Designation section of this document. Survey efforts to document the Preble's in Wyoming have been more limited than in Colorado and have been focused on—(1) Federal lands (the Medicine Bow-Routt National Forest, some Bureau of Land Management lands, and the F.E. Warren in Laramie County); (2) lands owned and surveyed by True Ranches; and (3) areas to be impacted by various proposed projects with a Federal nexus, most notably the Medicine Bow Lateral Pipeline.
We considered several qualitative criteria to judge the current status and probable persistence of Preble's populations in the selection and designation of specific areas as critical habitat. These included—(1) the quality, continuity, and extent of habitat components present; (2) the state of natural hydrological processes that maintain and rejuvenate suitable habitat components; (3) the presence of lands devoted to conservation, either public lands such as parks, wildlife management areas, and dedicated open space, or private lands under conservation easements; and (4) the landscape context of the site, including the overall degree of current human disturbance and presence, and likelihood of future development based on local planning and zoning.
In those units where, based on our conservation strategy, we designate critical habitat on Federal lands, we looked for contiguous Federal property along stream reaches at least 5 km (3 mi) in length supporting required primary constituent elements and occupied by the Preble's. In some cases shorter reaches on Federal lands were designated as critical habitat when they were separated from more substantial reaches on Federal lands by only small segments of intervening non-Federal lands.
Within the Glendo HUC, we have designated critical habitat on the Cottonwood Creek watershed consistent with the medium recovery population called for in our conservation strategy. Although we originally proposed critical habitat in the Horseshoe Creek watershed on National Forest System land, we have removed this unit from final designation after reevaluation of the available data regarding Preble's identification in this drainage. As indicated previously, we have decided to include in the critical habitat determination only those units occurring in drainages within which there is a specimen verified as Preble's through morphological or genetic means. The Horseshoe Creek has had no mice verified to be Preble's through morphological or genetic means, but rather only through field identification.
Within the Lower Laramie HUC, we have designated critical habitat on Chugwater Creek consistent with the large recovery population. Primary constituent elements required by the Preble's appear widespread within Chugwater Creek and its tributaries. Richeau Creek and Hunton Creek were not included as designated critical habitat since they are segregated from the main portion of the Chugwater Creek complex by long stretches of less suitable habitat. Upon review of additional information obtained through public comment and during site visits to the area, some adjustments were made to the tributaries proposed to be included in this unit. Four tributaries were removed from the final designation. These tributaries include two named Spring Creek, Threemile Creek, and Sand Creek. The Spring Creek located farthest downstream supports somewhat limited riparian vegetation, transitions immediately into arid uplands without adequately vegetation (rather than supporting meadows and hayfields like most of Chugwater Creek), and does not provide open water through the Preble's active season. This tributary is not be considered valuable in providing connectivity, as it does not link one area to another. Similarly, although Threemile Creek does flow through the Preble's active season, the riparian vegetation associated with this creek is extremely limited (only a few feet in width in some locations) and transitions immediately into arid uplands characterized by the presence of cacti and supporting only limited grasses and forbs. Sand Creek has reasonably well developed riparian vegetation, but does not regularly contain open, flowing water. Water flows are restricted to periods after storm events. The Spring Creek occurring farthest upstream flows underground (with haying occurring across it) through significant portions of its reach. Although the upstream reach of the tributary has above-ground flows and adequate vegetation to be considered suitable habitat for the Preble's, the upper reaches are not connected to the lower reach or Chugwater Creek.
Also in the Lower Laramie HUC, habitat components typically used by the Preble's exist on Federal property on the Medicine Bow-Routt National Forest. While many of these locations are at higher elevations than those that the Preble's has been shown to inhabit, surveys have also captured jumping mice identified in the field as the Preble's from the appropriate elevational range. Therefore, we originally proposed critical habitat on National Forest System lands and small parcels of intervening non-Federal lands within the Friend Creek watershed and within the Murphy Canyon watershed. However, as discussed previously, we have removed the Friend Creek and Murphy Canyon unit from this designation, as those drainages contain no mice verified as Preble's through morphological or genetic means.
Within the Horse Creek HUC, we originally proposed critical habitat on Horse Creek consistent with the medium recovery population called for in our conservation strategy. However, for reasons discussed previously, we have removed the Horse Creek unit from this designation as the drainage contains no mice verified as Preble's through morphological or genetic means.
Our conservation strategy calls for three small populations or one medium population in both the Middle North Platte-Casper HUC and the Middle North Platte-Scottsbluff HUC. Suitable habitat appears to be present throughout the Middle North Platte-Casper HUC. However, survey efforts targeted at the Preble's have occurred on only a limited basis in this subdrainage, with the only known captures of jumping mice at elevations above 2,800 m (7,800 ft) and likely to be western jumping mice. Therefore, while primary constituent elements for the Preble's appear present in this subdrainage and the Preble's probably occurs within this system, we have not designated critical habitat based on lack of known occurrence.
Habitat components suitable for the Preble's appear to be quite limited in the Middle North Platte-Scottsbluff HUC and are largely confined to the westernmost portions of the subdrainage. Some small pockets of suitable habitat are scattered throughout the rest of the subdrainage, but they are quite isolated. Additionally, trapping efforts targeted at the Preble's have occurred on a limited basis in this subdrainage with no surveys providing captures of the jumping mice. Therefore, while there is a high probability that the Preble's occurs within this subdrainage, we have not designated critical habitat based on lack of known occurrence.
Our conservation strategy calls for three small recovery populations or one medium population in the Upper Lodgepole HUC. Suitable habitat for the Preble's is generally limited to the western half of the subdrainage. Most trapping efforts in this HUC have been on the Medicine Bow-Routt National Forest at elevations above 2,300 m (7,700 ft). Additionally, one trapping effort at a lower elevation produced a jumping mouse identified in the field as a Preble's. We have designated two critical habitat units in this subdrainage, Lodgepole Creek and Upper Middle Lodgepole Creek, consistent with two of the three small recovery populations identified for the HUC in our conservation strategy.
In Crow Creek HUC we proposed designation of critical habitat consistent with one of the three small recovery populations called for in our conservation strategy. This area, limited to the F.E. Warren in Cheyenne, has been excluded from the final critical habitat designation under 3(5)(A) and 4(b)(2) of the Act (see Relationship with Department of Defense Lands).
The Lone Tree-Owl HUC supports primary constituent elements for the Preble's both in Wyoming and in Colorado. Based on the recovery criteria of three small or one medium recovery population assigned to this HUC in the Working Draft, we originally proposed two small areas of critical habitat along Lone Tree Creek, one in Wyoming and one in Colorado. However, for reasons discussed previously, we have removed the Lone Tree Creek unit from this designation as the drainage contains no mice verified as Preble's through morphological or genetic means.
We have elected not to designate additional critical habitat on Federal property in the Wyoming portion of the South Platte River drainage aside from the Upper Middle Lodgepole Creek subunit. Within these HUCs, Bureau of Land Management properties are largely upland areas with only small segments of streams. National Forest System lands in the Medicine Bow—Routt National Forest include many suitable-looking streams, but most occur at elevations
In the Cache La Poudre HUC, we have designated critical habitat along the lower portions of the North Fork of the Cache Le Poudre River and its tributaries, consistent with the large recovery population called for in our conservation strategy. In addition, further south in this subdrainage we have designated a second area limited largely to National Forest System lands along the main stem of the Cache Le Poudre River and on selected tributaries. While additional stream reaches that support Preble's populations are present on National Forest System lands in the upper reaches of the North Fork of the Cache Le Poudre and its tributaries, including Bull Creek, Willow Creek, Mill Creek, and Trail Creek, the extent of contiguous stream reaches in Forest Service ownership is very limited. A checkerboard pattern of land ownership, resulting in no significant contiguous reaches of Federal lands, convinced us that designating additional critical habitat centered on Federal lands is not warranted; therefore, we designated no critical habitat in this area.
In the Big Thompson HUC we designated critical habitat on Buckhorn Creek and its tributaries consistent with the medium recovery population called for in our conservation strategy. We also assessed National Forest System lands along the Big Thompson River and Little Thompson River for possible inclusion as critical habitat. Potential areas along the Big Thompson River and the North Fork of the Big Thompson River were largely in private ownership, with substantial human development occurring in many places. We originally proposed one additional area as critical habitat, centered on National Forest System lands on portions of Dry Creek and its tributaries. However, for reasons discussed previously, we have removed the Cedar Creek unit from this designation as the drainage contains no mice verified as Preble's through morphological or genetic means. Forest Service holdings along the Little Thompson River and its tributaries are highly fragmented by non-Federal lands or represent only short stream reaches near the 2,300 m (7,600 ft) elevation. No critical habitat has been designated on the Little Thompson River.
Within the St. Vrain HUC, our conservation strategy calls for a medium recovery population on South Boulder Creek.
At the request of representatives from the City of Boulder we considered designating critical habitat along the St. Vrain River between Hygiene and Lyons. We have little evidence to support designation of critical habitat for the Preble's population on the St. Vrain River as a preferable alternative to designation of critical habitat on South Boulder Creek, nor did we find reason to designate critical habitat on a second population on non-Federal lands within this subdrainage. We considered designating critical habitat for the Preble's on National Forest System lands at higher elevations along the North St. Vrain Creek and the Middle St. Vrain Creek. However, since no trapping efforts targeted at the Preble's have been conducted in these areas and we are aware of no records of the Preble's occurrence in these watersheds, neither has been designated as critical habitat.
The Department of Energy's Rocky Flats site spans portions of the St. Vrain HUC and the Middle South Platte-Cherry Creek HUC. Rocky Flats has been a focus of research on the Preble's and monitoring of populations has taken place for several years. The Department of Energy and the Department of the Interior are concluding an agreement mandated by Congress under which the Rocky Flats site will become part of the National Wildlife Refuge system and will be administered by the Service. The Service will manage the refuge in a manner to conserve the Preble's. For that reason, we find that the Rocky Flats site is not in need of special management measures. Furthermore, there is no benefit to including a National Wildlife Refuge in a critical habitat designation under the circumstances presented here. Therefore we have excluded the Rocky Flats site under sections 3(5)(A) and 4(b)(2) of the Act.
Our conservation strategy calls for three small recovery populations or one medium recovery population within the Clear Creek HUC, the Preble's has been captured along a segment of Ralston Creek above Ralston Reservoir. Based on limited occurrence of habitat components needed by the Preble's and the absence of other captures, we limited proposed designation of critical habitat within the Clear Creek HUC to this single population. In the summer of 2002, a single jumping mouse, confirmed as the Preble's through morphological examination, was captured on Elk Creek, a small tributary to Clear Creek. Past trapping efforts on Clear Creek and its tributaries have failed to document Preble's presence. After review of the site, we have decided not to designate the reach at the site of the Elk Creek capture as critical habitat.
Our conservation strategy calls for a medium recovery population along Cherry Creek in the Middle South Platte-Cherry Creek HUC. Preble's habitat in the upper reaches of the Cherry Creek basin appears extensive. We proposed critical habitat in an area that includes a segment of Cherry Creek, Lake Gulch, and its tributaries. However, for reasons discussed previously, we have removed the Cherry Creek unit from this designation as the drainage contains no mice verified as Preble's through morphological or genetic means.
We examined other areas of Preble's habitat on Federal lands within the Upper South Platte HUC, and have designated critical habitat on Army Corps of Engineers lands upstream of Chatfield Reservoir along the South Platte River and on three areas centered on National Forest System land in the Pike-San Isabel National Forest within the South Platte River watershed. Though National Forest System lands in the Upper South Platte HUC are extensive, much of the South Platte itself is not federally owned. On National Forest System lands on some of the major tributaries of the South Platte River, habitat components required by the Preble's have been degraded by catastrophic fire, flooding, or both. The Buffalo Creek watershed has been highly degraded by fire, followed by flooding, accompanying erosion, and sedimentation. Critical habitat has not been designated in the Buffalo Creek watershed. The Wigwam Creek subunit, proposed as critical habitat in the draft rule, has not been designated as critical habitat following intense burning by the 2002 Hayman Fire. In contrast, the Trout Creek subunit was lightly to moderately burned in the same fire, is expected to recover relatively quickly, and is designated as critical habitat. Combined, the four areas of designated critical habitat should help assure that a viable population of the Preble's is maintained in the portion of this HUC upstream of Chatfield Reservoir on the South Platte River.
While our conservation strategy calls for either three small populations or one
Within the Fountain Creek HUC our conservation strategy calls for a large recovery population along Monument Creek and its tributaries including lands within the Air Force Academy. While the Academy property would support an essential part of this recovery population, we have determined that the Academy does not meet the definition of critical habitat under 3(5)(A) and merits exclusion under 4(b)(2) of the Act (see Relationship with Department of Defense Lands).
Our conservation strategy calls for either three small recovery populations or one medium recovery population to meet recovery criteria in both the Chico and the Big Sandy HUCs. The Preble's has been documented at a single location within the Chico HUC, in apparently marginal habitat along an unnamed tributary of Black Squirrel Creek. Subsequent trapping could not relocate the Preble's at the site. Limited trapping of other sites has produced no captures of the Preble's and the extent of appropriate habitat components within the subdrainage appears limited. We have not designated critical habitat in the Chico HUC based on our uncertainty that the Preble's exists within any given reach in this area. In the Big Sandy HUC limited trapping efforts targeted at the Preble's have not confirmed Preble's presence. Sites supporting primary constituent elements required by the Preble's appear few. For these reasons we have not designated critical habitat in the Big Sandy HUC.
Critical habitat for the Preble's was delineated based on the interpretation of multiple sources used during the preparation of this rule. We used GIS-based mapping using ARCInfo that incorporated streams, steam order (Stahler method), roads, and cities from USGS maps, floodplains from Federal Emergency Management Agency maps, and surface management maps depicting property ownership from the Bureau of Land Management (primarily from the early 1990s). Lands designated as critical habitat were divided into specific mapping units,
We were presented with a decision in designating outward extent of critical habitat into uplands. The Service has typically described Preble's habitat as extending outward 300 ft (90 m) from the 100-year floodplain of rivers and streams (Service 1998). The Working Draft defines Preble's habitat as the 100-year floodplain plus 100 m (330 ft) outward on both sides, but allows for alternative delineations that provide for all the needs of the Preble's and include the alluvial floodplain, transition slopes, and pertinent uplands.
In order to allow normal behavior and to assure that the Preble's and the primary constituent elements on which it depends are protected from disturbance, the outward extent of critical habitat should at least approximate the outward distances described above in relation to the 100-year floodplain. Unfortunately, floodplains have not been mapped for many streams within Preble's range and electronic layers depicting 100-year floodplains needed to facilitate GIS mapping are not available for several counties within Preble's range. Where floodplain mapping is available, we have found that it may include local inaccuracies.
While alternative delineation of critical habitat based on geomorphology and existing vegetation could accurately portray the presence and extent of required habitat components, we lacked an explicit data layer that could support such a delineation over the species range. Creation of such a layer through interpretation of aerial photographs and site visits was not possible given the time and resources available for this designation.
We also considered determining the outward extent of critical habitat based on a distance outward from features such as the stream edge, associated wetlands, or riparian areas. We judged wetlands an inconsistent indicator of habitat extent and found no consistent source of riparian mapping available across the range of the Preble's. We also considered using an outward extent of critical habitat established by a vertical distance above the elevation of the river or stream to approximate the floodplain and adjacent uplands likely to be used by the Preble's.
For this designation we ultimately settled on delineating the upland extent of critical habitat boundaries as a set distance outward from the river or stream edge (as defined by the ordinary high water mark) varying with the size (order) of a river or stream. We compared known floodplain widths to stream order over a series of sites and approximated average floodplain width for various orders of streams. To that average we added an additional 100 m (330 ft) outward on each side. Based on this calculation, for streams of order 1 and 2 (the smallest streams) we have delineated critical habitat as 110 m (360 ft) outward from the stream edge, for streams of order 3 and 4 we have delineated critical habitat as 120 m (400 ft) outward from the stream edge, and for stream orders 5 and above (the largest streams and rivers) we have delineated critical habitat as 140 m (460 ft) outward from the stream edge. While designated critical habitat will not include all areas used by individual Preble's mice over time, we believe that these corridors of critical habitat ranging from 220 m (720 ft) to 280 m (920 ft) in width (plus the river or stream width) will support the full range of primary constituent elements essential for persistence of Preble's populations, and should help protect the Preble's and their habitats from secondary impacts of nearby disturbance. We received a number of public comments regarding the appropriate outward limits of critical habitat and means of establishing them. However, most comments suggested either standardizing a single outward distance for all rivers and streams, site specific mapping of critical habitat for each reach designated, or relying on alternative mapping created for HCPs as a surrogate for site-specific mapping of critical habitat. None of these alternatives were determined to be both feasible given the time and resources available to us, and a more accurate alternative to the methodology employed in the proposed rule.
