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Board of Governors of the Federal Reserve System.
Final rule; staff commentary.
The Board is publishing a final rule amending the staff commentary that interprets the requirements of Regulation Z (Truth in Lending). The Board is required to adjust annually the dollar amount that triggers requirements for certain home mortgage loans bearing fees above a certain amount. The Home Ownership and Equity Protection Act of 1994 (HOEPA) sets forth rules for home-secured loans in which the total points and fees payable by the consumer at or before loan consummation exceed the greater of $400 or 8 percent of the total loan amount. In keeping with the statute, the Board has annually adjusted the $400 amount based on the annual percentage change reflected in the Consumer Price Index that is in effect on June 1. The adjusted dollar amount for 2004 is $499.
January 1, 2004.
Minh-Duc T. Le, Staff Attorney, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667. For the users of Telecommunications Device for the Deaf (“TDD”) only, contact (202) 263-4869.
The Truth in Lending Act (TILA; 15 U.S.C. 1601 - 1666j) requires creditors to disclose credit terms and the cost of consumer credit as an annual percentage rate. The act requires additional disclosures for loans secured by a consumer's home, and permits consumers to cancel certain transactions that involve their principal dwelling. TILA is implemented by the Board's Regulation Z (12 CFR part 226). The Board's official staff commentary (12 CFR part 226 (Supp. I)) interprets the regulation, and provides guidance to creditors in applying the regulation to specific transactions.
In 1995, the Board published amendments to Regulation Z implementing HOEPA, contained in the Riegle Community Development and Regulatory Improvement Act of 1994, Pub. L. 103-325, 108 Stat. 2160 (60 FR 15463). These amendments, contained in §§ 226.32 and 226.34 of the regulation, impose substantive limitations and additional disclosure requirements on certain closed-end home mortgage loans bearing rates or fees above a certain percentage or amount. As enacted, the statute requires creditors to comply with the HOEPA rules if the total points and fees payable by the consumer at or before loan consummation exceed the greater of $400 or 8 percent of the total loan amount. TILA and Regulation Z provide that the $400 figure shall be adjusted annually on January 1 by the annual percentage change in the Consumer Price Index (CPI) that was reported on the preceding June 1. (15 U.S.C. 1602(aa)(3) and 12 CFR 226.32(a)(1)(ii)). The Board adjusted the $400 amount to $488 for the year 2003.
The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not“report” a CPI change on June 1; adjustments are reported in the middle of each month. The Board uses the CPI-U index, which is based on all urban consumers and represents approximately 80 percent of the U.S. population, as the index for adjusting the $400 dollar figure. The adjustment to the CPI-U index reported by the Bureau of Labor Statistics on May 15, 2003, was the CPI-U index “in effect” on June 1, and reflects the percentage increase from April 2002 to April 2003. The adjustment to the $400 figure below reflects a 2.22 percent increase in the CPI-U index for this period and is rounded to whole dollars for ease of compliance.
Effective January 1, 2004, for purposes of determining whether a home mortgage transaction is covered by 12 CFR 226.32 (based on the total points and fees payable by the consumer at or before loan consummation), a loan is covered if the points and fees exceed the greater of $499 or 8 percent of the total loan amount. Comment 32(a)(1)(ii)-2, which lists the adjustments for each year, is amended to reflect the dollar adjustment for 2004. Because the timing and method of the adjustment is set by statute, the Board finds that notice and public comment on the change are unnecessary.
The Board certifies that this amendment will not have a substantial effect on regulated entities because the only change is to raise the threshold for transactions requiring HOEPA disclosures.
Advertising, Federal Reserve System, Mortgages, Reporting and recordkeeping requirements, Truth in lending.
12 U.S.C. 3806; 15 U.S.C. 1604 and 1637(c)(5).
ix. For 2004, $499, reflecting a 2.22 percent increase in the CPI-U from June 2002 to June 2003, rounded to the nearest whole dollar.
By order of the Board of Governors of the Federal Reserve System, acting through the Director of the Division of Consumer and Community Affairs under delegated authority, August 18, 2003.
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) is adding a new provision to its adjudication regulations concerning certain awards of disability compensation and dependency and indemnity compensation (DIC). The new rule explains that certain awards of disability compensation or DIC made pursuant to liberalizing regulations concerning diseases presumptively associated with herbicide exposure may be made effective retroactive to the date of the claim or the date of a previously denied claim, even if such date is earlier than the effective date of the regulation establishing the presumption. The new rule also provides that VA may pay to certain survivors of a deceased beneficiary, or to the beneficiary's estate, any amounts the beneficiary was entitled to receive under the effective-date provisions of this rule, but which were not paid prior to the beneficiary's death. The purpose of this rule is to reflect the requirements of court orders in a class-action case.
Effective Date: September 24, 2003.
David Barrans, Staff Attorney (022), Office of General Counsel, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-6332.
On January 28, 2003, VA published in the
First, this rule will clarify the standards governing the effective dates of disability compensation or dependency and indemnity compensation (DIC) awarded to
Second, this rule will clarify that, when a
We received comments on the proposed rule from three commenters. One commenter expressed unqualified support for the rule. The other commenters expressed general support for the rule, but disagreed with certain aspects of it, as discussed below.
Two commenters suggested that we add provisions to the rule specifying that when service connection for the cause of a
We make no change based on these comments. The additional provisions suggested by the commenters do not relate to the effective date of awards of disability compensation or DIC, nor to the manner of paying amounts due and unpaid to a beneficiary at death. Rather, they pertain to a distinct issue concerning entitlement to service-connected burial benefits under 38 U.S.C. 2307. Because these comments relate solely to matters outside the scope of the rule we proposed, we will make no change based on them.
Moreover, unlike the subjects of our proposed rule, the General Counsel's conclusion regarding entitlement to service-connected burial benefits does not rest upon the requirements of the
One commenter suggested a revision to proposed § 3.816(c)(2), which explains when a disability compensation award may be made retroactive to the date of a prior claim for compensation for a covered herbicide disease that was pending on May 3, 1989 or was received by VA between that date and the effective date of the regulation establishing a presumption of service connection for the disease. As proposed, § 3.816(c)(2) would explain that a prior claim will be considered a claim for compensation for a particular covered herbicide disease if the claimant's application and other submissions may reasonably be viewed, under the standards ordinarily governing such claims, as indicating an intent to apply for compensation for the covered herbicide disease. The commenter asserts that the
Longstanding VA policy reflected in VA procedural manuals provides that when disability compensation is claimed, VA must make a formal rating decision as to each disability that was either claimed by the veteran or noted in the veteran's records, subject to certain exceptions for non-claimed conditions that are acute and transitory or recorded by history only. That policy is currently stated in VA Manual M21-1, Part VI, para. 3.09(b), and was previously stated in VA Manual M21-1, para. 46.02 at the time of the 1991 final stipulation and order. Accordingly, VA may have denied disability compensation for conditions not expressly claimed by the veteran.
The 1991 final stipulation and order in
With respect to claims filed after May 3, 1989, the 1991 final stipulation and order merely provides that the effective date of an award will be the later of the date the claim was received or the date disability arose or death occurred. It provided no criteria for determining whether an award related to a previously-filed claim or a prior decision by VA denying benefits. In proposed § 3.816(c)(2), we explained that VA would apply the ordinary standards of claim interpretation to determine whether a claim received after May 3, 1989 was a claim for compensation for the covered herbicide disease for which benefits were ultimately awarded. We believe it is necessary to state guidelines based on the nature of the claim, rather than only the nature of a prior VA decision, because paragraph (c)(2) applies in cases where VA may not have issued any prior decision on the veteran's claim. However, we did not intend to preclude retroactive payments in cases where VA did issue a decision denying compensation for a covered herbicide disease in a decision rendered after May 3, 1989.
As explained above, the 1991 final stipulation and order is ambiguous as to whether retroactive payments may be made where a veteran did not request service connection for a covered herbicide disease but VA expressly denied compensation for such disease in a decision rendered after May 3, 1989. We believe the stipulation may reasonably be construed to allow retroactive payment in those circumstances. Accordingly, we will revise proposed § 3.816(c)(2) to clarify that retroactive payment may be made where a VA decision rendered between May 3, 1989 and the effective date of the relevant statutory or regulatory presumption denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation was later awarded. As explained in our January 2003 notice of proposed rulemaking, we do not intend to require exact agreement in the terminology or diagnostic codes used to describe the disease at different times, if circumstances reasonably indicate that the same disease is involved.
We proposed to state, in paragraph (f) of 38 CFR 3.816, that, when a
In our January 2003 notice of proposed rule making, we stated that we considered it necessary to seek clarification from the district court regarding VA's ability to release payments in the manner proposed. On April 21, 2003, the district court issued an order stating that, in the event a
In accordance with the district court's order and the comments, we are revising the proposed rule to provide that VA will release payment to the estate of the deceased class member when there is no surviving spouse, child, or parent. We proposed to caption paragraph (f) of 38 CFR 3.816(f) “Payment of Benefits to Survivors of Deceased Beneficiaries.” Based on the court order and the comments, we will change this to “Payment of Benefits to Survivors or Estates of Deceased Beneficiaries.”
As proposed, the first sentence of paragraph (f)(1)(i) would have stated
As explained above, the district court's April 2003 order specifies the individuals and entities entitled to payment. Further, the court's order states that the provisions of 38 U.S.C. 5121 do not govern such payments. Accordingly, we will delete the first sentence of paragraph (f)(1)(i), as proposed, and will amend paragraph (f)(1) to list the eligible payees as identified by the court's order. Revised paragraph (f)(1) will specify that VA will release payment to the first of the listed individual or entities that is in existence at the time payment is made.
We will delete the second sentence of paragraph (f)(1)(i), as proposed, because it reflects requirements applicable to 38 U.S.C. 5121(a). For purposes of 38 U.S.C. 5121(a), eligibility for payment as a surviving spouse, child, or parent is limited by a number of statutory provisions. For example, a “surviving spouse” is generally defined, with certain exceptions, as one who has not remarried. Eligibility for payment as a “child” is limited to unmarried children under the age of 18, or who became permanently incapable of self-support before attaining age 18, or who are under 23 years of age and pursuing a course of education at an approved institution. Eligibility for payment as a parent is subject to dependency. In view of the district court's conclusions that the provisions of the parties' August 2001 stipulation, rather than the provisions of 38 U.S.C. 5121(a), govern payments, we conclude that those restrictions are inapplicable. The August 2001 stipulation does not expressly incorporate the statutory limitations on recognition as a spouse, child, or dependent parent. Further, the provisions of the August 2001 stipulation reflect the view that payments to spouses, children, and parents were authorized because those persons are the usual heirs to a decedent's estate, and that rationale would apply irrespective of age, marital status, or dependency. We will add language to § 3.816(f)(1) to clarify that those limitations do not apply. Specifically, we will provide that payments to a spouse will be made irrespective of current marital status, that payments to a child will be made irrespective of age or marital status, and that payments to a parent will be made irrespective of dependency. We will further explain that a spouse is a person who was married to the class member at the time of the class member's death. We will explain that the term “child” includes natural and adopted children, and also includes any stepchildren who were members of the class member's household at the time of the class member's death. We note that stepchildren ordinarily are not entitled to inherit from a stepparent's estate under the laws of intestate succession, and some stepchildren may have no direct relationship with the deceased class member. However, the laws governing veterans' benefits provide that a stepchild who was a member of a veteran's household at the time of the veteran's death is entitled to certain death benefits, including payment of amounts due and unpaid to the deceased veteran. We believe that persons who would be considered children under the laws governing VA benefits should not be excluded from receiving payment pursuant to the court orders in this case. Accordingly, we are defining “child” to include such stepchildren. We will also explain that the term “parent” includes natural and adoptive parents but that, in the case of successive parents, the persons who last stood in the relationship of parents to the class member will be considered the parents.
The last two sentences of paragraph (f)(1)(i), as proposed, will be deleted because they pertain to matters specific to determinations under 38 U.S.C. 5121.
Paragraph (f)(1)(ii) of 38 CFR 3.816, as proposed, would have stated that, if there is no living person eligible to receive benefits under 5121(a)(2)-(a)(4), VA would pay to the person who bore the expense of the class member's last sickness and burial only such portion of the class member's unpaid benefits as would be necessary to reimburse that person for such expense. We are removing this provision because it is contrary to the district court's order.
The other provisions of proposed 38 CFR 3.816(f) are not affected by the court's order, and we received no comments concerning them. Accordingly, we are adopting them without change.
We proposed to provide that the nonstatutory adjudication rules flowing from the
We noted that Congress in 2001 enacted legislation authorizing VA to establish new presumptions of service connection during the additional period from October 1, 2002 to September 30, 2015. Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 201(d) (Benefits Expansion Act). We concluded that the
Two commenters expressed disagreement with our conclusion and asserted that the
One commenter asserts that it would be unfair to apply different effective date rules to Vietnam veterans' claims based on presumptions established under the Agent Orange Act of 1991 and those based on presumptions established under the Benefits Expansion Act. Although we agree that a uniform set of effective-date rules would ordinarily be preferable, the prospect of disparate treatment does not provide a basis for changing these rules. VA's obligation to comply with both 38 U.S.C. 5110(g) and the
VA is required to give effect to the clear statutory requirements in 38 U.S.C. 5110(g), in the absence of authority to the contrary. To the extent the
One commenter asserts that these rules should apply to presumptions established under the Benefits Expansion Act because, when VA and the representatives for the
The United States District Court for the Northern District of California has held that the May 1991 stipulation and order must be interpreted in accordance with general principles of contract law. It is well established that, unless the parties provide otherwise, a contract is presumed to incorporate the law that existed at the time the contract was made.
The terms of a contract “do not change with the enactment of subsequent legislation, absent a specific contractual provision providing for such a change.”
The commenter asserts that, if Congress had enacted legislation after May 1991 to shorten the 10-year life span of the Agent Orange Act of 1991, the parties would have agreed that VA was relieved from the original agreement made in contemplation of a 10-year life span. The commenter argues that it necessarily follows that the parties intended to incorporate any subsequent legislative changes either limiting or extending VA's authority to establish presumptions. We do not agree, and we believe the hypothetical scenario described by the commenter is inapt. The 1991 stipulation and order in
Two commenters assert that extending the
The Benefits Expansion Act, Public Law 107-103, reflects a purpose to require ongoing periodic reviews of the scientific evidence to determine whether additional presumptions of service connection should be established. It does not, however, reflect any purpose to authorize retroactive benefits based on presumptions established under that Act. To the contrary, Congress has expressly limited the retroactive effect of new presumptions established by VA under the Benefits Expansion Act or any other statute. Section 5110(g) of title 38,
We note further that section 10(e) of the Agent Orange Act of 1991, Public Law 102-4, expressly referenced the
For these reasons, we find that Congress has clearly expressed its intent that regulations issued under the Benefits Expansion Act will not provide a basis for awarding benefits for any period prior to the date such regulations are issued. Accordingly, we make no change based on this comment.
This regulatory amendment has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This rule would have no such effect on State, local, or tribal governments, or the private sector.
The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries and their survivors could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program numbers are 64.109, and 64.110.
Administrative practice and procedure, Claims, Disability benefits, Herbicides, Veterans, Vietnam.
38 U.S.C. 501(a), unless otherwise noted.
(a)
(b)
(1)
(i) A Vietnam veteran who has a covered herbicide disease; or
(ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.
(2)
(i) Type 2 Diabetes (Also known as type II diabetes mellitus or adult-onset diabetes).
(ii) Hodgkin's disease.
(iii) Multiple myeloma.
(iv) Non-Hodgkin's lymphoma.
(v) Acute and Subacute peripheral neuropathy.
(vi) Porphyria cutanea tarda.
(vii) Prostate cancer.
(viii) Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea).
(ix) Soft-tissue sarcoma (as defined in § 3.309(e)).
(c)
(1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this
(2) If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if:
(i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or
(ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.
(3) If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service.
(4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400.
(d)
(1) If VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which such prior denial was based or the date the death occurred, except as otherwise provided in paragraph (d)(3) of this section.
(2) If the class member's claim for DIC for the death was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease that caused the death, the effective date of the award will be the later of the date such claim was received by VA or the date the death occurred, except as otherwise provided in paragraph (d)(3) of this section. In accordance with § 3.152(b)(1), a claim by a surviving spouse or child for death pension will be considered a claim for DIC. In all other cases, a claim will be considered a claim for DIC if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC.
(3) If the class member's claim referred to in paragraph (d)(1) or (d)(2) of this section was received within one year from the date of the veteran's death, the effective date of the award shall be the first day of the month in which the death occurred.
(4) If the requirements of paragraph (d)(1) or (d)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400.
(e)
(2)
(f)
(i) The class member's spouse, regardless of current marital status.
(ii) The class member's child(ren), regardless of age or marital status (if more than one child exists, payment will be made in equal shares, accompanied by an explanation of the division).
(iii) The class member's parent(s), regardless of dependency (if both parents are alive, payment will be made in equal shares, accompanied by an explanation of the division).
(iv) The class member's estate.
(2)
(3)
(4)
(g)
Federal Communications Commission.
Final rule; termination.
In this document, the Commission affirms the decision to allow the unlicensed operation of fixed point-to-point transmitters in the 24.05-24.25 GHz band at field strengths up to 2500 mV/m under amended provisions of the Commission's rules. In the course of taking this action, the Commission also denies the petition for reconsideration filed by the National Association for Amateur Radio (ARRL) that challenged the decision to allow the described operation on an unlicensed basis. Because the MO&O resolves all pending matters in this proceeding, the Commission terminates this proceeding.
Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., TW-A325, Washington, DC 20554.
Gary Thayer, Office of Engineering and Technology, (202) 418-2290, TTY (202) 418-2989, e-mail:
This is a summary of the Commission's Memorandum Opinion and Order, ET Docket No. 98-156, FCC 03-175, adopted July 15, 2003, and released July 21, 2003. The full text of this Commission decision is available on the Commission's Internet site at
1. In the Report and Order (R&O) in this proceeding, ET Docket No. 98-156, 67 FR 1,623, January 14, 2002, the Commission amended § 15.249 of the Commission's rules to allow unlicensed operation of fixed point-to-point transmitters in the 24.05-24.25 GHz band with field strengths up to 2500 mV/m. The Commission further decided that such devices must use directional antennas with gains of at least 33 dBi or a main lobe beamwidth not exceeding 3.5 degrees. The Commission also adopted strict frequency stability requirements to limit out-of-band emissions to minimal levels. The Commission concluded that it is in the public interest to allow such operation on an unlicensed basis to supplement the growing demand for licensed point-to-point facilities that satisfy important communications needs. For example, the Commission concluded that increasing the field strength limit would promote greater use of part 15 unlicensed devices for emergency restoration of communications in disaster situations, low-cost telecommunications delivery in rural areas, and other beneficial applications.
2. By this Memorandum Opinion and Order, the Commission affirms the decision made in the R&O to allow the unlicensed operation of fixed point-to-point transmitters in the 24.05-24.25 GHz band at field strengths up to 2500 mV/m under amended provisions of § 15.249 in part 15 of the Rules. The Commission affirms the central technical finding made in the R&O namely, that devices having field strengths up to 2500 mV/m and conforming to the specified directional antenna requirements are suitable for unlicensed operation under part 15 in the 24.05-24.25 GHz band. In particular, the Commission affirms the conclusion that devices operating within these requirements will not increase the interference potential to licensed amateur services in the band.
3. In the course of affirming its decision in the R&O, the Commission also denies the petition for reconsideration filed by the National Association for Amateur Radio (ARRL) that challenged the propriety of the described operation in the 24.05-24.25 GHz band on an unlicensed basis. Because the unlicensed operation provided for by the R&O will not increase the interference potential to licensed amateur services in the band, the Commission finds no merit in ARRL's argument that the Commission violated 47 U.S.C. 301 of the Communications Act in authorizing the unlicensed operation under part 15 of the Commission's rules. Furthermore, the Commission affirms that the rules adopted in the R&O are reasonable for
Federal Communications Commission.
Final rule; correction.
In this document the Commission amends a reference to a section that has been removed from the Commission's rules.
Effective on August 25, 2003.
Peggy Reitzel, Telecommunications Division, International Bureau, (202) 418-1499.
The Commission published a document in the
(d)
Federal Communications Commission.
Final rule.
This document amends the Commission rules pertaining to mandatory minimum standards, and other regulations, for Telecommunications Relay Services (TRS) and speech-to-speech services for individuals with hearing and speech disabilities. The amended rules are intended to improve the overall effectiveness of TRS to ensure that persons with hearing and speech disabilities have access to telecommunications networks that is consistent with the goal of functional equivalency mandated by Congress.
Effective September 24, 2003 except § 64.604 (a)(3) and (c)(2) of the Commission's rules, which contains information collection requirements under the Paperwork Reduction Act (PRA), that are not effective until approved by Office of Management and Budget (OMB). Written comments by the public on the new and modified information collections are due October 24, 2003. The Commission will publish a document in the
Federal Communications Commission, 445 12th Street, SW., Washington, DC, 20554. In addition to filing comments with the Secretary, a copy of any comments on the information collection(s) contained herein should be submitted to Leslie Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
Cheryl King, of the Consumer & Governmental Affairs Bureau at (202) 418-2284 (voice), (202) 418-0416 (TTY), or e-mail
This
The
In this
As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 603
This proceeding was initiated to address the requirement that telecommunications relay services (TRS) users have access to telephone services that are functionally equivalent to those available to individuals without hearing or speech disabilities. Our specific concerns were to examine the mandatory minimum standards for TRS with regard to enhanced features available to the non-disabled telecommunications consumer, and to address emergency call handling and Speech-to-Speech (STS) services. The Commission issued the
No comments were filed directly in response to the IRFA in this proceeding. The Commission has nonetheless considered potential significant economic impact of the rules on small entities and as discussed below has concluded that the rules adopted may imposed some economic burden on at least one small entity that is a TRS provider.
The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. 5 U.S.C. 694(a)(3). The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” 15 U.S.C. 632). Pursuant to the 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
Below, we further describe and estimate the number of small entity licensees and regulatees that, in theory, may be affected by these rules. For some categories, the most reliable source of information available at this time is data the Commission publishes in its
The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603 (c)(1)-(c)(4). One of the main purposes of this
The Commission will send a copy of the
Accordingly,
Telecommunications, Individuals with disabilities, Reporting and recordkeeping requirements.
47 U.S.C. 154, 254(k); sections. 403(b)(2)(B), (c), Public Law 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 225, 226, 228, and 254(k) unless otherwise noted.
As used in this subpart, the following definitions apply:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(a)
(i) TRS providers are responsible for requiring that all CAs be sufficiently trained to effectively meet the specialized communications needs of individuals with hearing and speech disabilities.
(ii) CAs must have competent skills in typing, grammar, spelling, interpretation of typewritten ASL, and familiarity with hearing and speech disability cultures, languages and etiquette. CAs must possess clear and articulate voice communications.
(iii) CAs must provide a typing speed of a minimum of 60 words per minute. Technological aids may be used to reach the required typing speed. Providers must give oral-to-type tests of CA speed.
(iv) TRS providers are responsible for requiring that VRS CAs are qualified interpreters. A “qualified interpreter” is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
(v) CAs answering and placing a TTY-based TRS or VRS call must stay with the call for a minimum of ten minutes. CAs answering and placing an STS call must stay with the call for a minimum of fifteen minutes.
(vi) TRS providers must make best efforts to accommodate a TRS user's requested CA gender when a call is initiated and, if a transfer occurs, at the time the call is transferred to another CA.
(vii) TRS shall transmit conversations between TTY and voice callers in real time.
(3)
(ii) Relay services shall be capable of handling any type of call normally provided by telecommunications carriers unless the Commission determines that it is not technologically feasible to do so. Relay service providers have the burden of proving the infeasibility of handling any type of call.
(iii) Relay service providers are permitted to decline to complete a call because credit authorization is denied.
(iv) Relay services shall be capable of handling pay-per-call calls.
(v) TRS providers are required to provide the following types of TRS calls: (1) Text-to-voice and voice-to-text; (2) VCO, two-line VCO, VCO-to-TTY, and VCO-to-VCO; (3) HCO, two-line HCO, HCO-to-TTY, HCO-to-HCO.
(vi) TRS providers are required to provide the following features: (1) Call releasefunctionality; (2) speed dialing functionality; and (3) three-way calling functionality.
(vii) Voice mail and interactive menus. CAs must alert the TRS user to the presence of a recorded message and interactive menu through a hot key on the CA's terminal. The hot key will send text from the CA to the consumer's TTY indicating that a recording or interactive menu has been encountered. Relay providers shall electronically capture recorded messages and retain them for the length of the call. Relay providers may not impose any charges for additional calls, which must be made by the relay user in order to complete calls involving recorded or interactive messages.
(viii) TRS providers shall provide, as TRS features, answering machine and voice mail retrieval.
(4)
(5)
(b)
(2)
(ii) TRS facilities shall, except during network failure, answer 85% of all calls within 10 seconds by any method which results in the caller's call immediately being placed, not put in a queue or on hold. The ten seconds begins at the time the call is delivered to the TRS facility's network. A TRS facility shall ensure that adequate network facilities shall be used in conjunction with TRS so that under projected calling volume the probability of a busy response due to loop trunk congestion shall be functionally equivalent to what a voice caller would experience in attempting to reach a party through the voice telephone network.
(A) The call is considered delivered when the TRS facility's equipment accepts the call from the local exchange carrier (LEC) and the public switched network actually delivers the call to the TRS facility.
(B) Abandoned calls shall be included in the speed-of-answer calculation.
(C) A TRS provider's compliance with this rule shall be measured on a daily basis.
(D) The system shall be designed to a P.01 standard.
(E) A LEC shall provide the call attempt rates and the rates of calls blocked between the LEC and the TRS facility to relay administrators and TRS providers upon request.
(3)
(4)
(ii) TRS shall have redundancy features functionally equivalent to the equipment in normal central offices, including uninterruptible power for emergency use.
(5)
(6)
(c) * * *
(2)
(i) The name and address of the office that receives complaints, grievances, inquiries, and suggestions;
(ii) Voice and TTY telephone numbers, fax number, e-mail address, and web address; and
(iii) The physical address to which correspondence should be sent.
(6) * * *
(v) * * *
(A) * * *
(
Federal Communications Commission.
Final rule; establishment of effective date.
We recently revised the current Telephone Consumer Protection Act of 1991 (TCPA) rules, and adopted new rules modifying the Federal Communications Commission's (Commission's) unsolicited facsimile advertising requirements. This document establishes an effective date of January 1, 2005 for one provision of those rules. We have also modified the effective date of our determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements and the rule provision requiring that the sender of a facsimile advertisement first obtain the recipient's express permission in writing. The effective date of our amended definition of an “established business relationship” is not affected by our determination here.
Section 64.1200(a)(3)(i) published at 68 FR 44144, July 25, 2003, is effective January 1, 2005.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Erica H. McMahon or Richard D. Smith at 202-418-2512, Consumer & Governmental Affairs Bureau, Federal Communications Commission.
This is a summary of the Commission's
On July 3, 2003, the Commission released a
In the
On July 25, 2003, the American Society of Association Executives (ASAE) filed a petition for emergency clarification of the rules governing unsolicited facsimile advertisements as they apply to tax-exempt nonprofit organizations. This petition asked the Commission to issue a clarification that unsolicited facsimile communications are not prohibited when issued by tax-exempt nonprofit purposes. In addition, ASAE filed a petition for stay of the unsolicited facsimile rules as they apply to tax-exempt nonprofits in the event the Commission is unable to clarify the rules prior to their effective date. Many of ASAE's members and other organizations have filed comments in support of ASAE's petitions. The National Association of Realtors (NAR) also filed, on August 1, 2003, a Request for Emergency Stay of all of the facsimile advertisement rules, asking the Commission to grant a one-year stay of the recently adopted rules “to permit NAR and its members sufficient time to review and comply with the Commission's new, unanticipated, and unprecedented, unsolicited fax rules.” A Request for Stay of the amended rules concerning unsolicited facsimile advertising as they apply to the publishers of Requester Publications, along with a Request for Expedited Clarification of the unsolicited facsimile rules, were filed by Proximity Marketing on August 6, 2003. In addition, on August 8, 2003, a Request for Stay of the amended rules concerning unsolicited facsimile advertising as they apply to political action committees was filed by the National Association of Business Political Action Committees. The Chamber of Commerce of the United States, the Community Association Institute, the National Association of Manufacturers, the National Association of Wholesaler-Distributors, the National Restaurant Association, and the National Federation of Independent Business (Chamber of Commerce of the United States,
The American Teleservices Association (ATA) also submitted on July 25, 2003 a Request for Expedited Stay of the Commission's revisions to the rules implementing the TCPA. The ATA requests that the Commission stay the revisions to the rules implementing the TCPA, pending a final decision on judicial review of the new rules. ATA's petition relates primarily to the new telephone solicitation rules, including the national do-not-call registry.
We now, on our own motion, issue this limited reconsideration of the effective date of our determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements, as well as the amended unsolicited facsimile provisions at 47 CFR 64.1200(a)(3)(i). Section 64.1200(a)(3)(i), as amended, requires the sender of a facsimile advertisement to first obtain from the recipient a signed, written statement that includes the facsimile number to which any advertisements may be sent and clearly indicates the recipient's consent to receive such facsimile advertisements from the sender. The comments filed after the release of the
We emphasize that the only effective date of the Commission's
We have considered and rejected ATA's request to stay the revisions to the rules implementing the TCPA to the extent that such request extends beyond the fax rules discussed above. Although the Commission has declined to adopt a single standard for requests for injunctive relief, we generally consider four criteria: (1) The likelihood of success on the merits, (2) the threat of irreparable harm absent grant of preliminary relief, (3) the degree of injury to other parties if relief is granted, and (4) that a stay will be in the public interest.
The actions contained herein have not changed our Final Regulatory Flexibility Analysis (FRFA), which is set forth in the
1. Accordingly, pursuant to sections 1-4, 222, 227, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 222 and 227; and section 1.108 of the Commission's Rules, 47 CFR 1.108, of the Commission's Rules, this
2. Subject to the effective dates set forth above, the National Association of Realtors' Request for Emergency Stay
3. Subject to the effective dates set forth above, the American Society of Association Executives' Petition for Stay
4. Subject to the effective dates set forth above, Proximity Marketing Request for Stay
5. Subject to the effective dates set forth above, the National Association of Business Political Action Committees' Request for Stay
6. Subject to the effective dates set forth above, the Chamber of Commerce of the United States
7. Subject to the effective dates set forth above, the Business Users Coalition's Petition for Emergency Stay
8. Subject to the effective dates set forth above, the American Business Media's Petition for Stay
9. Subject to the effective dates set forth above, the Air Conditioning Contractors of America's Petition for Emergency Stay
10. Subject to the effective dates set forth above, the American Dietetic Association's Request for Stay of the Implementation of Regulations
11. Subject to the effective dates set forth above, Reed Elsevier Inc.”s Motion for Stay
12. Subject to the effective dates set forth above, the Newspaper Association of America and the National Newspaper Association's Petition for Stay
13. The American Teleservices Association Request for Expedited Stay
14. The effective date for the Commission's determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements and the requirement that the sender of a facsimile advertisement first obtain the recipient's express permission in writing, as codified at 47 CFR 64.1200(a)(3)(i), IS January 1, 2005, and that this
Telephone.