In selecting areas of designated critical habitat, we made an effort to avoid developed areas that are not likely to contribute to Preble's conservation. However, the scale of mapping that we
We could not depend solely on federally-owned lands to designate critical habitat, as these lands are limited in geographic location, size, and habitat quality within the range of the Preble's. In addition to the federally-owned lands, we are designating critical habitat on non-Federal public lands and privately owned lands, including lands owned by the State of Colorado and State of Wyoming, and by local governments. All non-Federal lands designated as critical habitat meet the definition of critical habitat under section 3 of the Act in that they are within the geographical area occupied by the species, are essential to the conservation of the species, and may require special management considerations or protection.
The designated critical habitat contained within units discussed below constitutes our best evaluation of areas necessary to conserve the Preble's. Critical habitat may be revised through rule-making (including notice and public comment) if new information becomes available after the final rule. Table 1 provides a summary of the area of critical habitat in each unit that has been designated as critical habitat. Critical habitat for the Preble's includes approximately 201.3 km (125.1 mi) of rivers and streams and 4,264 ha (10,542 ac) of lands in Wyoming and approximately 376.8 km (234.1 mi) of rivers and streams and 8,386 ha (20,680 ac) of lands in Colorado. Lands designated as critical habitat are under Federal, State, local government, and private ownership. No lands designated as critical habitat are under Tribal ownership. Estimates reflect the total river or stream length, or area of lands within critical habitat unit boundaries, without regard to the presence of primary constituent elements. Therefore, given exclusions for developed areas and other areas not supporting primary constituent elements, the area designated is actually less than indicated in Table 1.
Lands designated as critical habitat are divided into 8 critical habitat units containing all of those primary constituent elements necessary to meet the primary biological needs of the Preble's. We exempted the proposed Warren Air Force Base unit (SP2 in the proposed rule) from critical habitat designation. In addition we have excluded the Horseshoe Creek unit (NP2), the Friend Creek and Murphy Canyon unit (NP4), and the Horse Creek unit (NP5), the Lone Tree Creek unit (SP3), the Cedar Creek unit (SP7), and the Cherry Creek unit (SP11). In order to avoid confusion from changing numbering critical habitat units, we have retained the original unit numbers of units that have been designated critical habitat.
In designating critical habitat, we did not include all areas currently occupied by the Preble's. A brief description of each Preble's critical habitat unit and the reasons why they are essential for the conservation of the Preble's are provided below. The units are generally based on geographically distinct river drainages and subdrainages. These units have been subject to, or are threatened by, varying degrees of degradation from human use and development. For these reasons, all of the areas in which we are designating critical habitat may require special management considerations or protection. Unless otherwise noted, references to “morphological examination” refer to Connor and Shenk (in prep.), references to genetic examination” refer to Riggs
The following critical habitat units are located in the North Platte River drainage:
Unit NP1 encompasses approximately 924 ha (2,284 ac) on 43.3 km (26.9 mi) of streams within the Cottonwood Creek watershed. It includes Cottonwood Creek from Harris Park Road upstream to the 2,100-m (7,000-ft) elevation. Tributaries include North Cottonwood Creek and Preacher Creek. The unit includes both public and private lands, including a small portion on the Medicine Bow-Routt National Forest.
This unit is located in the Glendo HUC and is designated to address the large recovery population for the North Platte River drainage in our conservation strategy. The Preble's habitat on this unit appears generally excellent, particularly on the National Forest System lands. This population is essential not only to maintain distribution near the northernmost extreme of known Preble's range, but because the large size of the population (as predicted by amount and quality of habitat) should help ensure viability into the future. Private lands within the unit are used extensively for grazing, which could be beneficial to the Preble's and its habitat if managed appropriately.
A specimen examined by Krutzsch (1954) in describing the subspecies is from Springhill in this HUC. Five recent specimens from this subdrainage have been identified as the Preble's through morphological examination (tooth fold presence) (Jones, in litt., 2002). Captures of jumping mice identified in the field as the Preble's have occurred at several other locations in this subdrainage.
Unit NP3 encompasses approximately 2,912 ha (7,194 ac) on137.2 km (85.3 mi) of streams within the Chugwater Creek watershed. It extends from several miles downstream of the town of Chugwater, upstream on Chugwater Creek and its
This unit is located in the Lower Laramie HUC and is designated to address the large recovery population in the North Platte River drainage called for in our conservation strategy. The unit supports excellent Preble's habitat with a complex tributary system and is likely to support a high density of the Preble's. While some isolated portions of this unit may be less suitable, we do not believe those areas are permanently affected by current land use practices or pose such barriers as to segregate portions of this Preble's population. Based on the amount and apparent quality of Preble's habitat contained in this unit, it may support one of the largest populations of the Preble's within its entire range and has a high probability of remaining viable well into the future. Threats are presented by future development, road construction, and road improvements. In addition, the unit is repeatedly crossed by gas pipelines and utility corridors. Haying and grazing may be threats to the Preble's in portions of the unit.
Specimens of the Preble's from this HUC include a specimen from Chugwater examined by Krutzsch (1954) in describing the subspecies, and specimens from Sybille Creek, Chugwater Creek, and Hunton Creek verified as the Preble's through morphological examination (tooth fold presence) (Jones, in litt., 2002). Capture of jumping mice presumed to be the Preble's has occurred at several other locations in this subdrainage.
The following critical habitat units are located in the South Platte River drainage:
Unit SP1 encompasses approximately 265 ha (654 ac) on 20.8 km (13.0 mi) of streams within two subunits in the Lodgepole Creek watershed, Lodgepole Creek and the Upper Middle Lodgepole Creek. The Lodgepole Creek subunit includes Lodgepole Creek from Horse Creek Road (County Road 211) upstream beyond the confluence of North Lodgepole Creek and Middle Lodgepole Creek up to 2,300-m (7,000-ft) elevation on both creeks. The subunit consists of almost entirely private lands. The Upper Middle Lodgepole Creek subunit includes Middle Lodgepole Creek from the eastern boundary of the Pole Mountain Unit of the Medicine Bow-Routt National Forest upstream to about 2,400-m (7,750-ft) elevation and including the North Branch of Middle Lodgepole Creek. The unit consists of public lands including portions of the Medicine Bow-Routt National Forest.
This unit is located in the Upper Lodgepole HUC and is designated to address two of three small recovery populations called for in this HUC in our conservation strategy. The Lodgepole Creek subunit will likely be threatened in the future by development including road construction. The Upper Middle Lodgepole Creek subunit may be threatened by grazing pressure (particularly during drought conditions) and off-road vehicle use.
Critical habitat on this unit is designated based on captures of jumping mice on Middle Lodgepole Creek and North Branch of Middle Lodgepole Creek. Although these two trap sites are fairly high in elevation, a specimen was confirmed as the Preble's on the North Branch of Middle Lodgepole Creek through genetic examination and a second specimen was verified to be the Preble's through morphological examination (tooth fold presence) (Jones, in litt., 2001).
Unit SP4 encompasses approximately 3,321 ha (8,206 ac) on 141.8 km (88.1 mi) of streams within the North Fork of the Cache La Poudre River watershed. It includes the North Fork of the Cache La Poudre River from Seaman Reservoir upstream to Halligan Reservoir. Major tributaries within the unit include Stonewall Creek, Rabbit Creek (including its North Fork, Middle Fork and South Fork), and Lone Pine Creek. The unit includes both public and private lands. It includes portions of the Arapaho-Roosevelt National Forest, as well as Lone Pine State Wildlife Area.
The unit is located in the Cache La Poudre HUC and is designated to address the large recovery population designated for this area in our conservation strategy. The area remains rural and agricultural with habitat components likely to support relatively high densities of the Preble's. Pressure for expanded development is increasing within the area. Within existing properties belonging to The Nature Conservancy along the North Fork Cache La Poudre River and to Al Johnson along Rabbit Creek, Lone Pine Creek, and the North Fork Cache La Poudre River, designated critical habitat extends from the center line of the stream outward 325 ft (99 m) on both sides.
Specimens from Rabbit Creek and Lone Pine Creek were verified through genetic examination as the Preble's. Jumping mice identified in the field as the Preble's have been captured at several locations within the unit.
Unit SP5 encompasses approximately 1,912 ha (4,725 ac) on 82.4 km (51.2 mi) of streams within the Cache La Poudre River watershed. It includes the Cache La Poudre River from Poudre Park upstream to the 2,300 m (7,600 ft) elevation (below Rustic). Major tributaries within the unit include Hewlett Gulch, Young Gulch, Skin Gulch, Poverty Gulch, Elkhorn Creek, Pendergrass Creek, and Bennett Creek. The unit is primarily composed of Federal lands of the Arapaho-Roosevelt National Forest, including portions of the Cache La Poudre Wilderness, but includes limited non-Federal lands.
The unit is located in the Cache La Poudre HUC and, while unlikely to serve as an initial recovery population, it encompasses a significant area of habitat likely to support a sizeable population of the Preble's. Due to Federal ownership, development pressure is minimal; however, the area is subject to substantial recreational use (rafting, kayaking, fishing) in the Cache La Poudre River corridor. Non-Federal lands include existing development that may limit habitat components present. Some such reaches may serve the Preble's mostly as connectors between areas containing all necessary primary constituent elements.
A number of jumping mice, identified in the field as the Preble's, have been captured from this unit, with one specimen from Young Gulch verified through morphological examination as a Preble's.
Unit SP6 encompasses approximately 1,537 ha (3,798 ac) on 69.2 km (43.0 mi) of streams within the Buckhorn Creek watershed. It includes Buckhorn Creek from just west of Masonville, upstream to the 2,300 m (7,600 ft) elevation. Major tributaries within the unit include Little Bear Gulch, Bear Gulch, Stringtown Gulch, Fish Creek, and Stove Prairie Creek. The unit includes both public and private lands, and includes portions of the Arapaho-Roosevelt National Forest.
The unit is located in the Big Thompson HUC and is designated to address the medium recovery population called for this area in our conservation strategy. Pressure for
Jumping mice identified in the field as the Preble's have been captured from various portions of this unit with one specimen from Little Bear Gulch verified through morphological examination as the Preble's.
Unit SP10 encompasses approximately 277 ha (686 ac) on 12.9 km (8.0 mi) of streams within the Ralston Creek watershed. It includes Ralston Creek from Ralston Reservoir upstream to the 2,300 m (7,600 ft) elevation. The unit includes both public and private lands including lands in Golden Gate Canyon State Park and White Ranch County Park. Denver Water lands along Ralston Creek, originally proposed for designation within this unit, have been excluded from the final designation (see Relationship to Habitat Conservation Plans).
This unit is located in the Clear Creek HUC and is designated to partially address the criteria of three small recovery populations or one medium recovery population called for this area in our conservation strategy. The segment of Ralston Creek that passes through the Cotter Corporation's existing Schwartzwalder Mine serves as a connector between areas supporting all primary constituent elements required by the Preble's located in areas upstream and downstream. The Preble's has been verified through morphological examination of a specimen from the lower portion of this unit.
Unit SP13 encompasses approximately 1,321 ha (3,265 ac) on 70.5 km (43.8 mi) of streams within the Platte River watershed. It includes four subunits. The Chatfield subunit includes a section of the South Platte River upstream of Chatfield Reservoir within Chatfield State Recreation Area (Army Corps of Engineers' property). The Bear Creek subunit includes Bear Creek and West Bear Creek, tributaries to the South Platte River on National Forest System lands. The South Platte sub-unit includes a segment of the South Platte River upstream from Nighthawk, including the tributaries Gunbarrel Creek and Sugar Creek. This subunit is centered on Federal lands of the Pike-San Isabel National Forest but includes some intervening non-Federal lands. Non-Federal lands in Douglas County are not included in the final designation (see Relationship to Habitat Conservation Plans below). The Trout Creek subunit includes portions of Trout Creek, a tributary to Horse Creek, and also portions of Eagle Creek, Long Hollow, Fern Creek, Illinois Gulch, and Missouri Gulch. This subunit is centered on Federal lands of the Pike-San Isabel National Forest but includes some intervening non-Federal lands along Trout Creek. Denver Water lands within the Chatfield, Bear Creek, and South Platte River subunits, originally proposed for designation within this unit, have been excluded from the final designation (see Relationship to Habitat Conservation Plans).
This unit is located in the Upper South Platte HUC and, while unlikely to serve as an initial recovery population, encompasses four areas of primarily Federal land spread through the drainage, three within the Pike-San Isabel National Forest boundary. Habitat components present and the likely density of Preble's populations vary. The Trout Creek subunit appears to have high quality Preble's habitat and may provide an opportunity to research relationships between the Preble's and the western jumping mouse, both of which have been verified from the same trapping effort in the subunit. Small segments of non-Federal lands in the unit are within the Douglas County HCP currently being developed. The Preble's has been confirmed through morphological examination of a specimen from Trout Creek near the Douglas County-Teller County boundary at 2,310 m (7,590 ft). Other captures of jumping mice from various locations within this unit have been identified in the field as the Preble's.
Designating critical habitat does not, in itself, lead to recovery of a listed species. Designation does not create a management plan, establish population goals, prescribe management actions, or directly affect areas not designated as critical habitat. Specific management recommendations for areas designated as critical habitat are most appropriately addressed in recovery, conservation, and management plans, and through section 7 consultations and section 10 permits. Critical habitat designation does not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be the subject of the full range of considerations in recovery planning, conservation actions that may be implemented under Section 7(a)(1), regulatory protections afforded by the Section 7(a)(2) jeopardy standard, and the Section 9 take prohibition. Areas outside of critical habitat designation may still be determined to be necessary for species recovery and survival. Similarly, Federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings. Critical habitat designations made on the basis of the best scientific and commercial data available at the time of designation may not dictate the direction and substance of future recovery plans, habitat conservation plans under section 10 of the Act, or conservation planning.
The regulatory effects of a critical habitat designation under the Act are triggered through the provisions of section 7, which applies only to activities conducted, authorized, or funded by a Federal agency (Federal actions). Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR 402. Individuals, organizations, States, local governments, and other non-Federal entities are not affected by the designation of critical habitat unless their actions occur on Federal lands, require Federal authorization, or involve Federal funding.
Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery 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 (
If a Federal action may affect a listed species or its designated critical habitat, the action agency must initiate consultation with us (50 CFR 402.14). Through this consultation, we would
When we issue a biological opinion that concludes that an action is likely to result in the destruction or adverse modification of critical habitat, we must provide reasonable and prudent alternatives to the action, if any are identifiable. Reasonable and prudent alternatives are actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the proposed action, are consistent with the scope of the action agency's authority and jurisdiction, are economically and technologically feasible, and would likely avoid the destruction or adverse modification of critical habitat (50 CFR 402.02).
Following designation of critical habitat, regulations at 50 CFR 402.16 require a Federal agency to reinitiate consultation for previously reviewed actions that may affect critical habitat and over which the agency has retained discretionary involvement or control.
Section 4(b)(8) of the Act requires us, in any proposed or final rule designating critical habitat, to briefly describe and evaluate those activities that may adversely modify such habitat, or that may be affected by such designation.
Federal actions that, when carried out, funded or authorized by a Federal agency, may destroy or adversely modify critical habitat for the Preble's include, but are not limited to:
(1) Any activity that results in development or alteration of the landscape within a unit, including land clearing; activities associated with construction for urban and industrial development, roads, bridges, pipelines, or bank stabilization; agricultural activities such as plowing, discing, haying, or intensive grazing; off-road vehicle activity; and mining or drilling of wells;
(2) Any activity that results in changes in the hydrology of the unit, including construction, operation, and maintenance of levees, dams, berms, and channels; activities associated with flow control (
(3) Any sale, exchange, or lease of Federal land that is likely to result in the habitat in a unit being destroyed or appreciably degraded;
(4) Any activity that detrimentally alters natural processes in a unit including the changes to inputs of water, sediment and nutrients, or that significantly and detrimentally alters water quantity in the unit; and
(5) Any activity that could lead to the introduction, expansion, or increased density of exotic plant or animal species that are detrimental to the Preble's and to its habitat.
Federal actions not affecting listed species or critical habitat and actions on non-Federal lands that are not federally funded or permitted do not require section 7 consultation.
Many section 7 consultations for Federal actions affecting the Preble's and its habitat have preceded this critical habitat designation, including, but not limited to:
(1) Activities on Federal lands including those of the Department of Defense, Forest Service, Department of Energy, and Bureau of Land Management;
(2) Activities affecting waters of the United States by the Army Corps of Engineers under section 404 of the Clean Water Act;
(3) Licensing or relicensing of dams by the Federal Energy Regulatory Commission;
(4) Development, operation, and maintenance of dams, canals, and other means of directing flows by the Army Corps of Engineers and the Bureau of Reclamation;
(5) Funding and regulation of highway and bridge construction, and improvements by the Federal Highway Administration;
(6) Licensing or construction of communication sites by the Federal Communications Commission;
(7) Hazard mitigation and post-disaster repairs funded by the Federal Emergency Management Agency; and
(8) Issuance of Endangered Species Act section 10(a)(1)(B) permits by the Fish and Wildlife Service.