Surface Transportation Board.
Final rules.
The Board adopts its 2003 User Fee Update and revises its fee schedule at this time to recover the costs associated with the January 2003 Government salary increases and to recover increased
These rules are effective September 24, 2003.
David T. Groves, (202) 565-1551, or Anne Quinlan, (202) 565-1727. [TDD for the hearing impaired: 1-800-877-8339.]
The Board's regulations in 49 CFR 1002.3 require the Board's user fee schedule to be updated annually. The Board's regulation at 49 CFR 1002.3(a) provides that the entire fee schedule or selected fees can be modified more than once a year, if necessary. The Board's fees are revised based on the cost study formula set forth at 49 CFR 1002.3(d). Also, in some previous years, selected fees were modified to reflect new cost study data or changes in agency fee policy.
Because Board employees received a salary increase of 4.27% in January 2003, we are updating our user fees to recover the increased personnel costs. With certain exceptions, all fees will be updated based on our cost formula contained in 49 CFR 1002.3(d). In addition, the cost to publish data in the
The fee increases involved here result only from the mechanical application of the update formula in 49 CFR 1002.3(d), which was adopted through notice and comment procedures in
We conclude that the fee changes adopted here will not have a significant economic impact on a substantial number of small entities because the Board's regulations provide for waiver of filing fees for those entities that can make the required showing of financial hardship.
Additional information is contained in the Board's decision. To obtain a copy of the full decision, write, call, or pick up in person from the Board's contractor, Da-To-Da Legal, Suite 405, 1925 K Street, NW, Washington, DC 20006. Telephone: (202) 293-7776. [Assistance for the hearing impaired is available through TDD services 1-800-877-8339.]
Administrative practice and procedure, Common carriers, Freedom of information, User fees.
Decided: August 18, 2003.
By the Board, Chairman Nober.
5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701 and 49 U.S.C. 721(a).
(b) Service involved in examination of tariffs or schedules for preparation of certified copies of tariffs or schedules or extracts therefrom at the rate of $32.00 per hour.
(c) Service involved in checking records to be certified to determine authenticity, including clerical work, etc., incidental thereto, at the rate of $22.00 per hour.
(e) * * *
(1) A fee of $55.00 per hour for professional staff time will be charged when it is required to fulfill a request for ADP data.
(f) * * *
(6) * * *
(f)
Federal Trade Commission.
Request for public comments.
The Federal Trade Commission (“Commission”) requests public comments about the overall costs and benefits of and the continuing need for its Tire Advertising and Labeling Guides (“the Tire Guides” or “the Guides”), as part of the Commission's systematic review of all current Commission regulations and guides.
Written comments will be accepted until October 24, 2003.
Mailed comments should be directed to: Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Ave., NW., Washington, DC 20580. Mailed comments should be identified as “Tire Guides, 16 CFR Part 228—Comment.” E-mail comments will be accepted at [
David Plottner, Investigator, Federal Trade Commission, 1111 Superior Avenue, Suite 200, Cleveland, Ohio 44114, telephone number (216) 263-3409, E-mail [
The Commission first promulgated Trade Practice Rules for the Tire Industry in 1936. It discarded those Rules as obsolete and adopted new regulations in 1958. Subsequently, those regulations were folded into complete Guides that became effective in January 1968. These 1968 Guides were revised slightly in 1994, with the addition of a provision regarding retreaded tires. Otherwise the 1968 Guides have remained unchanged.
Commission Guides, generally, constitute administrative interpretations of Commission law and are administered by the Commission for the guidance of the public in conducting its affairs in conformity with legal requirements. Conduct inconsistent with the Guides may result in corrective action by the Commission under applicable statutory provisions.
The Tire Guides cover tires for use on “passenger automobiles, station wagons, and similar vehicles.” They apply to manufacturers of new vehicles, on which these tires are provided as original equipment, and to those who manufacture, sell, distribute, or retread tires. The Tire Guides address labeling, both permanent and removable; advertising, including specific triggering terminology, performance claims, deceptive pricing claims, and guarantee advertising; point-of-sale disclosures regarding use, care and safety; and disclosures relating to used, retreaded tires and snow tires.
The Commission has determined, as part of its oversight responsibilities, to review rules and guides periodically. These reviews seek information about the costs and benefits of the Commission's rules and guides and their regulatory and economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission. The Commission solicits comments on, among other things, the economic impact of and the continuing need for the Tire Guides; possible conflict between the Guides and state, local, or other federal laws; and the effect of any technological, economic, or other industry changes on the Guides.
The Commission solicits written public comments on the following questions:
(1) Is there a continuing need for the Tire Guides?
(a) What benefits have the Guides provided to purchasers of the products affected by the Guides?
(b) Have the Guides imposed costs on purchasers?
(c) How prevalent and widespread is voluntary compliance with the Guides?
(d) Have other Federal regulatory initiatives rendered the Guides unnecessary?
(2) What changes, if any, should be made to the Guides to increase the benefits of the Guides to purchasers?
(a) How would these changes affect the costs the Guides impose on firms following their suggestions?
(b) How would these changes affect the benefits to purchasers?
(3) What significant burdens or costs, including costs of compliance, have the Guides imposed on firms following their suggestions?
(a) Have the Guides provided benefits to such firms? If so, what benefits?
(4) What changes, if any, should be made to the Guides to reduce the burdens or costs imposed on firms following their suggestions?
(a) How would these changes affect the benefits provided by the Guides?
(5) Do the Guides overlap or conflict with other Federal, state, or local laws or regulations?
(a) To what extent has/will NHTSA tire safety regulations and tire quality grading standards regulations [49 CFR 567, 571, 574, 575, and 597] including those required by the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act of 2000 , Pub. L. 106—414 supersede the need for this Guide or parts of this Guide?
(b) To what extent has the Magnuson-Moss Warranty Act, 15 U.S.C. 2301
(c) Have state consumer protection laws or regulations governing tires, tire safety, tire price advertising, tire disposal, retreading, or snow tires affected the need for the Guides or parts of the Guides?
(6) Since 1968 when the main provisions of the Guides were issued, what effects, if any, have the following changes in relevant technology or economic conditions had on the Guides:
(a) The recent increased sales of pickup trucks, sport utility vehicles, and similar new vehicles, the tires of which may not be covered by the Guides?
(b) The shift to radial tires (as opposed to the bias-ply tires popular when the Guides were issued) in today's tire market?
(c) Changes in tire distribution or sales, including use of E-mail, the Internet, Internet advertising or CD-ROM advertising.
(d) The declining market for retreaded passenger car tires.
(7) Are there any abuses occurring in the distribution, promotion, sale or manufacture of tires that are not addressed by the Guides? If so, what mechanisms should be explored to address such abuses (
Advertising, Automobile tires, Trade practices.
15 U.S.C. 41-58.
By direction of the Commission, Commissioner Harbour not participating.
Social Security Administration (SSA).
Notice of proposed rulemaking.
We are providing notice of proposed rulemaking to conform to the “Senior Citizens' Freedom to Work Act of 2000”. This legislation was enacted on April 7, 2000, and became retroactively effective on January 1, 2000. It eliminates the Social Security annual earnings test for retirement beneficiaries, starting from the month in which they reach full retirement age. Before the passage of this legislation, persons reaching full retirement age were subject to an earnings test until the month in which they attained age 70.
To ensure that your comments are considered, we must receive them no later than October 24, 2003.
You may give us your comments by using: our Internet site facility (
The electronic file of this document is available on the date of publication in the
Dorothy Skipwith, Social Insurance Specialist, Office of Income Security Programs, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 965-4231 or TTY (410) 966-5609. For information on eligibility or filing benefits: Call our national toll-free numbers, 1-800-772-1213 or TTY 1-800-325-0078, or visit our Internet web site, Social Security Online, at
In addition to the revisions necessitated by the changes in the “Senior Citizens' Freedom to Work Act of 2000,” Pub. L. 106-182, which eliminated the annual earnings test for persons reaching full retirement age, we are proposing changes necessitated by the “Social Security Amendments of 1983,” Pub. L. 98-21. This legislation will increase the full retirement age for persons born in 1938 or later in incremental amounts, with a full 2-year increase in full retirement age for persons born in 1960 or later. We are also proposing the revision of the existing regulatory sections, numbered below, to present them in plainer language and to update the examples.
The following is a brief summary of the sections we propose to revise and the changes to each of them.
Revised section § 404.415 would explain the effect of excess earnings on the benefits of:
1. An insured person caused by his/her excess earnings.
2. An auxiliary beneficiary because of the excess earnings of the insured person on whose record he/she draws benefits.
3. An auxiliary beneficiary because of his/her own excess earnings, which reduce only that beneficiary's benefits.
This revised section § 404.415 would also reflect the legislated changes in full retirement age and annual earnings test.
We propose to revise the section to reflect changes in the annual earnings test and full retirement age.
We propose to revise the section to reflect the new annual earnings test and full retirement age legislation.
We propose to revise this section by changing the section heading to “Monthly and annual exempt amounts defined; excess earnings defined,” and deleting obsolete material. This section would also reflect the changes in the annual earnings test and full retirement test, and display annual earnings test exempt amounts for 2000 through 2003.
This section also clarifies that the excess earnings of a person receiving benefits on another's record only diminish or eliminate the benefits of that beneficiary; they do not affect the benefits of the insured or those of others receiving benefits on the insured's record.
This section also states that if both the insured and other(s) receiving benefits on an insured's record have excess earnings, the excess earnings of the insured are first charged to the total family benefits payable (or deemed payable), and then the excess earnings of the secondary beneficiary are charged against the insured's remaining benefits. We propose to rewrite this section in plain language.
This section also states the presumption that an individual was engaged in self-employment and/or performing services for wages each month in a taxable year in which such earnings are reported, until the individual provides evidence to us about non-earning months in that year.
We propose to rewrite this section in plain language, change the heading to “Excess earnings; months to which excess earnings can or cannot be charged; grace year defined,” to reflect the change in the full retirement age, update outdated examples, and delete obsolete material.
We propose to rewrite this section to reflect changes in the full retirement age, to reflect section 309(c) of Public Law 103-296, which eliminates any exceptions to the requirement to file an annual report for beneficiaries under age 70 receiving auxiliary or survivors benefits when there are auxiliary or survivor beneficiaries living in a separate household and to delete obsolete material.
Executive Order 12866, as amended by Executive Order 13258, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments and suggestions on how to make these proposed rules yet easier to understand.
For example:
• Have we organized the material to suit your needs?
• Are the requirements in the rules clearly stated?
• Do the rules contain technical language or jargon that is unclear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rules easier to understand?
We have consulted with the Office of Management and Budget (OMB) (OMB) and determined that these proposed rules meet the requirements for a significant regulatory action under E.O.xecutive Order 12866, as amended by Executive Order 13258. Thus, they were subject to OMB review.
We certify that these proposed regulations will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Therefore, a regulatory flexibility analysis, as provided in the Regulatory Flexibility Act, as amended, is not required.
These proposed rules contain reporting requirements as shown in the table below. Where the public reporting burden is accounted for in Information Collection Requests for the various forms that the public uses to submit the information to the Social Security Administration and the Internal Revenue Service, a 1-hour placeholder burden is being assigned to the specific reporting requirement(s) contained in these rules. We are seeking clearance of the burden referenced in these rules because the rules were not considered during the clearance of the forms.
An Information Collection Request has been submitted to OMB for clearance. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. Comments should be submitted to the Social Security Administration at the following address: Social Security Administration, Attn: SSA Reports Clearance Officer, 1338 Annex Building, 6401 Security Boulevard, Baltimore, MD 21235-6402.
Comments can be received between 30 and 60 days after publication of this notice and will be most useful if received by the Social Security Administration within 30 days of publication.
Administrative practice and procedure in the Federal, old age, survivors and disability insurance program: earnings coverage; insured status; computation of, and eligibility for benefits.
For the reasons set out in the preamble, we propose to amend subparts D and E of part 404 of Chapter III of Title 20 of the Code of Federal Regulations as follows:
1. The authority citation for subpart D of part 404 continues to read as follows:
Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, 228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
2. Section 404.338 is revised to read as follows:
(a) A widow's or widower's monthly benefit is equal to the insured person's primary insurance amount. If the insured person dies before reaching age 62 and the widow or widower is first eligible after 1984, we may compute a special primary insurance amount to determine the amount of the monthly benefit (see § 404.212(b)).
(b) We may increase the monthly benefit amount if the insured person delays filing for benefits or requests voluntary suspension of benefits, and thereby earns delayed retirement credit (see § 404.313), and/or works before the year 2000 after reaching full retirement age (as defined in § 404.409). The amount of the monthly benefit may change as explained in § 404.304.
(c) The widow's or widower's monthly benefit will be reduced if the insured person chooses to receive old-age benefits before reaching full retirement age. If so, the benefit will be reduced to the amount the insured person would be receiving if alive, or 82
3. The authority citation for subpart E of part 404 continues to read as follows:
Secs. 202, 203, 204(a) and (e), 205(a) and (c), 222(b), 223(e), 224, 225, 702(a)(5) and 1129A of the Social Security Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 422(b), 423(e), 424a, 425, 902(a)(5) and 1320a-8a.).
4. Section 404.415 is revised to read as follows:
(a)
(b)
(c)
5. Section 404.416 is removed.
6. Section 404.428 is revised to read as follows:
(a) When we apply the annual earnings test to your earnings as a beneficiary under this subpart (
(b) Your taxable year is presumed to be a calendar year until you show to our satisfaction that you have a different taxable year. If you are self-employed, your taxable year is a calendar year unless you have a different taxable year for the purposes of subtitle A of the Internal Revenue Code of 1986. In either case, the number of months in a taxable year is not affected by:
(1) The time a claim for Social Security benefits is filed;
(2) Attainment of any particular age;
(3) Marriage or the termination of marriage; or
(4) Adoption.
(c) The month of death is counted as a month of the deceased beneficiary's taxable year in determining whether the beneficiary had excess earnings for the year under § 404.430. For beneficiaries who die after November 10, 1988, we use twelve as the number of months to determine whether the beneficiary had excess earnings for the year under § 404.430.
(d) Wages, as defined in § 404.429(c), are charged as earnings for the months and year in which you rendered the services. Net earnings or net losses from self-employment count as earnings or losses in the year for which such earnings or losses are reportable for Federal income tax purposes.
7. Section 404.429 is revised to read as follows:
(a)
(b)
(1) In this section, the following occupations are included in the definition of “trade or business” (although they may be excluded in subpart K):
(i) The performance of the functions of a public office;
(ii) The performance of a service of a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by the order;
(iii) The performance of service by an individual in the exercise of his or her profession as a Christian Science practitioner;
(iv) The performance by an individual in the exercise of his or her profession as a doctor of medicine, lawyer, dentist, osteopath, veterinarian, chiropractor, naturopath, or optometrist.
(2) For the sole purpose of the earnings test under this subpart:
(i) If you reach full retirement age, as defined in § 404.409, on or before the last day of your taxable year, you will have excluded from your gross earnings from self-employment, your royalties attributable to a copyright or patent obtained before the taxable year in which you reach full retirement age; and
(ii) If you are entitled to insurance benefits under title II of the Act, other than disability insurance benefits or child's insurance benefits payable by reason of being disabled, we will exclude from gross earnings any self-employment income you received in a year after your initial year of entitlement that is not attributable to services you performed after the first month you became entitled to benefits. In this section, services means any significant work activity you performed in the operation or management of a trade, profession, or business which can be related to the income received. If a part of the income you receive in a year is not related to any significant services you performed after the month of initial entitlement, only that part of your income may be excluded from gross earnings for deduction purposes. We count the balance of the income for deduction purposes. Your royalties or other self-employment income is presumed countable for purposes of the earnings test until it is shown to our satisfaction that such income may be excluded under this section.
(3) We do not count as significant services:
(i) Actions you take after the initial month of entitlement to sell a crop or product if it was completely produced in or before the month of entitlement. This rule does not apply to income you receive from a trade or business of buying and selling products produced or made by others; for example, a grain broker.
(ii) Your activities to protect an investment in a currently operating business or activities that are too irregular, occasional, or minor to be considered as having a bearing on the income you receive, such as—
(A) Hiring an agent, manager, or other employee to operate the business;
(B) Signing contracts where your signature is required, so long as the major contract negotiations were handled by others in running the business for you;
(C) Looking over the company's financial records to assess the effectiveness of those agents, managers, or employees in running the business for you;
(D) Personally contacting an old and valued customer solely for the purpose of maintaining good will when such contact has a minimal effect on the ongoing operation of the trade or business; or
(E) Occasionally filling in for an agent, manager, or other employee or partner in an emergency.
(4) In figuring your net earnings or net loss from self-employment, we count all net income or net loss even though:
(i) You did not perform personal services in carrying on the trade or business;
(ii) The net profit was less than $400;
(iii) The net profit was in excess of the maximum amount creditable to your earnings record; or
(iv) The net profit was not reportable for social security tax purposes.
(5) Your net earnings from self-employment is the excess of gross income over the allowable business deductions (allowed under the Internal Revenue Code). Net loss from self-employment is the excess of business deductions (that are allowed under the Internal Revenue Code) over gross income. You cannot deduct, from wages or net earnings from self-employment, expenses in connection with the production of income excluded from gross income under (b)(2)(ii) of this section.
(c)
(1) Remuneration in excess of the amounts in the annual wage limitation table in § 404.1047;
(2) Wages of less than the amount stipulated in section § 404.1057 that you
(3) Payments for agricultural labor excluded under § 404.1055;
(4) Remuneration, cash and non-cash, for service as a home worker even though the cash remuneration you received is less than the amount stipulated in § 404.1058(a) in a calendar year;
(5) Services performed outside the United States in the Armed Forces of the United States.
(d)
8. Section 404.430 is revised to read as follows:
(a)
(2) We determine the monthly exempt amounts for each year by a method that depends on the type of exempt amount.:
(i) For the lower exempt amount (the one applicable before the calendar year of reaching the FRAfull retirement age), we multiply $670 (the lower exempt amount for 1994) by the ratio of the national average wage index for the second prior year to that index for 1992. If the amount so calculated is not a multiple of $10, we round it to the nearest multiple of $10 (
(ii) The higher exempt amount (the one applicable in months of the year of attaining full retirement age FRA that precede such attainment) was set by legislation (Pub. L. 104-121) for years 1996-2002. To calculate the higher exempt amount for any year after 2002, we will multiply $2,500 (the higher exempt amount for 2002) by the ratio of the national average wage index for the second prior year to that index for 2000. We round the result as described in paragraph (a)(2)(i) of this section for the lower exempt amount.
(iii) The following are the annual and monthly exempt amounts for taxable years 2000 through 2003.
(b)
9. Section 404.434 is revised to read as follows:
(a)
(b)
(2)
(3)
(c)
Public Law 106-182 eliminated the Social Security earnings test, beginning with the month in which a person attains full retirement age (as defined in § § 404.409), for taxable years after 1999. In the year that you reach full retirement age, the annual earnings test amount is applied to the earnings amounts of the months that precede your month of full retirement age. (
10. Section 404.435 is revised to read as follows:
(a)
(1) Were not entitled to a monthly benefit;
(2) Were considered not entitled to benefits (due to non-covered work outside the United States or no child in care, as described in § 404.436);
(3) Were at full retirement age (as described in § 404.409);
(4) Were entitled to payment of a disability insurance benefit as defined in § 404.315; (
(5) Are age 18 or over and entitled to a child's insurance benefit based on disability;
(6) Are entitled to a widow's or widower's insurance benefit based on disability; or
(7) Had a non-service month in your grace year (
(i) Do not work in self-employment (
(ii) Do not perform services for wages greater than the monthly exempt amount set for that month (
(iii) Do not work in non-covered remunerative activity on 7 or more days in a month while outside the United States. A non-service month occurs even if there are no excess earnings in the year.
(b)
(2) A beneficiary may have another grace year each time his or her entitlement to one type of benefit ends and, after a break in entitlement of at least one month, the beneficiary becomes entitled to a different type of retirement or survivors benefit. The new grace year would then be the taxable year in which the first non-service month occurs after the break in entitlement.
(3) For purposes of determining whether a given year is a beneficiary's grace year, we will not count as a non-service month, a month that occurred while the beneficiary was entitled to disability benefits under section 223 of the Social Security Act or as a disabled widow, widower, or child under section 202.
(4) A beneficiary entitled to child's benefits, to spouse's benefits before age 62 (entitled only by reason of having a child in his or her care), or to mother's or father's benefits is entitled to a termination grace year in any year the beneficiary's entitlement to these types of benefits terminates. This provision does not apply if the termination is because of death or if the beneficiary is entitled to a Social Security benefit for the month following the month in which the entitlement ended. The beneficiary is entitled to a termination grace year in addition to any other grace year(s) available to him or her.
Don, age 62, will retire from his regular job in April of next year. Although he will have earned $15,000 for January-April of that year and plans to work part time, he will not earn over the monthly exempt amount after April. Don's taxable year is the calendar year. Since next year will be the first year in which he has a non-service month while entitled to benefits, it will be his grace year and he will be entitled to the monthly earnings test for that year only. He will receive benefits for all months in which he does not earn over the monthly exempt amount (May-December) even though his earnings have substantially exceeded the annual exempt amount. However, in the years that follow, up to the year of full retirement age, only the annual earnings test will be applied if he has earnings that exceed the annual exempt amount, regardless of his monthly earnings amounts.
Marion was entitled to mother's insurance benefits from 1998 because she had a child in her care under age 18. Because she had a non-service month in 1998, 1998 was her initial grace year. Marion's child married in May 2000 and her entitlement to mother's benefits terminated in April 2000. Since Marion's entitlement did not terminate by reason of her death and she was not entitled to another type of Social Security benefit in the month after her entitlement to a mother's benefit ended, she is entitled to a termination grace year for 2000, the year in which her entitlement to mother's insurance benefits terminated. She applied for and became entitled to widow's insurance benefits effective February 2001. Because there was a break in entitlement to benefits of at least one month before entitlement to another type of benefit, 2001 will be a subsequent grace year if Marion has a non-service month in 2001.
(c)
(d)
(e)
11. Section 404.437 is revised to read as follows:
We will further reduce your benefits (other than a disability insurance benefit) because of your excess earnings
(a) The family maximum (
(b) Your entitlement to benefits (
(c) Your receipt of benefits on your own earnings record, which reduces (
(d) Your entitlement to benefits payable (or deemed payable) to you based on the earnings record of an individual entitled to a disability insurance benefit because of that individual's entitlement to worker's compensation (
12. Section 404.452 is revised to read as follows:
(a)
(2) If your wages and/or net earnings from self-employment in any month(s) of the year are below the allowable amount (
(3) Your report to us for a taxable year should be filed on or before the 15th day of the fourth month following the close of the taxable year; for example, April 15 when the beneficiary's taxable year is a calendar year. An income tax return or form W-2, filed timely with the Internal Revenue Service, may serve as the report required to be filed under the provisions of this section, where the income tax return or form W-2 shows the same wages and/or net earnings from self-employment that must be reported to us. Although we may accept W-2 information and special payment information from employers, you still have primary responsibility for making sure that the earnings we use for deduction purposes are correct. If there is a valid reason for a delay, we may grant you an extension of up to four (4) months to file this report.
(4) You are not required to report to us if:
(i) You reached full retirement age before the first month of your entitlement to benefits; or
(ii) Your benefit payments were suspended under the provisions described in § 404.456 for all months of a taxable year before the year of full retirement age, or for all months prior to your full retirement age in the full retirement age year, unless you are entitled to benefits as an auxiliary or survivor and your benefits are reduced for any month in the taxable year because of earnings and there is another person entitled to auxiliary or survivor's benefits on the same record, but living in a different household.
(b)
(c)
(d)
(e)
(2)
Food and Drug Administration, HHS.
Advance notice of proposed rulemaking; extension of comment period.
The Food and Drug Administration (FDA) is extending to November 25, 2003, the comment period for an advance notice of proposed rulemaking (ANPR) for over-the-counter (OTC) antigingivitis/antiplaque drug products. The ANPR was published in the
Submit written or electronic comments by November 25, 2003.
Submit written and reply 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
Robert L. Sherman, Center for Drug Evaluation and Research (HFD-560), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-2222.
In the
On July 15, 2003, the Consumer Healthcare Products Association (CHPA), a trade association of manufacturers of nonprescription drugs and dietary supplements, and the Cosmetic, Toiletry, and Fragrance Association (CTFA), a trade association of manufacturers of personal care products, requested a 90-day extension in which to file comments and new information (Ref. 1). CHPA/CTFA also requested that FDA accept reply comments up to 180 days after the closing date for the comment period. The request stated that the closing date for the original comment period would not allow CHPA/CTFA time to adequately assess the implications of the Subcommittee's proposed rulemaking. The request noted that, because this is the first time FDA published the Subcommittee's recommendations, industry needs sufficient time to provide additional data and perspectives on inclusion of several of the Subcommittee's proposed Category III (insufficient data) active ingredients in a tentative final monograph, and to support a Category I (safe and effective) status for these ingredients. In addition, CHPA/CTFA stated that because FDA specifically requested information on testing protocols, statistical methods, and effectiveness criteria, industry needs sufficient time to develop a set of common elements and basic criteria for performance testing.
CHPA/CTFA stated that individual companies are likely to submit relevant data on antigingivitis/antiplaque active ingredients and on drug products in which antigingivitis/antiplaque active ingredients are combined with other oral health care active ingredients. Further, these companies are considering additional clinical studies that would involve time for FDA's review of submitted protocols and likely require 12 to 18 months to complete.
FDA has carefully considered the request and acknowledges its request for information on effectiveness criteria for antigingivitis/antiplaque active ingredients, performance testing, and the statistical approaches used to evaluate these tests. Manufacturers and CTFA/CTFA may require additional time to develop and review information to fully respond to the agency's request. However, FDA believes that extension of the reply comment period from 60 to 90 days should be sufficient time for manufacturers to respond to comments submitted during the comment period. The reply comment period is not intended to remain open for new study results to be submitted. Accordingly, the comment period is extended to November 25, 2003, and the reply comment period is extended to February 23, 2004. FDA considers an extension of time for comments in this case to be in the public interest.
Interested persons may submit to the Division of Dockets Management (see
The following reference has been placed on display in the Division of Dockets Management (see
1. Comment No. EXT7.
Coast Guard, DHS.
Notice of proposed rulemaking; notice of public meeting; reopening of comment period.
The Coast Guard is reopening the comment period on the notice of proposed rulemaking for Marine Casualties and Investigations; Chemical Testing Following Serious Marine Incidents published in the
The meeting will be held Friday, September 19, 2003, from 9 a.m. to 5 p.m. in Washington, DC. This meeting may close early if all business is finished. Comments must reach the docket on or before September 30, 2003.
The meeting location is: United States Coast Guard Headquarters, Transpoint Building, 2100 Second Street, SW., Room 2415, Washington, DC 20593. You may submit comments identified by Coast Guard docket number USCG-2001-8773 to the Docket Management Facility at the U.S. Department of Transportation (DOT). To avoid duplication, please use only one of the following methods:
(1) Web Site:
(2) Federal eRulemaking Portal:
(3) Mail: Docket Management Facility, DOT, 400 Seventh Street SW., Washington, DC 20590-0001.
(4) Fax: 202-493-2251.
(5) Delivery: Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC,
For questions on this proposed rule, contact Mr. Robert C. Schoening, Drug and Alcohol Program Manager, telephone 202-267-0684; e-mail address:
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
The 1998 Coast Guard Authorization Act requires the Coast Guard to establish procedures ensuring alcohol testing is conducted within two hours of a serious marine casualty. The Coast Guard proposes to establish requirements for testing within the statutory time limits, to expand the existing requirements for commercial vessels to have alcohol testing devices on board, and to authorize use of a wider variety of testing devices (Notice of Proposed Rulemaking, [68 FR 9722], February 28, 2003). This rulemaking would also make additional minor procedural changes to Part 4, including a time limit for conducting drug testing following a serious marine incident. The Coast Guard reopened the comment period and scheduled this public meeting in response to comments previously submitted to the docket.
The public meeting will be held September 19, 2003, from 9 a.m. to 5 p.m., at the United States Coast Guard Headquarters, Transpoint Building, 2100 Second Street, SW., Washington, DC. The building is located adjacent to Army Fort Leslie J. McNair at Buzzard Point. Entry to the Transpoint Building is controlled. All attendees must have a picture identification issued by a U.S. Federal Agency or a State or Territory issued drivers license. Valid Passports and Merchant Mariner Documents are also acceptable. Everyone is subject to a weapons search.
Members of the public may provide oral statements at the meeting. Oral statements may be time limited if there are numerous speakers. Persons wishing to make oral statements should notify Mr. Robert C. Schoening listed under
On street public parking in the vicinity of Coast Guard Headquarters is very limited. James Creek Marina, National Park Service, is adjacent to Coast Guard Headquarters and has some parking available for a nominal fee. The closest Metro Station is SEU-Waterfront on the Green Line, about nine blocks from Coast Guard Headquarters. Attendees are encouraged to utilize taxi or public buses serving the Buzzard Point area. (For Bus Schedules, please see the Washington Area Metro Transit Authority-WMATA Web site at
For information on facilities or services for individuals with disabilities, or to request assistance at the meeting, Contact Mr. Robert C. Schoening listed under
Federal Communications Commission.
Proposed rule.
This document seeks comment on technological advancements that may further the statutory goal of functionally equivalent Telecommunications Relay Services (TRS) for persons with hearing and speech disabilities, including comment on whether TRS facilities should have the same National Security Emergency Preparedness (NS/EP) designation as local exchange carriers under the Telecommunications Service Priority (TSP) System to ensure that persons with hearing and speech disabilities have access to telecommunications services during time of local, national, or international crisis.
Comments are due on or before September 24, 2003 and reply comments are due on or before October 9, 2003. Written comments by the public on the proposed information collection are due September 24, 2003. Written comments must be submitted by the Office of Management and Budget
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20054. In addition to filing comments with the Secretary, a copy of any comment on the information collection contained herein should be submitted to Leslie Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
Cheryl King, of the Consumer & Government Affairs Bureau at (202) 418-2284 (voice), (202) 418-0416 (TTY) or e-mail
This
This
In this
As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 603
The Commission is issuing this
The authority for actions proposed in this
The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by rules adopted herein. 5 U.S.C. 604(a)(3). The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to the 5 U.S.C. 601(3), the statutory definition of small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
Below, we further describe and estimate the number of small entity licensees and regulates that, in theory, may be affected by these rules. For some categories, the most reliable source of information available at this time is data the Commission publishes in its
This
The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take (among others) into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities. 5 U.S.C. 603.
The proposals in the
None.
Individuals with disabilities, Reporting and recordkeeping requirements, Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 64 as follows:
1. The authority citation for part 64 continues to read as follows:
47 U.S.C. 154, 254(k); sections 403 (b)(2)(B), (c), Public Law 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 225, 226, 228, and 254(k) unless otherwise noted.
2. Amend § 64.604 by adding paragraph (c)(5)(iii)(F)(
(c) * * *
(5) * * *
(iii) * * *
(F) * * *
(
3. Revise § 64.605 to read as follows:
(a)
(2)
(b)
(i) Establishes that the statea program meets or exceeds all operational, technical, and functional minimum standards contained in § 64.604;
(ii) Establishes that the state program makes available adequate procedures and remedies for enforcing the requirements of the state program, including that it makes available to TRS users informational materials on state and Commission complaint procedures sufficient for users to know the proper procedures for filing complaints; and;
(iii) Where a state program exceeds the mandatory minimum standards contained in § 64.604, the state establishes that its program in no way conflicts with federal law.
(2)
(i) Establishes that the interstate TRS provider meets or exceeds all operational, technical, and functional minimum standards contained in § 64.604;
(ii) Establishes that the interstate TRS provider makes available adequate procedures and remedies for ensuring compliance with the requirements of this section and the mandatory minimum standards contained in § 64.604, including the requirement that informational materials on complaint procedures sufficient for users to know the proper procedures for filing complaints are made available to TRS users; and
(iii) Where the interstate TRS provider exceeds the mandatory minimum standards contained in § 64.604, the interstate TRS provider establishes that its program and services in no way conflict with federal law.
(c)
(2)
(d)
(e)
(i) The Commission may suspend or revoke such certification if, after notice of opportunity for hearing, the Commission determines that such certification is no longer warranted. In a state whose program has been suspended or revoked, the Commission shall take such steps as may be necessary, consistent with this subpart, to ensure continuity of TRS.
(ii) The Commission may, on its own motion, require a certified state program to submit documentation demonstrating ongoing compliance with the Commission's minimum standards if, for example, the Commission received evidence that a state program may not be in compliance with the minimum standards.
(2)
(ii) The Commission may, on its own motion, require a certified interstate TRS provider to submit documentation demonstrating ongoing compliance with the Commission's minimum standards if, for example, the Commission receives evidence that a certified interstate TRS provider may not be in compliance with the minimum standards.
(f)
(2)
Federal Communications Commission.
Proposed rule; extension of comment period.
This decision extends the period for filing public comments and reply comments in this proceeding at the request of commenters.
Comments are now due on October 6, 2003, and Reply Comments are due on October 21, 2003.
Amy Brett, Media Bureau, 202-418-2330.
This is a summary of the Commission's Order in MB Docket No. 03-130, DA 03-2639, adopted August 11, 2003, and released August 12, 2003. The complete text of this Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, S.W., Washington, DC, and also may be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail at
1. On July 2, 2003, the Commission released its
2. In the
3. On August 8, 2003, the National Association of Broadcasters (“NAB”) and Saga Communications, Inc. (collectively, “Petitioners”) filed a joint motion asking the Commission to extend the comment and reply comment deadlines to October 20, 2003 and November 19, 2003, respectively. Petitioners assert that they need additional time to assess the impact of the options suggested by the Commission as well as to attempt to develop a market definition specific to radio. NAB has contracted with a consultant to study the Commission's options as well as others and requests additional time to accumulate and review the data. Petitioners also argue that additional time is needed for NAB's radio task force and Radio Board to act, and for staff to prepare comments reflecting the Board's decisions.
4. We believe that the public interest would be best served by granting a brief extension of the comment and reply comment filing deadlines so that commenters may assemble data and conduct studies that will inform our decision in this proceeding. At the same time, however, we recognize the importance of completing this proceeding in a timely fashion. Adopting a permanent definition of radio markets outside Metro areas will provide parties with long-term certainty as to the radio market definition and allow them to plan transactions accordingly. Accordingly, we will grant only a thirty-day extension. The new deadline for comments is October 6, 2003. The new deadline for replies is October 21, 2003.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of a fishery management plan amendment; request for comments.
NMFS announces that the Mid-Atlantic Council (Council) has submitted Amendment 13 to the Atlantic Surf Clam and Ocean Quahog Fishery Management Plan (FMP) for Secretarial review and is requesting comments from the public. Amendment 13 to the FMP (Amendment 13) would establish: A new surf clam overfishing definition; multi-year fishing quotas; a mandatory vessel monitoring system (VMS), when such a system is economically viable; the ability to suspend or adjust the surf clam minimum size limit through a framework adjustment; and an analysis of fishing gear impacts on Essential Fish Habitat (EFH) for surf clams and ocean quahogs. The primary purpose of this proposed action is to rectify the disapproved surf clam overfishing definition and the EFH analysis and rationale contained in Amendment 12 to the FMP in order to comply with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and to simplify the regulatory requirements of the FMP.
Comments must be received on or before October 23, 2003.
Comments on the FMP should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Surf Clam Amendment 13.” Comments may also be sent via facsimile (fax) to (978) 281-9135. Comments will not be accepted if submitted via e-mail or the Internet.
Copies of the Amendment, the Final Supplementary Environmental Impact Statement (FSEIS), Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115 Federal Building, 300 S. New Street, Dover, DE 19904-6790.
Susan A. Murphy, Senior Fishery Policy Analyst, 978-281-9252, fax 978-281-9135.
Amendment 12 to the FMP was prepared by the Council to bring the FMP into compliance with the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996. On April 28, 1999, the Council was notified that NMFS partially approved Amendment 12. Specifically, two Amendment 12 measures were disapproved, the surf clam overfishing definition and the analysis and rationale for the status quo alternative for addressing fishing gear impacts to EFH. To rectify these diapprovals, the Council prepared, and NMFS published, a Notice of Intent to Prepare an Environmental Impact Statement (EIS) in the
Public comments are being solicited on Amendment 13 through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 13 may be published in the
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
If the information in Form 793 is not collected when capital assets are sold, the capital assets securing the Government's loans could be liquidated and the Government's security either eliminated entirely or diluted to an undesirable level. This increases the risk of loss to the Government in the case of a default.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
We are deposting 77 stockyards. These facilities are no longer capable of being used as stockyards and, therefore, are no longer required to be posted.
August 25, 2003.
The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers and enforces the Packers and Stockyards Act of 1921, as amended and supplemented (7 U.S.C. 181-229) (P&S Act). The P&S Act prohibits unfair, deceptive, and fraudulent practices by livestock market agencies, dealers, stockyard owners, meat packers, swine contractors, and live poultry dealers in the livestock, poultry, and meatpacking industries.
Section 302 of the P&S Act (7 U.S.C. 202) defines the term “stockyard” as follows:
* * * any place, establishment, or facility commonly known as stockyards, conducted, operated, or managed for profit or nonprofit as a public market for livestock producers, feeders, market agencies, and buyers, consisting of pens, or other inclosures, and their appurtenances, in which live cattle, sheep, swine, horses, mules, or goats are received, held, or kept for sale or shipment in commerce.
Section 302 (b) of the P&S Act requires the Secretary to determine which stockyards meet this definition, and to notify the owner of the stockyard and the public of that determination by posting a notice in each designated stockyard. After giving notice to the stockyard owner and to the public, the stockyard is subject to the provisions of Title III of the P&S Act (7 U.S.C. 201-203 and 205-217a) until the Secretary deposts the stockyard by public notice.
We depost a stockyard after the facility can no longer be used as a stockyard. Some of the reasons a facility can no longer be used as a stockyard include: the facility has been moved and the posted facility is abandoned, the facility has been torn down or otherwise destroyed, such as by fire, the facility is dilapidated beyond repair, or the facility has been converted and its function changed.
This document notifies the public that the following 77 stockyards no longer meet the definition of stockyard and that we are deposting the facilities.
This notice is effective upon publication in the
7 U.S.C. 202.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice and request for comments.
We propose to post 10 stockyards. We have received information that the stockyards meet the definition of a stockyard under the Packers and Stockyards Act and, therefore, need to be posted. Posted stockyards are subject to the provisions of the Packers and Stockyards Act.
We will consider comments that we receive by September 9, 2003.
Send comments via electronic mail to
The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers and enforces the Packers and Stockyards Act of 1921, as amended and supplemented (7 U.S.C. 181-229) (P&S Act). The P&S Act prohibits unfair, deceptive, and fraudulent practices by livestock market agencies, dealers, stockyard owners, meat packers, swine contractors, and live poultry dealers in the livestock, poultry, and meatpacking industries.
Section 302 of the P&S Act (7 U.S.C. 202) defines the term “stockyard” as follows:
* * * any place, establishment, or facility commonly known as stockyards, conducted, operated, or managed for profit or nonprofit as a public market for livestock producers, feeders, market agencies, and buyers, consisting of pens, or other inclosures, and their appurtenances, in which live cattle, sheep, swine, horses, mules, or goats are received, held, or kept for sale or shipment in commerce.
Section 302(b) of the P&S Act requires the Secretary to determine which stockyards meet this definition, and to notify the owner of the stockyard and the public of that determination by posting a notice in each designated stockyard. After giving notice to the stockyard owner and to the public, the stockyard will be subject to the provisions of Title III of the Packers and Stockyards Act (7 U.S.C. 201-203 and 205-217a) until the Secretary deposts the stockyard by public notice.
This document notifies the stockyard owners and the public that the following 10 stockyards meet the definition of stockyard and that we propose to designate the stockyards as posted stockyards.
7 U.S.C. 202.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a conference call of the Oregon State Advisory Committee in the Western Region will convene at 1 p.m. (PDT) and adjourn at 2 p.m., Tuesday, September 2, 2003. The purpose of the conference call is to discuss the Patriot Act.
This conference call is available to the public through the following call-in number: 1-800-659-8294, access code number 18604119. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls not initiated using the provided call-in number or over wireless lines and the Commission will not refund any incurred charges. Callers will incur no charge for calls using the call-in number over land-line connections. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and access code.
To ensure that the Commission secures an appropriate number of lines for the public, persons are asked to register by contacting Philip Montez of the Western Regional Office, (213) 894-3437, by 3 p.m. on Monday, September 1, 2003.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a conference call of the Wyoming State Advisory Committee will convene at 12 p.m. (m.d.t.) and adjourn at 1:15 p.m. (m.d.t.), Wednesday, September 3, 2003. The purpose of the conference call is to discuss strategic planning including plans for possible regional project on discrimination against Native Americans in reservation border towns, and progress of current SAC briefing summary, “Dropout Rates of Minority
This conference call is available to the public through the following call-in number: 1-800-659-8292; access code: 18483692. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls not initiated using the supplied call-in number or over wireless lines and the Commission will not refund any incurred charges. Callers will incur no charge for calls using the call-in number over land-line connections. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and access code.
To ensure that the Commission secures an appropriate number of lines for the public, persons are asked to register by contacting Malee Craft, Rocky Mountain Regional Office, (303) 866-1040 (TDD 303-866-1049), by 3 p.m. (m.d.t.) on Monday, September 1, 2003.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 1401 Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Kim Johnson, OMB Desk Officer, Room 10202, New Executive Office Building, Washington, DC 20503.
Notice of application.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review. This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued.
Jeffrey C. Anspacher, Director, Office of Export Trading Company Affairs, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or e-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Office of Export Trading Company Affairs, International Trade Administration, Department of Commerce, Room 1104H, Washington, DC 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 03-00004.” A summary of the application follows.
NYVZ Import & Export, Inc., seeks a Certificate to cover the following specific Export Trade, Export Markets, and Export Trade Activities and Methods of Operations.
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The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
With respect to the sale of Products and Services, licensing of Technology Rights and provisions of Export Trade Facilitation Services, NYVZ Import & Export, Inc., may:
1. Provide and/or arrange for the provision of Export Trade Facilitation Services;
2. Engage in promotional and marketing activities and collect information on trade opportunities in the Export Market and distribute such information to clients;
3. Enter into exclusive and/or non-exclusive licensing and/or sales agreements with Suppliers for the export of Products, Services, and/or Technology Rights in Export Markets;
4. Enter into exclusive and/or non-exclusive agreements with distributors and/or sales representatives in Export Markets;
5. Allocate export sales or divide Export Markets among Suppliers for the sale and/or licensing of Products, Services, and/or Technology Rights;
6. Allocate export orders among Suppliers;
7. Establish the price of Products, Services, and/or Technology Rights for sale and/or licensing in Export Markets;
8. Negotiate, enter into, and/or manage licensing agreements for the export of Technology Rights;
9. Enter into contracts for shipping; and
10. Exchange information on a one-on-one basis with individual Suppliers regarding inventories and near-term production schedules for the purpose of determining the availability of products for export and coordinating export with distributors.
1. “Supplier” means a person who produces, provides, or sells a Product and/or Service.
National Marine Fisheries Service (NMFS), National Oceanic and
Notice of public meetings.
The Pacific Fishery Management Council (Council) and its advisory bodies will hold public meetings.
The Council and its advisory bodies will meet September 7-12, 2003. The Council meeting will begin on Monday, September 8, at 4:15 p.m., reconvening each day through Friday. All meetings are open to the public, except a closed session will be held from 3:30 p.m. until 4:15 p.m. on Monday, September 8 to address litigation and personnel matters. The Council will meet as late as necessary each day to complete its scheduled business.
The meetings will be held at the DoubleTree Guest Suites, 16500 Southcenter Parkway, Seattle, WA 98188; telephone: 206-575-8220.
Dr. Donald O. McIsaac, Executive Director; telephone: 503-820-2280 or 866-806-7204.
The following items are on the Council agenda, but not necessarily in this order. All items listed are subject to potential Council action.
1. Opening Remarks, Introductions
2. Council Member Appointments - Swearing in of New Members
3. Roll Call
4. Executive Director's Report
5. Approve Agenda
1. Election of Council Chair and Vice Chair
2. April 2003 Council Meeting Minutes
3. Council Input into NOAA Fisheries Constituent Survey
4. Legislative Matters
5. Fiscal Matters
6. Appointments to Advisory Bodies, Standing Committees, and Other Forums for the 2004-06 Term
7. Staff Work Load Priorities and November 2004 Council Meeting Agenda
1. NMFS Report on Groundfish Management
2. Observer Data Implementation Status
3. Final Harvest Levels for 2004
4. Status of Groundfish Fisheries and Inseason Adjustments
5. Final Criteria for Exempted Fishing Permits and Consideration of Proposals for 2004 Season
6. Groundfish Management Measures for 2004
7. Proposed Monitoring Program for the Shore-based Pacific Whiting Fishery
8. Stock Assessment of Canary Rockfish
9. Groundfish Bycatch Program Environmental Impact Statement
10. Consideration of Individual Quota Programs
Current Habitat Issues
1. Update on Marine Reserves Issues
2. Marine Reserves in the Federal Waters Portion of the Channel Islands National Marine Sanctuary
1. Salmon Fishery Update
2. Salmon Methodology Review: Final Prioritization of Modeling Issues for the Scientific and Statistical Committee
3. Mitchell Act Program Update
1. Status of 2003 Pacific Halibut Fisheries
2. Status of Pacific Halibut Bycatch Estimates for Use by the International Pacific Halibut Commission
3. Proposed Changes to the Catch Sharing Plan and Annual Regulations
Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503)820-2280 or (866)806-7204 at least 5 days prior to the meeting date.
Commodity Futures Trading Commission.
Notice; Information collection 3038-0017, Market Surveys.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before September 24, 2003.
Judith Payne at CFTC, (202) 418-5268; FAX: (202) 418-5527; e-mail:
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 the CFTC's regulations were published on December 30, 1981. See 46 FR 63035 (Dec. 30, 1981). The
Send comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, to the addresses listed below. Please refer to OMB Control No. 3038-0017 in any correspondence.
Judith Payne, Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581 and Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Office for CFTC, 725 17th Street, NW., Washington, DC 20503.
Department of the Navy, DOD.
Notice of partially closed meeting.
The U.S. Naval Academy Board of Visitors will meet to make such inquiry, as the Board shall deem necessary into the state of morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of the Naval Academy. During this meeting inquiries will relate to the internal personnel rules and practices of the Academy, may involve on-going criminal investigations, and include discussions of personal information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The executive session of this meeting will be closed to the public.
The open session of the meeting will be held on Friday, September 12th, 2003, from 9 a.m. to 11:45 a.m. The closed Executive Session will be from 11:45 a.m. to 12:30 p.m.
The meeting will be held at the Dirksen Senate Office Building, Washington, DC.
Lieutenant Commander Domenick Micillo, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, telephone (410) 293-1503.
This notice of a partially closed meeting is provided per the Federal Advisory Committee Act (5 U.S.C. App. 2). The executive session of the meeting will consist of discussions of information, which pertain to the conduct of various midshipmen at the Naval Academy and internal Board of Visitors matters. Discussion of such information cannot be adequately segregated from other topics, which precludes opening the executive session of this meeting to the public. In accordance with 5 U.S.C. App. 2, section 10(d), the Secretary of the Navy has determined in writing that the special committee meeting shall be partially closed to the public because they will be concerned with matters as outlined in section 552(b)(2), (5), (6), (7) and (9) of title 5, United States Code.
Department of Education.
Notice of proposed information collection requests.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by September 22, 2003. Interested persons are invited to submit comments on or before September 24, 2003.
Written comments regarding the emergency review 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
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget (OMB) may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Patrick Sherrill at his e-mail address
Department of Energy.
Notice of open meeting cancellation.
On July 30, 2003, the Department of Energy published a notice of open meeting announcing a meeting of the Advanced Scientific Computing Advisory Committee 68 FR 44756. Today's notice is announcing the cancellation of the meeting scheduled for August 21-22, 2003, because the committee will not have a quorum of members for the meeting.
Environmental Protection Agency (EPA).
Notice.
The Tribal Pesticide Program Council (TPPC) will hold a 3-day meeting, beginning on September 17 and ending on September 19, 2003. This notice announces the location and times for the meeting and sets forth the tentative agenda topics.
The meeting will be held on Wednesday, September 17, 2003, from 9 a.m. until 5 p.m., including a closed session from 4 p.m. until 5 p.m.;
The meeting will be held at Miccosukee Resort and Convention Center, 500 SW., 177th Ave., Miami, FL 33194.
Georgia McDuffie, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 605-0195; fax number: (703) 308-1850; e-mail address:
This action is directed to the public in general, and may be of particular interest to those persons interested in TPPC's information exchange relationship with EPA regarding important issues related to human health, environmental exposure to pesticides, and insight into EPA's decision-making process. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
This unit provides tentative agenda topics for the 2-day meeting.
1. TPPC state of the Council Report.
2. Presentation and questions and answers by EPA's Office of Pesticide Programs and Field and External Affairs Division.
3. Reports from working groups and TPPC participation in other meetings: Tribal Strategy and FOSTTA, Pesticide Program Dialogue Committee, Western Region. Pesticide Meeting, Certification and Training Assessment Group, and Worker Protection.
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5. Reports from other organizations: State FIFRA Issues Research and Evaluation Group, American Indian Environmental Office, Tribal Operations Committee, Regional Tribal Operations Committee, Intertribal Agricultural Council, and National Tribal Environmental Council, Intertribal Agricultural Council, and Tribal Air Group.
6. Tribal west nile virus concerns.
7. The new interim guidance on pesticides applied to waterways.
8. Spray drift regulation labeling and minimization.
9. EPA's Office of Prevention, Pesticides and Toxic Substances (OPPTS) tribal strategy update.
10. OECA enforcement priorities.
11. Pesticide-related homeland security concerns.
12. Updates from the subregional lead officer.
13. Worker protection, e-commerce, and tribal enforcement issues.
14. Background checks on inspections.
Environmental protection.
Environmental Protection Agency (EPA).
Notice.
This notice announces that the U.S. Environmental Protection Agency is publishing Draft Guidance On Watershed-Based National Pollutant Discharge Elimination System (NPDES) Permitting Implementation. EPA is making the draft guidance available to the public for a period of thirty days during which EPA seeks comments on the document. The purpose of this guidance is to describe the concept of and the process for watershed-based permitting under the NPDES permit program. Watershed-based NPDES permitting is an approach to developing NPDES permits for multiple point sources located within a defined geographic area (
All public comments on the draft guidance must be received on or before September 24, 2003.
Comments should be addressed to Patrick Bradley, U.S. Environmental Protection Agency, EPA East Building (MC 4203M), 1200
Interested persons may obtain a copy of the guidance from the Water Permits Division's Web site (
Patrick Bradley, Telephone: (202) 564-0729. Facsimile Number: (202) 564-6392. E-mail:
For nearly a decade, the U.S. Environmental Protection Agency (EPA) has supported and encouraged a watershed approach to addressing water quality problems. Awareness and understanding of this approach has grown over time, but with demonstrated gaps in implementation. In fall 2002 the EPA Office of Water Assistant Administrator issued a policy memo entitled “Committing EPA's Water Program to Advancing the Watershed Approach.” This policy memo not only reaffirms EPA's commitment to the watershed approach but also reenergizes efforts to ensure that EPA as a whole fully integrates the approach into program implementation. The memo calls for the creation of a Watershed Management Council (WMC) that will, among other activities, accelerate efforts to develop and issue NPDES permits on a watershed basis.
Following the watershed approach policy memo, EPA's Assistant Administrator for Water released the “Watershed-Based NPDES Permitting Policy Statement.” This statement communicates EPA's policy on implementing NPDES permitting activities on a watershed basis, discusses the benefits of watershed-based permitting, presents an explanation of the process and several mechanisms to implement watershed-based permitting, and outlines how EPA will encourage watershed-based permitting. It serves as both a formal commitment and a strategy for fully integrating the watershed approach into the NPDES permitting program and accelerating these efforts, as called for in the watershed approach policy memo. Both the policy memo on advancing the watershed approach and the watershed-based permitting policy statement are available on EPA's Web page at
Environmental Protection Agency (EPA).
Notice and request for comments.
This notice announces the EPA decision identifying water quality limited segments and associated pollutants in Ohio to be listed pursuant to the Clean Water Act section 303(d)(2), and requests public comment. Section 303(d)(1) requires that states submit lists of waters for which existing technology-based pollution controls are not stringent enough to attain or maintain state water quality standards and for which total maximum daily loads (TMDLs) must be prepared. Section 303(d)(2) requires EPA to review and approve or disapprove the lists submitted by the states. If EPA disapproves a state list of waters pursuant to section 303(d)(2), EPA must then identify the impaired waters.
On July 17, 2003, EPA partially approved and partially disapproved Ohio's 2002 section 303(d) list of waters still requiring TMDLs. Specifically, EPA approved Ohio's section 303(d) list of impaired waters at Table 6 of the Ohio 2002 Integrated Water Quality Monitoring and Assessment Report, including associated pollutants and associated priority rankings. EPA disapproved Ohio's decision not to identify 17 additional waters on the 2002 section 303(d) list based upon sport fish consumption advisories. In a July 17, 2003 decision document, EPA identified these additional water bodies and associated pollutants for inclusion on the Ohio 2002 section 303(d) list.
EPA is providing the public the opportunity to review its decision to add the 17 additional water bodies and pollutants to Ohio's 2002 section 303(d) list, as required by EPA's Public Participation regulations. EPA will consider public comments in reaching its final decisions on the additional water bodies and pollutants identified for inclusion on Ohio's final list.
Comments on this document must be received in writing by September 24, 2003.
Written comments on today's notice may be submitted to Jo Lynn Traub, Director, Water Division, Attn: Ohio 303 (d) list, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. As an alternative, EPA will accept comments electronically. Comments should be sent to the following Internet e-mail address:
Donna Keclik, Watersheds and Wetlands Branch, at the EPA address noted above or by telephone at (312) 886-6766.
Section 303(d) of the Clean Water Act (CWA) requires that each state identify those waters for which existing technology-based pollution controls are not stringent enough to attain or maintain state water quality standards. For those waters, states are required to establish TMDLs according to a priority ranking.
EPA's Water Quality Planning and Management regulations include requirements related to the implementation of section 303(d) of the CWA (40 CFR 130.7). The regulations require states to identify water quality limited waters still requiring TMDLs every two years. The lists of waters still needing TMDLs must also include priority rankings and must identify the waters targeted for TMDL development during the next two years (40 CFR 130.7). On March 31, 2000, EPA promulgated a revision to this regulation that waived the requirement for states to submit section 303(d) lists in 2000, except in cases where a court order, consent decree, or settlement agreement required EPA to take action on a list in 2000 (65 FR17170).
Consistent with EPA's regulations, Ohio submitted to EPA its listing decision under section 303(d)(2) on October 3, 2002. On July 17, 2003, EPA approved Ohio's 2002 section 303(d) list of impaired waters and associated priority rankings. EPA disapproved Ohio's decision not to list 17 additional waters and associated pollutants on the 2002 section 303(d) list based upon sport fish consumption advisories. EPA solicits public comment on its identification of 17 additional waters
Environmental Protection Agency (EPA).
Notice of tentative approval.
Notice is hereby given that the State of Oklahoma is revising its approved Public Water System Supervision Program. Oklahoma has adopted an Arsenic Rule, Radionuclides Rule, Long Term 1 Enhanced Surface Water Treatment Rule, Filter Backwash Recycling Rule, Public Notification Rule, Lead and Copper Rule Minor Revisions, and a revised Public Water Supply Definition. The Arsenic Rule is adopted to improve public health by reducing the maximum contaminant level of Arsenic in drinking water from 50 micrograms/Liter to 10 micrograms/Liter. The Radionuclides Rule is adopted to improve public health protection and reduce the risk of cancer by reducing the exposure to radionuclides in drinking water. The Long Term 1 Enhanced Surface Water Treatment Rule will improve control of microbial pathogens, specifically the protozoan Cryptosporidium, in drinking water and address risk trade-offs with disinfection byproducts. The Filter Backwash Recycling Rule is adopted to further protect public health by requiring public water systems, where needed, to institute changes to the return of recycle flows to a plant's treatment process that may otherwise compromise microbial control. The Public Notification Rule is adopted to notify the public anytime a water system violates national primary drinking water regulations or has other situations posing a risk to public health. The Lead and Copper Rule Minor Revisions will eliminate unnecessary requirements, streamline and reduce reporting burden, and promote consistent national implementation of the Lead and Copper Rule. Finally, the revised Public Water Supply Definition will now include other constructed conveyances. EPA has determined that these revisions are no less stringent than the corresponding federal regulations. Therefore, EPA intends to approve these program revisions.
All interested parties may request a public hearing. A request for a public hearing must be submitted by September 24, 2003, to the Regional Administrator at the EPA Region 6 address shown below. Frivolous or insubstantial requests for a hearing may be denied by the Regional Administrator. However, if a substantial request for a public hearing is made by September 24, 2003, a public hearing will be held. If no timely and appropriate request for a hearing is received and the Regional Administrator does not elect to hold a hearing on his own motion, this determination shall become final and effective on September 24, 2003. Any request for a public hearing shall include the following information: The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; a brief statement of the requesting person's interest in the Regional Administrator's determination and a brief statement of the information that the requesting person intends to submit at such hearing; and the signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
All documents relating to this determination are available for inspection between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, at the following offices: Oklahoma Department of Environmental Quality, Water Quality Division, Public Water Supply Section, 707 North Robinson, Oklahoma City, Oklahoma 73101 and United States Environmental Protection Agency, Region 6, Drinking Water Section (6WQ-SD), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202.
Dawn D. Ison, EPA Region 6, Drinking Water Section at the Dallas address given above or at telephone (214) 665-2162.
Section 1413 of the Safe Drinking Water Act, as amended (1996), and 40 CFR part 142 of the National Primary Drinking Water Regulations.
The Federal Communications Commission (FCC) has received Office of Management and Budget (OMB) approval for the following public information collections pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13. 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.
Paul J. Laurenzano, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, (202) 418-1359 or via the Internet at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a current valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility; and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before October 24, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should
Direct all comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
For additional information or copies of the information collection(s) contact Les Smith at (202) 418-0217 or via the Internet at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before October 24, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all Paperwork Reduction Act (PRA) comments to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
The WTB is in the process of implementing the Instructional Television Fixed Service (ITFS) and the Multipoint Distribution Service (MDS) into the Universal Licensing System (ULS). These services were transferred to WTB due to the Commission's reorganization on March 25, 2003, as they were previously held in the Broadband Licensing System (BLS). The information is used by the Commission to determine whether the applicant is legally, technically and financially qualified to be licensed.
The estimated average burden and number of respondents have been corrected to reflect the integration of the ITFS and the MDS services into ULS using FCC Form 601.
Federal Communications Commission.
Notice; solicitation of comments.
In this document, the Wireline Competition Bureau sought comment on the NPCR, Inc. d/b/a Nextel Partners' petition seeking designation as an eligible telecommunications carrier (ETC) to receive federal universal service support for service offered in certain rural and non-rural study areas in the state of Georgia.
Comments are due on or before September 4, 2003. Reply comments are due on or before September 18, 2003.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Thomas Buckley, Attorney, Wireline Competition Bureau, Telecommunications Access Policy Division, (202) 418-7400, TTY (202) 418-0494.
This is a summary of the Commission's Public Notice, CC Docket No. 96-45, released August 8, 2003. On July 10, 2003, NPCR, Inc. d/b/a Nextel Partners (Nextel Partners) filed with the Commission a petition under section 214(e)(6) of the Communications Act of 1934, as amended. In particular, Nextel Partners seeks designation as an eligible telecommunications carrier (ETC) to receive federal universal service support for service offered in certain rural and non-rural study areas in the state of Georgia.
Nextel Partners contends that the Georgia Public Service Commission has provided an affirmative statement that it does not regulate commercial Mobile radio service (CMRS) carriers; Nextel Partners meets all the statutory and regulatory prerequisites for ETC designation; and designating Nextel Partners as an ETC will serve the public interest.
The petitioner must provide copies of its petition to the Georgia Public Service Commission. The Commission will also send a copy of this Public Notice to the Georgia Public Service Commission by overnight express mail to ensure that the Georgia Public Service Commission is notified of the notice and comment period.
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments as follows: comments are due September 4, 2003 and reply comments are due September 18, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See
Comments filed through the ECFS can be sent as an electronic file via the Internet to
Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners.
Parties also must send three paper copies of their filing to Sheryl Todd, Telecommunications Access Policy Division, Wireline Competition Bureau, Federal Communications Commission, 445 12th Street SW., Room 5-B540, Washington, DC 20554. In addition, commenters must send diskette copies to the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054.
Pursuant to § 1.1206 of the Commission's rules, 47 CFR § 1.1206, this proceeding will be conducted as a permit-but-disclose proceeding in which ex parte communications are permitted subject to disclosure.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 18, 2003.
Board of Governors of the Federal Reserve System, August 19, 2003.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of request.
The Agency of Healthcare Research and Quality (AHRQ) is soliciting the voluntary submission of instruments measuring patient perspectives of their experience with hemodialysis facilities from researchers, vendors, stakeholders and other interested parties. AHRQ and the Centers for Medicare & Medicaid Services (CMS) have set as a priority the development of a standardized survey that may be used to make widely available, comparable measurements of hemodialysis patient experiences. Therefore, AHRQ is assessing the feasibility of creating such a standardized instrument and the nature and scope of the work to be done. As part of the feasibility study, AHRQ is reviewing existing instruments that capture patients' treatment experiences and is therefore requesting voluntary submission of such instruments or measures along with documentation for administration of the instruments or measures and, if possible, critical evaluations of particular measures or related survey administration techniques.
Parties interested in contributing to this endeavor are asked to submit the requested material on or before October 24, 2003 to Beth Kosiak, Ph.D. (see address below). AHRQ will not reply to individual responses, but will consider all submissions and suggestions.