If you have any questions regarding whether specific activities will likely constitute destruction or adverse modification of critical habitat, contact Field Supervisor, Colorado Ecological Services Field Office (see
Section 4(b)(2) of the Act requires that we designate critical habitat on the basis of the best scientific and commercial information available and that we consider the economic and other relevant impacts of designating a particular area as critical habitat. We based this final rule on the best scientific and commercial data available. In order to make a final critical habitat designation, we further utilized the Draft Economic Analysis, the Addendum to the Economic Analysis, and our analysis of other relevant impacts, and considered all comments and information submitted during the public hearings and comment periods. No areas proposed as critical habitat were excluded or modified because of economic impacts. However, we have excluded areas from the final designation on the basis of a final determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat (see Relationship to sections 3(5)(A) and 4(b)(2) of the Act). In accordance with section 4(b)(2) of the Act, we cannot exclude areas from critical habitat when their exclusion will result in the extinction of the species. We prepared a Draft Economic Analysis that was available for public review and comment during the comment period for the proposed rule. You can request copies of the Draft Economic Analysis, the Addendum to the Economic Analysis, and EA from the Colorado Ecological Services Field Office (see
Section 4(b)(2) of the Act and 50 CFR 424.19 require us to consider the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. Executive Order 12866 defines “significant regulatory action,” in part, as a regulatory action that is likely to result in a rule that may have an annual effect on the economy of $100 million or more. The Addendum to the Economic Analysis for this rule estimates that the potential economic effects could range from $7.9 to $17.8 million annually. This includes potential economic effects related to consultations, project modifications, and including those effects that may be attributed co-extensively with the listing of the species. Thus, we do not believe that the adverse modification prohibition (from critical habitat designation) will have significant economic effects such that it will have an annual economic effect of $100 million or more. We recognize, however, that while the impacts may
In accordance with Executive Order 12866, this document is a significant rule since the Office of Management and Budget (OMB) determined that this rule may raise novel legal or policy issues and it was reviewed by OMB. We prepared a Draft Economic Analysis of this action. We used this analysis to meet the requirement of section 4(b)(2) of the Endangered Species Act to determine the economic consequences of designating the specific areas as critical habitat. The Draft Economic Analysis was made available for public comment, and we considered those comments during the preparation of this rule. The draft analysis indicates that this rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Under the Act, critical habitat may not be destroyed or adversely modified by a Federal agency action; the Act does not impose any restrictions related to critical habitat on non-Federal persons unless they are conducting activities funded or otherwise sponsored or permitted by a Federal agency. Because of the potential for impacts on other Federal agencies' activities, we reviewed this action for any inconsistencies with other Federal agencies' actions. We believe that this rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients, except those involving Federal agencies which would be required to ensure that their activities do not destroy or adversely modify designated critical habitat. As discussed above, we do not anticipate that the adverse modification prohibition (from critical habitat designation) will have any significant economic effects such that it will have an annual economic effect of $100 million or more. OMB has determined that the critical habitat portion of this rule will raise novel legal or policy issues, and this rule was reviewed by OMB. The final rule follows the requirements for designating critical habitat contained in the Act.
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 entities (
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 (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the rule would affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (
To be conservative, (
Small businesses in the construction and related development industry could potentially be affected by section 7 protection for the Preble's if critical habitat designation leads to significant project modifications or delays. Our economic analysis assumes that 173 unique companies will consult with the Service on development projects during the next 10 years, or 17.3 businesses per year. There are approximately 335 small residential and related development companies in Boulder, El Paso, Douglas, and Larimer counties in which critical habitat units are located. Thus, according to our economic analysis, approximately 5 percent of small residential and related development companies may be affected by section 7 implementation in critical habitat annually.
Small businesses in the construction and development industries could potentially bear a per-business cost of $25,000 to $2.6 million. The annual sales that a company would require for this per-business cost to constitute a “significant effect” would be less than $86.7 million. Based on national
To the extent that section 7 implementation may lead to an increase in the number of consultations and project modifications regarding agricultural operations in Wyoming, the Service estimates that approximately 54 informal and 10 formal consultations are likely to occur within critical habitat areas during the next 10 years, or 5.4 informal and 1 formal consultations per year. There are approximately 162 small farms and ranches in the Wyoming counties in which critical habitat units are located. Therefore, our economic analysis indicates that approximately 4 percent of small agricultural operations in the counties in which critical habitat units are located may be affected by section 7 implementation in critical habitat annually.
One hundred and sixty-two agriculture operations in Albany, Converse, Laramie and Platte Counties, or approximately 95 percent of all agriculture operations in the counties designated as critical habitat, are considered small. Small businesses in the agriculture industry could potentially bear a per-business cost of $4,100 per formal and $2,900 per informal consultation, respectively. The annual sales that a rancher or farmer would require for the $4,100 per-business cost and the $2,900 per-business cost to constitute a “significant effect” would be less than $137,000 and $97,000, respectively. Based on national statistics, approximately 86 percent of agriculture operations in the counties designated as critical habitat have annual sales less than the “significant effect” threshold for formal consultation, and 82 percent have annual sales less than the “significant effect” threshold for informal consultation. Thus, our economic analysis shows that the expected number of small agriculture businesses likely to experience a significant effect from formal consultation is 86 percent of 0.95 (95 percent of 1 formal consultation per year), or about 0.8 annually, and the number of small agriculture businesses likely to experience a significant effect from informal consultation is 82 percent of 5.1 (95 percent of 5.4 informal consultations per year), or about 4.2 annually. These 5 agriculture operations (0.8 plus 4.2) represent approximately 3 percent of the 162 small agricultural operations in the counties designated as critical habitat in Wyoming.
Small businesses in the utility industry could potentially be affected by section 7 protection for the Preble's if the designation leads to significant project modifications or delays. This analysis assumes that 79 unique companies may consult with the Service on utilities projects during the next 10 years, or 7.9 businesses per year. There are approximately 166 small utility, electric services, natural gas distribution, and water supply companies in Boulder, Douglas, El Paso, Jefferson, Larimer, Teller, and Weld in which critical habitat units are located. Thus, according to our economic analysis, approximately 5 percent of small utility companies may be affected by section 7 implementation in proposed critical habitat annually.
Small businesses in the utility industry could potentially bear a per-business cost of $9,000 to $18,600 per consultation. For utility companies with annual sales up to $1 million, 16 percent of all utility companies, this cost would be greater than or equal to 3.2 percent of annual sales. For utility companies with $1 million to $3 million in annual sales, 20 percent of all utility companies, this cost would comprise 1.1 to 1.8 percent of annual sales. For utility companies with $3 million to $5 million in annual sales, 9 percent of all utility companies, this cost would represent 0.6 percent of annual sales. For utility companies with greater than $5 million in annual sales, 55 percent of all utility companies, this cost would comprise less than 0.1 to 0.2 percent of annual sales.
On May 18, 2001, the President issued Executive Order 13211, which applies to “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” In order to ensure that Federal agencies “appropriately weigh and consider the effects of the Federal government's regulations on the supply, distribution, and use of energy,” the President has directed agencies to prepare and submit to the OMB's Office of Information and Regulatory Affairs a “Statement of Energy Effects” for their “significant energy actions.” The OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared with the regulatory action under consideration: (1) Reductions in crude oil supply in excess of 10,000 barrels per day; (2) Reductions in fuel production in excess of 4,000 barrels per day; (3) Reductions in coal production in excess of 5 million tons per year; (4) Reductions in natural gas production in excess of 25 million mcf; (5) Reductions in electricity production in excess of 1 billion kilowatts per year or in excess of 500 megawatts of installed capacity; (6) Increases in energy use required by the regulatory action that exceed the thresholds above; (7) Increases in the cost of energy production in excess of one percent; (8) Increases in the cost of energy distribution in excess of one percent; or (9) Other similarly adverse outcomes.
Energy distribution via natural gas pipelines is the only activity related to this executive order where section 7 consultation regarding the Preble's appears likely. The Service has conducted consultations with the Federal Energy Regulatory Commission regarding construction of interstate gas pipelines through Preble's habitat. Efforts were made to minimize disturbance, in some cases through placing temporal limits on construction or by directional drilling under sensitive habitat, and to assure timely revegetation of areas disturbed. Costs related to required section 7 consultations represent far less than 1 percent of the cost of energy distribution. Consequently, this rule will not have a “significant adverse effect” on the supply, distribution, or use of energy, and no “Statement of Energy Effects” is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
1. On the basis of information contained in the Draft Economic Analysis and Addendum to the Economic Analysis, this rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that any of their actions involving Federal funding or authorization must not destroy or adversely modify the critical habitat or take the species under section 9.
2. This rule will not produce a Federal mandate of $100 million or greater in any year (
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights,” March 18, 1988; 53 FR 8859), we have analyzed the potential takings implications of the designation of critical habitat for the Preble's meadow jumping mouse. The takings implications assessment concludes that this final rule does not pose significant takings implications. A copy of this assessment can be obtained by contacting the Colorado Services Field Office (see
In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policy, the Service requested information from and coordinated development of this critical habitat designation with appropriate State resource agencies in Wyoming and Colorado. We will continue to coordinate any future designation of critical habitat for the Preble's with the appropriate State agencies. The designation of critical habitat for the Preble's imposes few additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined and the primary constituent elements of the habitat necessary to the conservation of the species are specifically identified. While making this definition and identification does not alter where and what federally-sponsored activities may occur, doing so may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We designate critical habitat in accordance with the provisions of the 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 the Preble's.
This rule does not contain any information collection requirements for which Office of Management and Budget approval under the Paperwork Reduction Act (44 U.S.C. 3501
Our position is that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons 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), along with Executive Order 13175 and 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We are required to assess the effects of critical habitat designation on tribal lands and tribal trust resources. We believe that no tribal lands or tribal trust resources are essential for the conservation of the Preble's.
A complete list of all references cited in this final rule is available upon request from the Colorado Ecological Services Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(h) * * *
(a)
(1) Critical habitat units are depicted for Wyoming and Colorado. Maps and descriptions follow.
(2) Within these areas, the primary constituent elements for the Preble's include those habitat components essential for the biological needs of reproducing, rearing of young, foraging, sheltering, hibernation, dispersal, and genetic exchange. The primary constituent elements are found in and near riparian areas located within grassland, shrubland, forest, and mixed-vegetation types where dense herbaceous or woody vegetation occurs near the ground level, where available open water exists during their active season, and where there are ample upland habitats of sufficient width and quality for foraging, hibernation, and refugia from catastrophic flooding events. Primary constituent elements associated with the biological needs of dispersal and genetic exchange also are found in areas that provide connectivity or linkage between or within Preble's populations. The dynamic ecological processes that create and maintain Preble's habitat also are important primary constituent elements. Primary constituent elements include:
(i) A pattern of dense riparian vegetation consisting of grasses, forbs, and shrubs in areas along rivers and streams that provide open water through the Preble's active season;
(ii) Adjacent floodplains and vegetated uplands with limited human disturbance (including hayed fields, grazed pasture, other agricultural lands that are not plowed or disced regularly, areas that have been restored after past aggregate extraction, areas supporting recreational trails, and urban/wildland interfaces);
(iii) Areas that provide connectivity between and within populations (These may include river and stream reaches with minimal vegetative cover or that are armored for erosion control; travelways beneath bridges, through culverts, and along canals and ditches; and other areas that have experienced substantial human alteration or disturbance.); and
(iv) Dynamic geomorphological and hydrological processes typical of systems within the range of the Preble's,
(3) Existing features and structures within the boundaries of the mapped units, such as buildings, roads, parking lots, other paved areas, lawns, other urban and suburban landscaped areas, regularly plowed or disced agricultural areas, and other features not containing any of the primary constituent elements are not considered critical habitat.
(4) Critical Habitat Units—Wyoming Index Map Follows:
(5) Map Unit NP1: Cottonwood Creek, Albany, Platte, and Converse Counties, Wyoming.
(i) This unit consists of the following: 43.3 km (26.9 mi) of streams. Cottonwood Creek from the confluence with Held Creek at (42 18 44N 105 14 50W, T.27N., R.70W., Sec. 16) upstream to (42 14 34N 105 26 04W, T.26N., R.72W., Sec. 12). Includes Preacher Creek from its confluence with Cottonwood Creek at (42 18 43N 105 16 51W, T.27N., R.70W., Sec. 17) upstream to (42 16 39N 105 18 22W, T.27N., R.71W., Sec. 25). Also includes an unnamed tributary from its confluence with Cottonwood Creek at (42 17 24N 105 21 12W, T.27N., R.71W., south boundary Sec. 22) upstream to (42 17 39N 105 23 13W, T.27N., R.71W., Sec. 20). Also includes another unnamed tributary from its confluence with Cottonwood Creek at (42 16 51N 105 21 23W, T.27N., R.71W., Sec. 28) upstream to (42 16 46N 105 21 59W, T.27N., R.71W., Sec. 28). Also includes North Cottonwood Creek from its confluence with Cottonwood Creek at (42 16 39N 105 21 21W, T.27N., R.71W., Sec. 28) upstream to (42 16 51N 105 23 59W, T.27N., R.71W., Sec. 30). Which includes an unnamed tributary from its confluence with North Cottonwood Creek at (42 16 15N 105 21 57W, T.27N., R.71W., Sec. 33) upstream to (42 15 48N 105 22 30W, T.27N., R.71W., Sec. 32). Cottonwood Creek includes another unnamed tributary from its confluence with Cottonwood Creek at (42 16 08N 105 21 38W, T.27N., R.71W., Sec. 33) upstream to (42 15 17N 105 20 39W, T.26N., R.71W., Sec. 3). Also includes a final tributary, Kloer Creek from its confluence with Cottonwood Creek at (42 14 30N 105 25 49W, T.26N., R.72W., Sec. 12) upstream to (42 14 20N 105 26 00W, T.26N., R.72W., Sec. 12).
(ii) Map of Unit NP1 follows:
(6) Map Unit NP3: Chugwater Creek, Albany, Laramie, and Platte Counties, Wyoming.
(i) This unit consists of the following: 137.2 km (85.3 mi) of streams. Chugwater Creek from (41 49 41N 104 48 03W, T.21N., R.66W., north boundary Sec. 5) upstream to Farthing Reservoir (41 32 36N 105 14 31W, T.18N., R.70W., Sec. 9). Also includes Middle Chugwater Creek from its confluence with Chugwater Creek (41 33 55N 105 14 20W, T.18N., R.70W., Sec. 4) upstream to (41 34 23N 105 21 32W, T.19N., R.71W., Sec. 33). Which includes Shanton Creek from its confluence with Middle Chugwater Creek at (41 34 36N 105 19 05W, T.19N., R.71W., Sec. 35) upstream to (41 34 12N 105 20 41W, T.19N., R.71W., southwest corner Sec. 34). Also includes Strong Creek from its confluence with Middle Chugwater Creek at (41 35 04N 105 19 36W, T.19N., R.71W., Sec. 34) upstream to (41 36 16N 105 20 25W, T.19N., R.71W., Sec. 22). Middle Chugwater Creek also includes an unnamed tributary from its confluence with Middle Chugwater Creek at (41 34 56N 105 20 54W, T.19N., R.71W., Sec. 33) upstream to (41 35 14N 105 22 17W, T.19N., R.71W., Sec. 29). Finally, another unnamed tributary from its confluence with Middle Chugwater Creek at (41 34 43N 105 21 28W, T.19N., R.71W., Sec. 33) upstream to (41 34 47N 105 21 56W, T.19N., R.71W., Sec. 32). South Chugwater Creek is included in the unit from the ending point of Chugwater Creek at Farthing Reservoir (41 32 36N 105 14 31W, T.18N., R.70W., Sec. 9) upstream to (41 30 42N 105 20 03W, T.18N., R.71W., north boundary Sec. 27). Includes Ricker Creek from its confluence with South Chugwater Creek at (41 31 04N 105 16 07W, T.18N., R.70W., Sec. 19) upstream to (41 29 24N 105 16 39W, T.18N., R.70W., Sec. 31).
(ii) Map of Unit NP3 follows:
(7) Map Unit SP1: Lodgepole Creek and Upper Middle Lodgepole Creek, Laramie County, Wyoming.
(i) This unit consists of the following: 20.8 km (13 mi) of streams. Consists of 2 subunits. Subunit Lodgepole Creek, Laramie County, from Highway 211 (41 19 53N 105 08 35W, T.16N., R.69W., Sec. 29) upstream to the confluence of North Lodgepole Creek and Middle Lodgepole Creek (41 19 17N 105 11 52W, T16N., R.70W., Sec. 26). Includes North Lodgepole Creek from the aforementioned confluence (41 19 17N 105 11 52W, T16N., R.70W., Sec. 26) upstream to (41 19 27N 105 13 54W, T.16N., R.70W., west boundary Sec. 27). Also includes Middle Lodgepole Creek from (41 19 17N 105 11 52W, T16N., R.70W., Sec. 26) upstream to (41 18 40N 105 13 19W, T.16N., R.70W., Sec. 34).