Submissions should include a brief cover letter and include copy of the instrument or particular measure(s) for consideration. They may be in the form of a letter or e-mail, preferably with an electronic file in a standard word processing format such as Microsoft Word or Word Perfect on a 3
In order to ease the handling of submissions, please send a copy of the instrument or measure(s), and a cover letter addressing the extent to which the information submitted meats the “Submission Criteria” below. A copy or citation of relevant peer-reviewed journal articles is also desirable, but not required. For citations, please include the title of the article, author(s), publication year, journal name, volume, issue, and page numbers where article appears. All submissions must include a statement of willingness to grant to AHRQ the right to use and authorize others to use submitted measures and their documentation as part of a CAHPS®-trademarked instrument. Any CAHPS instrument developed for patient perspectives of experiences of hemodialysis care will be made publicly available for use free of charge. However, a CAHPS instrument bearing the CAHPS trademark may only be administered following CAHPS documentation and instructions. To facilitate our obtaining any other required clarifications, please submit the following information with respect to a knowledgeable contact person: (a) Name, (b) title, (c) organization, (d)
Beth Kosiak, PhD, from the Center for Quality Improvement and Patient Safety, Agency for Healthcare Research and Quality (see contact information above).
Measures submitted should ideally reflect these elements to be considered: (a) They must capture the patients' perspective on their experience of care in hemodialysis settings; (b) have a high degree of reliability and validity; and (c) have been used widely, not just in one or two research studies or local dialysis settings. It is recommended that submitters provide documentation that the instrument(s) or measure(s) they submit meets these criteria. The following information, if available, should be included in the submission of materials: the name of the instrument, domains assessed, language(s) in which the instrument is available, evidence of cross group/cultural comparability if any, examples of uses of the instrument for quality assessment or improvement, scale, psychometric statistics, such as individual level reliability (
Submitters are also encouraged to submit recommendations regarding, and any evaluations of, administration protocols, including recommended patient contact procedures, recommended sample sizes, mode of administration, any information available about mode effects, and mode specific response rates. Evidence of the criteria may be demonstrated by providing peer-reviewed journal article(s) or citations thereof.
As noted above submitters must indicate a willingness to grant to AHRQ the right to use and authorize others to use the submitted instrument or particular measures or formats therein. The license or assignment of rights will make it possible to apply the CAHPS trademark to a new instrument combining the best features of all the submissions as well as any ideas that may develop from reviewing them. AHRQ will not simply adopt one instrument and apply the CAHPS trademark to it. Rather, AHRQ, in collaboration with its CAHPS grantees, will evaluate all submitted instruments and measures, select several, either in whole or in part, for testing, or more likely devise one or more for testing and, as required, make additional modifications for the final product. AHRQ will assume responsibility for the final measure set as well as any further modifications to the developed instruments. Sources used in developing the final product will be acknowledged by AHRQ in the appropriate forum. In addition, all submissions will be publicly reported in aggregate.
The finalized instrument will bear the CAHPS trademark. As indicated above, it will be made freely available for use by all interested parties. There will be free access to the instrument's supportive/administrative information as well, and as a matter of quality control, there will be warnings that the CAHPS identification may not be used if any changes are made of the instrument or final measure set, without review and permission of the agency. AHRQ will assume responsibility for the final measure set as well as any further modifications to the developed instrument.
The Agency for Healthcare Research and Quality has been a leading proponent and supporter of the development of instruments for measuring patient experiences within the healthcare system of the United States. Through prior CAHPS patient survey development efforts such as the Consumer Assessment of Health Plan CAHPS
Leaders in the healthcare sector have called for a response to this pressing need. In “Crossing the Quality Chasm”, the National Institute of Medicine (IOM) established patient-centered care as one of the industry's six aims for quality improvement. The dimensions of patient-centered care include: Respect for patients' values, preferences, and expressed needs; coordination and integration of care; information, communication, and education; physical comfort; emotional support,
In an effort to address the concerns of the industry, the Director AHRQ and the Administrator of CMS have established a priority to develop a standardized measure of hemodialysis patients' experiences. The goal of developing the standardized survey and reporting quality data on hemodialysis facilities could be reached within the next few years.
The steps to advance this initiative include:
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The original AHRQ Notice of Meetings was published in the
There are no changes to the location of this meeting.
Annual Burden Estimates:
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. e-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In order to meet this legislative requirement, ORR requires each State to submit an annual count of the number of refugees who were initially resettled in another State. The State does this by counting the number of refugees with Social Security numbers indicating residence in another State at the time of arrival in the U.S. (The first three digits of the Social Security number indicate the State of residence of the applicant.)
Data submitted by the States are compiled and analyzed by the ORR statisticians, who then prepare a summary report which is included in ORR's annual Report to Congress. The primary use of the data is to quantify and analyze refugee secondary migration among the 50 States. ORR uses these data to adjust its services formula allocation.
Annual Burden Estimates:
Estimated Total Annual Burden Hours: 217.
Office of Management and Budget, Paperwork Reduction Project, 725 17th Street, NW., Washington, DC 20503, Attn: Desk Officer for ACF, E-mail address:
Annual Burden Estimates:
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
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 October 24, 2003.
Submit electronic comments on the collection of information to
Karen L. Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management
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.
Section 113 of the Food and Drug Administration Modernization Act of 1997 (the Modernization Act) (Public Law 105-115) requires that sponsors shall submit information to the Clinical Trials Data Bank when the clinical trial: (1) Involves a treatment for a serious or life-threatening disease, and (2) is intended to assess the effectiveness of the treatment. The final guidance discusses how sponsors can fulfill the requirements of section 113 of the Modernization Act. Specifically, sponsors should provide: (1) Information about clinical trials, both federally and privately funded, of experimental treatments (drugs, including biological products) for patients with serious or life-threatening diseases; (2) a description of the purpose of the experimental drug; (3) patient eligibility criteria; (4) the location of clinical trial sites; and (5) a point of contact for patients wanting to enroll in the trial.
Senate 1789, “Best Pharmaceuticals for Children Act” (BPCA) (Public Law 107-109) established a new requirement for the Clinical Trials Data Bank mandated by section 113 of the Modernization Act. Information submitted to the data bank must now include “a description of whether, and through what procedure, the manufacturer or sponsor of the investigation of a new drug will respond to requests for protocol exception, with appropriate safeguards, for single-patient and expanded protocol use of the new drug, particularly in children.” The final guidance will be updated to include a discussion of how sponsors can fulfill the BPCA requirements.
Section 113 of the Modernization Act also specifies that sponsors may voluntarily submit information pertaining to results of clinical trials, including information on potential toxicities or adverse effects associated with the use or administration of the investigational treatment. Sponsors may also voluntarily submit studies that are not trials to test effectiveness, or not for serious or life-threatening diseases, to the Clinical Trials Data Bank.
Section 113 of the Modernization Act specifies that the data bank will not include information relating to a trial if the sponsor certifies to the Secretary of Health and Human Services (the Secretary) that disclosure of the information would substantially interfere with the timely enrollment of subjects in the investigation, unless the Secretary makes a determination to the contrary.
The Center for Drug Evaluation and Research (CDER) received 3,957 new protocols in 2002. CDER anticipates that protocol submission rates will remain at or near this level in the near future. Of these new protocols, an estimated two-thirds
The Center for Biologics Evaluation and Research (CBER) received 910 new protocols in 2002. CBER anticipates that protocol submission rates will remain at or near this level in the near future. An estimated two-thirds
The estimated total number of new protocols for serious or life-threatening diseases subject to mandatory reporting requirements under section 113 of the Modernization Act is 1,319 for CDER plus 304 for CBER, or 1,623 new protocols per year. The remainder of protocols submitted to CDER or CBER will be subject to voluntary reporting, including clinical trials not involving a serious or life-threatening disease as well as trials in a serious or life-threatening disease but not involving assessment of effectiveness. Therefore, the total number of protocols (4,867) minus the protocols subject to mandatory reporting requirements (1,623) will be subject to voluntary reporting, or 3,244 protocols.
It was originally estimated that the protocol submissions to the data bank will be updated 2.5 times per year under section 113 of the Modernization Act.
In the
The number of IND amendments submitted in 2002 for protocol changes (e.g., changes in eligibility criteria) was 4,750 for CDER and 1,646 for CBER. The number of IND amendments submitted in 2002 for new investigators was 9,419 for CDER and 1,773 for CBER. The number of protocol changes and new investigators was apportioned proportionally between mandatory and voluntary submissions. We recognize that single submissions may include information about multiple sites.
Generally, there is no submission to FDA when an individual study site is no longer recruiting study subjects. For this analysis, we assumed that the number of study sites closed each year is similar to the number of new investigator amendments received by FDA (9,419 CDER and 1,773 CBER).
Generally, there is no submission to FDA when the study is closed to enrollment. We estimate the number of protocols closed to enrollment each year is similar to the number of new protocols submitted (3,957 CDER and 910 CBER).
The hours per response is the estimated number of hours that a respondent would spend preparing the information to be submitted under section 113(a) of the Modernization Act, including the time it takes to extract and reformat the information. FDA has been advised that some sponsors lack information system capabilities enabling efficient collection of company-wide information on clinical trials subject to reporting requirements under section 113(a) of the Modernization Act. The estimation of burden under section 113(a) reflects the relative inefficiency of this process for these firms.
Based on its experience reviewing IND's, consideration of the above information, and further consultation with sponsors who submit protocol information to the Clinical Trials Data Bank, FDA estimated that approximately 4.6 hours on average would be needed per response. The estimate incorporates 2.6 hours for data extraction and 2.0 hours for reformatting based on data collected from organizations currently submitting protocols to the Clinical Trials Data Bank. We considered quality control issues when developing the current burden estimates of 2.6 hours for data extraction and the 2.0 hours estimated for reformatting. Additionally, the internet-based data entry system developed by NIH incorporates features that further decrease the sponsor's time requirements for quality control procedures. The Clinical Trials Data Bank was set up to receive protocol information transmitted electronically by sponsors. Approximately 10 percent of sponsors electronically transmit information to the Clinical Trials Data Bank. If the sponsor chooses to manually enter the protocol information, the data entry system allows it to be entered in a uniform and efficient manner primarily through pull-down menus. As sponsor's familiarity with the data entry system increases, the hourly burden will continue to decrease.
A sponsor of a study subject to the requirements of section 113 of the Modernization Act will have the option of submitting data under that section or certifying to the Secretary that disclosure of information for a specific protocol would substantially interfere with the timely enrollment of subjects in the clinical investigation. FDA has no means to accurately predict the proportion of protocols subject to the requirements of section 113 of the Modernization Act that will be subject to a certification submission. To date, no certifications have been received. It is anticipated that the burden associated with such certification will be comparable to that associated with submission of data regarding a protocol. Therefore, the overall burden is anticipated to be the same, regardless of whether the sponsor chooses data submission or certification for nonsubmission. Table 1 reflects the estimate of this total burden.
FDA estimates the burden of this collection of information as follows:
We believe the estimate, 177,165 hours per year (38,514 responses × 4.6 hours per response) accurately reflects the burden. We recognize that companies who are less familiar with the data entry system and the Clinical Trials Data Bank will require greater than 4.6 hours per response. However, as sponsor familiarity with the system increases, the hourly estimate will decrease.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by September 24, 2003.
OMB is still experiencing significant delays in the regular mail, including first class and express mail, and messenger deliveries are not being accepted. To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: Fumie Yokota, Desk Officer for FDA, FAX: 202-395-6974.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 801(e)(2) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 381(e)(2)) provides for the exportation of an unapproved device under certain circumstances if the exportation is not contrary to the public health and safety and it has the approval of the foreign country to which it is intended for export.
Requesters communicate (either directly or through a business associate in the foreign country) with a representative of the foreign government to which they seek exportation, and written authorization must be obtained from the appropriate office within the foreign government approving the importation of the medical device. An alternative to obtaining written authorization from the foreign government is to accept a notarized certification from a responsible company official in the United States that the product is not in conflict with the foreign country's laws. This certification must include a statement acknowledging that the responsible company official making the certification is subject to the provisions of 18 U.S.C. 1001. This statutory provision makes it a criminal offense to knowingly and willingly make a false or fraudulent statement, or make or use a false document, in any manner within the jurisdiction of a department or agency of the United States.
FDA uses the written authorization from the foreign country or the certification from a responsible company official in the United States to determine whether the foreign country has any objection to the importation of the device into their country.
The respondents to this collection of information are companies that seek to export medical devices.
In the
FDA estimates the reporting burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Medical Device User Fee Cover Sheet; Form FDA 3601” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). At least one portion of the meeting will be closed to the public.
On September 29, 2003, the committee will discuss the proposed sections regarding the current state of the art, the claims for treatments, and clinical markers. On September 30, 2003, the meeting will be open to the public from 8 a.m. to 11 a.m., and the committee will discuss the section concerning clinical trial design. From 11 a.m. to 1 p.m., the meeting will be closed to permit discussion and review of trade secret and/or confidential information.
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Trevelin Prysock at 301-827-7001 at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Shalini Jain at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act.
Housing owners/agents submit vouchers to HUD or their Contract Administrators (CA)/Performance Based Contract Administrators (PBCA) monthly to receive assistance payments for the difference between the gross rent and the total tenant payment for all assisted tenants. Special claims vouchers are also submitted by owners/agents to HUD or their CA/PBCA to receive an amount to offset unpaid rent, tenant damages, vacancies, and/or debt service losses. This is a proposed revision to the current information collection.
The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0182) and should be sent to: Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Fax number (202) 395-6974; e-mail
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information: (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Form Numbers: HUD-52670; HUD-52670-A, Part 1; HUD-52670-A, Part 2; HUD-52671-A/B/C/D.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the President of Government National Mortgage Association (Ginnie Mae), HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to:
Sonya Suarez, Office of Program Operations, Department of Housing & Urban Development, 451-7th Street, SW, Room 6206, Washington, DC 20410.
Sonya Suarez, Ginnie Mae, (202) 708-2884 (this is not a toll-free number) for copies of the proposed forms and other available documents.
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
The Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
Calculations:
Total Annual Responses × Hours per Response = Total Annual Hours
Estimated Cost to Respondents:
1. Mortgage industry employee salary: $25.00 per hour
$25.00 × Total Annual Hours = Cost
Estimated Annual Cost to the Government:
1. Ginnie Mae employee salary: $29.00 per hour
$29.00 × Total Annual Hours = Cost
2. Contractor Expense is based on contract award
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Extension of Deadline Date.
On July 18, 2003, HUD and the Department of Labor (DOL) jointly announced the availability of approximately $12.5 million to help address chronic homelessness. This notice advises interested parties that, as a result of the emergency situation caused by the power outages that affected much of the Mid-Atlantic and the Mid-West, HUD and DOL have decided to extend the application submission date for the Notice of Funding Availability/Solicitation for Grant Applications (SGA) to Monday, August 25, 2003.
John Garrity, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Room 7262, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0500, (202) 708-4300 (this is not a toll-free number). Persons with hearing or speech impairments access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
On July 18, 2003 (68 FR 42818), HUD and DOL jointly published a Solicitation for Grant Applications (SGA)/ Notice of Funding Availability that announced approximately $12.5 million to help address chronic homelessness. Of this amount, the Office of Disability Employment Policy at DOL made available $2.5 million to award up to four cooperative agreements designed to increase and improve employment opportunities for persons who are chronically homeless. HUD announced the availability of approximately $10 million for permanent housing grants from recaptured McKinney Act monies. The deadline for applications established by the July 18, 2003, notice was August 20, 2003.
As a result of the emergency situation caused by the power outages that affected much of Mid-Atlantic and the Mid-West beginning on August 14, 2003, HUD and DOL have decided to extend the application submission date for the Notice of Funding Availability/Solicitation for Grant Applications (SGA) to Monday, August 25, 2003. This notice is consistent with a similar notice extending the deadline for applications for this joint Solicitation for Grant Applications/ Notice of Funding Availability that will be appear in the
Other than extension of the application due date, no other changes are made to the NOFA. All applications must continue to be submitted to the U.S. Department of Labor, Procurement Services Center, Room N-5416, 200 Constitution Avenue, NW., Washington, DC 20210, by the new application deadline—not later than 4:45 pm e.s.t., August 25, 2003.
Fish and Wildlife Service, Interior.
Notice of document availability; extension of comment period.
We, the U.S. Fish and Wildlife Service, are extending the comment period for 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). Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this extended comment period, and will be fully considered in the final rule.
Comments on the Draft Handbook for Candidate Conservation Agreements with Assurances and Enhancement of Survival Permit Processing must be received on or before September 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 Survival Permit Processing may obtain a copy by contacting the Division of Conservation and Classification, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, Virginia 22203 (telephone 703/358-2105), and may be viewed at:
Chris Nolin, Chief, Division of Conservation and Classification, U.S. Fish and Wildlife Service, at the above address (703-358-2105)
On June 23, 2003, we published in the
We intend that a final decision on the Draft Handbook for Candidate Conservation Agreements 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
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) invites comments on an information collection request which will be renewed. The collection is: Gaming on Trust Lands Acquired After October 17, 1988, OMB Control No. 1076-0158.
Submit your comments and suggestions on or before October 24, 2003 to be assured of consideration.
Comments should be sent to: George Skibine, Bureau of Indian Affairs, Office of Indian Gaming Management, Mail Stop 4543-MIB, 1849 C Street, NW., Washington, DC 20240.
Interested persons may get copies of the information collection requests without charge by contacting George Skibine at 202-219-4066 or facsimile number 202-273-3153.
The Paperwork Reduction Act of 1995 provides an opportunity for interested parties to comment on proposed information collection requests. The Bureau of Indian Affairs, Office of Indian Gaming Management is proceeding with this public comment period as the first step in getting a normal information collection clearance from the Office of Management and Budget (OMB). The request contains (1) type of review, (2) title, (3) summary of the collection, (4) number and type of respondents, (5) frequency of collection, (6) reporting and record keeping requirements.
Please note that we will not sponsor nor conduct, and you need not respond to, a request for information unless we display the OMB control number and the expiration date.
The Bureau of Indian Affairs solicits comments in order to:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the bureau, including whether the information will have practical utility;
(2) Evaluate the bureau'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 the information on those who are to respond.
Any public comments received will be addressed in the Bureau of Indian Affairs' submission of the information collect request to the Office of Management and Budget.
All comments will be available for public review during regular business hours. There may be an instance when we decide to withhold information, but if you wish us to withhold your name and address, you must state this prominently at the beginning of your comment. We will honor your request to the extent allowed by law. We will not consider anonymous comments, and we will make public all comments from businesses and from individuals who represent businesses.
Corrected notice.
Due to an inadvertent error, the document published on August 8, 2003, at 68 FR pp. 47364-47365 did not contain the full text. This revised document will correct and supercede that document.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and
Written comments must be submitted to the office listed in the
Mr. Daniel Carroll, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-2312, Washington, DC 20210, telephone (202) 693-5077, fax (202) 693-5961, e-mail
The Department of Labor (DOL) has been continually surveying hired farm workers since 1988 via the National Agricultural Workers Survey (NAWS). The survey's primary focus is to describe the demographic and employment characteristics of hired crop farm workers at the national level. To date, over 36,000 farm workers have been interviewed.
The NAWS provides an understanding of the manpower resources available to U.S. agriculture, and both public and private service programs use the data for planning, implementing, and evaluating farm worker programs. It is the only national data source on the demographic and employment characteristics of hired crop farm workers.
The NAWS samples crop farm workers in three cycles each year to capture the seasonality of agricultural employment. Workers are located and sampled at their work sites. During the initial contact, arrangements are made to interview the respondent at home or at another convenient location. Currently, approximately 4,000 interviews are obtained each year.
The NAWS presently includes a primary questionnaire and four supplements (youth, parent, injury, and health). Beginning with the October 2003 interview cycle, the Department proposed to discontinue the youth, parent and occupational health supplements.
The youth and parent supplements were implemented in fiscal year 2000 as part of the Department's Child Labor Initiative. They were designed to collect information on the demographic and employment conditions of youth farm workers and on the barriers to education experienced by the children of farm workers.
Having collected four years of data under this initiative, the Department will evaluate the effectiveness of these instruments and methodology for obtaining information on youth crop workers. The Department therefore proposes to discontinue the youth and parent supplements at this time.
The occupational health supplement was designed to assess the health status of hired crop farm workers. Funded by the Centers for Disease Control and Prevention's National Institute for Occupational Safety and Health (CDC/NIOSH), the supplement was implemented in fiscal year 1999 to satisfy research priorities emanating from the Agricultural Occupational Safety and Health Initiative. CDC/NIOSH is proposing to exclude the occupational health supplement in fiscal year 2004. This would provide an opportunity for NIOSH to more thoroughly examine previously collected data and to evaluate the need for updating or modifying the supplement for future inclusion.
The purpose of this notice is to solicit comments regarding the ongoing primary questionnaire and occupational injury supplement, and the discontinuance of the youth, parent and occupational health supplements. The questionnaires are described below.
The primary instrument is administered to crop agricultural workers 14 years and older. It contains a household grid, where the education level and migration history or each member of the respondent's household is recorded, and an employment grid, where a full year of employment and geographic movement of the respondent is detailed. It also contains sections on income, assets, legal status, use of public services, and experience working with and training on the safe use of pesticides.
The employment grid includes the task and crop for agricultural jobs, type and amount of non-agricultural work, periods of unemployment and time spent outside the U.S., and the respondent's location for every week of the year preceding the interview. For the respondent's current job, the NAWS collects information on wages and payment method (piece or hourly), health insurance, workers' compensation and unemployment insurance, housing arrangements, and other benefits and working conditions.
The demographic information collected include age, gender, place of birth, marital status, language ability, education and training, and family history working in U.S. agriculture.
This CDC/NIOSH-sponsored supplement has been in place since fiscal year 1999. It is administered to all NAWS respondents who had a qualifying occupational injury in U.S. agriculture in the 12-month period before the date of interview. For each qualifying injury, the respondent is asked how, when and where the injury occurred, the body part(s) injured, where medical treatment was received, how the treatment was paid for, and the number of days the respondent couldn't work or worked at a reduced activity level.
This supplement contains additional labor and education components and is administered to NAWS respondents ages 14 to 18.
The labor component solicits the respondent's age when he/she first went to an agricultural field in the U.S. (for any reason), and the age when he/she first worked or assisted a relative in a field. The method of payment, if any, for the first working or helping experience in the field is also recorded. This supplement also asks the youth respondent about any implements and equipment used while doing farm work.
The education component solicits school and attendance information for the 12-month period preceding the date of interview. For those youth who did not attend any school in the previous 12 months, the following information is obtained: the date of the last attendance, type and location of school, reasons for no longer attending, and educational aspirations in the U.S.
This supplement also contains labor and education components. It is administered to NAWS respondents who are parents of U.S. resident children between the ages of 6 and 18.
For those children who did U.S. farm work in the 12-month period preceding the date of the interview, the labor component asks how many days the child worked in agriculture, if the child received a separate (individual) payment for that work, and why the child worked.
The education component solicits information on school attendance and
This CDC/NIOSH-sponsored supplement is administered to all NAWS respondents. Four types of health information are currently solicited: lifetime history of smoking, a 12-month history of problems with body systems (gastrointestinal, respiratory, musculoskeletal, and dermal), a lifetime history of disease, and access to health care.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond.
Hard copies of the instruments associated with the proposed information collection request may be obtained by contacting the employee listed above in the
The Department of Labor seeks approval for the revision of this information collection in order to carry out its responsibility to monitor the hired farm labor market.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Bureau of International Labor Affairs, Labor.
Notice of correction.
In the
Lisa Harvey, Department of Labor, Telephone (202) 693-4570, e-mail:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting.
September 13, 2003:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces its intent to hold proposal review meetings throughout the year. The purpose of these meetings is to provide advice and recommendations concerning proposals submitted to the NSF for financial support. The agenda for each of these meetings is to review and evaluate proposals as part of the selection process for awards. The majority of these meetings will take place at NSF, 4201 Wilson Blvd., Arlington, Virginia 22230.
All of these meetings will be closed to the public. The proposals being reviewed include information of a proprietary or confidential nature, including technical information; financial data, such as salaries; and personal information concerning individuals associated with the
These closed proposal review meetings will no longer be announced on an individual basis in the
Nuclear Regulatory Commission (NRC).
Notice of consideration of license amendment request to approve a ground water action plan, and opportunity to request a hearing.
Myron Fliegel, Fuel Cycle Facilities Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: (301) 415-6629; Fax: (301) 415-5955; and/or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) has received, by letter dated June 16, 2003, a request from Sequoyah Fuels Corp. (SFC) for approval of a license amendment to Materials License SUB-1010 to approve its proposed ground water corrective action plan.
The SFC facility, a nuclear fuel cycle facility located near Gore, Oklahoma, operated from 1970 to 1993. In response to a request from SFC, on December 11, 2002, NRC amended the license to allow possession of 11e.(2) byproduct material, in addition to source material. In its request, SFC proposes a program to clean up ground water at its site to appropriate standards and is designed to meet the requirements in 10 CFR part 40, appendix A.
The staff will review SFC's request for conformance with 10 CFR parts 20 and 40, using NUREG-1620, “Standard Review Plan for the Review of a Reclamation Plan for Mill Tailings Sites Under Title II of the Uranium Mill Tailings Radiation Control Act” and other applicable agency regulations and guidance. If NRC approves SFC's request, the approval will be documented in an amendment to SFC's license. However, before approving the request, NRC will need to make the findings required by the AEA and NRC regulations. These findings will be documented in a Technical Evaluation Report and an Environmental Impact Statement.
The NRC hereby provides notice that this is a proceeding on an application for an amendment of a license falling within the scope of Subpart L, “Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings” of NRC's rules and practice for domestic licensing proceedings in 10 CFR part 2. Pursuant to § 2.1205(a), any person whose interest may be affected by this proceeding may file a request for a hearing in accordance with § 2.1205(d). A request for a hearing must be filed within 30 days of the publication of this
The request for a hearing must be filed with the Office of the Secretary, either:
(1) By delivery to the Rulemaking and Adjudications Staff of the Office of the Secretary of the Commission at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, between 7:45 a.m. and 4:15 p.m., Federal workdays; or
(2) By mail or telegram addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Rulemaking and Adjudications Staff. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing also be transmitted to the Secretary of the Commission either by means of facsimile transmission to (301) 415-1101, or by e-mail to
In accordance with 10 CFR 2.1205(f), each request for a hearing must also be served, by delivering it personally or by mail, to:
(1) The applicant, Sequoyah Fuels Corporation, P.O. Box 610, Gore Oklahoma, Attention: Mr. John Ellis; and
(2) The NRC staff, by delivery to the Office of the General Counsel, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, between 7:45 a.m. and 4:15 p.m., Federal workdays, or by mail addressed to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing also be transmitted to the Office of the General Counsel, either by means of facsimile transmission to (301) 415-3725, or by e-mail to
In addition to meeting other applicable requirements of 10 CFR part 2 of the NRC's regulations, a request for a hearing filed by a person other than an applicant must describe in detail:
(1) The interest of the requestor;
(2) How that interest may be affected by the results of the proceeding, including the reasons why the requestor should be permitted a hearing, with particular reference to the factors set out in § 2.1205(h);
(3) The requestor's areas of concern about the licensing activity that is the subject matter of the proceeding; and
(4) The circumstances establishing that the request for a hearing is timely in accordance with § 2.1205(d).
In accordance with 10 CFR 2.790 of the NRC's “Rules of Practice,” details with respect to this action, including the application for amendment and supporting documentation, are available electronically for public inspection and copying from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission (NRC).
Notice of consideration of amendment request, and opportunity to request a hearing.
Myron Fliegel, Fuel Cycle Facilities Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: (301) 415-6629; Fax: (301) 415-5955; and/or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) has received, by letter dated June 12, 2003, a request from Sequoyah Fuels Corp. (SFC) for approval of a license amendment to Materials License SUB-1010 to approve its proposed ground water monitoring plan.
The SFC facility, a nuclear fuel cycle facility located near Gore, Oklahoma, operated from 1970 to 1993. In response to a request from SFC, on December 11, 2002, NRC amended the license to allow possession of 11e.(2) byproduct material, in addition to source material. In its request, SFC proposes a plan to monitor the ground water at its site that is designed to meet the requirements in 10 CFR part 40, appendix A.
The staff will review SFC's request for conformance with 10 CFR parts 20 and 40, using NUREG-1620, “Standard Review Plan for the Review of a Reclamation Plan for Mill Tailings Sites Under Title II of the Uranium Mill Tailings Radiation Control Act” and other applicable agency regulations and guidance. If NRC approves SFC's request, the approval will be documented in an amendment to SFC's license. However, before approving the request, NRC will need to make the findings required by the AEA and NRC regulations. These findings will be documented in a Technical Evaluation Report and either an Environmental Assessment or an Environmental Impact Statement.
The NRC hereby provides notice that this is a proceeding on an application for an amendment of a license falling within the scope of Subpart L, “Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings” of NRC's rules and practice for domestic licensing proceedings in 10 CFR part 2. Pursuant to § 2.1205(a), any person whose interest may be affected by this proceeding may file a request for a hearing in accordance with § 2.1205(d). A request for a hearing must be filed within 30 days of the publication of this
The request for a hearing must be filed with the Office of the Secretary, either:
(1) By delivery to the Rulemaking and Adjudications Staff of the Office of the Secretary of the Commission at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, between 7:45 a.m. and 4:15 p.m., Federal workdays; or
(2) By mail or telegram addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Rulemaking and Adjudications Staff. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing also be transmitted to the Secretary of the Commission either by means of facsimile transmission to (301) 415-1101, or by e-mail to
In accordance with 10 CFR 2.1205(f), each request for a hearing must also be served, by delivering it personally or by mail, to:
(1) The applicant, Sequoyah Fuels Corporation, P.O. Box 610, Gore, Oklahoma, Attention: Mr. John Ellis; and
(2) The NRC staff, by delivery to the Office of the General Counsel, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, between 7:45 a.m. and 4:15 p.m., Federal workdays, or by mail addressed to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing also be transmitted to the Office of the General Counsel, either by means of facsimile transmission to (301) 415-3725, or by e-mail to
In addition to meeting other applicable requirements of 10 CFR part 2 of the NRC's regulations, a request for a hearing filed by a person other than an applicant must describe in detail:
(1) The interest of the requestor;
(2) How that interest may be affected by the results of the proceeding, including the reasons why the requestor should be permitted a hearing, with particular reference to the factors set out in § 2.1205(h);
(3) The requestor's areas of concern about the licensing activity that is the subject matter of the proceeding; and
(4) The circumstances establishing that the request for a hearing is timely in accordance with § 2.1205(d).
In accordance with 10 CFR 2.790 of the NRC's “Rules of Practice,” details with respect to this action, including the application for amendment and supporting documentation, are available electronically for public inspection and copying from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
The U.S. Nuclear Regulatory Commission (NRC) has developed a
A draft of NUREG-1569 was issued in October 1997 and subsequently revised to reflect responses to public comments and the results of Commission policy decisions affecting uranium recovery issues described in NRC Regulatory Issue Summary (RIS) 2000-23, dated November 30, 2000. RIS 2000-23 addressed two issues related to
In preparing the final version of NUREG-1569, the NRC staff reviewed and considered more than 750 written comments received by the close of the public comment period on April 22, 2002. To simplify the analysis, the NRC staff grouped all comments into the following major topic areas:
(1) Editorial and Organizational Comments (322 comments);
(2) Policy Issues (including administrative, quality assurance, and surety/financial issues) (103 comments);
(3) Ground water (123 comments);
(4) Operational (47 comments);
(5) Health Physics (78 comments);
(6) Monitoring (55 comments); and
(7) Environmental aspects related to NRC responsibilities under NEPA (40 comments).
Electronic copies of this document are available for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at
John Lusher, Office of Nuclear Material Safety and Safeguards, Division of Fuel Cycle Safety and Safeguards, Mail Stop T-8 A33, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Telephone (301) 415-7694, or e-mail
The following provides a more detailed discussion of the NRC evaluation of the major topic areas and the NRC responses to comments.
An appendix (Effluent Disposal at Licensed
In NUREG/CR-6733 (A Baseline Risk-Informed, Performance-Based Approach for
For several years, the NRC staff has been approving
Finally, the staff has not attempted to implement overly prescriptive acceptance criteria in NUREG-1569. Rather, standard practices that have been found acceptable in demonstrating compliance at
NUREG-1569 has been edited to remove inconsistent use of terms or undefined terms. Where useful, acceptance criteria have been modified to be less prescriptive. However, risk-informed, performance-based approaches to determining compliance have been incorporated in the standard review plan to the extent consistent with existing regulations.
As stated in Council on Environmental Quality regulations (40 CFR 1502.16), in preparing an EIS, federal agencies are to identify all reasonable mitigation measures that can offset the environmental impacts of a proposed action, even if they are outside the jurisdiction of the lead agency. These mitigation measures are intended to avoid, minimize, rectify, reduce, or compensate for significant impacts of a proposed action. If an environmental assessment identifies potentially significant impacts that can be reduced to less-than-significant levels by mitigation, an agency may issue a mitigated finding of no significant impact (FONSI). In the case of a
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
The U.S. Nuclear Regulatory Commission (NRC) has revised the Standard Review Plan (NUREG-1620) that was developed to provide guidance for staff reviews of reclamation plans for uranium mill tailings sites covered by Title II of the Uranium Mill Tailings Radiation Control Act. Revision 1 also incorporates information to address new Commission policy on several issues related to uranium recovery, including administrative, quality assurance, surety/financial issues, geotechnical stability, ground-water, and exclusive jurisdication. Under the provisions of Title 10 of the Code of Federal Regulations, part 40 (10 CFR part 40), Domestic Licensing of Source Material, an NRC Materials License is required in conjunction with uranium or thorium milling, or with byproduct material at sites formerly associated with such milling. The licensee's site Reclamation Plan documents how the proposed activities demonstrate compliance with the criteria in Appendix A of 10 CFR part 40. This information, combined with the licensee's Environmental Report, is used by the NRC staff to determine whether the proposed activities will be protective of public health and safety and the environment. The purpose of the Standard Review Plan (NUREG-1620) is to provide the NRC staff with guidance on performing reviews of information provided by licensees. The use of the Standard Review Plan is also intended to ensure a consistent quality and uniformity of staff reviews. Each section in the review plan provides guidance on what is to be reviewed, the basis for the review, how the staff review is to be accomplished, what the staff will find acceptable in a demonstration of compliance with the regulations, and the conclusions that are sought regarding the applicable sections in 10 CFR part 40, appendix A. NUREG-1620 will also assist in improving the understanding of the staff review process by interested members of the public and the uranium recovery industry. The review plan provides general guidance on acceptable methods for compliance with the existing regulatory framework. As described in an NRC white paper on risk-informed, performance-based regulation (SECY-98-144), however, the licensee has the flexibility to propose other methods as long as it demonstrates how it will meet regulatory requirements.
A draft of NUREG-1620 was issued in January 1999 for public comment. A final NUREG-1620, which incorporated NRC staff responses to the comments received on the draft, was issued in June 2000.
On February 5, 2002 (FR5348), the NRC made the draft of NUREG-1620, Revision 1, available for a 75-day public comment period. In preparing the final version of NUREG-1620, Revision 1, the NRC staff carefully reviewed and considered about 120 written comments received by the close of the public comment period on April 22, 2002. To simplify the analysis, the NRC staff grouped all comments into the following major topic areas:
(1) Editorial and Organizational Comments (31 comments);
(2) Policy Issues (including administrative, quality assurance, and surety/financial issues) (51 comments);
(3) Geotechnical Stability (17 comments);
(4) Ground water (15 comments); and
(5) Environmental aspects related to NRC responsibilities under NEPA (4 comments).
Electronic copies of this document are available for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at
John Lusher, Office of Nuclear Material Safety and Safeguards, Division of Fuel Cycle Safety and Safeguards, Mail Stop T-8 A33, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Telephone (301) 415-7694, or e-mail
The following provides a more detailed discussion of the NRC evaluation of the major topic areas and the NRC responses to comments.
The NRC is currently establishing risk-informed and performance-based regulations. One example of this philosophy is the application of a risk-graded approach in developing seismic design requirements for nuclear facilities. Under this approach, for example, nuclear power plants have to meet the most stringent design requirements because they pose the greatest radiological risk to public health and safety. Other nuclear facilities like dry cask and canister storage facilities or uranium mining operations could be designed to less stringent design criteria because they pose substantially less radiological risk to public health and safety. This type of graded approach to radiological hazard is described in U.S. Department of Energy (DOE) Standard 1020-2002, “Natural Phenomena Hazards Design and Evaluation Criteria for Department of Energy Facilities.” In that guidance, the DOE developed five performance categories according to the relative risks posed by the potential failure of a structure, system, or components (SSCs) to perform its intended safety function. Performance Category (PC)-2 is intended for occupational safety and the design requirements for this category match those in the IBC-2000. PC-3 SSCs are for hazard confinement and the design requirements go beyond those within IBC-2000. Given the potential radiological hazards posed by Mill Tailing sites, evaluations of seismic hazards should therefore exceed those prescribed in the IBC-2000 for buildings. In addition, the National Earthquake Hazards Reduction Program maps do not take site effects into account. Local site effects, such as soil amplification, can greatly increase the level, spectral frequency content, and duration of vibratory ground motions at a site that is produced during an earthquake. Therefore, these effects need to be understood in order to accurately predict the seismic hazard at any site.
Based on these two considerations (graded risk approach and possible site amplification effects), staff conclude that site-specific seismic evaluations are necessary for all sites.
With regard to restoration plans for borrow areas, the intent of the section of the standard review plan identified by the commenter is to have staff review restoration plans for borrow areas as part of characterizing the stratigraphy and materials at a given site, and fulfilling NRC requirements under NEPA. The NRC also needs to consider the cumulative impacts of both radiological and nonradiological hazardous constituents to meet its obligations under NEPA. General guidance to the NRC staff for the evaluation of cumulative impacts is provided in Section 4.2.5 of NUREG-1748 “Environmental Review Guidance for Licensing Actions Associated with NMSS Programs.”
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”).
Notice of application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 19(b) of the Act and rule 19b-1 under the Act.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicants, Gifford R. Zimmerman, Nuveen Investments, 333 West Wacker Drive, Chicago, Illinois 60606.
Jaea F. Hahn, Senior Counsel, at (202) 942-0614, or Mary Kay Frech, Branch Chief, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street NW., Washington, DC 20549-0102 (tel. 202-942-8090).
1. Each of the Current Funds is organized as a Massachusetts business
2. NIAC, an investment adviser registered under the Investment Advisers Act of 1940 (“Advisers Act”), serves as investment adviser to the Current Funds. Security Capital Research and Management Incorporated (“Security Capital”), an investment adviser registered under the Advisers Act, is or will be the subadviser to NREIF, NREIF2 and NREGIF. Spectrum Asset Management, Inc. and Froley, Revy Investment Co., Inc., investment advisers registered under the Advisers Act, will serve as subadvisers to NPCIF and NPCIF2. Security Capital, NWQ Investment Management Company, LLC, Wellington Management Company, LLP and Symphony Asset Management, LLC, each an investment adviser registered under the Advisers Act, will serve as subadvisers to a portion of the assets of NDDIF.
3. The board of directors of each Current Fund (“Board”), including a majority of the trustees who are not “interested persons,” as defined in section 2(a)(19) of the Act (“Independent Trustees”), of such Fund, each concluded that the proposed distribution policy of such Fund (“Distribution Policy”) with respect to its common stock would be in the best interests of the Fund's common shareholders.
4. Applicants state that the Distribution Policy with respect to common stock of the Funds and any Distribution Policy with respect to preferred stock of the Funds will not be related to one another in any way. Applicants state that the Distribution Policy with respect to each Fund's common stock will be initially established and reviewed at least annually in light of the Fund's performance by the Board of the Fund.
5. Applicants request relief to permit each Fund, so long as it maintains in effect a Distribution Policy, to make periodic long-term capital gains distributions, as often as monthly, on its outstanding common stock and as specified by the terms of any preferred stock outstanding.
1. Section 19(b) of the Act provides that a registered investment company may not, in contravention of such rules, regulations, or orders as the Commission may prescribe, distribute long-term capital gains more often than once every twelve months. Rule 19b-1(a) under the Act permits a registered investment company, with respect to any one taxable year, to make one capital gains distribution, as defined in section 852(b)(3)(c) of the Internal Revenue Code of 1986, as amended (the “Code”). Rule 19b-1(a) also permits a supplemental distribution to be made pursuant to section 855 of the Code not exceeding 10% of the total amount distributed for the year. Rule 19b-1(f) permits one additional long-term capital gains distribution to be made to avoid the excise tax under section 4982 of the Code.
2. Applicants assert that rule 19b-1 under the Act, by limiting the number of net long-term capital gains distributions that the Funds may make with respect to any one year, would prevent implementation of the Funds' proposed Distribution Policy. Applicants state that because each Fund expects to realize net long-term capital gains as often as every month, the combination of Revenue Ruling 89-81 and the accounting interpretation relating to rule 19b-1 would cause each Fund to treat a portion of such net long-term capital gains as being distributed each time it has incremental or undistributed long-term capital gains for the current distribution period. Applicants state that Revenue Ruling 89-81 takes the position that if a regulated investment company has two classes of shares, it may not designate distributions made to either class in any
3. Applicants submit that one of the concerns leading to the enactment of section 19(b) and the adoption of the rule was that shareholders might be unable to distinguish between frequent distributions of capital gains and dividends from net investment income. Applicants state that the proposed Distribution Policies, including the fact that the distributions called for by the policies may include returns of capital to the extent that a Fund's net investment income and net capital gains are insufficient to meet the fixed dividend, will be fully described in the Funds' periodic communications to their shareholders, including the periodic report to shareholders following the institution of any such policy. Applicants state that, in accordance with rule 19a-1 under the Act, a statement showing the source or sources of the distribution would accompany each distribution (or the confirmation of the reinvestment thereof under a Fund's common stock distribution reinvestment plan). Applicants state that, for both the common stock and the preferred stock, the amount and sources of distributions received during the calendar year will be included on each Fund's IRS Form 1099-DIV reports of distributions during the year, which will be sent to each shareholder who received distributions (including shareholders who have sold shares during the year). Applicants state that this information, on an aggregate basis, also will be included in each Fund's annual report to shareholders.
4. Another concern underlying section 19(b) and rule 19b-1 is that frequent capital gains distributions could facilitate improper distribution practices, including, in particular, the practice of urging an investor to purchase fund shares on the basis of an upcoming distribution (“selling the dividend”) where the dividend results in an immediate corresponding reduction in NAV and would be, in effect, a return of the investor's capital. Applicants submit that this concern does not apply to closed-end investment companies, such as the Funds, which do not continuously distribute their shares. Applicants also assert that by paying out periodically any capital gains that have occurred, at least up to the fixed periodic payout amount, the Funds' Distribution Policies help avoid the buildup of end-of-the-year distributions and accordingly help avoid the scenario in which an investor acquires shares in the open market that are subject to a large upcoming capital gains dividend. Applicants also state that the “selling the dividend” concern is not applicable to preferred stock, which entitles a holder to a specific periodic dividend and, like a debt security, is initially sold at a price based on its liquidation preference, credit quality, dividend rate and frequency of payment. In addition, applicants state that any rights offering will be timed so that shares issuable upon exercise of the rights will be issued only in the 15-day period immediately following the record date for the declaration of a monthly dividend, or in the six-week period immediately following the record date of a quarterly dividend. Thus, applicants state that, in a rights offering, the abuse of selling the dividend could not occur as a matter of timing. Any rights offering also will comply with all relevant Commission and staff guidelines. In determining compliance with these guidelines, a Fund's Board will consider, among other things, the brokerage commissions that would be paid in connection with the offering. Any offering by a Fund of transferable rights will comply with any applicable National Association of Securities Dealers, Inc. rules regarding the fairness of compensation.
5. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction or class or classes of any persons, securities or transactions from any provision of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. For the reasons stated above, applicants believe that the requested relief satisfies this standard.
Applicants agree that the order granting the requested relief with respect to the Funds' common stock shall terminate with respect to a Fund upon the effective date of a registration statement under the Securities Act of 1933, as amended, for any future public offering of common stock of the Fund after the date of the requested order and after the Fund's initial public offering other than:
(i) A rights offering to shareholders of such Fund, provided that (a) shares are issued only within the 15-day period immediately following the record date of a monthly dividend, or within the six-week period following the record date of a quarterly dividend; (b) the prospectus for such rights offering makes it clear that common shareholders exercising rights will not be entitled to receive such dividend with respect to shares issued pursuant to such rights offering; and (c) such Fund has not engaged in more than one rights offering during any given calendar year; or
(ii) An offering in connection with a merger, consolidation, acquisition, spin-off or reorganization; unless the Fund has received from the staff of the Commission written assurance that the order will remain in effect.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The NYSE proposes amending Section 902.02 of its Listed Company Manual to reduce the original listing fee
A special charge of $36,800 in addition to initial fees (described below) is payable in connection with the original listing of a company's stock. In any event, each issuer is subject to a minimum original listing fee of $150,000 inclusive of the special charge referenced in the preceding sentence.
The special charge is also applicable to an application which in the opinion of the Exchange is a “back-door listing”.
The initial fee schedule applies to original listings,**
Each stock or warrant—and in the case of preferred stock, each series—shall be regarded as a separate issue.
Each application must cover the maximum number of shares that may be issued involving the particular transaction in question. However, the initial fee payable at the time of consideration of an application will cover only the determinable number of shares to be issued at or about that time. The balance of any initial fee under this schedule will accrue when subsequent issuance is made of shares not issued and paid for at the time that application is considered. This covers items like future issuances of shares for stock options, employee stock plans, conversion of other securities, contingencies, etc. Billing for such accrued initial fees is made as soon as possible following the close of the calendar year. Payment shall be made within 30 days of date upon receipt of invoice.
The initial fee shall be paid on shares issued at the time of billing by the Exchange. The subsequent reacquisition by the company and/or surrender to it for exchange, cancellation, or retirement shall not reduce this fee. The Exchange should be advised of shares cancelled. The shares authorized for listing on the Exchange should be reduced by the number of shares cancelled as well as by the shares no longer required to be issued under a specific plan for which an application was previously filed with the Exchange.
The pertinent initial fees per million shares are:
Reduced Initial Fee—A fee of $15,000 will apply to a company which either changes its state of incorporation or reincorporates, forms a holding company which replaces a listed company or has a reverse stock split. This fee will be applicable only if the change in the company's status is technical in nature and providing also that shareholders of the original company receive a share-for-share interest in the new company without any change in their equity position or rights.
Amalgamations are calculated at 25% of the applicable basic initial fee. An amalgamation is defined as the listing of shares resulting from merger or consolidation of two or more listed companies into a new company or into an unlisted company which becomes listed.
Mergers between an unlisted company and a listed company (other than back door listings (as defined in para.703.08(E))—If listing occurs within 12 months of the merger, 25% of the applicable basic initial fee, except during the first year following the listed company's original listing, where the fee shall be the lesser of (1) 25% of the applicable basic initial fee or (2) the full fee less a credit for the fee the listed company paid at the time of its initial listing.
In all other circumstances, the full initial fee rate will apply. For example: where a change in a listed security is effected which in the opinion of the Exchange in effect represents a new issue or class of security, or where the rights or privileges or the identities of previous shareholders are altered.
Minimum Initial Fee—The minimum fee for the consideration of an application is $2,500. Credit against initial fees will be limited to the determinable number of shares to be issued at or about the time the application is processed where the minimum fee applies. The minimum initial fee of $2,500 will apply for changes such as change of name, change of par value, the title of the security, etc., since these require changes in Exchange records.
*Fees on shares issued in conjunction with stock splits are capped at $250,000 per split and at $500,000 for all splits over a rolling three calendar-year period. Fees on shares issued in conjunction with a merger or acquisition (other than amalgamations) are capped at $500,000.
**Fees on shares listed in conjunction with the original listing are limited to $250
In its filing with the Commission, the NYSE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received regarding the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The NYSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Like many other sectors of the industry, closed-end funds have come under considerable cost pressure in
The Exchange is, therefore, proposing to reduce the original listing fees applicable to closed-end funds. It would establish a three-tiered structure based on the number of shares outstanding. Closed-end funds with up to 10 million shares outstanding would be subject to a $20,000 original listing fee, funds with greater than 10 million shares up to 20 million shares outstanding would be charged $30,000, and funds with more than 20 million shares outstanding would be subject to a $40,000 original fee.
The NYSE believes that the basis under the Act for the proposed rule change is section 6(b)(4),
The NYSE does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The NYSE has neither solicited nor received written comments on the proposed rule change.
The Exchange asserts that, 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 may become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally would not become operative prior to 30 days after the date of the filing. However, Rule 19b-4(f)(6) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Commission believes that lowering the initial listing fees for closed-end funds will benefit those who invest in such funds by reducing the costs associated with the issuance of the shares. Accordingly, the Commission hereby determines to waive the 30-day pre-operative period, and the proposed rule change becomes operative immediately.
Rule 19b-4(f)(6) also requires the self-regulatory organization submitting the proposed rule change to give the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing, or such shorter time as designated by the Commission. The NYSE has requested that the Commission waive the five-day pre-filing requirement, and the Commission hereby grants that request.
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 at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-NYSE-2003-22 and should be submitted by September 15, 2003.
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 September 24, 2003. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Copies: Request for clearance (OMB 83-1), supporting statement, and other documents submitted to OMB for review may be obtained from the Agency Clearance Officer.
Address all comments concerning this notice to: Agency
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
In accordance with the notice received from the Department of Homeland Security—Federal Emergency Management Agency, effective August 18, 2003, the above numbered declaration is hereby amended to include Lake, Porter, and Vanderburgh Counties in the State of Indiana as a disaster area due to damages caused by severe storms, tornadoes, and flooding occurring on July 4, 2003 and continuing through August 6, 2003.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the previously designated location: Gibson, Pike, Posey, and Warrick Counties in the State of Indiana; Cook and Will Counties in the State of Illinois; and Henderson County in the Commonwealth of Kentucky. All other counties contiguous to the above named primary counties have been previously declared.
For economic injury, the number is 9W7300 for the Commonwealth of Kentucky.
All other information remains the same,
The Administrator of the U.S. Small Business Administration (SBA), Hector V. Barreto, pursuant to the authority vested in him by the Small Business Act, 72 Stat. 384, as amended, hereby delegates to the Associate Deputy Administrator for Capital Access (ADA/CA), or to anyone Acting in the position of ADA/CA, the following authorities:
1. To make the final Agency decision to deny SBA's liability under its guaranty of a 7(a) loan.
2. To approve the initiation of a lawsuit against a participant lender for recovery of proceeds received by that lender in connection with SBA's guaranty of a 7(a) loan.
Neither the ADA/CA, nor anyone Acting in the position of ADA/CA, is authorized to further delegate these authorities.
Department of State.
Notice.
Notice is hereby given of an updated list of persons that are subject to an arms embargo in implementation of UN Security Council Resolutions 1390 (2002) and 1455 (2003). This action is being taken pursuant to sections 38 and 42 of the Arms Export Control Act and in accordance with section 5 of the UN Participation Act (UNPA) and E.O. 12918.
August 25, 2003.
Mary Sweeney, Office of Defense Trade Controls Management, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State (202) 633-2700.
UN Security Council Resolutions 1390 (2002) and 1455 (2003) require UN Member States to implement an arms embargo (and other sanctions) against those individuals, groups, undertakings and entities listed in the consolidated list created in accordance with UN Security Council Resolutions 1267 (1999) and 1333 (2000) and maintained by the UN 1267 Sanctions Committee. Specifically, the resolutions require that Member States prevent the direct or indirect supply, sale and transfer, to those on the 1267 Sanctions Committee list, from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related material of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities.
Effective October 24, 2002, U.S. manufacturers and exporters and any other affected parties were notified that the Department imposed a policy of denial for any new license application or other request for approval for the export or transfer of defense articles (including technical data) or defense services (whether or not all the information relied upon by the U.S. person in performing the defense service is in the public domain) if any of the names on the list published on October 24, 2002 appear in connection with the application or other request for approval subject to section 38 of the Arms Export Control Act. Further, that action also precluded the use of any exemptions from licensing or other approval (
Thus, U.S. manufacturers and exporters and any other affected parties are hereby notified the Department has imposed a policy of denial for any new license application or other request for approval for the export or transfer of defense articles or defense services if any of the names on the list below appear in connection with the application or other request for approval subject to section 38 of the Arms Export
The term “person”, as defined in 22 CFR 120.14 of the ITAR, means a natural person as well as a corporation, business association, partnership, society, trust, or any other entity, organization or group, including governmental entities.
This action has been taken pursuant to sections 38 and 42 of the Arms Export Control Act (22 U.S.C. 2778 and 2791) and 126.7 of the International Traffic in Arms Regulations in furtherance of the foreign policy of the United States, and in accordance with section 5 of the UNPA (22 U.S.C. 287(c)) and E.O. 12918.
In accordance with these authorities the following persons are subject to this arms embargo:
A. The list of individuals belonging to or associated with the Taliban.
1. Mullah Mohammad Rabbani, Chairman of the Ruling Council, Head of the Council of Ministers;
2. Mullah Hadji Mohammad Hassan, First Deputy, Council of Ministers; Governor of Kandahar;
3. Maulavi Abdul Kabir, Second Deputy, Council of Ministers; Governor of Nangahar Province; Head of Eastern Zone;
4. Mullah Mohammed Omar, Leader of the Faithful (‘Amir ul-Mumineen’), Afghanistan;
5. Mullah Mohammed Tahre Anwari, Administrative Affairs;
6. Maulavi Sayyed Haqqan, Minister of Administrative Affairs;
7. Maulavi Abdul Latif Mansur, Minister of Agriculture;
8. Mullah Shams-ur-Rahman, Deputy Minister of Agriculture;
9. Maulavi Attiqullah Akhund, Deputy Minister of Agriculture;
10. Maulavi Abdul Ghafoor, Deputy Minister of Agriculture;
11. Akhtar Mohammad Mansour, Minister of Civil Aviation and Transportation;
12. Hadji Tahis, Deputy Minister of Civil Aviation;
13. Mullah Mohammad Naim, Deputy Minister of Civil Aviation;
14. Hidayatuallah Abu Turab, Deputy Minister of Civil Aviation;
15. Mullah Yar Mohammad Rahimi, Minister of Communication;
16. Mullah Haji Alla Dad Tayeb, Deputy Minister of Communication;
17. Maulavi Abdul Razaq, Minister of Commerce;
18. Maulavi Faiz Mohammad Faizan, Deputy Minister of Commerce;
19. Maulavi Nik Mohammad, Deputy Minister of Commerce;
20. Mullah Matiullah, Kabul Custom House;
21. Maulavi Dadullah Akhund, Minister of Construction;
22. Mullah Hadji Ubaidullah Akhund, Minister of Defense;
23. Mullah Fazel M. Mazloom, Deputy Chief of Army Staff;
24. Mullah Baradar, Deputy Minister of Defence;
25. Mullah Abdul Rauf, Commander of Central Corpus;
26. Mullah Amir Khan Motaql, Minister of Education;
27. Mullah Mohammad Nasim Hanafi, Deputy Minister of Education;
28. Maulavi S. Ahmed Skahidkhel, Deputy Minister of Education;
29. Mullah Abdul Wasay Aghajan Motasem, Minister of Finance;
30. Mullah Arefullah Aref, Deputy Minister of Finance;
31. Mullah M. Ahmadi, President of Da Afghanistan Bank;
32. Abdul Wakil Mutawakil, Minister of Foreign Affairs;
33. Abdul Rahman Zahed; Deputy Minister of Foreign Affairs;
34. Mullah Abdul Jalil, Deputy Minister of Foreign Affairs;
35. Dr. Abdul Satar Paktis, Protocol Dept., Ministry of Foreign Affairs;
36. Maulavi Faiz, Information Dept., Ministry of Foreign Affairs;
37. Shams-us-Safa Aminzai, Press-Centre, Ministry of Foreign Affairs;
38. Maulavi Abdul Baqi, Consulate Dept., Ministry of Foreign Affairs;
39. M. Jawaz Waziri, UN Dept., Ministry of Foreign Affairs;
40. Maulavi Djallalouddine Haqani, Minister of Frontier Affairs;
41. Maulavi Abdul Hakim Monib, Deputy Minister of Frontier Affairs;
42. Alhaj M. Ibrahim Omari, Deputy Minister of Frontier Affairs;
43. Qari Din Mohammad, Minister Higher Education;
44. Maulavi Hamidullah Nomani, High Ranking Official in the Ministry of Higher Education;
45. Zabihullah Hamidi, Deputy Minister of Higher Education;
46. Maulavi Arsalan Rahmani, Deputy Minister of Higher Education;
47. Maulavi Qudratuallah Jamal, Minister of Information;
48. Mullah Abdul Baqi, Vice-Minister of Information and Culture;
49. Maulavi Abdul Rahman Ahman Hottak, Deputy (Cultural) Minister of Information and Culture;
50. Maulavi Rahimullah Zurmati, Deputy (Publication) Minister of Information and Culture;
51. Abdulhai Motmaen, Information and Culture Dept., Kandahar;
52. Maulavi Mohammad Yaqoub, Head of BIA;
53. Mullah Abdul Razaq, Minister of Interior Affairs;
54. Mullah Abdul Samad Khaksar, Deputy (Security) Minister of Interior Affairs;
55. Mohammad Sharif, Deputy Minister of Interior Affairs;
56. Maulavi Noor Jalal, Deputy (Administrative) Minister of Interior Affairs;
57. Maulavi Saed M. Azim Agha, Passport and Visa Dept.;
58. Mullah Nooruddin Turabi, Minister of Justice;
59. Maulavi Jalaluddine Shinwari, Deputy Minister of Justice;
60. Alhaj Mullah Mohammad Essa Akhund, Minister of Mines and Industries;
61. Maulavi Sayeedur Rahman Haqani, Deputy Minister of Mines and Industries;
62. Mullah Abdul Salam Zaief, Deputy Minister of Mines and Industries;
63. Maulavi Mohammad Azam Elmi, Deputy Minister of Mines and Industries;
64. Qari Din Mohammad Hanif, Minister of Planning;
65. Maulavi Ezatullah, Deputy Minister of Planning;
66. Maulavi M. Musa Hottak, Deputy Minister of Planning;
67. Mullah Mohammad Abbas Akhund, Minister of Public Health;
68. Sher Abbas Stanekzai, Deputy Minister of Public Health;
69 Maulavi Mohammadullah Mati, Minister of Public Works;
70. Maulavi Rostam Nuristani, Deputy Minister of Public Works;
71. Hadji Molla Atiqullah, Deputy Minister of Public Works;
72. Maulavi Najibullah Haqqani, Deputy Minister of Public Works;
73. Maulavi Sayyed Ghiassouddine Agha, Minister of Haj and Religious Affairs;
74. Maulavi Moslim Haqqani, Deputy Minister of Haj and Religious Affairs;
75. Maulavi Qalamudin Momand, Deputy Minister of Haj Afairs;
76. Maulavi Abdul Raqib Takhari, Minister of Repatriation;
77. Ramatullah Wahidyar, Deputy Minister for Martyrs and Repatriation;
78. Mohammad Sediq Akhundzada, Deputy Minister of Martyrs and Repatriation;
79. Maulavi Mohammad Wali, Minister of Department of Preventing Vice and Propagating Virtue;
80. Maulavi Mohammad Salim Haqqani, Deputy Minister of Preventing Vice and Propagating Virtue;
81. Maulavi Sayed Esmatullah Asem, Deputy Minister of Preventing Vice and Propagating Virtue;
82. Qari Ahmadulla, Minister of Security (Intelligence);
83. Maulavi Abdul-Haq-Wasseq, Deputy Minister of Security (Intelligence);
84. Maulavi Ehsanullah, Deputy Minister of Security (Intelligence);
85. Mullah Habibullah Reshad, Head of Investigation Dept.;
86. Mullah Ahmed Jan Akhund, Minister of Water and Electricity;
87. Eng. Mohammad Homayoon, Deputy Minister of Water and Electricity;
88. Maulavi Saiduddine Sayyed, Vice-Minister of Work and Social Affairs;
89. Maulavi Abdul Jabbar, Governor of Baghlan Province;
90. Maulavi Nurullah Nuri, Governor of Balkh Province; Head of Northern Zone;
91. Muhammad Islam, Governor of Bamiyan Province;
92. Mullah Janan, Governor of Fariab;
93. Mullah Dost Mohammad, Governor of Ghazni Province;
94. Maulavi Khair Mohammad Khairkhwah, Governor of Heart Province;
95. Maulavi Abdul Bari, Governor of Helmand Province;
96. Maulavi Walijan, Governor of Jawzjan Province;
97. Mullah M. Hasan Rahmani, Governor of Kandahar Province;
98. Mullah Manan Nyazi, Governor of Kabul Province;
99. Maulavi A. Wahed Shafiq, Deputy Governor of Kabul Province;
100. Alhaj Mullah Sadudin Sayed, Mayor of Kabul City;
101. Maulavi Shafiquallah Mohammadi, Governor of Khost Province;
102. Maulavi Nazar Mohammad, Governor or Kunduz Province;
103. M. Eshaq, Governor of Laghman Province;
104. Maulavi Zia-ur-Rahman Madani, Governor of Logar Province;
105. Maulavi Hamsudin, Governor of Wardak (Msidan) Province;
106. Maulavi A. Kabir, Governor of Nangarhar Province;
107. Mullah M. Rasul, Governor of Nimroz Province;
108. Maulavi Tawana, Governor of Paktia Province;
109. Mullah M. Shafiq, Governor of Samangan Province;
110. Maulavi Aminullah Amin, Governor of Saripul Province;
111. Maulavi Abdulhai Salek, Governor of Urouzgan Province;
112. Maulavi Ahmad Jan, Governor of Zabol Province;
113. Noor Mohammad Saqib, Chief Justice of Supreme Court;
114. Maulavi Sanani, Head of Dar-ul-Efta;
115. Maulavi Samiullah Muazen, Deputy of High Court;
116. Maulavi Shahabuddin Delawar, Deputy of High Court;
117. Abdul Rahman Agha, Chief Justice of Military Court;
118. Mullah Mustasaed, Head of Academy of Sciences;
119. Maulavi Esmatullah Asem, SG of Afghan Red Crescent
Society (ARCS);