(ii) Subunit Middle Lodgepole Creek, Albany County, includes Middle Lodgepole Creek from the boundary of Medicine Bow National Forest (41 17 06N 105 17 27W, T15N., R.71W., east boundary Sec. 12) upstream to the confluence of North Branch Middle Lodgepole Creek and Middle Branch Middle Lodgepole Creek (41 16 48N 105 18 10W, T.15N., R.71W., Sec. 12). Includes Middle Branch Middle Lodgepole Creek from the aforementioned confluence (41 16 48N 105 18 10W, T.15N., R.71W., Sec. 12) upstream to (41 16 29N 105 19 31W, T.15N., R.71W., Sec. 14). Also includes North Branch Middle Lodgepole Creek from the aforementioned confluence (41 16 48N 105 18 10W, T.15N., R.71W., Sec. 12) upstream to (41 16 58N 105 20 43W, T.15N., R.71W., Sec. 10). Which includes an unnamed tributary from its confluence with North Branch Middle Lodgepole Creek (41 16 56N 105 19 11W, T.15N., R.71W., Sec. 11) upstream to (41 17 12N 105 19 36W, T.15N., R.71W., Sec. 11).
(iii) Map of Unit SP1 follows:
(8) Critical Habitat Units—Colorado Index Map Follows:
(9) Map Unit SP4: North Fork Cache La Poudre River, Larimer County, Colorado.
(i) This unit consists of the following: 141.8 km (88.1 mi) of streams and rivers. North Fork Cache La Poudre River from Seaman Reservoir (40 43 03N 105 14 27W, T.9N., R.70W., Sec. 28) upstream to Halligan Reservoir spillway (40 52 49N 105 20 12W, T.11N., R.71W., Sec. 34). On property owned by The Nature Conservancy in T.10N., R.71W., Sec. 2, 3, and 4, the outward boundary extends to 325 ft (99m) from the centerline of the North Fork Cache La Poudre River. Includes Lone Pine Creek from its confluence North Fork Cache La Poudre River (40 47 53N 105 15 28W, T.10N., R.70W., Sec. 32) upstream and continuing upstream into North Lone Pine Creek to 2,300m (7,600 ft) elevation (40 49 58N 105 34 09W, T.01N., R.73W., Sec. 15). Which includes Columbine Canyon from its confluence with North Lone Pine Creek (40 49 48N 105 33 28W, T.10N., R.73W., Sec. 15) upstream to 2,300m (7,600 ft) elevation (40 49 33N 105 33 54W, T.10N., R.73W., Sec. 15). Also includes Stonewall Creek from its confluence with North Fork Cache La Poudre River (40 48 19N 105 15 21W, T.10N., R.70W., Sec. 29) upstream to (40 53 26N 105 15 38W, T.11N., R.70W., Sec. 29). Which includes Tenmile Creek from its confluence with Stonewall Creek (40 51 48N 105 15 30W, T.10N., R.70W., Sec. 5) upstream to Red Mountain Road (40 53 00N 105 16 09W, T.11N., R.70W., Sec. 31). Also includes Rabbit Creek from its confluence with North Fork Cache La Poudre River (40 48 30N 105 16 04W, T.10N., R.70W., Sec. 30) upstream to the confluence with North and Middle Forks of Rabbit Creek (40 49 34N 105 20 47W, T.10N., R 71W., Sec. 21). Also includes South Fork Rabbit Creek from its confluence with Rabbit Creek (40 48 40N 105 19 43W, T.10N., R.71W., Sec. 27) upstream to (40 49 39N 105 24 40W, T.10N., R.72W., north boundary Sec. 24). Which includes an unnamed tributary from its confluence with South Fork Rabbit Creek (40 47 28N 105 20 45W, T.10N., R.71W., Sec. 33) upstream to (40 47 28N 105 23 10W, T.10N., R.71W., Sec. 31). Which in turn has an unnamed tributary from their confluence at (40 47 16N 105 21 45W, T.10N., R.71W., east boundary Sec. 32) upstream to (40 46 54N 105 22 14W, T.9N., R.71W., Sec. 5). Also includes Middle Fork Rabbit Creek from its confluence with Rabbit Creek (40 49 34N 105 20 47W, T.10N., R 71W., Sec. 21) upstream to 2,300m (7,600 ft) elevation (40 49 46N 105 26 55W, T.10N., R.72W., Sec. 15). This includes an unnamed tributary from its confluence with Middle Fork Rabbit Creek (40 49 56N 105 25 49W, T.10N., R.72W., Sec. 14) upstream to 2,300m (7,600 ft) elevation (40 48 48N 105 26 26W, T.10N., R.72W., Sec. 23). This unit includes North Fork Rabbit Creek from its confluence with Rabbit Creek (40 49 34N 105 20 47W, T.10N., R.71W., Sec. 21) upstream to 2,300m (7,600 ft) elevation (40 49 38N 105 29 17W, T.10N., R.72W., Sec. 17). Which includes an unnamed tributary from its confluence with North Fork Rabbit Creek (40 50 45N 105 27 23W, T.10N., R.72W., Sec. 9) upstream to 2,300m (7,600 ft) elevation (40 50 57N 105 28 42W, T.10N., R.72W., Sec. 9). On property owned by Al Johnson in T.10N., R.70W., Sec. 29, 30, 31, and 32, the outward boundary extends to 325 ft (99m) from the centerline of the North Fork Cache La Poudre River, Rabbit Creek, and Lone Pine Creek.
(ii) Map of Unit SP4 follows:
(10) Map Unit SP5: Cache La Poudre River, Larimer County, Colorado.
(i) This unit consists of the following: 82.4 km (51.2 mi) of streams and rivers. Cache La Poudre River from Poudre Park (40 41 16N 105 18 25W, T.8N.,
(ii) Map Unit SP5 follows:
(11) Map Unit SP6: Buckhorn Creek, Larimer County, Colorado.
(i) This unit consists of the following: 69.1 km (43 mi) of streams. Buckhorn Creek from (40 30 20N 105 13 39W, T.6N., R.70W., east boundary Sec. 9)
(ii) Map of Unit SP6 follows:
(12) Map Unit SP10: Ralston Creek, Jefferson County, Colorado.
(i) This unit consists of the following: 12.9 km (8.0 mi) of streams. Ralston Creek from Ralston Reservoir (39 49 12N 105 15 32W, T.3S., R.70W. Sec. 6)
(ii) Map of Unit SP10 follows:
(13) Map Unit SP13: Upper South Platte River, Jefferson and Douglas Counties, Colorado.
(i) This unit consists of the following: 70.5 km (43.8 mi) of rivers and streams. Consists of 4 subunits. Non-Federal lands in Douglas County are not included in the designation. Subunit South Platte River north segment, on the border of Jefferson County and Douglas County from Chatfield Lake (39 31 35N 105 04 49W, T.6S., R.69W., Sec. 14) upstream to the boundary of U.S. Army Corps of Engineers property (39 29 33N 105 05 15W, T.6S., R.69W., south boundary Sec. 26), excluding 9 ha (22 ac) owned by Denver.
(ii) Subunit Bear Creek, Douglas County from Pike—San Isabel National Forest boundary (39 25 27N 105 07 40W, T.7S., R.69W., west boundary Sec. 21) upstream to (39 22 32N 105 06 40W, T.8S., R.69W., south boundary Sec. 4). Includes West Bear Creek from its confluence with Bear Creek (39 25 15N 105 07 30W, T.7S., R.69W., Sec. 21) upstream to a confluence with an unnamed tributary (39 24 17N 105 07 38W, T.7S., R.69W., Sec. 33).
(iii) Subunit South Platte River south segment, on the border of Jefferson County and Douglas County from the southern boundary of Denver Water property near Nighthawk (39 21 05N 105 10 23W, T.8S., R.70W., Sec. 13) upstream to the northern boundary of Denver Water property at (39 18 50N 105 11 28W, T.8S., R.70W., Sec. 35) and from the southern boundary of Denver Water property at (39 18 02N 105 12 09W, T.9S., R.70W., Sec. 2) to the northern boundary of Denver Water Property at (39 17 27N 105 12 24W, T.9S., R.70W., Sec. 3). Includes Sugar Creek, Douglas County from the eastern boundary of Denver Water lands near Oxyoke (39 18 22N 105 11 32W, T.8S., R.70W., Sec. 35) upstream to 2,300 m (7,600 ft) elevation (39 18 28N 105 08 07W, T.8S., R.69W., Sec. 32). Includes Gunbarrel Creek, Jefferson County from the western boundary of Denver Water lands near Oxyoke (39 18 37N 105 12 02W, T.8S., R.70W., Sec. 34) upstream to (39 18 41N 105 14 34W, T.8S., R.70W., Sec. 32).
(iv) Subunit Trout Creek, Douglas County upstream into Teller County from (39 13 02N 105 09 31W, T.9S., R.69W., Sec. 31) upstream to 2,300 m (7,600 ft) elevation which is 1.3 km (0.8 mi) into Teller County (39 07 13N 105 05 49W, T.11S., R.69W., Sec. 3). Includes Eagle Creek from its confluence with Trout Creek (39 11 52N 105 08 27W, T.10S., R.69W., Sec. 8) upstream to 2,300 m (7,600 ft) elevation (39 12 06N 105 07 12W, T.10S., R.69W., Sec. 9). Also including an unnamed tributary from its confluence with Trout Creek (39 11 07N 105 08 05W, T.10S., R.69W., Sec. 17) upstream to (39 10 18N 105 08 23W, T.10S., R.69W., Sec. 20). Also including Long Hollow from its confluence with Trout Creek (39 10 56N 105 08 01W, T.10S., R.69W., Sec. 17) upstream to 2,300 m (7,600 ft) elevation (39 11 30N 105 06 19W, T.10S., R.69W., Sec. 10).
(v) Map of Unit SP13 follows:
Environmental Protection Agency (EPA).
Final rule.
As part of the section 112(l), “Approval of State Programs and Delegation of Federal Authorities” rulemaking process, EPA (we) agreed to clarify which portions of the existing national emission standards for hazardous air pollutants (NESHAP) contain authorities that can be delegated to State, local, and tribal agencies (S/L/Ts) (65 FR 55810, September 14, 2000). Today's rulemaking clarifies which parts of the existing NESHAP can be delegated to S/L/Ts by adding or modifying a section in each NESHAP to describe the authorities that can be delegated to S/L/Ts and those that must be retained by us. In addition, to further clarify which portions of the NESHAP are delegable, some NESHAP standards sections were slightly reorganized or rephrased to separate delegable from non-delegable authorities. These clarifications do not change any substantive NESHAP requirements for industrial sources.
This final rule will be effective on August 22, 2003.
Docket No. A-2000-57, containing supporting information used to develop the proposed rule and the final rule, is available for public inspection and copying between 8 a.m. and 4:30 p.m., Monday through Friday (except government holidays) at the Air and Radiation Docket and Information Center (6102T), Room B-108, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460; telephone (202) 566-1742, fax (202) 566-1741. A reasonable fee may be charged for copying docket materials.
Mr. Tom Driscoll or Ms. Robin Segall, Emissions, Moitoring Measurement and Analysis Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, 109 T. W. Alexander Drive, Research Triangle Park, North Carolina 27709, telephone (919) 541-5135 or (919) 541-0893, or electronic mail at
The requirements in 40 CFR part 63, subpart E provide a framework for you, the S/L/Ts, to request and receive delegation of the NESHAP. Once you accept delegation, you are responsible for implementing and enforcing the NESHAP for sources in your jurisdiction.
In addition to the overall implementation and enforcement authority conferred by the delegation, there are separate parts of each section 112 requirement that we cannot delegate to you. Each individual NESHAP, for example, contains requirements that are considered the “standards” and are, therefore, not delegable in terms of your making changes to them. Because the Administrative Procedures Act requires us to approve alternative emission limitations or control requirements through Federal rulemaking, we cannot delegate our rulemaking authority to you. More specifically, any requests by sources for approval of alternative standards must be considered by us and acted upon in a notice and comment rulemaking. Additionally, we cannot delegate authorities that may alter the stringency of the standard, that require Federal oversight for national consistency, or that may require Federal rulemaking. Generally, requests by you to revise standards for a source category (or portions thereof) must be addressed through subpart E or the subpart E rulemaking process for alternative standards. Please note that nothing in the section or this rulemaking usurps your authority to have more a stringent State program or regulatory requirements, such as more stringent emission limitations, that apply to sources subject to NESHAP.
However, the authorities in other sections of the NESHAP, such as testing, monitoring, reporting, and recordkeeping, may be delegable and, if delegated, the authority to approve alternatives to these requirements may be exercised by you on a case-by-case basis once you have been delegated the NESHAP through subpart E (straight delegation, § 63.91). These delegable authorities are similar to those in 40 CFR part 63, subpart A General Provisions, which are incorporated into the majority of the NESHAP. Because
There are similar discretionary authorities, as mentioned above, in each NESHAP that may also be delegated to you. Please note, each NESHAP being revised in today's rulemaking will describe those authorities that will be retained by EPA. All other authorities in those NESHAP are delegable to S/L/Ts.
As a part of a larger regulatory and policy effort to clarify and streamline delegation of part 63 requirements, we agreed to clarify which portions of the existing 40 CFR part 63 NESHAP contain authorities that can be delegated to you. In order to achieve this objective, we are making slight changes to many of the existing NESHAP. These changes are clarifications that will allow you to approve alternatives to the delegable authorities, including category I authorities listed in § 63.91(g)(i), instead of requiring a rulemaking by the EPA to approve the site-specific alternatives. Many NESHAP lack a clear delegation section that this final rule remedies. We are also taking this opportunity to make the format of the existing NESHAP more consistent.
Many of the existing NESHAP were promulgated before we developed a consistent rule format, so each one has slightly different content and order. In addition, the way that the delegable authorities were identified and delegated varies. Due to these variations, each NESHAP in this rulemaking needs one or more clarifications, listed below, to ease delegation:
• Addition or modification of a section (implementation and enforcement) in each NESHAP describing the authorities that can be delegated to you and those that must be retained by us;
• Reorganization of the standards sections in NESHAP to separate compliance assurance measures, such as monitoring, recordkeeping, or reporting provisions, from actual standards; or
• Minor rephrasing of work practices and other standards developed under the authority of section 112(h) of the Act to allow approval of delegable testing, monitoring, reporting, and recordkeeping authorities by S/L/Ts and without rulemaking by us.
Throughout this preamble, we state that once NESHAP are delegated to you, then you will have the authority to implement and enforce those rules for sources in your jurisdiction. However, nothing in this preamble is intended to suggest that your enforcement agencies have replaced our Federal authority to enforce and implement those rules. We remain partners with you in enforcing the NESHAP.
In many cases, you already accepted delegation of these NESHAP and, consequently, you are currently implementing and enforcing them. We do not believe that today's rulemaking adversely affects existing delegations of these NESHAP to you. For the most part, today's rulemaking clarifies which of the authorities in each existing NESHAP can, and cannot, be delegated to you.
In all prior delegations, specific authorities in each NESHAP were generally not identified as being delegated. Instead, the NESHAP have been generally delegated in their entirety. For example, when our Regional Offices delegate a NESHAP or MACT standard through straight delegation (
However, potential issues may have occurred where you have already acted on the authorities you believed you had been delegated. For example, in subpart HH, the delegation of authority paragraph in § 63.776 does not withhold the delegation of any of the standards' sections. Therefore, you may have exercised the authority to approve alternative emissions controls or limitations in this example. As mentioned above, you cannot approve alternatives to NESHAP's emissions controls or limitations because they must be established through national rulemaking. Only we can approve alternatives to emissions controls or limitations through national rulemaking.
If you have inadvertently approved alternatives to NESHAP's emissions controls or limitations for a specific source, then the appropriate EPA Regional Office must be notified of this approval. Our Regional Office will then work with you and our Office of Air Quality Planning and Standards, Office of Enforcement and Compliance Assurance, and Office of General Counsel to reevaluate the alternative through the process in § 63.6 or the provisions in 40 CFR part 63, subpart E. If you have any questions regarding inadvertent approvals, please contact your appropriate EPA Regional Office.
On January 16, 2002 (67 FR 2286), the proposed rule was published in the
The EPA has made a number of changes to the proposed rule in response to the comments we received. The comments on the proposal were limited to a relatively small subset of authorities in a few NESHAP. Accordingly, EPA believes that it is not necessary to repeat the comprehensive discussion contained in the preamble to
The first category of changes involves adding a section that describes non-delegable authorities or changing current delegation sections to conform to a consistent format. The new “Implementation and enforcement” sections cite the rule sections or requirements for which you may not approve alternatives (
As part of the subpart E rulemaking (65 FR 55810, September 14, 2000), we clarified which of the specific General Provisions authorities (regarding alternative requirements) could not be delegated to you. We divided the General Provisions discretionary authorities into two groups, based upon the relative significance of each type of decision. Category I contains those authorities which can be delegated. We believe that the EPA Regional Office retains the ability to request review of these decisions, although we expect that this authority will be exercised infrequently. Category II contains those authorities which cannot be delegated. For more discussion on the general provisions' delegable authorities,
The NESHAP contain two major types of requirements: standards and compliance assurance requirements. The standards are the essential requirements that implement EPA's authority under the Act to establish hazardous air pollutant (HAP) emission standards. These standards may be emission limitations (emission limits, operating limits, opacity limits, and visible emission limits) and/or work practice standards (design, equipment, work practices, and operational standards). The authority to approve alternatives to any of the promulgated standards must be retained by us. Requirements that are essential to ensuring that the standards are achieved as EPA intended, such as applicability requirements and compliance dates, are also retained.
The compliance assurance requirements are also essential, but they offer some flexibility in their implementation. For example, you can approve (or disapprove) minor and intermediate changes to testing, monitoring, reporting, and recordkeeping provisions, as long as they are at least as stringent (or disapprove, if they are not as stringent) as EPA requirements.
In other cases, the S/L/T is given authority to make changes in the implementation of a requirement, but not to change the actual requirement itself. For example, some NESHAP require operation and maintenance plans. Here the S/L/T agency is given the authority to approve some changes in the content of the plan, but does not have the authority to waive the requirement that the plan must be created and followed. Additionally, some newly-named operation and maintenance sections contain provisions which are similar to work practices, in that they can potentially affect emissions, such as the requirement to operate and maintain the source's equipment in keeping with good air pollution control practices, or the requirement to correct malfunctions as soon as practicable. You may not approve alternatives that are less stringent than the criteria outlined in the subpart. However, you may require more stringent provisions, such as not permitting excess emissions at all during malfunctions. Where an operations and maintenance plan is required, it usually allows the source considerable latitude in designing the plan, so long as the plan meets certain criteria. You may approve alternatives to the plan that are more stringent than the criteria listed, but you may not approve elimination of major criteria, such as specifying the process and control system monitoring equipment.
As a second example, most NESHAP include requirements to monitor certain specified control equipment operating parameters and to set enforceable operating limits for these same parameters based on data from the performance test. In this case, the S/L/T may be delegated the authority to approve changes to the ranges for the operating limits based on new performance test data and/or other relevant information submitted by the source. However, we must retain the authority to approve modifications to requirements affecting which parameters are monitored (
A more detailed discussion and additional examples of changes that may be made to the delegable requirements are presented in the preambles to the proposed and final subpart E rule (64 FR 1880, January 12, 1999) and (65 FR 55822, September 14, 2000).
In most NESHAP, the non-delegable authorities and the delegable authorities are separated into different sections of the rule. However, in a few NESHAP, these authorities are mixed within a single section or are in the standard section in some NESHAP. In this case, we identified and separated out (where possible) the paragraphs that contain requirements for which you may not approve alternatives in the “Implementation and enforcement” section.
In other NESHAP, the delegable and non-delegable authorities are not clearly separated into different sections or into different paragraphs within a standards section. In these cases, we restructured the standards sections to separate the delegable and non-delegable authorities. This restructuring was accomplished by moving the delegable authorities to more appropriate sections of the rule, such as “Monitoring requirements” or “Recordkeeping requirements” sections. As a result, the “Implementation and enforcement” section more clearly shows which authorities you may not be delegated by simply listing the sections containing those authorities.
In some MACTs, provisions for which you could or should have the authority to approve alternatives are written in a way that precludes you from approving alternatives to these practices. Authority to approve alternatives to work practice standards or any other emission limitation established under section 112(d) or (h) of the Act cannot be delegated to you. However, some work practice requirements could be written more broadly to allow alternative practices to be implemented or these work practice requirements could be
We have rewritten these work practice standards, where possible, to specifically state that you have the authority to approve equivalent or more stringent alternative compliance assurance measures. The sections containing these requirements are not listed as authorities retained by us in the implementation and enforcement section. These kinds of changes are necessary only for a small number of subparts.
We did not receive any public comments concerning proposed changes to 37 of the subparts we included in the September 2000 proposal notice. However, upon closer review of the proposed changes, we determined that we had inadvertently and inconsistently delegated some of the standards we should have reserved to the Administrator's authority. For those subparts for which we received no public comments and which were correctly proposed, we have promulgated the final NESHAP amendments as proposed. Following is a list of the unchanged subparts:
• Subpart F, Synthetic Organic Chemical Manufacturing Industry
• Subpart I, HON for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks
• Subpart M, National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities
• Subpart O, Ethylene Oxide Emissions Standards for Sterilization Facilities
• Subpart Q, National Emission Standards for Hazardous Air Pollutants for Industrial Process Cooling Towers
• Subpart U, National Emission Standards for Hazardous Air Pollutant Emissions: Group I Polymers and Resins
• Subpart Y, National Emission Standards for Marine Tank Vessel Loading Operations
• Subpart AA, National Emission Standards for Hazardous Air Pollutants from Phosphoric Acid Manufacturing Plants
• Subpart BB, National Emission Standards for Hazardous Air Pollutants from Phosphate Fertilizers Production Plants
• Subpart CC, National Emission Standards for Hazardous Air Pollutants from Petroleum Refineries
• Subpart EE, National Emission Standards for Magnetic Tape Manufacturing Operations
• Subpart II, National Emission Standards for Shipbuilding and Ship Repair (Surface Coating)
• Subpart OO, National Emission Standards for Tanks—Level 1
• Subpart PP, National Emission Standards for Containers
• Subpart QQ, National Emission Standards for Surface Impoundments
• Subpart RR, National Emission Standards for Individual Drain Systems
• Subpart GGG, National Emission Standards for Pharmaceuticals Production
• Subpart JJJ, National Emission Standards for Hazardous Air Pollutant Emissions: Group IV Polymers and Resins
• Subpart OOO, National Emission Standards for Hazardous Air Pollutants for Amino/Phenolic Resins Production
• Subpart PPP, National Emission Standards for Hazardous Air Pollutant Emissions for Polyether Polyols Production
• Subpart XXX, National Emission Standards for Hazardous Air Pollutants for Ferroalloys Production: Ferromanganese and Silicomanganese
The first correction we must make to the proposal package is to ensure that we consistently reserve the requirements in each of the NESHAP that establish the compliance dates for all new, reconstructed, and existing sources that are subject to the applicable subparts. Upon review of the proposal package, we determined that we did not consistently reserve these requirements, which was an error because they are integral to the overall standards and cannot be delegated. Following is a list of the subparts we need to modify to ensure that the compliance date of the applicable requirements are reserved. Also included is the notation for the compliance date requirements paragraphs and/or sections that are affected by this correction to the proposed amendments.
• Subpart N, chromium electroplating (§ 63.343(a))
• Subpart W, epoxy resins and non-nylon polyamides (§ 63.521)
• Subpart X, secondary lead smelting (§ 63.546)
• Subpart LL, primary aluminum production plants (§ 63.847(a))
• Subpart CCC, steel pickling (§ 63.1160(a))
• Subpart DDD, mineral wool production (§ 63.1180)
• Subpart EEE, hazardous waste combustors (§ 63.1206(a))
• Subpart III, flexible polyurethane foam production (§ 63.1291)
• Subpart LLL, portland cement (§ 63.1351)
• Subpart MMM, pesticide active ingredient production (§ 63.1364)
• Subpart NNN, wool fiberglass manufacturing (§ 63.1387)
• Subpart RRR, secondary aluminum production (§ 63.1501)
• Subpart TTT, primary lead smelting (§ 63.1545)
• Subpart VVV, publically owned treatment works (§§ 63.1584 and 63.1587).
The second correction we must make to the proposal package is to ensure that we reserve all of the relevant standards in each of the applicable subparts. Upon closer review of the proposal package, we determined that we did not reserve all of the so-called “general requirements” sections that we should have. In some cases it was appropriate to delegate these sections, because even though the title indicated they were “standards” the content of the sections was clearly related to delegable provisions such as various reporting and recordkeeping requirements. For example, in subpart CC (petroleum refineries), § 63.642, general standards, we correctly retained §§ 63.642(g) through (l). These paragraphs require the following:
• Requires existing sources to control HAP emissions to a level represented by a specified equation;
• Requires new sources to control HAP emissions to a level represented by a specified equation;
• Directs source to use specified compliance provisions;
• Describes compliance approach;
• Describes emissions averaging approach. Note, however, that we correctly delegated §§ 63.642(a) through (f) that describe the following requirements:
• Source must obtain a part 70/71 permit;
• Cross references General Provisions applicability table;
• Initial performance tests and compliance demonstrations required only as specified in this subpart;
• Recordkeeping requirements;
• Reports sent to Administrator.
However, in other subparts, we inadvertently delegated some “general standards” requirements. We have corrected this error in today's final rule. The affected subparts and the now-retained general standards requirements are listed below:
• Subpart DD, offsite waste (§ 63.683);
• Subpart HH, oil and natural gas production facilities (§ 63.764);
• Subpart KK, printing and publishing (§ 63.823);
• Subpart HHH, natural gas transmission and storage facilities (§ 63.1274);
• Subpart LLL, portland cement manufacturing (§ 63.1342).
We received public comments on only 11 subparts. Following is a brief description of the proposed changes, the public comments, and our response to the comments for each affected subpart. In addition, we are making revisions to the delegation provisions for Subpart LL (Primary Aluminum) based on the results of an internal review.
This subpart also requires affected sources to meet specific requirements that are contained in other subparts. We clarified in the implementation and enforcement language that delegation of those requirements will occur according to the delegation provisions of the referenced subparts. Where this subpart requires that affected sources meet specific requirements that are contained in other subparts, but makes certain changes to those provisions, we clarified that those provisions should be modified accordingly and then delegated according to the delegation provisions of the referenced subpart.
However, regarding the comment to reconsider delegating the authority to S/L/Ts to make approvals to alternatives to § 63.163(b)(1), the requirement to monitor pumps to detect leaks on a monthly basis, we believe that this requirement is an integral part of the work practice standard for subpart H because it addresses the frequency of monitoring efforts. As we said in the proposal package, the collection of subpart H leak detection and repair requirements comprise the work practice standard and cannot be delegated.
3. Subpart L, National Emission Standards for Coke Oven Batteries
The original delegation provisions in § 63.313 contained language addressing failure of delegated agencies to carry out required inspections and tests. We retained this language in the revised delegation provisions, but added language to it and to § 63.309, “Performance tests and procedures,” explaining that the Administrator may also withdraw delegation of authority pursuant to the provisions of § 63.96.
To retain the intent of the original delegation provisions, the revised delegation section also retains delegation of the authority to approve major alternatives to the monitoring specified in § 63.427(a)(1) through (4) per § 63.427(a)(5), which contains provisions for monitoring an alternative operating parameter. To retain the intent of the original language of § 63.426, the revised delegation paragraph cross-references that section for procedures to follow in requesting an alternative means of emission limitation for storage vessels.
To clarify which authorities are delegated, we replaced the delegation provisions' language with the “Implementation and enforcement” section. This section indicates that delegation of authority to approve alternatives cannot be given to S/L/Ts for the requirements in §§ 63.440, 63.443 through 63.447, and 63.450. These sections contain the applicability provisions and the emissions standards for pulping systems, bleaching systems, kraft pulping process condensates, clean condensate alternatives, and enclosures and closed-vent systems. This subpart also requires that provisions of another subpart be followed. In the implementation and enforcement language, we have clarified that delegation of those requirements will occur according to the delegation provisions of the subpart that is referenced.
The commenter is also correct that the approvals must be made on individual sources and not for more than one source per approval, unless the S/L/T chooses to approve the changes using the subpart E equivalency by permit mechanism; see § 63.94. The purpose of the delegable authorities is to approve alternatives on a case-by-case basis; the circumstances being particular to one source. Conversely, to approve alternative monitoring requirements for more than one source, a S/L/T should use a 40 CFR part 63, subpart E approval mechanism, such as a rule adjustment or rule substitution; §§ 63.92 or 63.93 respectively. Subpart E approval usually requires rulemaking (with public comment), which is required for changes to more than one source in a source category.
To clarify which authorities are delegated, we added the “Implementation and enforcement” section in a new section, § 63.470. This section indicates that delegation of authority to approve alternatives cannot be given to S/L/Ts for the requirements in §§ 63.460, 63.462(a) through (d), and 63.463 through 63.464.
Section 63.469 describes procedures that must be followed to request the use of alternative equipment or an alternative work practice. Section 63.460(f) also retains the delegation of §§ 63.469 and 63.463(d)(9) to the Administrator. The delegation provisions added in § 63.470 cross-reference § 63.469 for procedures to follow in requesting an alternative means of emission limitation.
We agree with the request to delegate to S/L/Ts the authority to approve alternatives to § 63.463(d)(9), the requirement that each solvent cleaning machine and associated controls be maintained according to manufacturer's specifications. We are revising the proposed changes to this subpart to add the delegation of this authority.
To clarify which authorities are delegated, we added the “Implementation and enforcement” section for the delegation provisions in a new section, § 63.551. This section indicates that delegation of authority to approve alternatives cannot be given to S/L/Ts for the requirements in §§ 63.541, and 63.543 through 63.545(a) through (e). These sections contain the applicability provisions and emissions standards for process sources, process fugitive sources, and fugitive dust sources.
To clarify which authorities can be delegated, we replaced the delegation provisions' language with the “Implementation and enforcement” section. This section indicates that delegation of authority to approve alternatives cannot be given to S/L/Ts for the requirements in §§ 63.680, 63.684 through 63.691, and 63.693. These sections contain applicability provisions and the standards for off-site material treatment, tanks, oil-water and organic-water separators, surface impoundments, containers, transfer systems, process vents, equipment leaks, closed-vent systems, and control devices. In addition, this rule requires that affected sources meet specific requirements that are contained in other subparts. In the implementation and enforcement language, we have clarified that delegation of those requirements will occur according to the delegation provisions of the subpart that is referenced.
After evaluating the current version of § 63.693(b)(4)(i), we determined that there is not any confusion remaining between the standards and otherwise delegable requirements. Thus, we are withdrawing our proposed changes to § 63.693(b)(4). We are also withdrawing our proposed changes to § 63.695(e), adding introductory text, because similar language already exists in § 63.695(e)(1)(i). We are retaining the rest of the proposed text changes to this subpart.
To clarify which authorities are delegated, we added the “Implementation and enforcement” section for the delegation provisions in a new section, § 63.759. This section indicates that delegation of authority to approve alternatives cannot be given to S/L/Ts for the requirements in §§ 63.741, 63.743, 63.744(a)(1) through (3), 63.744(b) through (e), 63.745 through 63.748, and 63.749(a). These sections contain the applicability provisions, cleaning, primer and top-coat application, depainting, chemical milling maskant application, and waste handling and storage standards, and the compliance dates for this rule.
To clarify which authorities are delegated, we replaced the delegation provisions' language with the “Implementation and enforcement” section. This section indicates that delegation of authority to approve alternatives cannot be given to S/L/Ts for the requirements in §§ 63.802 and 63.803(a) through (b), (c) introductory text, and (d) through (l). These sections contain the standards for this rule. This section also shows that delegation of authority to approve alternatives cannot be given to S/L/Ts for the applicability provisions in § 63.800. To retain the intent of the original delegation provisions in § 63.808, the revised delegation section also reserves the monitoring and compliance assurance measures and test methods in §§ 63.804(f)(4)(iv)(D) and (E), 63.804(g)(4)(iii)(C), 63.804(g)(4)(vi), 63.804(g)(6)(vi), 63.805(a), 63.805(d)(2)(v), and 63.805(e)(1).
Another comment was received concerning § 63.803(d), the requirement for owner or operator of an affected source to develop an organic HAP solvent accounting form to record the quantity and type of organic HAP solvents used and other pertinent information regarding organic HAP solvent use. The commenter said that S/L/Ts “should be allowed to approve alternative mechanism(s) to meet the intent of the requirement.” Another comment concerned § 63.803(l)(5), which requires the owner or operator to confer with the permitting authority to discuss the reason for the 15% increase (above the baseline level) of solvent use and whether there are practical and reasonable technology-based resolutions for the increase. Again, the commenter stated that S/L/Ts “should be allowed to approve alternative mechanism(s) to meet the intent of the requirement.”
We disagree with the commenter that the work practice implementation plan required by § 63.803(a) may be unnecessary. This requirement is a work practice standard that ensures each owner or operator understands, plans for, and adequately implements the requirements in §§ 63.803(b) through (l). The commenter also suggested several instances where S/L/Ts should have the ability to approve alternatives to the requirements specified in § 63.803. With the exception of §§ 63.803(c)(1) through (4), we cannot delegate this authority because the requirements are work practice standards. However, S/L/Ts have the authority to determine whether the criteria in §§ 63.803 are met. For example, S/L/Ts cannot eliminate the requirement for operator training in § 63.803(b). However, S/L/Ts approve a range of implementation options to satisfy the operator training requirements, such as (but not limited to) allowing wood furniture manufacturing staff to attend a general, state-developed operator course.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) on the basis of the requirements of the Executive Order, in addition to its normal review requirements. 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.