120. Maulavi Qalamuddin, Head of Olympic Committee;
121. Abdul Salam Zaeef, Taliban Ambassador to Pakistan;
122. Abdul Hakim Mujahid, Taliban envoy to the United Nations;
123. General Rahmatullah Safi, Taliban representative in Europe;
124. Mullah Hamidullah, Head of Ariana Afghan Airlines;
125. Alhaj Mullah Sadruddin, Mayor of Kabul City;
126. Amir Khan Muttaqi, Taliban representative in UN-led talks;
127. Mr Jan Mohmmad Madani, Charge d'Affaires, Taliban Embassy, Abu Dhabi;
128. Mr Shamsalah Kmalzada, Second Secretary, Taliban Embassy, Abu Dhabi;
129. Mr Azizirahman, Third Secretary, Taliban Embassy, Abu Dhabi;
130. Mr Mawlawi Abdul Manan, Commercial Attache, Taliban Embassy, Abu Dhabi;
131. Malawi Abdul Wahab, Taliban Charge d'Affairs in Riyadh; Taliban “Embassy,” Islamabad
132. Mullah Abdul Salam Zaeef (Ambassador Extraordinary & Plenipotentiary);
133. Ilabibullab Fauzi (First Secretary/Deputy Head of Mission);
134. Mohammad Sohail Shaheen (Second Secretary);
135. Mohammad Sarwar Siddiqmal (Third Secretary);
136. Mullah Mohammad Zahid (Third Secretary);
137. General Abdul Qadeer (Military Attache);
138. Maulavi Nazirullah Anafi (Commercial Attache);
139. Maulavi Abdul Ghafar Qurishi (Repatriation Attache);
140. Mohammad Daud (Administrative Attache);
141. Maulavi Najibullah (Consul General);
142. Qari Abdul Wali (First Secretary);
143. Syed Allamuddin (Second Secretary);
144. Maulavi Akhtar Mohmmad (Education Attache);
145. Alhaj Maulavi Mohammad Saddiq (Trade Representative);
146. Maulavi Rahamatullah Kakazada (Consul General);
147. Mufti Mohammad Aleem Noorani (First Secretary);
148. Haji Abdul Ghafar Shenwary (Third Secretary);
149. Maulavi Gul Ahmad Hakimi (Commercial Attache); Taliban
150. Maulavi Abdullah Murad (Consul General);
151. Maulavi Abdul Haiy Aazem (First Secretary);
152. Maulavi Hamdullah (Repatriation Attache);
B. The list of entities belonging to or associated with the Taliban.
1. De Afghanistan Momtaz Bank.
C. List of individuals belonging to or associated with Al-Qaida organization.
1. Saiyid Abd Al-Man (a.k.a. Abdul Manan, a.k.a. Agha Haji; a.k.a. Am); Other information: Pakistan;
2. Youssef Abdaoui; (a.k.a. Abu Abdullah, a.k.a. Abdellah, a.k.a. Abdullah); DOB: 4 June 1966; POB: Kairouan, Tunisia; Address: Piazza Giovane Italia n.2, Varese, Italy;
3. Ali Abbas Abdi; Other information: Mogadishu, Somalia;
4. Majeed, Abdul Chaudhry (a.k.a. Majeed, Abdul; a.k.a. Majeed Chaudhry Abdul; a.k.a. Majid, Abdul) DOB: 15 April 1939; alt. DOB 1938; Nationality: Pakistani;
5. Abdullah Ahmed Abdullah (a.k.a. Abu Mariam; a.k.a. Al-Masri, Abu Mohamed; a.k.a. Saleh); DOB: 1963; POB: Egypt; Nationality Egypt; Other information: Afghanistan;
6. Mohamad Iqbal Adburrahman (a.k.a. Rahman, Mohamad Iqbal; a.k.a. A Rahman, Mohamad Iqbal; a.k.a. Abu Jibril Abdurrahman; a.k.a. Fikiruddin Muqti; a.k.a. Fihiruddin Muqti); Nationality Indonesian;
7. Ibrahim Ali Muhammad Abu Bakr (a.k.a. Al-Libi, Abd al-Muhsin); Other information: Affiliated with Afghan Support Committee (ASC) and Revival of Islamic Heritage Society (RIHS);
8. Amin Muhammad Ah Haq (a.k.a. Al-Haq, Amin; a.k.a. Amin, Muhammad; a.k.a. Dr. Amin; a.k.a. Ul-Haq, Dr. Amin); DOB: 1960; POB: Nangahar Province, Afghanistan; Nationality Afghan; Other information: Security coordinator for Usama Bin Laden;
9. Mustafa Muhammad Ahmad (a.k.a. Shaykh Sai'id); POB: Egypt;
10. Mohamed Amine Akli (a.k.a. Akli Amine Mohamed, a.k.a. Killech Shamir,
11. Mohammad Hamdi Sadiq Al-Ahdal (a.k.a. Al-Hamati, Muhammad; a.k.a. Al-Makki, Abu Asim); Other information: Yemen;
12. Khalid Al-Fawaz (a.k.a. Al-Fauwaz, Khaled; a.k.a. Al-Fauwaz Kaled A.; a.k.a. Al-Fawwaz, Khalid; a.k.a. Al Fawwaz, Khalik; a.k.a. Al-Fawwaz, Khaled; a.k.a. Al-Fawwaz, Khaled; a.k.a. Al Fawwaz, Khaled); DOB: August 25, 1962; 55 Hawarden Hill, Brooke Road, London NW2 7BR, UK;
13. Ahmed Mohammed Hamed Ali (a.k.a. Abdurehman, Ahmed Mohammed; a.k.a. Ahmed Hamed; a.k.a. Ali, Ahmed Mohammed; a.k.a. Ali, Hamed; a.k.a. Hemed, Ahmed; a.k.a. Shieb, Ahmed; a.k.a. Abu Fatima; a.k.a. Abu Islam; a.k.a. Abu Khadiijah; a.k.a. Ahmed The Egyptian; a.k.a. Ahmed, Ahmed; a.k.a. Al-Masri, Ahmad; a.k.a. Al-Surir, Abu Islam; a.k.a. Shuaib); DOB: 1965; POB: Egypt; Nationality: Egypt; Other information: Afghanistan;
14. Jim'ale Ahmed Nur Ali (a.k.a. Jimale, Ahmed Ali; a.k.a. Jim'ale, Ahmad Nur Ali; a.k.a. Jumale, Ahmed Nur; a.k.a. Jumali, Ahmed Ali) P.O. Box 3312, Dubai, UAE; Other information: Mogadishu, Somalia;
15. Abd Al-Hadi Al-Iraqi (a.k.a. Abdal Al-Hadi Al-Iraqi; a.k.a. Abu Abdallah);
16. Saqar Al-Jadawi; DOB: 1965; Thought to be a Yemeni and Saudi national; Other information: Aide to Usama Bin Laden;
17. Abu Bakr Al-Jaziri; Nationality Algerian, Address: Peshawar, Pakistan; Other information: Affiliated with Afghan Support Committee (ASC);
18. Ahmad Sa'id Al-Kadr (a.k.a. Al-Kanadi, Abu Abd Al-Rahman); DOB: 01 March 1948; POB: Cairo, Egypt; Thought to be an Egyptian and Canadian national.;
19. Ibn Al-Shaykh Al-Libi;
20. Yasin Al-Qadi (a.k.a. Kadi, Shaykh Yassin Abdullah; a.k.a. Kahdi, Yasin); Other information: Jeddah, Saudi Arabia.
21. Nazih Abdul Hamed Al-Raghie (a.k.a. Anas Al-Liby; a.k.a. Al-Libi, Anas; a.k.a. Al-Raghie, Nazih; a.k.a. Al-Sabai, Anas); DOB: 30 Mar 1964; Alt. DOB: 14 May 1964; POB: Tripoli, Libya; Nationality: Libya; Other information: Afghanistan;
22. Tariq Anwar Ahmad Al-Sayyid (a.k.a. Hamdi Ahmad Farag, a.k.a. Amr Al-Fatih Fathi); DOB: 15 March 63; POB: Alexandria, Egypt;
23. Sa'd Al-Sharif; DOB: 1969; POB: Saudi Arabia; Other information: Brother-in-law and close associate of Usama Bin Laden. Said to be head of Usama Bin Laden's financial organization;
24. Mahfouz Ould Al-Walid; a.k.a. Abu Hafs the Mauritanian; a.k.a. Khalid Al-Shanqiti; a.k.a. Mafouz Walad Al-Walid; a.k.a. Mahamedou Ouid Slahi) DOB: 1 Jan 75;
25. Aiman Muhammed Rabi Al-Zawahiri (a.k.a. Ayman Al-Zawahari; a.k.a. Ahmed Fuad Salim) DOB: 19 Jun 1951; POB: Giza, Egypt; Nationality: thought to be Egyptian; Other information: Operational and Military Leader of Jihad Group. Thought to be an Egyptian national. Former leader of Egyptian Islamic Jihad, now a close associate of Usama Bin Laden;
26. Mehrez Amdouni (a.k.a. Fabio Fusco, a.k.a. Mohamed Hassan, a.k.a. Abu Thale); DOB: 18 Dec. 1969; POB: Tuni, Tunisia;
27. Muhammed Atif (a.k.a. Subhi Abu Sitta; a.k.a. Sheik Taysir Abdullah; a.k.a. Mohamed Atef; a.k.a. Abu Hafs Al Masri; a.k.a. Abu Hafs Al Masri El Khabir; a.k.a. Taysir) DOB: 1956; Alt. DOB: 1951; Alt. DOB: 1944; POB: Alexandria, Egypt; Thought to be an Egyptian national; Other information: Senior lieutenant to Usama Bin Laden;
28. Muhsin Musa Matwalli Atwah (a.k.a. Al-Muhajir, Abdul Rahman; a.k.a. Al-Namer, Mohammed K.A.; a.k.a. Abdel Rahman; a.k.a. Abdul Rahman); DOB: 19 Jun 1964; POB: Egypt; Nationality: Egypt; Other information: Afghanistan;
29. Chiheb Ben Mohamed Ayari (a.k.a. Hichem Abu Hchem); DOB: 19 Dec 1965; POB: Tunis (Tunisia); Address: Via di Saliceto n. 51/9, Bologna, Italy;
30. Mondher Baazaoui (a.k.a. Hamza); DOB: 18 March 1967; POB: Kairouan (Tunisia); Address: Via di Saliceto n. 51/9, Bologna, Italy;
31. Said Bahaji; DOB: July 15, 1975; POB: Haselunne/Lower Saxony/Germany; Nationality: Germany; formerly resident at Bunatwiete 23, 21073 Hamburg/Germany;
32. Mahmood Sultan Bashir-Ud-Din (a.k.a. Mahmood, Sultan Bashiruddin; a.k.a. Mehmood, Dr. Bashir Uddin; a.k.a. Mekmud, Sultan Baishiruddin) DOB: 1937; Alt. DOB: 1938; Alt. DOB 1939; Alt. DOB: 1940; Alt. DOB: 1941; Alt. DOB: 1942; Alt. DOB: 1943; Alt. DOB: 1944; Alt. DOB: 1945; Nationality: Pakistani; Address: Street 13, Wazir Akbar Khan, Kabul, Afghanistan;
33. Aouadi, Mohamed Ben Belgacem Ben Abdallah (a.k.a. Aouadi, a.k.a. Mohamed Ben Belkacem); DOB: 12/11/1974; POB: Tunis, Tunisia; Nationality: Tunisian; Address: Via A. Masina n. 7, Milan, Italy; Alt. Address: Via Dopini No 3, Gallarati-Italy; Other information: His mother's name is Bent Ahmed Ourida;
34. Charaabi, Tarek Ben Bechir Ben Amara (a.k.a. Sharaabi, Tarek, a.k.a. Haroun; a.k.a. Frank); DOB: 03/31/1970; POB: Tunis, Tunisia; Nationality: Tunisian; Address: Viale Bligny n.42, Milan, Italy; Other information: His mother's name is Charaabi Hedia;
35. Lased Ben Heni; DOB: 02/05/1969; POB: Libya;
36. Ayadi Shafiq Ben Mohamed Ben Mohamed (a.k.a. Bin Muhammad, Ayadi Chafiq, a.k.a. Ayadi Chafik, a.k.a. Ben Muhammad; a.k.a. Aiadi, Ben Muhammad; Aiady, Ben Muhammad; a.k.a. Ayadi Shafig Ben Mohamed; a.k.a. Ben Mohamed, Ayadi Chafig; a.k.a. Abou El Baraa); DOB: 21 March 1963; POB: Sfax, Tunisia; Nationality: Tunisian; Alt. Nationality: Bosnian; Alt. Nationality: Austrian; Address: Helene Meyer Ring 10-1415-80809, Munich, Germany; 129 Park Road, NW8, London, England; 28 Chausse Di Lille, Moscron, Belgium, Darvingasse 1/2/58-60, Vienna, Austria; Other information: Tunisia; He is in Ireland. His mother's name is Medina Abid.;
37. Bouchoucha Mokhtar Ben Mohamed Ben Mokhtar ( a.k.a. Bushusha, Mokhtar); DOB: 13 October 1969; POB: Tunis, Tunisia; Nationality: Tunisian; Address: Via Milano n.38, Spinadesco (CR), Italy; Other information: His mother's name is Bannour Hedia;
38. Essid Sami Ben Khemais Ben Salah (a.k.a. Omar El Mouhajer; a.k.a. Saber); DOB: 02/10/1968; POB: Menzel Jemil Bizerte, Tunisia; Nationality: Tunisian; Address: Via Dubini n.3, Gallarate (VA) Italy; Other information: His mother's name is Saidani Beya;
39. Adel Ben Soltane; DOB: July 14, 1970; POB: Tunis, Tunisia; Address: Via Latisana n. 6, Milan, Italy;
40. Nabil Benattia; DOB: May 11, 1966; POB: Tunis, Tunisia;
41. Usama Muhammed Awad Bin Laden (a.k.a. Usama Bin Laden; a.k.a. Usama Bin Muhammed Bin Awad, a.k.a. Osama Bid Laden; a.k.a. Abu Abdallah Abd Al-Hakim); DOB: 30 Jul 57; Alt. DOB: 28 Jul 57; POB: Jeddah, Saudi Arabia; Alt. POB: Yemen; Nationality: Saudi citizenship withdrawn, now officially and Afghan national;
42. Bilal Bin Marwan; DOB: 1947; Other information: Senior lieutenant of Usama Bin Laden;
43. Ramzi Mohamed Abdullah Binalshibh (a.k.a. Binalsheidah, Ramzi Mohamed Abdullah, a.k.a. Bin Al Shibh, Ramzi; a.k.a. Omar, Ramzi Mohamed Abdellah) DOB: May 1st 1972; Alt. DOB: September 16, 1973; POB: Hadramawt/Yemen; Alt. POB:
44. Yassine Chekkouri; DOB: October 6, 1966; POB: Safi, Morocco;
45. Aweys Hassan Dahir (a.k.a. Ali, Sheikh Hassan Dahir Aweys, a.k.a. Awes, Shaykh Hassan Dahir); DOB: 1935; Nationality: Somalia;
46. Mamoun Darkazanli (a.k.a. Abu Ilyas; a.k.a. Abu Ilyas Al Suri; a.k.a. Abu Luz) DOB: August 4, 1958; POB: Damascus/Syria; Nationality: Syrian and German; Uhlenhorster Weg 34, Hamburg, 22085 Germany;
47. Lionel Dumont (a.k.a. Jacques Brougere; a.k.a. Bilal; a.k.a. Hamza); DOB: 21 Jan. 1971; POB: Robaix (France);
48. Mounir El Motassadeq; DOB: April 3, 1974; POB: Marrakesh/Morocco; Address: 21073 Hamburg, Goschenstrasse 13;
49. Abdelkader Mahmoud Es Sayed (a.k.a. Es Sayed, Kader); DOB: 12/26/1962; POB: Egypt; Address: Via del Fosso di Centocelle n.66, Rome, Italy;
50. Moussa Ben Amor Essaadi (a.k.a. Dah Dah, a.k.a. Abdelrahmman, a.k.a. Bechir); DOB: 4 Dec. 1964; POB: Tabarka (Tunisia); Address: Via Milano n. 108, Brescia, Italy;
51. Zakarya Essabar; DOB: April 13, 1977; POB: Essaouria/Morocco; Nationality: Morocco; Address: Dortmunder Strasse 38, 22419 Hamburg/Germany;
52. Mustafa Mohamed Fadhil (a.k.a. Al Masri, Abd Al Wakil; a.k.a. Ali, Hassan; a.k.a. Anis, Abu; a.k.a. Elbishy, Moustafa Ali; a.k.a. Fadil, Mustafa Muhamad; a.k.a. Fazul, Mustafa; a.k.a. Mohammed, Mustafa; a.k.a. Al-Nubi, Abu; a.k.a. Hussein, a.k.a. Jihad, Abu; a.k.a. Khalid; a.k.a. Man, Nu; a.k.a. Yussrr, Abu); DOB: 23 Jun 1976; POB: Cairo, Egypt; Nationality: Egypt; Alt. Nationality: Kenya;
53. Rachid Fettar (a.k.a. Amine del Belgio, a.k.a. Djaffar); DOB: 16 April 1969; POB: Boulogin (Algeria); Address: Via degli Apuli n.5, Milan, Italy;
54. Ahmed Khalfan Ghailani (a.k.a. Ahmed, Abubakar; a.k.a. Ahmed, Abubakar; a.k.a. Ahmed, Abubakar K.; a.k.a. Ahmed, Abubakar Khalfan; a.k.a. Ahmed, Abubakary K.; a.k.a. Ahmed, Ahmed Khalfan; a.k.a. Ali, Ahmed Khalfan; a.k.a. Ghailani, Abubakary Khalfan Ahmed; a.k.a. Ghailani, Ahmed; a.k.a. Ghilani, Ahmad Khalafan; a.k.a. Hussein, Mahafudh Abubakar Ahmed Abdallah; a.k.a. Khalfan, Ahmed; a.k.a. Mohammed, Shariff Omar; a.k.a. Ahmed The Tanzanian; a.k.a. Foopie; a.k.a. Fupi; a.k.a. Ahmed, A.; a.k.a. Al Tanzani, Ahmad; a.k.a. Bakr, Abu; a.k.a. Khabar, Abu); DOB: 14 Mar 1974; Alt. DOB: 13 Apr. 1974; Alt. DOB: 14 Apr 1974; Alt. DOB: 1 Aug 1970; POB: Zanzibar, Tanzania; Nationality: Tanzania;
55. Brahim Ben Hedili Hamami; DOB: 20 Nov. 1971; POB: Goubellat (Tunisia); Address: Via de' Carracci n.15, Casalecchio di Reno (Bologna) Italy;
56. Nasr Fahmi Nasr Hasanayn (a.k.a. Muhammad Salah);
57. Gulbuddin Hekmatyar (a.k.a. Gulabudin Hekmatyar; a.k.a. Golboddin Hikmetyar; a.k.a. Gulbuddin Khekmatiyar; a.k.a. Gulbuddin Hekmatiar; a.k.a. Gulbuddin Hekhmartyar; a.k.a. Gulbudin Hekmetyar) DOB: August 1, 1949; POB: Konduz Province, Afghanistan;
58. Ri'ad (Raed) Muhammad Hasan Muhammad Hijazi (a.k.a. Hijazi, Raed M.; a.k.a. Al-Hawen, Abu-Ahmad; a.k.a. Al-Shahid, Abu-Ahmad; a.k.a. Al-Maghribi, Rashid (The Moroccan); a.k.a. Al-Amriki, Abu-Ahmad (The American)); DOB: 30 December 1968; POB: California, U.S.A.; Nationality: Jordanian; Other information: Originally from Ramlah; place of residence while in Jordan—al-Shumaysani (Sheisani) (area of Amman), behind the trade unions complex;
59. Ali Ghaleb Himmat; DOB: 16 June 1938; POB: Damascus, Syria; Nationality: Switzerland; Address: via Posero 2, ch-6911 Campione D'Italia, Italy;
60. Armand Albert Friedrich Huber (a.k.a. Huber, Ahmed); DOB: 1927; Nationality: Switzerland; Address: Rossmimattstrasse 33, 3074 Muri b. Bern, Switzerland;
61. Zayn Al-Abidin Muhammad Husayn (a.k.a. Abu Zubaida; a.k.a. Abd Al-Hadi Al-Wahab; a.k.a. Zain Al-Abidin Muhahhad Husain; a.k.a. Zain Al-Abidin Muhahhad Husain; a.k.a. Abu Zubaydah; a.k.a. Tariq); DOB: 12 March 71; POB: Riyadh, Saudi Arabia; Nationality: Thought to be a Saudi and Palestinian national; Other information: Close associate of Usama Bin Laden and facilitator of terrorist travel;
62. Nasreddin, Ahmed Idris (a.k.a. Nasreddin, Ahmad I.; a.k.a. Nasreddin, Hadji Ahmed; a.k.a. Nasreddine, Ahmed Idriss; a.k.a. Ahmed Idris Nasreddin); DOB 22 November 1929; POB: Adi Ugri, Ethiopia (now Eritrea); Nationality: Italian; Address: Corso Sempione 69, 20149 Milan, Italy; Atl. Address: Piazzale Biancamano, Milan, Italy; Alt. Address: Rue De Cap Spartel, Tangiers, Morocco; Alt. Address: no. 10, Rmilat, Villa Nasreddin in Tangiers, Morocco; Other information: Mr. Nasreddin left his residence at 1 via della Scuole, 6900 Lugano, Switzerland in 1994 and moved to Morocco;
63. Nurjaman Riduan Isamuddin (a.k.a. Hambali; a.k.a. Nurjaman; a.k.a. Isomuddin, Nurjaman Riduan); DOB: April 4, 1964; POB: Cianjur, West Java, Indonesia; Nationality: Indonesian; Other information: Born: Encep Nurjaman;
64. Khalil Jarraya (a.k.a. Khalil Yarraya, a.k.a. Ben Narvan Abdel Aziz, a.k.a. Amro, a.k.a. Omar, a.k.a. Amr); DOB: 8 Feb. 1969; POB: Sfax (Tunisia); Address: Via Bellaria n.10, Bologna, Italy; Alt. Address: Via Lazio n.3, Bologna, Italy; Other information: Identified as Abdel Aziz Ben Narvan, born in Sereka (ex-Yugoslavia) on 15 August 1970;
65. Mounir Ben Habib Jarraya; (a.k.a. Yarraya); DOB: 25 October 1963; POB: Sfax (Tunisia); Address: Via Mirasole n.11, Bologna, Italy; Alt. Address: Via Ariosto n.8, Casalecchio di Reno (Bologna), Italy;
66. Riadh, Jelassi; DOB: December 15, 1970; POB: Tunisia;
67. Faouzi Jendoubi (a.k.a. Said, a.k.a. Samir); DOB: 30 January 1966; POB: Beja (Tunisia); Address: Via Agucchi n.250, Bologna, Italy; Alt. Address: Via di Saliceto n.51/9, Bologna, Italy;
68. Wa'el Hamza Julaidan (a.k.a. Wa'il Hamza Julaidan; a.k.a. Wa'el Hamza Jalaidan; a.k.a. Wa'il Hamza Jalaidan; a.k.a. Wa'el Hamza Jaladin; a.k.a. Wa'il Hamza Jaladin; a.k.a. Abu Al-Hasan Al Madani); DOB: 22 January 1958; POB: Al-Madinah, Saudi Arabia;
69. Abdullahi Hussein Kahie; Other information: Bakara Market, Dar Salaam Buildings, Mogadishu, Somalia;
70. Mehdi Kammoun; DOB: April 3, 1968; POB: Tunis, Tunisia; Address: Via Masina n. 7, Milan, Italy;
71. Samir Kishk; DOB: May 14, 1955; POB: Gharbia, Egypt;
72. Mufti Rashid Ahmad Ladehyanoy (a.k.a. Ludhianvi, Mufti Rashid Ahmad; a.k.a. Armad, Mufti Rasheed; a.k.a. Wadehyanoy, Mufti Rashid Ahmad); Other information: Karachi, Pakistan;
73. Tarek Ben Habib Maaroufi; DOB: November 23, 1965; POB: Ghardimaou, Tunisia;
74. Abdullkadir Hussei Mahamud; Other information: Florence, Italy;
75. Uthman Omar Mahmoud (a.k.a. Uthman, Al-Samman; a.k.a. Uthman, Umar; a.k.a. Al-Filistini, Abu Qatada; a.k.a. Takfiri, Abu Umr; a.k.a. Abu Umar, Abu Omar; a.k.a. Umar, Abu Umar; a.k.a. Abu Ismail); DOB: 30 December 1960; Atl. DOB: 13 December 1960; Other information: London, England;
76. Fethi Ben Rebai Mnasri (a.k.a. Fethi Alic, a.k.a. Amor, a.k.a. Omar Abu); DOB: 6 March 1969; POB: Nefza (Tunisia); Address: Via Toscana n.46, Bologna, Italy; Alt. Address: Via di Saliceto n. 51/9, Bologna, Italy;
77. Mansour Mohamed (a.k.a. Al-Mansour, Dr. Mohamed), DOB:
78. Zia Mohammad (a.k.a. Zia, Ahmad); Address: C/O Ahmed Shah C/O Painda Mohammad Al-Karim Set, Peshawar, Pakistan; Alt. Address: C/O Alam General Store Shop 17, Awami Market, Peshawar, Pakistan; Alt. Address: C/O Zahir Sha S/;
79. Fazul Abdullah Mohammed (a.k.a. Abdalla, Fazul; a.k.a. Adballah, Fazul; a.k.a. Ali, Fadel Abdallah Mohammed; a.k.a. Fazul Abdalla; a.k.a. Fazul Abdallah; a.k.a. Fazul, Abdallah Mohammed; a.k.a. Fazul, Haroon; a.k.a. Fazul, Harun; a.k.a. Haroun, Fadhil, a.k.a. Mohammed, Fazul; a.k.a. Mohammed, Fazul Abdilahi; a.k.a. Mohammed Fouad; a.k.a. Muhamad, Fadil Abdallah; a.k.a. Aisha, Abu; a.k.a. Al Sudani, Abu Seif; a.k.a. Haroon; a.k.a. Harun; a.k.a. Luqman, Abu; DOB: 25 Aug 1972; Alt. DOB: 25 Dec 1974; Alt. DOB: 25 Feb 1974; POB: Moroni, Comoros Islands; Nationality: Comoros; Alt. Nationality: Kenya;
80. Mostafa Kamel Mostafa (a.k.a. Mustafa Kamel Mustafa, a.k.a. Adam Ramsey Eaman, a.k.a. Abu Hamza Al-Masri, a.k.a. Al-Masri, Abu Hamza, a.k.a. Al-Misri, Abu Hamza); DOB: April 15, 1958; Address: 9 Albourne Road, Shepherds Bush, London W12 OLW, UK; Alt. Address: Adie Road, Hammersmith, London W6 OPW, UK;
81. Fahid Mohammed Ally Msalam (a.k.a. Ally, Fahid Mohammed; a.k.a. Msalam, Fahad Ally; a.k.a. Msalam, Fahid Mohammed Ali; a.k.a. Msalam, Mohammed Ally; a.k.a. Musalaam, Fahid Mohammed Ali; a.k.a. Salem, Fahid Muhamad Ali, a.k.a. Al-Kini, Usama;); DOB: 19 Feb 1976; POB: Mombasa, Kenya; Nationality: Kenya;
82. Nada, Youssef Mustafa (a.k.a. Nada, Youssef; a.k.a. Nada, Youssef M.); DOB: 17 May 1931; Alt. DOB: 17 May 1937; POB: Alexandria, Egypt; Address: via Arogno 32, 6911 Campione d'Italia, Italy; Alt. Address: via per Arogno 32, ch-6911 Campione d'Italia, Italy; Alt. Address: via Riasc 4, ch-6911 Campione d'Italia I, Italy;
83. Abdelghani Mzoudi (a.k.a. Abdelghani Mazwati, a.k.a. Abdelghani Mazuti); DOB: 6 December 1972; POB: Marrakesh, Morocco; Nationality: Moroccan; Address: Currently (June 2003) being held in custody in Germany;
84. Najib Ouaz; DOB: 12 April 1960; POB: Hekaima (Tunisia); Address: Vicolo dei Prati n.2/2, Bologna, Italy;
85. Ahmed Hosni Rarrbo (a.k.a. Abdallah o Abdullah); DOB: 12 September 1974; POB: Bologhine (Algeria);
86. Abdelhalim Remadna; DOB: April 2, 1966; POB: Bistra, Algeria;
87. Nedal Saleh (a.k.a. Hitem); DOB: 1 March 1970; POB: Taiz (Yemen); Address: Via Milano n.105, Casal di Principe (Caserta), Italy; Alt. Address: Via di Saliceto n.51/9, Bologna, Italy;
88. Nabil Adbul Salam Sayadi (a.k.a. Abu Zeinab); DOB: 1/1/66; POB: El Hadid, Tripoli, Lebanon; Nationality: Belgian since 18/9/01; Other information: Spouse of Patricia Vinck. Married on 29/5/92 in Peshawar, Pakistan;
89. Sayf-Al Adl (a.k.a. Saif Al-'Adil); DOB: 1963; POB: Egypt; Nationality: Thought to be an Egyptian national; Other information: Responsible for Usama Bin Laden's security;
90. Ahmed Salim Swedan Sheikh (a.k.a. Ally, Ahmed; a.k.a. Suweidan, Sheikh Ahmad Salem; a.k.a. Swedan, Sheikh; a.k.a. Swedan, Sheikh Ahmed Salem a.k.a. Ahmed The Tall; a.k.a. Bahamad; a.k.a. Bahamad, Sheik; a.k.a. Bahamadi, Sheikh); DOB: 9 Apr 1969; Alt. DOB: 9 Apr 1960; POB: Mombasa, Kenya; Nationality: Kenya;
91. Thirwat Salah Shihata (a.k.a. Tarwat Salah Abdallah; a.k.a. Salah Shihata Thirwat; a.k.a. Shahata Thirwat); DOB: 29 Jun 60; POB: Egypt;
92. Mansour Thaer; DOB: March 21, 1974; POB: Baghdad, Iraq;
93. Lazhar Ben Mohammed Tlili; DOB: March 26, 1969; POB: Tunis, Tunisia; Address: Via Carlo Porta n. 97, Legnano, Italy;
94. Yuldashev Tohir (a.k.a. Yuldashev, Takhir); Other information: Uzbekistan;
95. Mohammed Tufail (a.k.a. Tufail, S.M.; a.k.a. Tuffail, Sheik Mohammed); Nationality: Pakistani;
96. Aweys Dahir Ubeldullahi; Address: via Cipriano Facchinetti 84, Rome, Italy;
97. Patricia Rosa Vinck (a.k.a. Souraya P. Vinck); DOB: 4/1/65; POB: Berchem, Antwerp; Nationality: Belgium; Other information: Spouse of Nabil Saydai;
98. Habib Waddani; DOB: June 10, 1970; POB: Tunis, Tunisia; Address: Via unica Borighero n. 1, San Donato M.se(MI), Italy; Other information: Italian;
99. Zelimkhan Ahmedovich Yandarbiev (a.k.a. Abdul-Muslimovich); DOB: 12 September 1952; POB: USSR, Eastern Kazakhstan region, village of Vydriha; Nationality: Russian Federation; Address: formerly Russian Federation, Chechen Republic, Grozny, Derzhavina str. 281-59;
100. Abdul Rahman Yasin (a.k.a. Taha, Abdul Rahman S.; a.k.a. Taher, Abdul Rahman S.; a.k.a. Yasin, Abdul Rahman Said; a.k.a. Yasin, Aboud); DOB: 10 Apr 1960; POB: Bloomington, Indiana, U.S.A.; Nationality: U.S.A.; Abdul Rahman Yasin is in Iraq.