These rule changes will not have an annual effect on the economy of $100 million or more, and therefore are not considered economically significant. In addition, we have determined that this rule is not a “significant regulatory action” because it does not contain novel policy issues.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purpose of collecting, validating, and verifying information; process and maintain information and disclose and provide information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information; search existing data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entity, small entity is defined as: (1) A small business as defined by the Small Business Administration: (2) A small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, we certify that this action will not have a significant economic impact
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on S/L/T governments and the private sector. Under section 202 of the UMRA, we generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to S/L/T governments, in the aggregate, or to the private sector of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if EPA publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, we must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulations with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Today's rule changes contain no Federal mandates (under the regulatory provisions of title II of the UMRA) for S/L/T governments or the private sector. Because the rule is estimated to result in the expenditure by S/L/T governments of significantly less than $100 million in any 1 year, we have not prepared a budgetary impact statement or specifically addressed the selection of the least costly, most effective, or least burdensome alternative. Because small governments will not be significantly or uniquely affected by this rule, we are not required to develop a plan with regard to small governments. Moreover, this action clarifies the relationship between EPA and the S/L/Ts who have voluntarily requested delegation of the part 63 NESHAP, so it does not impose any mandates on those entities. Therefore, the requirements of the Unfunded Mandates Reform Act do not apply to this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and Local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and Local governments or EPA consults with State and Local officials early in the process of developing the regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and Local officials early in the process of developing the regulation.
The changes in today's rulemaking do not have federalism implications. They will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because this rule only clarifies which portions of the existing NESHAP contain authorities that can be delegated to S/L/T governments and does not create any new requirements for S/L/Ts. In other words, this rulemaking only makes insignificant clarifications to existing NESHAP and is not expected to have any additional impact on the relationship between S/L/Ts and the Federal government. Thus, the requirements of section 6 of the Executive Order do not apply to today's rulemaking.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” We believe that this final rule does not have tribal implications as specified in Executive Order 13175. Because it implements a voluntary program, today's rulemaking imposes no direct compliance costs on these communities. Thus, Executive Order 13175 does not apply to this rule. However, we did inform tribes of the final rulemaking through the Tribal Environmental Newsletter.
Executive Order 13045, entitled “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is not economically significant as defined in
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The changes in today's rulemaking do not affect selection of technical standards that are contained in the existing subparts. Therefore, we are not considering the use of any voluntary consensus standards.
Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations.
The EPA believes that today's rule should not raise any environmental justice issues. The intent of the rule is to clarify the delegation provisions in existing NESHAP and will not impact the emissions reductions provisions in these NESHAP. As a result, it appears unlikely that this program would permit any adverse effects on local populations. The EPA did not receive any public comments regarding this executive order.
The Congressional Review Act, 5 U.S.C. 801
The statutory authority for this action is provided by sections 101, 112, 114, 116, and 301 of the Act as amended (42 U.S.C. 7401, 7412, 7414, 7416, and 7601). This rulemaking is also subject to section 307(d) of the Act (42 U.S.C. 7407(d)).
Under section 307(b)(1) of the Act, judicial review of these final rules are available only by the filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by August 22, 2003. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Under section 307(b)(2) of the Act, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.
Environmental protection, Administrative practices and procedures, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to requirements in §§ 63.100, 63.102, and 63.104. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.110, 63.112 through 63.113, 63.119, 63.126, 63.132 through 63.140, 63.148 through 63.149, and 63.150(i)(1) through (4). Follow the requirements in § 63.121 to request permission to use an alternative means of emission limitation for storage vessels. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(f) * * *
(1) Clearly identify the leaking equipment.
(b) * * *
(10) For any leaks detected as specified in §§ 63.163 and 63.164; §§ 63.168 and 63.169; and §§ 63.172 through 63.174 of this subpart, a weatherproof and readily visible identification, marked with the equipment identification number, shall be attached to the leaking equipment.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.160, 63.162 through 63.176, 63.178 through 63.179. Follow the applicable procedures of § 63.177 to request an alternative means of emission limitation for batch processes and enclosed-vented process units. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.190 and 63.192(a) through (b), (e), and (h) through (j). Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a)
(1) The work practice plan must address each of the topics specified in paragraph (b) of this section in sufficient detail and with sufficient specificity to allow the reviewing authority to evaluate the plan for completeness and enforceability.
(2) The initial plan and any revisions shall be submitted to the Administrator or the delegated State, local, or Tribal authority. The Administrator (or delegated State, local, or Tribal authority) may require revisions to the initial plan only where the Administrator (or delegated State, local, or Tribal authority) finds either that the plan does not address each subject area listed in paragraph (b) of this section for each emission point subject to a visible emission standard under this subpart, or that the plan in unenforceable because it contains requirements that are unclear.
(d)
(1) The reviewing authority may request the owner or operator to review and revise as needed the work practice emission control plan for a particular emission point if there are 2 exceedances of the applicable visible emission limitation in the 6-month period that starts 30 days after the owner or operator is required to implement work practices under paragraph (c) of this section. In the case of a coke oven battery subject to visual emission limitations under this subpart, the second exceedance must be independent of the criteria in paragraph (c)(1)((i) of this section.
(2) The reviewing authority may not request the owner or operator to review and revise the plan more than twice in any 12 consecutive month period for any particular emission point unless the reviewing authority disapproves the plan according to the provisions in paragraph (d)(6) of this section.
(3) If the certified observer calculates that a second exceedance (or, if applicable, a second independent exceedance) has occurred, the certified observer shall notify the owner or operator. No later than 10 days after receipt of such a notification, the owner or operator shall notify the reviewing authority of any finding of whether work practices are related to the cause or the solution of the problem. The notification is subject to review by the reviewing authority according to the provisions in paragraph (d)(6) of this section.
(4) The owner or operator shall submit a revised work practice plan within 60 days of notification from the reviewing authority under paragraph (d)(1) of this section, unless the reviewing authority grants an extension of time to submit the revised plan.
(5) If the reviewing authority requires a plan revision, the reviewing authority may require the plan to address a subject area or areas in addition to those in paragraph (b) of this section, if the reviewing authority determines that without plan coverage of such an additional subject area, there is a reasonable probability of further exceedances of the visible emission limitation for the emission point for which a plan revision is required.
(6) The reviewing authority may disapprove a plan revision required under paragraph (d) of this section if the reviewing authority determines that the revised plan is inadequate to prevent exceedances of the visible emission limitation under this subpart for the emission point for which a plan revision is required or, in the case of a battery not subject to visual emission limitations under this subpart, other federally enforceable emission limitations for such emission point. The reviewing authority may also disapprove the finding that may be submitted pursuant to paragraph (d)(3) of this section if the reviewing authority determines that a revised plan is needed to prevent exceedances of the applicable visible emission limitations.
(a) * * *
(5)(i) The EPA shall be the enforcement agency during any period of time that a delegation of enforcement authority is not in effect or a withdrawal of enforcement authority under § 63.313 is in effect, and the Administrator is responsible for performing the inspections required by this section, pursuant to § 63.313(c).
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (d) of this section are retained by the Administrator and cannot be transferred to the State, local, or Tribal agency.
(c) Withdrawal of authority:
(1) Whenever the Administrator learns that a delegated agency has not fully carried out the inspections and performance tests required under § 63.309 for each applicable emission point of each battery each day, the Administrator shall immediately notify the agency. Unless the delegated agency demonstrates to the Administrator's satisfaction within 15 days of notification that the agency is consistently carrying out the inspections and performance tests required under § 63.309 in the manner specified in the preceding sentence, the Administrator shall notify the coke oven battery owner or operator that inspections and performance tests shall be carried out according to § 63.309(a)(5). When the Administrator determines that the delegated agency is prepared to consistently perform all the required inspections and performance tests each day, the Administrator shall give the coke oven battery owner or operator at least 15 days notice that implementation will revert to the previously delegated agency.
(2) In addition to the provisions in paragraph (c)(1) of this section, the Administrator may also withdraw delegation of authority pursuant to the provisions of § 63.96 of subpart E of this part.
(d) The authorities that cannot be delegated to State, local, or Tribal
(1) Approval of alternatives to the requirements in §§ 63.300 and 63.302 through 63.308 (except the authorities in 63.306(a)(2) and (d)).
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of any changes to section 2 of Method 303 in appendix A of this part.
(4) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(5) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.320 and 63.322(a) through (j). Follow the requirements in § 63.325 to demonstrate that alternative equipment or procedures are equivalent to the requirements of § 63.322.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(f)
(3)
(i) The owner or operator of an affected source subject to paragraph (f) of this section shall prepare an operation and maintenance plan to be implemented no later than the compliance date, except for hard chromium electroplaters and the chromium anodizing operations in California which have until January 25, 1998. The plan shall be incorporated by reference into the source's title V permit, if and when a title V permit is required. The plan shall include the following elements:
(B) For sources using an add-on control device or monitoring equipment to comply with this subpart, the plan shall incorporate the operation and maintenance practices for that device or monitoring equipment, as identified in Table 1 of this section, if the specific equipment used is identified in Table 1 of this section;
(C) If the specific equipment used is not identified in Table 1 of this section, the plan shall incorporate proposed operation and maintenance practices. These proposed operation and maintenance practices shall be submitted for approval as part of the submittal required under § 63.343(d);
(d) An owner or operator who uses an air pollution control device not listed in this section shall submit a description of the device, test results collected in accordance with § 63.344(c) verifying the performance of the device for reducing chromium emissions to the atmosphere to the level required by this subpart, a copy of the operation and maintenance plan referenced in § 63.342(f) including operation and maintenance practices, and appropriate operating parameters that will be monitored to establish continuous compliance with the standards. The monitoring plan submitted identifying the continuous compliance monitoring is subject to the Administrator's approval.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.340, 63.342(a) through (e) and (g), and 63.343(a).
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.360 and 63.362.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.400 and 63.402 through 63.403.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.420, 63.422 through 63.423, and 63.424. Any owner or operator requesting to use an alternative means of emission limitation for storage vessels covered by § 63.423 must follow the procedures in § 63.426.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart, and any alternatives to § 63.427(a)(1) through (4) per § 63.427(a)(5).
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(d) * * *
(1) On each bypass line, the owner or operator shall install, calibrate, maintain, and operate according to the manufacturer's specifications a flow indicator that is capable of taking periodic readings as frequently as specified in § 63.454(e). The flow indicator shall be installed in the bypass line in such a way as to indicate flow in the bypass line; or
(e) The owner or operator shall set the flow indicator on each bypass line specified in § 63.450(d)(1) to provide a record of the presence of gas stream flow in the bypass line at least once every 15 minutes.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.440, 63.443 through 63.447 and 63.450. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart.
(2) Approval of alternatives to using §§ 63.457(b)(5)(iii), 63.457(c)(3)(ii) through (iii), and 63.257(c)(5)(ii), and any major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of alternatives using § 64.453(m) and any major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(e) Each owner or operator subject to the requirements of paragraph (c)(1) through (8) of this section may request to use measures other than those described in these paragraphs. The owner or operator must demonstrate to the Administrator (or delegated State, local, or Tribal authority) that the alternative measures will result in equivalent or better emissions control compared to the measures described in paragraphs (c)(1) through (8) of this section. For example, storing solvent and solvent-laden materials in an enclosed area that is ventilated to a solvent recovery or destruction device may be considered an acceptable alternative.
(e) * * *
(2) * * *
(ix) * * *
(B) Conduct the weekly monitoring required by § 63.466(a)(3). Record the results required by § 63.467(a)(6).
(a) * * *
(6) If a squeegee system is used to comply with these standards, records of the test required by § 63.466(f) to determine the maximum product throughput for the squeegees and records of both the weekly monitoring required by § 63.466(a)(3) for visual inspection and the length of continuous web product cleaned during the previous week.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.460, 63.462(a) through (d), and 63.463 through 63.464 (except for the authorities in § 63.463(d)(9)). Use the procedures in § 63.469 to request the use of alternative equipment or procedures.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.480 through 63.481, 63.483(a) through (c), 63.484, 63.485(a) through (k), (m) through (s), (u), 63.486 through 63.487, 63.488(a), (b)(1) through (4), (5)(iv) through (v), (6) through (7), (c) through (i), 63.493 through 63.494, 63.500(a)(1) through (3), (b), 63.501, 63.502(a) through (f), (i), (k) through (m), and 63.503. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.520, 63.521, 63.523, and 63.524. Where these standards reference another rule, the cited provisions in that rule will be delegated according to the delegation provisions of that rule.
(2) Approval of major alternatives to test methods for under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(c) The controls specified in the standard operating procedures manual shall at a minimum include the requirements of paragraphs (c)(1) through (c)(5) of this section, unless the owner or operator satisfies the requirements in paragraph (f) of this section.
(f) Demonstrate to the Administrator (or delegated State, local, or Tribal authority) that an alternative measure(s) is equivalent or better than a practice(s) described in paragraphs (c)(1) through (c)(5) of this section.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.541, 63.543 through 63.544, 63.545(a) and (c) through (e), and 63.546.
(2) Approval of major alternatives to test methods for under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(l) The owner or operator of the VMT source required by § 63.562(d)(2)(iv) to develop a program, shall submit annual reports on or before January 31 of each year to the Administrator certifying the annual average daily loading rate for the previous calendar year. Beginning on January 31, 1996, for the reported year 1995, the annual report shall specify the annual average daily loading rate over all loading berths. Beginning on January 31, 1999, for the reported year 1998, the annual report shall specify the annual average daily loading rate over all loading berths, over each loading berth equipped with a vapor collection system and control device, and over each loading berth not equipped with a vapor collection system and control device. The annual average daily loading rate under this section is calculated as the total amount of crude oil loaded during the calendar year divided by 365 days or 366 days, as appropriate.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.560 and 63.562(a) through (d).
(2) Approval of major alternatives to test methods for under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.600, 63.602 through 63.604, and 63.609 through 63.610.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.620, 63.622 through 63.624, and 63.629 through 63.631.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.640, 63.642(g) through (l), 63.643, and 63.646 through 63.652. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(e) * * *
(1) A continuous monitoring system shall be installed and operated for each treatment that measures operating parameters appropriate for the treatment process technology. This system shall include a continuous recorder that records the measured values of the selected operating parameters. The monitoring equipment shall be installed, calibrated, and maintained in accordance with the equipment manufacturer's specifications. The continuous recorder shall be a data recording device that is capable of recording either an instantaneous data value at least once every 15 minutes or an average value for intervals of 15 minutes or less.
(c) * * *
(2) * * *
(ii) If a seal or locking device is used to comply with paragraph (c)(2) of this section, the device shall be placed on the mechanism by which the bypass
(a) * * *
(4) To monitor and record off-site material treatment processes for compliance with the standards specified in 63.684(e), the monitoring procedures are specified in paragraph (e) of this section.
(c) * * *
(1) * * *
(ii) * * *
(C) The continuous monitoring system required by § 63.693(b)(4)(i) shall monitor and record either an instantaneous data value at least once every 15 minutes or an average value for intervals of 15 minutes or less.
(D) The owner or operator shall visually inspect the seal or closure mechanism required by § 63.693(c)(2)(ii) at least once every month to verify that the bypass mechanism is maintained in the closed position.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.680, 63.683 through 63.691, and 63.693. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.701 and 63.703.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
The revisions and addition read as follows:
(a) * * *
(1) Unless the owner or operator satisfies the requirements in paragraph (a)(4) of this section, place used solvent-laden cloth, paper, or any other absorbent applicators used for cleaning in bags or other closed containers. * * *
(2) Unless the owner or operator satisfies the requirements in paragraph (a)(4) of this section, store fresh and spent cleaning solvents, except semi-aqueous solvent cleaners, used in aerospace cleaning operations in closed containers.
(4) Demonstrate to the Administrator (or delegated State, local, or Tribal authority) that equivalent or better alternative measures are in place compared to the use of closed containers for the solvent-laden materials described in paragraph (a)(1) of this section, or the storage of solvents described in paragraph (a)(2) of this section.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.741, 63.743, 63.744(a)(3), (b) through (e), 63.745 through 63.748, and 63.649(a).
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(c) * * *
(3) * * *
(i) * * *
(A) At the inlet to the bypass device that could divert the stream away from the control device to the atmosphere, properly install, calibrate, maintain, and operate a flow indicator that is capable of taking periodic readings and sounding an alarm when the bypass device is open such that the stream is being, or could be, diverted away from the control device to the atmosphere; or
(B) Secure the bypass device valve installed at the inlet to the bypass device in the non-diverting position using a car-seal or a lock-and-key type configuration.
(c) * * *
(2) Except as provided in paragraphs (c)(5) and (6) of this section, each closed-vent system shall be inspected according to the procedures and schedule specified in paragraphs (c)(2)(i) and (ii) of this section, each cover shall be inspected according to the procedures and schedule specified in paragraph (c)(2)(iii) of this section, and each bypass device shall be inspected according to the procedures of paragraph (c)(2)(iv) of this section.
(iv) For each bypass device, except as provided for in § 63.771(c)(3)(ii), the owner or operator shall either:
(A) At the inlet to the bypass device that could divert the steam away from the control device to the atmosphere, set the flow indicator to take a reading at least once every 15 minutes; or
(B) If the bypass device valve installed at the inlet to the bypass device is secured in the non-diverting position using a car-seal or a lock-and-key type configuration, visually inspect the seal or closure mechanism at least once every month to verify that the valve is maintained in the non-diverting position and the vent stream is not diverted through the bypass device.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.760, 63.764 through 63.766, 63.769, 63.771, and 63.777.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.780 through 63.781, and 63.783 through 63.784.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a)
(1) Each owner or operator of an affected source subject to this subpart shall prepare and maintain a written work practice implementation plan that defines environmentally desirable work practices for each wood furniture operation manufacturing operation and addresses each of the work practice standards presented in paragraphs (b) through (l) of this section. The plan shall be developed no more than 60 days after the compliance date.
(2) The written work practice implementation plan shall be available for inspection by the Administrator (or delegated State, local, or Tribal authority) upon request. If the Administrator (or delegated State, local, or Tribal authority) determines that the work practice implementation plan does not include sufficient mechanisms for
(3) The inspection and maintenance plan required by paragraph (c) of this section and the formulation assessment plan for finishing operations required by paragraph (l) of this section are also reviewable by the Administrator (or delegated State, local, or Tribal authority).
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (5) of this section.
(1) Approval of alternatives to the requirements in §§ 63.800, 63.802, and 63.803(a)(1), (b), (c) introductory text, and (d) through (l).
(2) Approval of alternatives to the monitoring and compliance requirements in §§ 63.804(f)(4)(iv)(D) and (E), 63.804(g)(4)(iii)(C), 63.804(g)(4)(vi), and 63.804(g)(6)(vi).
(3) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart, as well as approval of any alternatives to the specific test methods under §§ 63.805(a), 63.805(d)(2)(v), and 63.805(e)(1).
(4) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(5) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.820 through 63.821 and 63.823 through 63.826.
(2) Approval of alternatives to the test method for organic HAP content determination in § 63.827(b) and alternatives to the test method for volatile matter in § 63.827(c), and major alternatives to other test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this regulation. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.840, 63.843 (with the exception of 63.843(b)(3)), 63.844, 63.845(a) introductory text, (a)(1), (b) through (e), (h), 63.846(a) through (c), and 63.847(a)(1) and (4).
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.900 and 63.902.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.920 and 63.922 through 63.924. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.940, 63.942, and 63.943. Where these standards reference subpart DD, the cited provisions will be delegated according to the delegation provisions of subpart DD.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.960 and 63.962. Where these standards reference subpart DD, the cited provisions will be delegated according to the delegation provisions subpart DD of this part.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1040 and 63.1042 through 63.1045. Where these standards reference subpart DD, the cited provisions will be delegated according to the delegation provisions of subpart DD of this part.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (8) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1155, 63.1157 through 63.1159, and 63.1160(a).
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of any alternative measurement methods for HCl and CL
(4) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(5) Approval of any alternative monitoring requirements to those specified in §§ 63.1162(a)(2) through (5) and 63.1162(b)(1) through (3).
(6) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(7) Waiver of recordkeeping requirements specified in § 63.1165.
(8) Approval of an alternative schedule for conducting performance tests to the requirement specified in § 63.1162(a)(1).
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1177 through 63.1180.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to requirements in §§ 63.1200, 63.1203 through 63.1205, and 63.1206(a).
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1250 and 63.1252 through 63.1256. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(c) * * *
(3) * * *
(i) * * *
(A) At the inlet to the bypass device that could divert the stream away from the control device to the atmosphere, properly install, calibrate, maintain, and operate a flow indicator that is capable of taking periodic readings and sounding an alarm when the bypass device is open such that the stream is being, or could be, diverted away from the control device to the atmosphere; or
(B) Secure the bypass device valve installed at the inlet to the bypass device in the non-diverting position using a car-seal or a lock-and-key type configuration.
(c) * * *
(2) Except as provided in paragraphs (c)(5) and (6) of this section, each closed-vent system shall be inspected according to the procedures and schedule specified in paragraphs (c)(2)(i) and (ii) of this section and each bypass device shall be inspected according to the procedures of (c)(2)(iii) of this section.
(iii) For each bypass device, except as provided for in § 63.1281(c)(3)(ii), the owner or operator shall either:
(A) At the inlet to the bypass device that could divert the steam away from the control device to the atmosphere, set the flow indicator to take a reading at least once every 15 minutes; or
(B) If the bypass device valve installed at the inlet to the bypass device is secured in the non-diverting position using a car-seal or a lock-and-key type configuration, visually inspect the seal or closure mechanism at least once every month to verify that the valve is maintained in the non-diverting position and the vent stream is not diverted through the bypass device.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1270, 63.1274 through 63.1275, 63.1281, and 63.1287.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (5) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1290, 63.1291, 63.1293 through 63.1301, and 63.1305.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of alternatives to the specific monitoring requirements of § 63.1303(b)(5).
(5) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal
(1) Approval of alternatives to the requirements in §§ 63.1310 through 63.1311, 63.1313 through 63.1315(a)(1) through (9), (11) through (18), (b) through (e), 63.1316, 63.1321 through 63.1322, 63.1323(a), (b)(1) through (4), (b)(5)(iv) through (v), (b)(6) through (7), (c) through (j), and 63.1328 through 63.1332. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods for under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1340, 63.1342 through 63.1348, and 63.1351.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(j) * * *
(1) Install, calibrate, maintain, and operate a flow indicator that is capable of determining whether vent stream flow is present and taking frequent, periodic readings. Records shall be maintained as specified in § 63.1367(f)(1). The flow indicator shall be installed at the entrance to any bypass line that could divert the vent stream away from the control device to the atmosphere; or
(2) Secure the bypass line valve in the closed position with a car-seal or lock-and-key type configuration. Records shall be maintained as specified in § 63.1367(f)(2).
(b) * * *
(1) * * *
(xiii)
(A) Set the flow indicator at the entrance to any bypass line that could divert the stream away from the control device to the atmosphere to take a reading at least once every 15 minutes; or
(B) If the bypass device valve installed at the inlet to the bypass device is secured in the closed position with a car-seal or lock-and-key type configuration, visually inspect the seal or closure mechanism at least once every month to verify that the valve is maintained in the closed position and the vent stream is not diverted through the bypass line.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1360 and 63.1362 through 63.1364. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods for under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1380, 63., and 63.1387.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1400 through 63.1401 and 63.1404 through 63.1410. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1420, 63.1422, 63.1424 through 63.1428, and 63.1432 through 63.1436. Where these standards reference another subpart, the cited provisions will be delegated according to the delegation provisions of the referenced subpart. Where these standards reference another subpart and modify the requirements, the requirements shall be modified as described in this subpart. Delegation of the modified requirements will also occur according to the delegation provisions of the referenced subpart.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this regulation. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this regulation to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1500 through 63.1501 and 63.1505 through 63.1506.
(2) Approval of major alternatives to test methods for under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart will be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1541, 63.1543(a) through (c), (f) through (g), and 63.1544 through 63.1545.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the requirements in §§ 63.1580, 63.1583 through 63.1584, and 63.1586 through 63.1587.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable State, local, or Tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or Tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or Tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to requirements in §§ 63.1650 and 63.1652 through 63.1654.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.
Fish and Wildlife Service, Interior.
Proposed rule; supplemental.
The U.S. Fish and Wildlife Service (hereinafter Service or we) proposed in an earlier document to establish annual hunting regulations for certain migratory game birds for the 2003-04 hunting season. This supplement to the proposed rule provides the regulatory schedule; announces the Service Migratory Bird Regulations Committee and Flyway Council meetings; provides Flyway Council recommendations resulting from their March meetings; requests proposals for the 2004 spring/summer migratory bird subsistence season in Alaska; and finalizes regulatory alternatives for the 2003-04 duck hunting seasons.
The Service Migratory Bird Regulations Committee will meet to consider and develop proposed regulations for early-season migratory bird hunting on June 18 and 19, 2003, and for late-season migratory bird hunting and the 2004 spring/summer migratory bird subsistence seasons in Alaska on July 30 and 31, 2003. All meetings will commence at approximately 8:30 a.m. You must submit comments on the proposed migratory bird hunting-season frameworks for Alaska, Hawaii, Puerto Rico, the Virgin Islands, and other early seasons by July 30, 2003, and for proposed late-season frameworks and subsistence hunting seasons in Alaska by August 30, 2003.
The Service Migratory Bird Regulations Committee will meet in room 200 of the U.S. Fish and Wildlife Service's Arlington Square Building, 4401 N. Fairfax Drive, Arlington, Virginia. Send your comments on the proposals to the Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, ms MBSP-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240. All comments received, including names and addresses, will become part of the public record. You may inspect comments during normal business hours at the Service's office in room 4107, Arlington Square Building, 4501 N. Fairfax Drive, Arlington, Virginia.
Brian Millsap, Chief, or Ron W. Kokel, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358-1714.
On May 6, 2003, we published in the
The Service Migratory Bird Regulations Committee will meet June 18-19, 2003, to review information on the current status of migratory shore and upland game birds and develop 2003-04 migratory game bird regulations recommendations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands. The Committee will also develop regulations recommendations for special September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, the Committee will review and discuss preliminary information on the status of waterfowl.
At the July 30-31, 2003, meetings, the Committee will review information on the current status of waterfowl and develop 2003-04 migratory game bird regulations recommendations for regular waterfowl seasons and other species and seasons not previously discussed at the early-season meetings. In addition, the Committee will develop recommendations for the 2004 spring/summer migratory bird subsistence season in Alaska.
In accordance with Departmental policy, these meetings are open to public observation. You may submit written comments to the Service on the matters discussed.
Service representatives will be present at the individual meetings of the four Flyway Councils this July. Although agendas are not yet available, these meetings usually commence at 8 a.m. on the days indicated.
The 1916 Convention for the Protection of Migratory Birds between the United States and Great Britain (for Canada) established a closed season for the taking of migratory birds between March 10 and September 1. Residents of northern Alaska and Canada traditionally harvested migratory birds for nutritional purposes during the spring and summer months. The governments of Canada, Mexico, and the United States recently amended the 1916 Convention and the subsequent 1936 Mexico Convention for the Protection of Migratory Birds and Game Mammals. The amended treaties provide for the legal subsistence harvest of migratory birds and their eggs in Alaska and Canada during the closed season.
On August 16, 2002, we published in the
This supplemental rule calls for proposals for regulations that will expire on August 31, 2004, for the spring/summer subsistence harvest of migratory birds in Alaska. Each year, seasons will open after March 11 and close prior to September 1.
We will publish details of the Alaska spring/summer subsistence harvest proposals in later
(a)
(b)
(2) Alaska Native representatives may be appointed by the Co-management Council to attend meetings of one or more of the four Flyway Councils to discuss recommended regulations or other proposed management actions.
(c)
Because of the time required for our and public review, proposals from the Co-management Council for the 2004 spring/summer migratory bird subsistence harvest season should be submitted to the Flyway Councils and the Service by June 15, 2003, for their comments and Service action on July 30-31, 2003.
This supplemental rulemaking describes Flyway Council recommended changes based on the preliminary proposals published in the May 6, 2003,
We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible, they are discussed under headings corresponding to the numbered items identified in the May 6, 2003, proposed rule. Only those categories requiring your attention or for which we received Flyway Council recommendations are discussed below.
Categories used to discuss issues related to duck harvest management are: (A) General Harvest Strategy, (B) Regulatory Alternatives, including specification of framework dates, season length, and bag limits, (C) Zones and Split Seasons, and (D) Special Seasons/Species Management.
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended limiting regulation changes to one step annually, and also that hunting seasons should remain open above the range of mallard population and pond levels where hunting seasons were open historically.
The Central Flyway Council recommended placing a constraint on the Adaptive Harvest Management (AHM) process that ensures seasons will remain open when mallard breeding populations (traditional breeding areas plus the Great Lakes region) exceed 5.5 million. The Central Flyway Council did not support limiting annual regulatory changes to one step each year.
The Pacific Flyway Council also recommended placing a constraint on the AHM process that ensures seasons will remain open when mallard breeding populations (traditional breeding areas plus the Great Lakes region) exceed 5.5 million, due to the fact that it appears to have relatively little impact on the frequency of “moderate” and “liberal” seasons. However, the Pacific Flyway Council did not support limiting annual regulatory changes to one step because it appears to make the harvest strategy more conservative overall.
We understand the desires of the Atlantic and Mississippi Flyway Councils to limit changes in annual
There has been longstanding concern within the waterfowl management community about the prospect of closed seasons arising from the AHM process for midcontinent mallards in instances where the biological data and historical experience show that may not be necessary. Based on the management objective that has been in place since 1996, closed hunting seasons might be prescribed in about 30% of all years in the three western Flyways as a way to more rapidly increase mallard population size when it falls below the goal of the North American Waterfowl Management Plan. The Flyway Councils' recommendation would significantly reduce the frequency of closed-season prescriptions (to about 17% of all years), apparently with little biological impact. Based on current biological assessments, closed hunting seasons do not appear to be necessary from the perspective of sustainable harvesting when the midcontinent mallard population (traditional survey area plus the Great Lakes region) exceeds 5.5 million. The impact of maintaining open seasons above this level also appears to be negligible for other midcontinent duck species (scaup, gadwall, wigeon, green-winged teal, blue-winged teal, shoveler, pintail, redhead, and canvasbacks). Therefore, we intend to accept the recommendation to maintain open duck-hunting seasons when the midcontinent mallard population is above 5.5 million. However, we note that closed seasons targeted at particular species or populations could still be necessary in some situations regardless of the status of midcontinent mallards.
The Pacific Flyway Council supports framework-date extensions as outlined in the Service's May 6, 2003,
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the 16-day September teal seasons continue to be used when the blue-winged teal breeding population is at or above 4.7 million, based on the recently completed report, “Assessment of 16-Day September Teal Seasons 1998-2000 in the Central and Mississippi Flyways.”
The Central Flyway Council recommended that Nebraska's experimental September teal season become operational.
The Central Flyway Council recommended that the existing interim harvest strategy for canvasbacks be followed during the 2003-04 season.
The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the experimental early Canada goose season in Huron, Tuscola, and Saginaw counties in Michigan be extended for 1 year. Further, the Committees recommended that the Service grant operational status to Minnesota's Special September Canada Goose Season extension (16-22 September).
The Central Flyway Council recommended that South Dakota's 3-year experimental September Canada goose season (September 16-30) become operational for all of eastern South Dakota (east of the Missouri River) beginning in 2003.
The Pacific Flyway Council recommended that Wyoming's special season framework for the Rocky Mountain population of western Canada geese would consist of an 8-day season during September 1-15 in Bear River, Salt River, Farson-Eden Area, Bridger Valley, and Teton Counties, and the Little Snake River drainage portion of Carbon County. All participants must have a valid State permit for the special season. The number of permits may not exceed 240 in the Bear River, Salt River, Farson-Eden Area, and Bridger Valley area, and 20 permits in the Little Snake River drainage portion of Carbon County. The daily bag limit would be 3, with season and possession limits of 6. Where applicable, the season must be concurrent with the September portion of the sandhill crane season.
The Central Flyway Council recommended regular season frameworks for dark geese in the west-tier States consist of a framework opening date of the Saturday nearest September 24 (September 27, 2003) and a framework closing date of the Sunday nearest February 15 (February 15, 2004). The season could be divided into 2 segments, except in Wyoming, where the season could be divided into 3 segments and evaluated in accordance with Service criteria. Season length would be 107 days, except in Colorado and Texas, where the season length would be 95 days. Daily bag limit would be 5 dark geese in the aggregate, with the following exceptions: (a) In the Western Goose Zone of Texas, the daily bag limit would be 1 white-fronted goose and 3 other dark geese (in the aggregate), and (b) in Colorado, the daily bag limit would be 3 dark geese in the aggregate. The possession limit would be twice the daily bag limit.
The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. We intend that adopted final rules be as responsive as possible to all concerned interests and, therefore, seek the comments and suggestions of the public, other concerned governmental agencies, nongovernmental organizations, and other private interests on these proposals. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations to the address indicated under the caption
Special circumstances involved in the establishment of these regulations limit the amount of time that we can allow for public comment. Specifically, two considerations compress the time in which the rulemaking process must operate: (1) The need to establish final rules at a point early enough in the summer to allow affected State agencies to appropriately adjust their licensing and regulatory mechanisms; and (2) the unavailability, before mid-June, of specific, reliable data on this year's status of some waterfowl and migratory shore and upland game bird populations. Therefore, we believe that to allow comment periods past the dates specified is contrary to the public interest.
Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals.
You may inspect comments received on the proposed annual regulations during normal business hours at the Service's office in room 4107, 4501 North Fairfax Drive, Arlington, Virginia. For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments received during the comment period and respond to them after the closing date.
NEPA considerations are covered by the programmatic document, “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published Notice of Availability in the
In a proposed rule published in the April 30, 2001,
Prior to issuance of the 2003-04 migratory game bird hunting regulations, we will consider provisions of the Endangered Species Act of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened or modify or destroy its critical habitat
This rule is economically significant and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. The migratory bird hunting regulations are economically significant and are annually reviewed by OMB under Executive Order 12866. As such, a cost/benefit analysis was prepared in 1998 and is further discussed below under the heading Regulatory Flexibility Act. Copies of the cost/benefit analysis are available upon request from the address indicated under the caption
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite comments on how to make this rule easier to understand, including answers to questions such as the following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that interferes with its clarity?
(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into more (but shorter) sections?
(5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the rule?
(6) What else could we do to make the rule easier to understand?
These regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
We examined these regulations under the Paperwork Reduction Act of 1995. The various recordkeeping and reporting requirements imposed under regulations established in 50 CFR part 20, Subpart K, are utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of the Migratory Bird Harvest Information Program and assigned clearance number 1018-0015 (expires 10/31/2004). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Sandhill Crane Harvest Questionnaire and assigned clearance number 1018-0023 (expires 07/31/2003). The information from this survey is used to estimate the magnitude and the geographical and temporal distribution of the harvest, and the portion it constitutes of the total population. A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this proposed rule, has determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
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. While this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 2003-04 hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712, and 16 U.S.C. 742a-j.
Office of Management and Budget.
Notice of issuance of final policy directive.
The Office of Federal Financial Management (OFFM) is issuing a policy directive to establish a standard format for Federal agency announcements of funding opportunities under programs that award discretionary grants or cooperative agreements. The purpose of the standard format is to have information organized in a consistent way in announcements for the hundreds of Federal programs that make financial assistance awards. A government-wide format will help potential applicants more easily and quickly find the information they need about Federal opportunities. The Federal awarding agencies jointly developed this format as part of their grant streamlining efforts to implement the Federal Financial Assistance Management Improvement Act of 1999.
Elizabeth Phillips, Office of Federal Financial Management, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503; telephone 202-395-3053; fax 202-395-3952; e-mail
In a
We will continue to consider these comments separately from this notice because some raise questions that are beyond the scope of the announcement format and associated policy letter. Most of those comments concern electronic business practices to be used in conjunction with announcements, and these will be considered as the Grants.gov (formerly called E-Grants) Program Management Office develops the Government-wide portal for electronic grants transactions. We also received comments related to another
Comments on this notice strongly supported the overall proposal to create a government-wide standard format. The following paragraphs summarize the major comments and our responses. The comments are grouped by the portion of the OFFM policy letter or announcement format to which they apply. In addition to the changes to the policy letter and format that are described in the following paragraphs, we made other changes to increase readability or to maintain consistency with other streamlining initiatives that are taking place in parallel with this effort.
In contrast, the proposed policy letter distinguishes agency programs that do not issue separate announcements and rely on their CFDA listings to disseminate information to prospective applicants. We understand that the specific recipient communities for these programs are accustomed to doing business in this way. The policy letter therefore continues to exempt those programs from the requirement to use the standard announcement format. Those programs will continue to be subject to the CFDA's standard formatting requirements.
The first issue is whether Federal agencies should be required to include an overview in every announcement. As proposed in August, the announcement format stated that agencies must display prominently certain key information in a location preceding the full text of the announcement. In that sense, it required every announcement to include overview information. The final format retains that requirement for presentation of certain key information before the full text.
The second issue is whether to mandate a standard way that each announcement must present the overview information. The proposed format gave agencies three options: to include the overview information in an Executive Summary, to display it on the cover and/or inside cover of the announcement, or to integrate it into the standard format of a
The third issue is whether to specify a standard set of information that each overview must contain. The proposed format had four overview elements labeled as “required”—the agency name, funding opportunity title, CFDA number, and key dates (such as application due dates). It listed three additional elements as optional—the program name, funding opportunity number, and CFDA title. It also gave examples of other information an agency might wish to include if it used an Executive Summary. We proposed the format with that approach after Federal agencies prepared some sample program announcements to test the viability of mandating a single set of overview elements for all announcements. The tests revealed that rigid use of a single prescription would make many program announcements harder to read and use, especially short announcements that were significantly lengthened by including a full set of overview information. Therefore, the final announcement format continues to specify some items of overview information that are required and suggest additional items that are optional.
The fourth issue is whether to specify a standard sequential order for the overview information. We revised the final announcement format to specify a standard order of presentation for required elements. We also added guidance advising agencies to present any optional elements in an order that parallels the organization of the full text of the announcement. This sequential order is the standard, whether the overview information is presented in an executive summary, on the cover or inside cover, or in the Supplementary Information section of a
While the content of the Grants.gov FIND and the announcement overview should not be identical, we agree that it would be helpful to make the
We added a second reference to two other suggested items of information but retained them as agency options. Section II of the format listed information about the level of funding and expected number of awards as examples of information a program office might include in that section. In light of the comment, we revised the final format to also give them as examples of information that an agency could include in its overview.
The final format does not include requirements for the other suggested information elements. It is neither practical nor desirable to lengthen the format by trying to make it a comprehensive list of requirements for all Federal agency programs. The format is intended primarily as a framework to be used by program officials who prepare announcements, as they are in the best position to judge what is information is needed by potential applicants for their programs. The framework will help them organize the information so that potential applicants can find similar information in the same parts of all announcements.
1.
2.
3.
Twenty-six Executive Branch agencies jointly submitted a plan to the Congress in May 2001, as the Act required. The plan described the interagency process through which the agencies would review current policies and practices and seek to streamline and simplify them. The process involved interagency work groups under the auspices of the Grants Management Committee of the Chief Financial Officers Council. The plan also identified substantive areas in which the interagency work groups had begun their review.
One of the substantive areas that the agencies identified in the plan was the form and content of program funding announcements. The agencies stated in the May 2001 plan that their preliminary analysis suggested a potential for developing a more consistent announcement format across the many Federal agencies and programs. A standard announcement format with information content organized in a consistent way lets applicants quickly and efficiently find the information they need, in order to decide whether a particular funding opportunity is of interest and to prepare an application. An interagency work group developed the format attached to this policy letter and recommended that the OMB's Office of Federal Financial Management issue it as the standard for all programs that use discretionary grants or cooperative agreements.
4.
a. The format attached to this policy letter is the government-wide standard format to be used by agencies when publishing announcements for funding opportunities under programs that make discretionary awards of grants or cooperative agreements, with the exception of:
(1) funding opportunities under which domestic entities are not eligible recipients; and
(2) programs that do not issue separate announcements apart from the program description in the
b. An agency, at its discretion, may extend the use of the attached format to programs that use forms of financial assistance other than grants and cooperative agreements.
5.
a. Issue any needed direction to offices that award grants or cooperative agreements under discretionary programs, in order to establish the attached format as the standard for those programs' announcements. All announcements must include information elements that are marked “required” in the format, in the sequence provided. An announcement for a given program may use elements that are marked “optional,” as appropriate for the program. Whether or not the announcement includes any “optional” elements, the information that is included must be organized to conform with the standard format.
b. Post on the Internet all announcements of funding opportunities under which domestic entities are eligible recipients (note that publication in the
c. Request exceptions from this OFFM policy letter for any program announcement(s) with information organized in a way that deviates from the standard format.
6.
7.
This document is a uniform format for Federal agencies' announcements of funding opportunities under which discretionary awards of grants or cooperative agreements may be made. The format has two parts, the first part provides overview information, and the second part includes the full text of the announcement.
The agency must display prominently the following information, in the sequential order shown, in a location preceding the full text of the announcement:
•
•
•
•
•
•
Following the required overview information described above, the agency may present other information. Present any optional overview information in a sequential order that parallels the organization of the full text of the announcement. Examples of overview information that could help potential applicants decide whether to read the full announcement are: a concise description of the funding opportunity, the total amount to be awarded, the anticipated amounts and/or numbers of individual awards, the types of instruments that may be awarded, who is eligible to apply, whether cost sharing is required, and any limitations on the numbers of applications that each applicant may submit. You also may include other information that could later help applicants more quickly and easily find what they need (
The agency may include the summary information in any of the following ways:
•
•
The full text of the announcement is organized in sections. The format indicates immediately following the title of each section whether that section is required in every announcement or is an agency option.
The format is designed so that similar types of information will appear in the same sections in announcements of different Federal funding opportunities. Toward that end, there is text in each of the format's sections to describe the types of information that an agency would include in that section of an actual announcement.
An agency that wishes to include information on a subject that the format does not specifically discuss may address that subject in whatever section(s) is most appropriate. For example, if an agency chooses to address performance goals in the announcement, it might do so in the funding opportunity description, the application content, and/or the reporting requirements.
Similarly, when this format calls for a type of information to be in one particular section, an agency wishing to address that subject in other sections may elect to repeat the information in those sections or use cross references between the sections (there should be hyperlinks for cross-references in any electronic versions of the announcement). For example, an agency may want to include in Section I information about the types of recipients who are eligible to apply. The format specifies a standard location for that information in Section III.1 but that does not preclude repeating the information in Section I or creating a cross reference between Sections I and III.1, as long as a potential applicant can find the information quickly and easily from the standard location.
The sections of the full text of the announcement are described in the following paragraphs.
This section contains the full programmatic description of the funding opportunity. It may be as long as needed to adequately communicate to potential applicants the areas in which funding may be provided. It describes the agency's funding priorities or the technical or focus areas in which the agency intends to provide assistance. As appropriate, it may include any program history (
Provide sufficient information to help an applicant make an informed decision about whether to submit a proposal. Relevant information could include the total amount of funding that your agency expects to award through the announcement; the anticipated number of awards; the expected amounts of individual awards (which may be a range); the amount of funding per award, on average, experienced in previous years; and the anticipated start dates and periods of performance for new awards. This section also should address whether applications for renewal or supplementation of existing projects are eligible to compete with applications for new awards.
This section also must indicate the type(s) of assistance instrument (
This section addresses considerations or factors that make an applicant or application eligible or ineligible for consideration. This includes the eligibility of particular types of applicant organizations, any factors affecting the eligibility of the principal investigator or project director, and any criteria that make particular projects ineligible. You should make clear whether an applicant's failure to meet an eligibility criterion by the time of an application deadline will result in your agency's returning the application without review or, even though an application may be reviewed, will preclude the agency from making an award. Key elements to be addressed are:
1.
2.
3.
1.
2.
For a full application, this includes all content and forms or formats that constitute a complete application, including: general information (
In this section, you should specifically address content and form or format requirements for:
• Pre-applications, letters of intent, or white papers that your agency requires or encourages (see Section IV.3), including any limitations on the number of pages or other formatting requirements similar to those for full applications.
• The application as a whole. For hard copy submissions, that could include any limitations on the number of pages, font size and typeface, margins, paper size, number of copies, and sequence or assembly requirements. If electronic submission is permitted or required,* that could include special requirements for formatting or signatures.
• Component pieces of the application (
• Information that successful applicants must submit after your agency notifies them of its intent to make awards, but prior to award. This could include evidence of compliance with human subjects requirements or information your agency needs to comply with the National Environmental Policy Act (NEPA).
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For each type of submission that you address, indicate whether the submission is encouraged or required and, if required, any deadline date for submission (or dates, if the agency plans more than one cycle of application submission, review, and award under the announcement). The announcement must state (or provide a reference to another document that states):
• Any deadline in terms of a date and local time.
• What the deadline means (
• The effect of missing a deadline (
• How the receiving Federal office determines whether an application or pre-application has been submitted before the deadline. This includes the form of acceptable proof of mailing or system-generated documentation of receipt date and time.
This section also may indicate whether, when, and in what form the applicant will receive an acknowledgment of receipt.
You should consider displaying the above information in ways that will be easy to understand and use. It can be difficult to extract all needed information from narrative paragraphs, even when they are well written. A tabular form for providing a summary of the information may help applicants for some programs and give them what effectively could be a checklist to verify the completeness of their application package before submission. For example, a summary table might look like:
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This section also must indicate where applications (and any pre-applications) must be submitted if sent by postal mail, electronic means, or hand-delivery. For postal mail submission, this should include the name of an office, official, individual or function (
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The announcement should clearly describe all criteria, including any sub-criteria. If criteria vary in importance, the announcement should specify the relative percentages, weights, or other means used to distinguish among them. For statutory, regulatory, or other preferences, the announcement should provide a detailed explanation of those preferences with an explicit indication of their effect (
If an applicant's proposed cost sharing will be considered in the review process (as opposed to being an eligibility criterion described in Section III.2), the announcement must specifically address how it will be considered (
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You also may include other details you deem appropriate. For example, this section may indicate who is responsible for evaluation against the merit criteria (
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If this funding opportunity will lead to awards with some special terms and conditions that differ from your agency's usual (sometimes called “general”) terms and conditions, this section should highlight those special terms and conditions. Doing so will alert applicants who have received awards from your agency previously and might not otherwise expect different terms and conditions. For the same reason, you should inform potential applicants about special requirements that could apply to particular awards after review of applications and other information, based on the particular circumstances of the effort to be supported (
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You must give potential applicants a point(s) of contact for answering questions or helping with problems while the funding opportunity is open. The intent of this requirement is to be as helpful as possible to potential applicants, so you should consider approaches such as giving:
• Points of contact who may be reached in multiple ways (
• A fax or e-mail address that multiple people access, so that someone will respond even if others are unexpectedly absent during critical periods.
• Different contacts for distinct kinds of help (
This section may include any additional information that will assist a potential applicant. For example, the section might:
• Indicate whether this is a new program or a one-time initiative.
• Mention related programs or other upcoming or ongoing agency funding opportunities for similar activities.
• Include Internet addresses for agency Web sites that may be useful to an applicant in understanding the program (NOTE: you should make certain that any Internet sites are current and accessible).*
• Alert applicants to the need to identify proprietary information and inform them about the way the agency will handle it.
• Include certain routine notices to applicants (
Office of Management and Budget.
Notice of standard data elements.
The Office of Federal Financial Management (OFFM) is establishing a government-wide standard set of data elements for Federal agencies to use to electronically post, at Grants.gov FIND, synopses of announcements of funding opportunities under programs that award discretionary grants or cooperative agreements. The data elements are designed to give potential applicants: (1) Enough information about each funding opportunity to decide whether they are interested enough to look at the full announcement, which contains the detailed information they need to decide whether they wish to apply; and (2) a way to get the full announcement electronically (either directly at Grants.gov FIND or through an electronic link to another Internet site). The Federal awarding agencies jointly developed these Grants.gov FIND data elements as one part of the interagency grants streamlining effort under the Federal Financial Assistance Management Improvement Act of 1999 (Pub. L. 106-107).
Elizabeth Phillips, Office of Federal Financial Management, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503; telephone 202-395-3053; fax 202-395-3952; e-mail
In a
We will continue to consider some of the comments separately from this notice because they address issues that are beyond the scope of the proposed data elements. Some of the comments (
In addition to changes we made in response to comments on the proposed data elements, we made two other significant changes. First, we added a data element for “Announcement Type” that an agency will use to indicate whether the Grants.gov FIND synopsis relates to a new announcement or to a modification of one that the agency issued previously. Second, we eliminated the data element for “type of help available from Federal agency contact,” because we believe that the name of the data element “Federal agency contact for electronic access problems” is self-explanatory.
The following sections present a summary of the major comments grouped by subject and our responses to them. Changes to the Grants.gov FIND data elements are discussed in the responses to the comments.
It is our expectation that, with few exceptions, announcements of opportunities published in the
We did not expand this Grants.gov FIND data element to address the level or type of cost sharing. It is not essential that people have those details before deciding whether to review the full announcement. Moreover, as indicated in a response to a previous comment, additional information in a Grants.gov FIND data element necessarily is less detailed than an explanation in a full announcement and therefore could mislead potential applicants.
Office of Federal Financial Management (OFFM), Office of Management and Budget (OMB), Executive Office of the President.
Notice of proposed policy guidance for use of E-Grants FIND.
OMB proposes to issue a policy directive requiring Federal agencies to use the Grants.gov FIND module to electronically post synopses of funding opportunities under Federal financial assistance programs that award discretionary grants and cooperative agreements.
All comments on this proposal should be in writing, and must be received by July 23, 2003.
Due to potential delays in OMB's receipt and processing of mail sent through the U. S. Postal Service, we encourage respondents to submit comments electronically to ensure timely receipt. We cannot guarantee that comments mailed will be received before the comment closing date. Electronic mail comments may be submitted to:
Sandra Swab, Office of Federal Financial Management, Office of Management and Budget, telephone 202-395-5642 (direct) or 202-395-3993 (main office) and e-mail:
This
We welcome your input on any aspect of the proposal contained in this notice. Questions that you may wish to address include:
• Do you feel this policy is sufficient for getting agencies to post synopses of funding opportunities?
• Are there any shortcomings in either the posting or retrieving of synopses from the Grants.gov Web site?
• Is there additional instruction that should appear in the policy directive?
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Under the Grants.gov initiative, the Federal agencies are in the process of developing an electronic application system using standard core data elements. Part of the application process is the identification of the funding opportunity through www.FedGrants.gov. The posting of standard synopses in an electronic environment, provides government customers the opportunity to locate funding opportunities in one place and to decide whether or not to apply for the opportunity. Establishing data standards for the electronic format of the synopses and the posting of synopses on the Internet are in accordance with Public Law 106-107 and the President's Management Agenda.
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(1) A program that does not issue separate announcements apart from the program description in the Catalog of Federal Domestic Assistance (CFDA).
(2) A program that has 100 percent of potential eligible applicants who live outside the United States and who demonstrate lack of Internet access, and the agency has requested a waiver from OMB.
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Federal funding opportunities posted at
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a. Issue any needed direction to offices that award discretionary grant awards and cooperative agreements on the requirement and format to use to post a synopsis at
b. Ensure the synopsis posted at
c. Obtain a Catalog of Domestic Assistance (CFDA) number for all programs that post a synopsis at
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