101. Ali Ahmed Yusaf; (a.k.a. Ali Galoul); DOB: 20 November 1974; POB: Garbaharey, Somalia; Nationality: Swedish; Address: Kralingegrand 33 S-16362 Spanga;
102. Mansour Fattouh Zeinab; DOB: 07.05.1933; Address: Obere Heslibachstrasse 20, 8700 Kuesnacht, ZH, Switzerland;
D. The list of entities belonging to or associated with the Al-Qaida organization.
1. Abu Sayyaf Group (a.k.a. Al Harakat Al Islamiyya);
2. Afghan Support Committee (ASC) (a.k.a. Lajnat ul Masa Eidatul Afghaniab, a.k.a. Jamiat Ayat-ur-Rhas al Islamiac, a.k.a. Jamiat Ihya ul Turath al Islamia, a.k.a. Ahya ul Turas); Address: Headquarters-G.T. Road (probably Grand Trunk Road), near Pushtoon Garhi Pabbi, Peshwar, Pakistan; Atl. Address: Cheprahar Hadda, Mia Omar Sabaqah School, Jalabad, Afghanistan;
3. The Aid Organization of the Ulema, Pakistan (a.k.a. Al Rashid Trust; a.k.a. Al Rasheed Trust; a.k.a. Al-Rasheed Trust; a.k.a. Al-Rashid Trust); Addresses: Kitab Ghar, Darul Ifta Wal Irshad, Nazimabad No. 4, Karachi, Pakistan, Phone 6683301, Phone 0300-8209199, Fax 6623814; Alt. Address: 302b-40, Good Earth Court, Opposite Pia Planitarium, Block 13a, Gulshan-I Iqbal, Karachi, Phone 4979263; Alt. Address: 617 Clifton Center, Block 5, 6th Floor, Clifton, Karachi, Phone 587-2545; Alt. Address: 605 Landmark Plaza, 11 Chundrigar Road, Opposite Jang Building, Karachi, Pakistan, Phone 2623818-19; Alt. Address: Jamia Masjid, Sulaiman Park, Begum Pura, Lahore, Pakistan, Phone 042-6812081; Other information: Pakistan;
4. Akida Bank Private Limited; (f.k.a. Akida Islamic Bank, International Limited; f.k.a. Iksir International Bank Limited); Address: c/o Arthur D. Hanna & Company; Alt. Address: 10 Deveaux Street, Nassau, Bahamas; Alt. Address: P.O. Box N-4877, Nassau, Bahamas;
5. Akida Investment Co. Ltd. (a.k.a. Akida Investment Company Limited, f.k.a. Akida Bank Private Limited; Address: c/o Arthur D. Hanna & Company; Alt. Address: 10 Deveaux Street, Nassau, Bahamas; Alt. Address: P.O. Box N-4877, Nassau, Bahamas;
6. Al Baraka Exchange L.L.C.; Address: P.O. Box 3313 Deira Dubai, UAE; Alt. Address: P.O. Box 20066, Dubai, UAE;
7. Al-Barakaat; Address: Mogadishu, Somalia; Alt. Address: Dubai, UAE;
8. Al-Barakaat Bank; Address: Mogadishu, Somalia;
9. Al-Barakaat Wiring Service; Address: 2940 Pillsbury Avenue, Suite 4, Minneapolis, Minnesota 55408;
10. Al-Barakat Bank of Somalia (BSS) (a.k.a. Barakat Bank of Somalia); Address: Mogadishu, Somalia; Alt. Address: Bossaso, Somalia;
11. Al-Barakat Finance Group; Address: Dubai, UAE; Alt. Address: Mogadishu, Somalia;
12. Al-Barakat Financial Holding Co.; Address: Dubai, UAE; Alt. Address: Mogadishu, Somalia;
13. Al-Barakat Global Telecommunications (a.k.a. Barakaat Globetelcompany); Address: P.O. Box 3313, Dubai, UAE; Alt. Address: Mogadishu, Somalia; Alt. Address: Hargeysa, Somalia;
14. A1-Barakat Group of Companies Somalia Limited (a.k.a. Al-Barakat Financial Company); Address: P.O. Box 3313, Dubai, UAE; Alt. Address: Mogadishu, Somalia;
15. A1-Barakat International (a.k.a. Baraco Co.); Address: Box 2923, Dubai, UAE;
16. Al-Barakat Investments; Address: P.O. Box 3313, Deira, Dubai, UAE;
17. Al-Hamati Sweets Bakeries; Address: Al-Mukallah, Hadhramawt, Governorate, Yemen;
18. Al-Haramain Islamic Foundation; Address: Bosnia and Herzegovina;
19. Al-Haramain Islamic Foundation; Address: Somalia;
20. Al-Itihadd Al-Islamiya/AIAI;
21. Al-Jihad/Egyptian Islamic Movement (a.k.a. Egyptian Al-Jihad; a.k.a. Egyptian Islamic Jihad; a.k.a. Jihad Group; a.k.a. New Jihad);
22. Al-Nur Honey Press Shops (a.k.a. Al-Nur Honey Center); Address: Sanaa, Yemen;
23. Al Taqwa Trade, Property and Industry Company Limited; (f.k.a. Al Taqwa Trade, Property and Industry; f.k.a. Al Taqwa Trade, Property and Industry Establishment; f.k.a. Himmat Establishment); Address: C/O Asat Trust Reg., Altenbach 8,9490 Vaduz Fl, Liechtenstein;
24. Al Qa'ida/Islamic Army (a.k.a. “The Base,” a.k.a Al Qaeda, a.k.a. Islamic Salvation Foundation, a.k.a. the Group for the Preservation of the Holy Sites, a.k.a. The Islamic Army for the Liberation of Holy Places, a.k.a. The World Islamic Front for the Jihad Against Jews and Crusaders, a.k.a. Usama Bin Laden Network, a.k.a. Usama Bin Laden Organization);
25. Al Rashid Trust (a.k.a. Al-Rasheed Trust); Address: Kitas Ghar, Nazimabad 4, Dahgel-Iftah, Karachi, Pakistan; Alt. Address: Jamia Maajid, Sulalman Park, Melgium Pura, Lahore, Pakistan; Alt. Address: Office Dha'rbi-M'unin, Opposite Khyber Bank, Abbottabad Road, Mansehra, Pakistan; Alt. Address: Office Dha'rbi-M'unin ZR Brothers, Katcherry Road, Chowk Yadgaar, Peshawar, Pakistan; Alt. Address: Office Dha'rbi-M'unin, Rm No. 3, Moti Plaza, Near Liaquat 2Bagh, Muree Road, Rawalpindi, Pakistan; Alt. Address: Office Dha'rbi-M'unin, Top Floor, Dr. Dawa Khan Dental Clinic Surgeon, Main Baxae, Mingora, Swat, Pakistan; Other information: Operations in Afghanistan: Heart Jalalabad, Kbul, Kandahar, Mazar Sherif. Also operations in Kosovo, Chechnya;
26. Al-Shifa, Honey Press for Industry and Commerce; Address: P.O. Box 8089, Al-Hasabah, Sanaa, Yemen; Alt. Address: By the Shrine Next to the Gas Station, Jamal Street, Ta'iz, Yemen; Alt. Address: Al-Arudh Square, Khur Maksar, Aden, Yemen; Alt. Address: Al-Nasr Street, Doha, Qatar;
27. Ansar Al-Islam (a.k.a. Devotees of Islam; a.k.a. Jund al-Islam; a.k.a. Soldiers of Islam; a.k.a. Kurdistan Supporters of Islam; a.k.a. Supporters of Islam in Kurdistan; a.k.a. Followers of Islam in Kurdistan; a.k.a. Kurdistand Taliban; a.k.a. Soldiers of God; Other information: Location: The Kurdish-controlled area of northeastern Iraq;
28. Armed Islamic Group (a.k.a. Al Jamm'ah Al-Islamiah Al-Musallah; a.k.a. GIA; a.k.a.; Groupement Islamique Arme);
29. Asat Trust Reg.; Address: Altenbach 8, 9490 Vaduz Fl, Liechtenstein;
30. Asbat Al-Ansar;
31. BA Taqwa for Commerce and Real Estate Company Limited; Address: Vaduz, Liechtenstein; Alt. Address: formerly c/o/ Astat Trust reg;
32. Bank Al Taqwa Limited (a.k.a. Al Taqwa Bank; a.k.a. Bank Al Taqwa); Address, P.O. Box N-4877, Nassau, Bahamas; Alt. Address: C/O Arthur D. Hanna & Company; Alt. Address: 10 Deveaux Street, Nassau, Bahamas;
33. Barakaat Boston; Address: 266 Neponset Avenue, Apt. 43, Dorchester, Massachusetts 02122-3224;
34. Barakaat Construction Company; Address: P.O. Box 3313, Dubai, UAE;
35. Barakaat Group of Companies; Address: P.O. Box 3313, Dubai, UAE; Alt. Address: Mogadishu, Somalia;
36. Barakaat International; Address: Hallbybacken 15, 70 Spanga, Sweden;
37. Barakaat International Foundation; Address: Box 4036, Spanga, Stockholm, Sweden; Atl. Address: Rinkebytorget 1, 04 Spanga, Sweden;
38. Barakaat International, Inc.; Address: 1929 South 5th Street, Suite 205, Minneapolis, Minnesota;
39. Barakaat North America, Inc.; Address: 925 Washington Street, Dorchester, Massachusetts; Alt. Address: 2019 Bank Street, Ottawa, Ontario, Canada;
40. Barakaat Red Sea Telecommunications; Address: Bossaso, Somalia; Address: Nakhiil, Somalia; Address: Huruuse, Somalia; Address: Raxmo, Somalia; Address: Ticis, Somalia; Address: Kowthar, Somalia; Address: Noobir, Somalia; Address: Bubaarag, Somalia; Address: Gufure, Somalia; Address: Xuuxuule, Somalia; Address: Ala Aamin, Somalia; Address: Guureeye, Somalia; Address: Najax, Somalia; Address: Carafaat, Somalia;
41. Barakaat Telecommunications Co. Somalia, Ltd.; Address: P.O. Box 3313, Dubai, UAE;
42. Barakaat Wire Transfer Company; Address: 4419 South Brandon Street, Seattle, Washington;
43. Barakat Banks and Remittances; Address: Mogadishu, Somalia; Address: Dubai, UAE;
44. Barakat Computer Consulting (BCC); Address: Mogadishu, Somalia;
45. Barakat Consulting Group (BCG); Address: Mogadishu, Somalia;
46. Barakat Global Telephone Company; Address: Mogadishu, Somalia; Address: Dubai, UAE;
47. Barakat International Companies (BICO); Address: Mogadishu, Somalia; Address: Dubai, UAE;
48. Barakat Post Express (BPE); Address: Mogadishu, Somalia;
49. Barakat Refreshment Company; Address: Mogadishu, Somalia; Address: Dubai, UAE;
50. Barakat Telecommunications Company Limited (a.k.a. BTELCO), Address: Bakara Market, Dar Salaam Building, Mogadishu, Somalia; Last Known Address: The Netherlands;
51. Baraka Trading Company; Address: P.O. Box 3313, Dubai, UAE;
52. Barako Trading Company, LLC; Address: P.O. Box 3313, Dubai, UAE;
53. Benevolence International Foundation (a.k.a. Al Bir Al Dawalia; a.k.a. BIF; a.k.a. BIF-USA; a.k.a. Mezhdunarodnyj Blagotvoritel'nyl Fond); Address: 8820 Mobile Avenue, IA, Oak Lawn, Illinois, 60453 U.S.A.; Alt. Address: P.O. Box 548, Worth, Illinois, 60482 U.S.A.; Former Address: 9838 S. Roberts Road, Suite 1W, Palos Hills, Illinois, 60465 U.S.A.; Former Address: 20-24 Branford Place, Suite 705, Newark, New Jersey 07102 U.S.A.; Alt. Address: Bashir Safar Ugil 69, Baku, Azerbaijan; Alt. Address: 69 Boshir Safaroglu St., Baku, Azerbaijan; Alt. Address: Sarajevo, Bosnia-Herzegovina; Alt. Address: Zenica, Bosnia-Herzegovina; Last Known Address: 3 King Street, South Waterloo, Ontario,
54. Benevolence International Fund (a.k.a. Benevolent International Fund); Last Known Address: 2465 Cawthra Rd., Unit 203, Mississauga, Ontario, L5A 3P2 Canada; Last Known Address: P.O. Box 1508, Station B, Mississauga, Ontario, L4Y 4G2 Canada; Last Known Address: P.O. Box 40015, 75 King Street South, Waterloo, Ontario, N2J 4V1 Canada; Last Known Address: 92 King Street, 201, Waterloo, Ontario, N2J 1P5 Canada;
55. Bosanska Idealna Futura (a.k.a. BIF-Bosnia; a.k.a. Bosnia Ideal Future); Address: Salke Lagumdzije 12, 71000 Sarajevo, Bosnia-Herzegovina; Alt. Address: Hadzije Mazica Put 16F, 72000 Zenica, Bosnia-Herzegovina; Alt. Address: Sehidska Street, Breza, Bosnia-Herzegovina; Alt. Address: Kanal 1, 72000 Zenica, Bosnia-Herzegovina; Alt. Address: Hamze Celenke 35, Ilidza, Sarajevo, Bosnia-Herzegovina; Other information: Doing business as BECF Charitable Educational Center, Benevolence Educational Center;
56. The Eastern Turkistan Islamic Movement (a.k.a. The Eastern Turkistan Islamic Party, a.k.a. The Eastern Turkistan Islamic Party of Allah);
57. Global Relief Foundation (GRF) (a.k.a. Foudation Secours Mondial (FSM); a.k.a. Secours mondial de France (SEMONDE); a.k.a. Foundation Secours Mondial—Belgique a.s.b.i.; a.k.a. Foundation Secours Mondial “World Relief”; Address: 9935 South 76th Avenue, Unit 1, Bridgeview, Illinois 60455, U.S.A.; Alt. Address: P.O. Box 1406, Bridgeview, Illinois 60455, U.S.A.; Alt. Address: 49 rue du Lazaret, 67100 Strasebourg, France; Alt. Address: Vaatjesstraat, 29, 2580 Putte, Belgium; Alt. Address: Rue des Bataves 69, 1040 Etterbeek, Brussels, Belgium; Alt. Address: P.O. Box 6, 1040 Etterbeek 2, Brussels, Belgium; Alt. Address: Mula Mustafe Baseskije Street No. 72, Sarajevo, Bosnia; Alt. Address: Put Mladih Muslimana Street 30/A, Sarajevo, Bosnia; Alt. Address: Rr.
58. Gulf Center S.R.L.; Address: Corso Sempione 69, 20149 Milan, Italy;
59. Harakat Ul-Mujahidin/HUM (a.k.a. Al-Faran, a.k.a. Al-Hadid, a.k.a. Al-Hadith, a.k.a. Harakat Ul-Ansar, a.k.a.
60. Heyatul Ulya; Address: Mogadishu, Somalia;
61. Islamic Army of Aden;
62. Islamic International Brigade (IIB); (a.k.a. The Islamic Peacekeeping Brigade; a.k.a. The Islamic Peacekeeping Army; a.k.a. The International Brigade; a.k.a. Islamic Peacekeeping Battalion; a.k.a. International Battalion; Islamic Peacekeeping International Brigade;
63. Islamic Movement of Uzbekistan (a.k.a. IMU);
64. Jaish-I-Mohammed (a.k.a. Army of Mohammed); Address: Pakistan;
65. Jam'yah Ta'awun Al-Islamia (a.k.a. Society of Islamic Cooperation, a.k.a. Jam'iyat Al Ta'awun Al Islamiyya, a.k.a. Jit); Address: Qandahar City, Afghanistan;
66. Jemaah Islamiyah (a.k.a. Jema'ah Islamiyah, a.k.a. Jemaah Islamiya, a.k.a. Jemaah Islamiah; a.k.a. Jamaah Islamiyah; a.k.a. Jama'ah Islamiyah; Other information: The network in Southeast Asia. Founded by the late Abdullah Sungkar;
67. Lajnat Al Daawa Al Islamiya (LDI);
68. Lashkar I Jhangvi (LJ);
69. Libyan Islamic Fighting Group;
70. Makhtab Al-Khidamat/Al Kifah;
71. Mamoun Darkazanli Import-Export Company (a.k.a. Darkazanli Company, a.k.a. Darkazanli Export-Import Sonderposten); Address: Uhlenhorsterweg 3411 Hamburg, Germany;
72. Miga-Malaysian Swiss, Gulf and African Chamber (f.n.a. Gulf Office Assoc. Per Lo Sviluppo Comm. Ind. E Turis; f.n.a. Fra Gli Stati Arabi Del Golfo E La Svizzera); Address: Via Maggio 21, 6900 Lugano TI, Switzerland;
73. Moroccan Islamic Combatant Group (a.k.a Groupe Islamique Combattant Marocain;
74. Nada International Anstalt; Address: Vaduz, Liechtenstein; Alt. Address: c/o Asat Trust reg.
75. Nada Management Organization SA (f.k.a. Al Taqwa Management Organization Sa); Address: Viale Stefano Franscini 22, Ch-6900 Lugano Ti, Switzerland;
76. NASCO Business Residence Center SAS DI Nasreddin Ahmed Idris EC; Address: Corso Sempione 69, 20149 Milan, Italy;
77. NASCO Nasreddin Holding A.S.; Address: Zemin Kat, 219 Demirhane Caddesi, Zeytinburnu, Istanbul, Turkey;
78. NASCOSERVICE S.R.L.; Address: Corso Sempione 69, 20149 Milan, Italy;
79. NASCOTEX S.A. (a.k.a. Industrie Generale De Filature Et Tissage; a.k.a. Industrie Generale De Textile); Address: KM 7 Route de Rabat, BP 285, Tangiers, Morocco; Alt. Address: KM 7 Route de Rabat, Tangiers, Morocco;
80. Nasreddin Company NASCO SAS DI Ahmed Idris Nasreddin EC; Address: Corso Sempione 69, 20149 Milan, Italy;
81. Nasreddin Foundation (a.k.a. Nasreddin Stiftung); Address: c/o Rechta Treuhand-Anstalt, Vaduz, Liechtenstein;
82. Nasreddin Group International Holding Limited (a.k.a. Nasreddin Group International Holdings Limited); Address: c/o Arthur D. Hanna & Company; Alt. Address: 10 Deveaux Street, Nassau, Bahamas; Alt. Address: P.O. Box N-4877, Nassau, Bahamas;
83. Nasreddin International Group Limited Holding (a.k.a. Nasreddin International Group Ltd. Holding); Address: c/o Rechta Treuhand-Anstalt, Vaduz, Liechtenstein; Alt.
84. Parka Trading Company; Address: P.O. Box 3313, Deira, Dubai, UAE;
85. Rabita Trust; Address: Room 9a, 2nd Floor, Wahdat Road, Education Town, Lahore, Pakistan; Alt. Address: Wares Colony, Lahore, Pakistan;
86. Red Sea Barakat Company Limited; Address: Mogadishu, Somalia; Alt. Address: Dubai; UAE;
87. Revival of Islamic Heritage Society (RIHS); (a.k.a. Jamiat Ihia Al-Turath Al-
88. Riyadus-Salikhin Reconnaissance and Sabotage Battalion of Chechen Martyrs (RSRSBCM); (a.k.a. Riyadus-Salikhin Reconnaissance and Sabotage Battalion, a.k.a. Riyadh-as-Saliheen, a.k.a. The Sabotage and Military Surveillance Group of the Riyadh al-Salihin Martyrs, a.k.a. Firqat al-Takhrib wa al-Istitla al-Askariyah li Shuhada Riyadh al-Salihin;
89. Salafist Group for Call and Combat/GSPC (a.k.a. Le Groupe Salafiste Pour La Prediction et le Combat);
90. Somali International Relief Organization; Address: 1806 Riverside Avenue, 2nd Floor, Minneapolis, Minnesota;
91. Somali Internet Company; Address: Mogadishu, Somalia;
92. Somali Network Ab; Address: Hallybybacken 15, 70 Spanga, Sweden;
93. Special Purpose Islamic Regiment (SPIR) (a.k.a. The Islamic Special Purpose Regiment, a.k.a. The al-Jihad-Fisi-Sabililah Special Islamic Regiment);
94. Tunisian Combatant Group (a.k.a. Groupe Combattant Tunisien);
95. Ummah Tameer E-Nau (UTN); Address: Street 13, Wazir Akbar Khan, Kabul, Afghanistan; Alt. Address: Pakistan;
96. Wafa Humanitarian Organization (a.k.a. Al Wafa, a.k.a. Al Wafa Organization; a.k.a. Wafa Al-Igatha Al-Islamia); Address: Jordan House No. 125, Street 54, Phase II Hayatabad, Peshawar, Pakistan; Alt. Address: Saudi Arabia; Alt. Address: Kuwait; Alt. Address: UAE;
97. Youssef M. Nada; Address: Via Riasc 4, Ch-6911 Campionie D'Italia I, Switzerland;
98. Youssef M. Nada & Co. Gescellschaft M.B.H.; Address: Kaertner Ring 2/2/5/22, 1010 Vienna, Austria.
Department of State.
Notice.
Notice is hereby given that the Department of State has forwarded the attached Notifications of Proposed Export Licenses to the Congress on the dates shown on the attachments pursuant to sections 36(c) and 36(d) and in compliance with section 36(f) of the Arms Export Control Act (22 U.S.C. 2776).
As shown on each of the twenty-three letters.
Mr. Peter J. Berry, Director, Office of Defense Trade Controls Licensing, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State (202-663-2700).
Section 36(f) of the Arms Export Control Act mandates that notifications to the Congress pursuant to sections 36(c) and 36(d) must be published in the
Dear Mr. Chairman: Pursuant to Section 36(d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad.
The transaction described in the attached certification involves the transfer of technical data, assistance and manufacturing know-how to Japan for the production of AN/ARA-50 Automatic Direction Finder for end-use by the Japanese Defense Agency (JDA) for use on various aircraft in the Japanese inventory.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 040-03.
Dear Mr. Speaker: Pursuant to Section 36(d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad.
The transaction described in the attached certification involves the development of 155mm artillery ammunition resulting from the merging of the U.S. Army XM982 Excalibur Guided Projectile and the Swedish Trajectory Correctible Munition Program.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 060-03.
Dear Mr. Speaker: Pursuant to Section 36(d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad.
The transaction described in the attached certification involves the manufacture of Rate Gyros in Sweden for the export to, and end-use by, the Indian Army in the fire control system of the ARJUN Main Battle Tank.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 021-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the export of technical data, defense articles and assistance to support the sale of the Sensor Fused Weapon to the United Arab Emirates Air Force and Air Defense.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 048-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the overseas launch of two commercial communications satellites, either from Pacific/International waters or from French Guiana.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 050-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $100,000,000 or more.
The transaction contained in the attached certification involves the export of technical data, defense articles, and assistance necessary to provide support and maintenance of the T-6A-1 Aircraft for the NATO Flying Training in Canada Program.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 057-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction contained in the attached certification concerns exports of technical data and defense services for delivery of the Estrela do Sul commercial communications satellite to Brazil.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 058-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 or more.
The transaction described in the attached certification involves the installation of “Group A” modifications for the Israeli Ministry of Defense's Compact Early Warning System (CAEW) Program, with involvement by the Government of Singapore.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 059-03.
Dear Mr. Speaker: Pursuant to Section 36(c) and (d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad and the export of defense articles or defense services sold commercially under contract in the amount of $100,000,000 or more.
The transaction contained in the attached certification involves the export to Turkey of technical data and assistance for the manufacture, testing and repair of Generation II and Generation III Night Vision Systems for sale to the Turkish Ministry of Defense and return to the United States.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 061-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under contract in the amount of $100,000,000 or more.
The transaction contained in the attached certification involves the export to United Kingdom of technical data and defense services for the design, development, manufacture, testing and delivery of Specified WR-21 Intercooled Recuperated Gas Turbine engine components for possible
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 062-03.
Dear Mr. Speaker: Pursuant to Section 36(d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad.
The transaction described in the attached certification involves the manufacture of a Drogue Rocket Motor and Propellant for end use in an aircraft ejection seat for the Japanese Defense Agency.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 066-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles and defense services in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the export to Brazil of technical data and defense services to support the launching of a satellite into orbit.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 068-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of major defense equipment and defense articles in the amount of $25,000,000 or more.
The transaction contained in the attached certification involves the export to Turkey of two Model S-70A helicopters and one lot of spare parts and ground support equipment to fulfill the helicopter mission requirement of the Special Aviation Regiment Command of the Government of Turkey.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 070-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $100,000,000 or more.
The transaction contained in the attached certification involves the export of technical data, defense articles, and assistance necessary to provide support and manufacture of hydraulic pumps, motors, and control systems for military aircraft and defense applications for end-use by the Japan Defense Agency.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights, and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 071-03.
Dear Mr. Speaker: Pursuant to Section 36(c) and (d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad and the export of defense articles or defense services in the amount of $100,000,000 or more.
The transaction contained in the attached certification involves the export of defense services, technical data and defense articles to Japan to support the sale of Longbow Apache helicopter to the Government of Japan.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 072-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed technical assistance agreement for the export of defense articles or defense services sold commercially under a contract in the amount of $50,000,000 of more.
The transaction described in the attached certification involves the production of applique (reactive) armor for the U.S. Army's Bradley Fighting Vehicle using Israeli design and production technology.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 073-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles or defense services sold commercially under a contract in the amount of $25,000,000 or more.
The transaction contained in the attached certification involves the export to Greece of five Phalanx Close-In Weapon System Block 0 to 1A upgrades to support the Hellenic Navy.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 074-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of major defense equipment and defense articles in the amount of $50,000,000 or more.
The transaction contained in the attached certification involves the temporary export of one AMC 10 and one AMC 11 Commercial Communications Satellite with high purity hydrazine fuel, nitrogen tetroxide oxidizer, ground support and test equipment to Russia. The AMC 10 and AMC 11 are geo-stationary direct broadcast satellites, and will be launched from Baikonur Cosmodrome aboard a Proton M/Breeze M launch vehicle. After launch and separation from the launch vehicle, the satellites are considered returned to the U.S.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 076-03.
Dear Mr. Speaker: Pursuant to Section 36(d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad.
The transaction described in the attached certification involves the transfer of technical data, assistance and manufacturing know-how to Japan for the manufacture of Propellant Actuated Devices utilized in Crew Escape Systems for the T-4 Aircraft for end-use by the Japan Defense Agency.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 077-03.
Dear Mr. Speaker: Pursuant to Section 36(c) and (d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad and the export of defense articles or defense services in the amount of $100,000,000 or more.
The transaction contained in the attached certification involves the export of defense services, technical data and defense articles to Japan to continue supporting the manufacture and assembly of S-70B (SH-60J/K) helicopters (minus avionics and engines) with related support equipment and parts for sale to the Japanese Government.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 079-03.
Dear Mr. Speaker: Pursuant to Section 36(c) and (d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad and the export of defense articles or defense services in the amount of $100,000,000 or more.
The transaction contained in the attached certification involves the export of defense services, technical data and defense articles to Japan to continue supporting the manufacture and assembly of S-70A (UH-60J) helicopters (minus avionics and engines) with related support equipment and parts for sale to the Japanese Government.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DTC 080-03.
Dear Mr. Speaker: Pursuant to Section 36(c) and (d) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed license for the export of defense articles that are firearms controlled under category I of the United States Munitions List sold commercially under a contract in the amount of $1,000,000 or more.
The transaction contained in the attached certification involves the export of 5,984 bolt-action and lever-action centerfire sporting rifles for commercial resale in Canada.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 082-03.
Dear Mr. Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am transmitting, herewith, certification of a proposed manufacturing license agreement for the manufacture of significant military equipment abroad and the export of defense
The transaction contained in the attached certification involves the export of defense services, technical data and defense articles to Taiwan to support the manufacture and maintenance of GRC-171, RT-1272F and/or RT 1272H Ultra High Frequency Receiver Transmitters for Taiwan's Ministry of National Defense.
The United States Government is prepared to license the export of these items having taken into account political, military, economic, human rights and arms control considerations.
More detailed information is contained in the formal certification which, though unclassified, contains business information submitted to the Department of State by the applicant, publication of which could cause competitive harm to the United States firm concerned.
Sincerely,
Enclosure: Transmittal No. DDTC 083-03.
The United States Interests Section of the Embassy of Switzerland in Havana, Cuba (“the U.S. Interests Section”) is the mission through which the U.S. communicates with the Government and people of Cuba. The Cuban Government's counterpart mission in the United States is the Cuban Interests Section of the Embassy of Switzerland in Washington. For some time, the Cuban Government has imposed a series of impediments, obstructions, denials of service, and unjustifiable costs upon the functioning of the U.S. Interests Section and living conditions of the Interests Section's employees and dependents. The Foreign Missions Act of 1982 as amended (22 U.S. Code 4301,
Among the many areas in which Cuban authorities impose undue restrictions on the U.S. Interests Section and its personnel is that of motor vehicles. Specifically, Cuban authorities impose a variety of restrictions and impediments which have the net effect of making it inordinately difficult, if not altogether impossible to either purchase a new vehicle or resell a used one in Cuba.
To enable the U.S. Government to respond effectively to the situation described above, as well as to create for the Government of Cuba an incentive to improve the conditions it imposes upon the U.S. Interests Section, the Department of State is hereby invoking its authorities under the Foreign Missions Act to impose a series of reciprocal terms and conditions on the Cuban Interests Section in Washington, DC with respect to motor vehicles. The primary effect of these terms and conditions, which are spelled out in the text below, is to restrict the ability of the Cuban Interests Section and its personnel to purchase, lease, or sell any vehicle in the United States.
It should be noted that, upon publication of this Determination in the
This Determination applies primarily to the Cuban Interests Section of the Embassy of Switzerland in Washington, DC, its personnel, and the family members thereof. However, it also applies to any person subject to the jurisdiction of the United States, whether natural person, business, or other entity of any sort, that intends to sell or lease a motor vehicle to, or purchase a motor vehicle from the Cuban Interests Section or its personnel.
The terms and conditions promulgated by this Determination are done so pursuant to the Foreign Missions Act of 1982, as amended, 22 U.S.C. 4301
Pursuant to Department of State Delegation of Authority No. 214, section 14 (September 20, 1994), the authorities that the Act vests in the Secretary of State were delegated by the Secretary to the Assistant Secretary of State for Diplomatic Security, who also functions as Director of the Office of Foreign Missions.
Pursuant to the authority vested in me by and through the above-cited provisions of law and Designation of Authority, I hereby find and determine as follows:
(1)
(a) “Cuban Interests Section” shall mean the Cuban Interests Section of the Embassy of Switzerland in Washington, DC, including its personnel, and any dependent of such personnel, forming part of the household thereof;
(b) “motor vehicle” shall mean any motorized device intended for the purpose of transporting individuals on public streets and highways;
(c) U.S. person shall mean any natural or corporate person or entity physically present within the United States, regardless of nationality or immigration status,
(d) “acquisition” shall mean the transfer by any U.S. person whatsoever to the Cuban Interests Section of any interest in a motor vehicle, by any method or means including, but not limited, to purchase, lease, loan, gift, hypothecation, or devise; and
(e) “disposition” shall mean the transfer by the Cuban Interests Section to any U.S. person whatsoever of any interest in a motor vehicle by any method or means including, but not limited to, sale, lease, loan, gift, hypothecation, or devise, including sale for scrap or salvage.
(2)
(3) Based upon the facts and circumstances set forth in the Summary section above, I hereby find that with respect to the acquisition and disposition of motor vehicles, the Cuban Interests Section in Washington, its personnel, and their dependents enjoy significantly more favorable treatment than do the U.S. Interests Section in Havana, its personnel, and their dependents.
(4) I further find that, in the area of motor vehicles, the Cuban Government's treatment of the U.S. Interests Section in Havana, its personnel, and their dependents imposes additional undue and unjustifiable costs on the operation of the United States Interests Section in Havana; that it creates a source of dispute in relations between the United States and Cuba; and that the persistence of such an imbalance in the treatment of United States and Cuban diplomatic personnel in each other's state is contrary to the interests of the United States.
(5)
(a)
(i) The rental of a vehicle from an established auto rental business, for a period not to exceed thirty (30) days;
(ii) The direct, duty-free importation of a vehicle from a vendor located outside the United States, utilizing the services of a manufacturer's authorized dealer,
(iii) The duty-free importation into the United States from abroad by the Cuban Interests Section of any motor vehicle, the pre-existing ownership of which was already in the hands of the Government of Cuba, any employee thereof, or any dependent of such employee forming part of the employee's household, provided that such vehicle is less than four years old from date of manufacture and complies fully with all applicable Federal safety requirements;
(iv) The continued ownership by the Cuban Interests Section of any vehicles that are owned as of the effective date hereof;
(v) The continued retention and use, until and not beyond the expiration of the lease term, of any motor vehicle leased by the Cuban Interests Section as of the effective date hereof;
(vi) The purchase by the Cuban Interests Section of a motor vehicle from any accredited diplomatic or consular mission in the United States, or any accredited member of such a mission, or accredited dependent thereof, enjoying privileges and immunities in the United States pursuant to international law, provided that such transaction shall constitute a bona fide arms-length purchase not entered into for purposes of collusion or evasion of the general prohibition on vehicle acquisitions being imposed by this Determination. For purposes of ascertaining the bona fide nature of any such acquisition, it shall be presumed that the acquisition of any vehicle which was registered in the name of a foreign mission or accredited member or dependent thereof for longer than 120 days satisfies the requirements of a bona fide acquisition. The present exclusion, however, shall not apply to the purchase of vehicles currently leased by the Cuban Interests Section, its members, or their dependents.
(vii) The acquisition of any motor vehicle by and through the Department of State's Office of Foreign Missions.
(b)
(i) The return of any rental vehicle to the auto rental entity concerned;
(ii) The return of any prior leased vehicle to the dealership concerned;
(iii) The sale of any vehicle to any diplomatic or consular mission to the United States, any accredited member thereof, or any accredited dependent forming part of the household of such member, provided that such member or dependent is not a “U.S. person” as defined in Section 1(C), above; and
(iv) The sale of any vehicle by and through the Department of State's Office of Foreign Missions.
(c)
(6)
(a) The Cuban Interests Section, shall waive any recourse that the Interests Section, its agents or assigns may have in U.S. courts or administrative tribunals against any person or party with respect to any past, present, or future motor-vehicle-related transaction, whether such transaction is contracted for or has actually been concluded.
(b) Pursuant to the Act at 22 U.S.C. 4304(d) of the Act, I hereby designate the Deputy Director of the Office of Foreign Missions to be the agent for the Cuban Interests Section for purposes of effectuating such a waiver of recourse.
(c) The requirement for such waiver of recourse shall constitute a condition both as regards the continued use of license tags previously issued to the Cuban Interests Section as well as the acceptance and use of license tags in the future.
(7)
(8)
(9) Publication of this Determination in the
Tennessee Valley Authority (Meeting No. 1547).
9 a.m. (EDT), August 27, 2003; TVA West Tower Auditorium, 400 West Summit Hill Drive, Knoxville, Tennessee.
Open.
Approval of minutes of meeting held on July 30, 2003.
A1. Rate change and rate adjustment.
A2. Approval of short-term borrowing from the United States Treasury.
C1. Contract with Tool Smith Company, Inc., for purchase, repair, and rental of power tools.
C2. Contracts with the following companies for construction/ modification services for TVA's Facilities Management and River System Operations and Environment organizations: Raines Brothers, Inc.; Schaerer Contracting Company, Inc.; and Vega Corporation, all of Chattanooga, Tennessee; Commercial Contracting Company, Maryville, Tennessee; Stethen-Smith Construction Company, Knoxville, Tennessee; Johnson Contractors, Inc., and Cates & Puckett Construction Company, Inc., both of Muscle Shoals, Alabama; B. H. Craig Construction Company, Inc., Florence, Alabama; Morsey, Inc., Calvert City, Kentucky; and M. P. Lawson Construction, Inc., Paducah, Kentucky.
E1. Public auction sale of approximately 1.6 acres of land adjacent to the Singleton Laboratory site on Fort Loudoun Reservoir in Blount County, Tennessee, Tract No. XFL-135.
E2. Abandonment of certain transmission line easement rights affecting approximately 23.0 acres of land, Tract Nos. KDHR-2, KDHR-4, and KDHR-5, to Vulcan Materials, in exchange for transmission line easement rights affecting approximately 24.6 acres of land in Livingston County, Kentucky, Tract No. 2KDHR-1.
E3. Abandonment of certain transmission line easement rights affecting approximately 12.8 acres of land, Tract Nos. WGFL-2, WGFL-3, WGFL-4, TRF-12, and TRF-13, to BP Amoco Chemical Company, in exchange for transmission line easement rights affecting approximately 39.14 acres of land in Morgan County, Alabama, Tract No. MECT-1.
E4. Grant of a 30-year term public recreation easement for use as a public park to the City of Stevenson, Alabama, affecting approximately 122 acres of land on Guntersville Reservoir in Jackson County, Alabama, Tract No. XTGR-83RE.
E5. Grant of permanent and temporary construction easements to the State of Tennessee for a highway improvement project affecting approximately .53 acre of land on the Norton Hill Microwave Repeater Station site in Madison County, Tennessee, Tract No. XTWJRS-1H.
E6. Grant of a permanent easement to the State of Tennessee for a highway improvement project affecting approximately .4 acre of land on Watts Bar Reservoir in Roane County, Tennessee, Tract No. XTWBR-144H.
F1. Designation of Edwin W. Small and Michael L. Wills as Assistant Secretaries of TVA.
F2. Approval to file condemnation cases to acquire easements and rights-of-way for a TVA power transmission line project affecting the Leake-Singleton Transmission Line in Leake County, Mississippi.
1. Approval to enter into a financial arrangement associated with a call provision which TVA has on its 1993 Series F Power Bonds and for delegations to take related actions.
2. Approval of the issuance, sale, and delivery of TVA Power Bonds.
3. Approval of the appointment of John M. Hoskins to the Board of Directors of the TVA Retirement System.
4. Approval of a contract with KEMA, Inc., to provide project management and engineering support in connection with TVA's Power System Optimization Project.
5. Approval of an amendment to the Business Practice entitled, “The Acquisition and Disposal of Fossil Fuels and Related Transportation and Storage.”
6. Sale of a permanent easement to Kentucky Utilities Company for a 69kV double circuit transmission line, affecting approximately 4.47 acres of land on Kentucky Reservoir Dam Reservation in Livingston County, Kentucky, Tract No. XGIR-939T.
7. Approval to file condemnation cases to acquire easements and rights-of-way for TVA power transmission line projects affecting the Batesville-Blue Goose Transmission Line in Panola and Tate Counties, Mississippi, and the John Sevier-Alcoa Loop into State Route 160 Substation Transmission Line in Hamblen County, Tennessee.
8. Approval of a revised Business Practice 12 entitled, “Legal Representation.”
For more information: Please call TVA Media Relations at (865) 632-6000, Knoxville, Tennessee. Information is also available at TVA's Washington Office (202) 898-2999. People who plan to attend the meeting and have special needs should call (865) 632-6000. Anyone who wishes to comment on any of the agenda in writing may send their comments to: TVA Board of Directors, Board Agenda Comments, 400 West Summit Hill Drive, Knoxville, Tennessee 37902.
Office of the United States Trade Representative.
Notice of intent to initiate negotiations on a free trade agreement between the United States and Bahrain,
The United States intends to initiate negotiations with Bahrain on a free trade agreement. The interagency Trade Policy Staff Committee (TPSC) will convene a public hearing and seek public comment to assist the United States Trade Representative (USTR) in amplifying and clarifying negotiating objectives for the proposed agreement and to provide advice on how specific goods and services and other matters should be treated under the proposed agreement.
Persons wishing to testify orally at the hearing must provide written notification of their intention, as well as their testimony, by October 17, 2003. A hearing will be held in Washington, DC, beginning on November 5, 2003 and will continue as necessary on subsequent days. Written comments are due by noon, November 17, 2003.
Submissions by electronic mail:
For procedural questions concerning written comments or participation in the public hearing, contact Gloria Blue, Executive Secretary, Trade Policy Staff Committee, at (202) 395-3475. All other questions should be directed to Jason Buntin, Director for Western Europe and Middle East Affairs at (202) 395-3320.
Under section 2104 of the Trade Act of 2002 (Trade Act) (19 U.S.C. 3804), for agreements that will be approved and implemented through trade promotion authority (TPA) procedures, the President must provide the Congress with at least 90 days written notice of his intent to enter into negotiations and must identify the specific objectives for the negotiations. Before and after the submission of this notice, the President must consult with appropriate Congressional committees and the Congressional Oversight Group (COG) regarding the negotiations. Under the Trade Act of 1974, as amended, the President must (i) afford interested persons an opportunity to present their views regarding any matter relevant to any proposed agreement, (ii) designate an agency or inter-agency committee to hold a public hearing regarding any proposed agreement, and (iii) seek the advice of the U.S. International Trade Commission (ITC) regarding the probable economic effects on U.S. industries and consumers of the removal of tariffs and non-tariff barriers on imports pursuant to any proposed agreement.
On August 4, 2003, after consulting with relevant Congressional committees and the COG, the USTR notified the Congress that the President intends to initiate free trade agreement negotiations with Bahrain and identified specific objectives for the negotiations. In addition, the USTR has requested that the ITC provide its advice on probable economic effects no later than December 13, 2003. This notice solicits views from the public on these negotiations and provides information on a hearing that will be conducted pursuant to the requirements of the Trade Act of 1974.
To assist the Administration as it continues to develop its negotiating objectives for the proposed agreement, the Chairman of the TPSC invites written comments and/or oral testimony of interested persons at a public hearing. Comments and testimony may address the reduction or elimination of tariffs or non-tariff barriers on any articles provided for in the Harmonized Tariff Schedule of the United States (HTSUS) that are products of Bahrain, any concession that should be sought by the United States, or any other matter relevant to the proposed agreement. The TPSC invites comments and testimony on all of these matters and, in particular, seeks comments and testimony addressed to:
(a) General and commodity-specific negotiating objectives for the proposed agreement.
(b) Economic costs and benefits to U.S. producers and consumers of removal of tariffs and non-tariff barriers to U.S.-Bahrain trade.
(c) Treatment of specific goods (described by Harmonized System tariff numbers) under the proposed agreement, including comments on
(1) product-specific import or export interests or barriers,
(2) experience with particular measures that should be addressed in the negotiations, and
(3) in the case of articles for which immediate elimination of tariffs is not appropriate, a recommended staging schedule for such elimination.
(d) Adequacy of existing customs measures to ensure Bahraini origin of imported goods, and appropriate rules of origin for goods entering the United States under the proposed agreement.
(e) Existing Bahraini sanitary and phytosanitary measures and technical barriers to trade.
(f) Existing barriers to trade in services between the United States and Bahrain that should be addressed in the negotiations.
(g) Relevant trade-related intellectual property rights issues that should be addressed in the negotiations.
(h) Relevant investment issues that should be addressed in the negotiations.
(i) Relevant government procurement issues that should be addressed in the negotiations.
(j) Relevant environmental and labor issues that should be addressed in the negotiations.
Comments identifying as present or potential trade barriers laws or regulations that are not primarily trade-related should address the economic, political and social objectives of such regulations and the degree to which they discriminate against producers of the other country. At a later date, the USTR, through the TPSC, will publish notice of reviews regarding (a) the possible environmental effects of the proposed agreement and the scope of the U.S. environmental review of the proposed agreement, and (b) the impact of the proposed agreement on U.S. employment and labor markets.
A hearing will be held on November 5, 2003, in Rooms 1 and 2, 1724 F Street, NW, Washington, DC. If necessary, the hearing will continue on subsequent days. Persons wishing to testify at the hearing must provide written notification of their intention October 17, 2003. The notification should include: (1) The name, address, and telephone number of the person presenting the testimony; and (2) a short (one or two paragraphs) summary of the presentation, including the subject matter and, as applicable, the product(s) (with HTSUS numbers), service sector(s), or other subjects (such as investment, intellectual property and/or government procurement) to be discussed. A copy of the testimony must accompany the notification. Remarks at the hearing should be limited to no more than five minutes to allow for possible questions from the TPSC. Persons with mobility impairments who will need special assistance in gaining access to the hearing should contact the TPSC Executive Secretary. Interested persons, including persons who participate in the hearing, may submit written comments by noon, November 17, 2003. Written comments may include rebuttal points demonstrating
In order to facilitate prompt processing of submissions, the Office of the United States Trade Representative strongly urges and prefers electronic (e-mail) submissions in response to this notice. In the event that an e-mail submission is impossible, submissions should be made by facsimile.
Persons making submissions by e-mail should use the following subject line: “United States-Bahrain Free Trade Agreement” followed by (as appropriate) “Notice of Intent to Testify,” “Testimony,” or “Written Comments.” Documents should be submitted as either WordPerfect, MSWord, or text (.TXT) files. Supporting documentation submitted as spreadsheets are acceptable as Quattro Pro or Excel. For any document containing business confidential information submitted electronically, the file name of the business confidential version should begin with the characters “BC-,” and the file name of the public version should begin with the characters “P-.” The “P-” or “BC-” should be followed by the name of the submitter. Persons who make submissions by e-mail should not provide separate cover letters; information that might appear in a cover letter should be included in the submission itself. To the extent possible, any attachments to the submission should be included in the same file as the submission itself, and not as separate files.
Written comments, notice of testimony, and testimony will be placed in a file open to public inspection pursuant to 15 CFR 2003.5, except business confidential information exempt from public inspection in accordance with 15 CFR 2003.6. Business confidential information submitted in accordance with 15 CFR 2003.6 must be clearly marked “Business Confidential” at the top of each page, including any cover letter or cover page, and must be accompanied by a non-confidential summary of the confidential information. All public documents and non-confidential summaries shall be available for public inspection in the USTR Reading Room. The USTR Reading Room is open to the public, by appointment only, from 10 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday. An appointment to review the file must be scheduled at least 48 hours in advance and may be made by calling (202) 395-6186.
General information concerning the Office of the United States Trade Representative may be obtained by accessing its Internet Web site (
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, Pub. L. 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 September 24, 2003 to be assured of consideration.
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, Pub. L. 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 September 24, 2003 to be assured of consideration.
Department of Veterans Affairs.
Notice.
The invention listed below is owned by the U.S. Government as represented by the Department of Veterans Affairs, and is available for licensing in accordance with 35 U.S.C. 207 and 37 CFR part 404 to achieve expeditious commercialization of results of federally funded research and development. Foreign patents are filed on selected inventions to extend market coverage for U.S. companies and may also be available for licensing.
Technical and licensing information on the invention may be obtained by writing to: Patrick Hallinan, Department of Veterans Affairs, National Cemetery Administration, Office of Field Programs, 810 Vermont Avenue, NW., Washington, DC 20420. Telephone: 202-273-5226 (this is not a toll-free number). Any request for information should include the Number and Title for the relevant invention as indicated below. Issued patents may be obtained from the Commissioner of Patents, U.S. Patent and Trademark Office, Washington, DC 20231.
The invention available for licensing is: 60/458,966 “Mower Trimmer Combination”.
Federal Energy Regulatory Commission.
Final rule.
The Federal Energy Regulatory Commission (Commission) is revising its regulations pertaining to hydroelectric licensing under the Federal Power Act. The revisions create a new licensing process in which a potential license applicant's pre-filing consultation and the Commission's scoping pursuant to the National Environmental Policy Act (NEPA) are conducted concurrently, rather than sequentially. The revised rules also provide for increased public participation in pre-filing consultation; development by the potential applicant of a Commission-approved study plan; better coordination between the Commission's processes, including NEPA document preparation, and those of Federal and state agencies with authority to require conditions for Commission-issued licenses; encouragement of informal resolution of study disagreements, followed by dispute resolution, and schedules and deadlines.
The traditional licensing process is being retained, and modified by increased public participation and additional time before an application for water quality certification must be filed. No changes are being made to the Alternative Licensing Process (ALP).
For a period of two years from the date of issuance of the new rule, potential license applicants will be permitted to elect to use the traditional or the integrated licensing process, or to request authorization to use the ALP. Thereafter, the integrated process will become the default, and Commission approval will be required to use the traditional process or the ALP.
Under the revised rules, a new part 5 will be added to Title 18 of the Code of Federal Regulations and 18 CFR parts 2, 4, 9, 16, 375, and 385 will be amended to implement the new procedures.
The rule will become effective October 23, 2003.
John Clements, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 202-502-8070.
1. In this final rule, the Federal Energy Regulatory Commission (Commission) amends its regulations for licensing of hydroelectric power projects by establishing a new licensing process. The amendments are the culmination of efforts by the Commission, other Federal and state agencies, Indian tribes, licensees, and members of the public to develop a more efficient and timely licensing process, while ensuring that licenses provide appropriate resource protections required by the Federal Power Act (FPA) and other applicable laws.
2. The new licensing process is designed to create efficiencies by integrating a potential license applicant's pre-filing consultation with
• Increased assistance by Commission staff to the potential applicant and stakeholders during the development of a license application;
• Increased public participation in pre-filing consultation;
• Development by the potential applicant of a Commission-approved study plan;
• Opportunities for better coordination between the Commission's processes, including NEPA document preparation, and those of Federal and state agencies and Indian tribes with authority to require conditions for Commission-issued licenses;
• Encouragement of informal resolution of study disagreements, followed by study dispute resolution; and
• Issuance of public schedules.
3. In response to oral and written comments on the Notice of Proposed Rulemaking (NOPR),
• The content and distribution requirements for the Pre-Application Document (PAD) have been changed to make it less burdensome on potential applicants and easier for recipients to use;
• More time has been provided for potential applicants and participants to develop and informally resolve differences concerning study needs;
• A technical conference open to all participants has been added to the formal dispute resolution process;
• The draft license application has been replaced by a less burdensome “Preliminary Licensing Proposal”;
• The deadline for filing a water quality certification application has been extended to 60 days after the ready for environmental analysis notice;
• The integrated process will become the default process in two years; in the interim license applicants may choose the integrated process or the traditional process as it is currently constituted; and
• We are withdrawing our proposal to permit a cooperating agency for NEPA document preparation to also intervene in the relevant proceeding.
4. We also proposed in the NOPR to modify the traditional process by increasing public participation in pre-filing consultation, adding mandatory, binding dispute resolution, and extending the deadline for filing an application for water quality certification. We have decided not to include mandatory, binding pre-filing dispute resolution, but are adopting the other proposals.
5. To improve consultation with Indian tribes, we are establishing the position of tribal liaison, providing in the regulations for a meeting between the Commission and interested Indian tribes at the beginning of the licensing process, and issuing simultaneously with this final rule a Tribal Consultation Policy applicable to the hydroelectric, gas, and electric programs.
6. No changes will be made to the alternative licensing procedures (ALP).
7. The Commission appreciates the active participation and thoughtful comments provided by the industry representatives, Federal and state resource agencies, Indian tribes, and members of the public in this proceeding. We believe the provisions of the final rule, discussed below, fully take into consideration the interests of all of the stakeholders and will establish an integrated licensing process that serves the public interest.
8. The background of this proceeding was set forth in detail in the NOPR, and need not be repeated here. Since the NOPR was issued on February 21, 2003, the Commission has held public and tribal regional workshops to hear and consider stakeholder concerns about the proposed rule, and to find stakeholder consensus on recommendations to resolve those concerns.
9. Following the drafting sessions, the Commission staff held additional discussion and drafting sessions with other Federal agencies before preparing the final rule.
10. Many commenters commended the Commission for undertaking the rulemaking and indicated that the proposed integrated licensing process holds strong promise of accomplishing its objectives.
11. A few commenters
12. We are committed to making the integrated process a success. Potential applicants who choose this process during the transition period may rest assured that the Commission will
13. It is also our intention to conduct an effectiveness study of the integrated process in order to quantify the resulting reductions in processing time and costs.
14. The NOPR proposed to retain both the traditional process and the ALP in light of comments by industry that a single process is not suitable for all projects and that the integrated process and ALP might be too time constrained or resource intensive for small projects. We also proposed to retain the ALP in light of its demonstrated track record of reducing license application processing times and fostering settlement agreements.
15. We discussed the concerns of environmental groups, and some agencies and Indian tribes, that multiple processes would confuse participants with modest resources, particularly those that rely on volunteers. We concluded that the benefits of having different processes that can be applied to differing circumstances outweighs this concern. We also proposed to require any potential applicant wishing to use the traditional process to obtain Commission authorization to do so, and to provide an opportunity for all stakeholders to comment on the request.
16. Industry commenters and a few others continue to support retaining the traditional process and ALP. They state that flexibility is required by the diversity of project circumstances, issues, and stakeholders; the traditional process and ALP have both been shown to be effective under the right circumstances; the integrated process is too costly and labor-intensive for many small projects and for small stakeholders; and the integrated process is not suitable where stakeholders and the potential applicant are very polarized. They add that the integrated process is untested and that the traditional process needs to be retained as a backstop if an ALP or the integrated process break down.
17. Agency and non-governmental organization (NGO) commenters continue overwhelmingly to favor one integrated process sufficiently flexible to accommodate the diverse circumstances of license applications. They, along with SCE, reiterate that the existing two processes are already confusing, making participants unclear about their rights and duties, and making it difficult for parties with few human and financial resources to effectively participate. A third process, they say, will make matters worse. Some also question the logic of retaining a traditional process which they say stakeholders agree does not achieve the goals of the integrated process.
18. California adds that there is no reason to retain the traditional process because the information requirements and scope and level of analysis are essentially the same as those of the integrated process, so costs should be similar; that polarization is irrelevant if both processes have mandatory, binding study dispute resolution; and project size is no indicator that the issues will be relatively simple or few.
19. SCE also asserts that the revised traditional process, if supplemented by the PAD, more early identification of issues and study design, study request criteria, and study dispute resolution, would differ from the integrated process and the ALP only with respect to the timing of NEPA process. This, says SCE, would make the integrated process needless, so the Commission should just make appropriate modifications to the traditional process.
20. Upon review of the comments, we remain convinced that having three processes is the most effective means of ensuring that the licensing process used is suited to the circumstances of the project, consistent with our intention to reduce the time required for the process without sacrificing resource protection standards. The process selection for each licensing proceeding will be made at the outset, so stakeholders should not be confused about which process they are in. We designed the integrated process to show the steps clearly in sequence from beginning to end and to be as self-contained (
21. We also disagree with those who imply that the traditional process never works well. About one third of traditional license process proceedings are concluded before the existing license expires. The most common reason for delay in the remaining cases is lack of state water quality certification. As discussed below,
22. Some commenters recommend that we consider establishing a sunset provision to eliminate or phase out the traditional process, ALP, or both when the integrated process has become sufficiently established and fine-tuned in light of experience.
23. In the NOPR we rejected California's recommendation that the regulations be modified to move the deadline date for the notification of intent to seek a license (NOI) forward to 6.5 years before license expiration because it would be inconsistent with our goal of developing a more timely process. We stated that in the great majority of cases, a license applicant should be able to complete the pre-filing aspects of the integrated process in the three and one-half year period provided for in the regulations.
24. Several commenters request that we reconsider our position, and specifically authorize licensees to voluntarily issue the NOI and circulate
25. NHA and Longview suggest that an alternative would be to permit the applicant to issue the PAD before the earliest date the NOI can be filed if resource agencies and stakeholders approve. They state however that this is much less desirable because stakeholders could decline to participate before the NOI is filed, forcing the potential applicant to repeat steps already completed with some stakeholders after the NOI is filed.
26. These advocates of commencing the licensing process before the NOI is issued are correct that some proceedings will exceed 5.5 years, notwithstanding the best efforts of all participants. They base their comments however on experience under the traditional process, which lacks the crucial features of the integrated process designed to minimize delays. If all stakeholders work together in good faith, the integrated process should minimize the number of instances where a new license application proceeding cannot be concluded before the existing license expires by integrating pre-filing consultation and development of the Commission's NEPA document and resolving study disputes early in the process.
27. In the NOPR we proposed to issue to licensees an advance notice of license expiration. This would be done sufficiently in advance of the NOI deadline date to ensure that the existing licensee is alerted to the requirements for the NOI, PAD, and any potential request to use the traditional process or ALP. We noted that because the advance notice is an administrative action which requires no action on the part of any other entity, and which will be undertaken regardless of the process selected, there is no need to include this action in the regulations.
28. Some commenters state that the advance notice should be included in the regulations because it notifies stakeholders as well as the existing licensee. Barring that, some request publication of a written policy on when the notice will be issued and its contents.
29. There is no need to put the advance notice in the regulations. The Commission has for many years published in its annual report and annually in the
30. A written policy on the content of the notice would be superfluous. As stated above, the purpose of the notice is to alert licensees to the requirements for the NOI, PAD, and any potential request to use the traditional process or ALP. These requirements are found in the regulations.
31. Recommendations for when the advance notice should be made range from one to three years before the NOI deadline date.
32. The NOPR proposed to make the integrated process the default process. A potential applicant would have to request Commission approval to use the traditional process or ALP when it files the NOI and PAD.
33. Licensee commenters question the need for a default process and Commission approval of the potential applicant's choice of the integrated and traditional process.
34. WPPD suggests that stakeholders will threaten to withhold support for the applicant's potential process proposal in order to pressure potential applicants into making other procedural or substantive concessions, and that there would be more certainty if potential applicants had unfettered process choice.
35. Several licensees state that the potential applicant has the most knowledge of the complexity, level of stakeholder involvement, and the resources available to itself and others, so the Commission should defer to its judgment.
36. Several of these commenters suggest that if the integrated process is to be made the default, that it be done only after a 5-6 year test period, during which there would be a presumption that the applicant's choice is appropriate. If the potential applicant chooses the traditional process, proponents of the integrated process would have the burden of showing that the integrated process would be significantly better or significantly disadvantage non-applicant stakeholders. If, at the end of this period, the integrated process appeared successful, it would be made the default process, with any modifications needed in light of experience.
37. A few industry commenters assert that the traditional process, either in its current form or with the proposed modifications, should be the default because it has been tested by years of experience and is satisfactory in most cases.
38. Several non-industry commenters favor making the integrated process the default with the potential applicant's choice requiring Commission approval.
39. We continue to think the integrated process should be the default because it addresses as fully as we can within the confines of the statutory scheme the problems that participants in licensing from every perspective have identified with the traditional process. It merges pre-filing consultation and the NEPA process, brings finality to pre-filing study disputes, and maximizes the opportunity for the Federal and state agencies to coordinate their respective processes.
40. The best means of gaining acceptance for the integrated process however is to demonstrate that it works. We agree with commenters that some period of transition is appropriate. Accordingly, we have decided that the integrated process should become the default process on July 23, 2005. During this two year period, potential license applicants will be able to select the integrated process or the traditional process as it currently exists, or request authorization to use the ALP. At the end of the two-year period, the integrated process will become the default process, and potential applicants will have to obtain approval to use the traditional process.
41. We disagree with those who believe we should defer to the potential applicant's process choice on the ground that it has the most relevant knowledge. The comprehensive development standard of the FPA requires us to consider all issues pertaining to the public interest and establishes important roles and responsibilities for other federal and state agencies. We also have a trust responsibility to Indian tribes. The appropriate process must be selected with the interests of these entities and other members of the public, not simply those of the potential applicant, in mind.
42. The NOPR proposed to grant requests to use the traditional process upon a showing of “good cause.”
43. The recommended criteria predictably differ depending on whether they come from industry commenters or others. Industry commenters suggest that the traditional process should be readily approved for small projects with relatively few issues. This, they suggest, includes some or all of: a project operated in run-of-river mode; no substantial changes are proposed in operations or structures; there are no anadromous fish; generating capacity is modest; or the existing project boundary includes little or no land above the high water mark.
44. Non-licensees contend that the bar for approval of the traditional process should be set high. Criteria for approval recommended by these commenters include: (1) A consensus favoring the traditional process;
45. Regarding original license applications, Consumers contends that the traditional process is appropriate because there is likely to be little relevant data available, which will cause the information gathering and study period to be extended, which is incompatible with the compressed time frames of the integrated process. NOAA Fisheries states that the same circumstances cited by Consumers should bar an applicant from using the traditional process.
46. The Process Group agreed that the “good cause” standard is vague, but did not identify criteria that would favor or disfavor use of the traditional process. Instead, they identified various factors for the Director to consider in each case in light of the goal of a timely, well-informed decision that protects the public interest. These factors include:
• Project size;
• Characteristics of the river basin, including the presence or absence of other dams;
• The likely level of controversy, including disputes over studies;
• The level of involvement and interest by resource agencies, any expressed intent on their part to exercise applicable mandatory conditioning authority, and the anticipated resource issues, including ESA;
• Whether there are tribal issues;
• The physical characteristics of the project and known biological impacts of project operations;
• Stakeholder and tribal views on process choice;
• Resource constraints on Commission staff and participants;
• Reasonableness of project costs;
• Whether the potential applicant has a history of positive or negative relationships with stakeholders and Indian tribes; and
• The amount and usefulness of existing, relevant information.
47. Although there was general agreement in the Process Group about which factors should be considered, this does not reflect a consensus on how the factors should be considered. For instance, industry commenters tend to think small projects are better suited to the traditional process because they are likely to have fewer environmental impacts, be less controversial, and be less well able to bear the transaction costs of relicensing. Agencies, NGOs, and Indian tribes, tend to think project size is only coincidently related to environmental impacts and controversy, and view transaction costs as a cost of doing business and a much lower concern than development of a complete record and improvements in environmental protection.
48. This fundamental difference of viewpoints leads us to conclude that the Process Group approach, somewhat modified, is the most sensible approach to this issue. We conclude that five factors are most likely to bear on whether use of the traditional process is appropriate. These are: (1) Likelihood of timely license issuance; (2) complexity of the resource issues; (3) level of anticipated controversy; (4) the amount of available information and potential for significant disputes over studies, and (5) the relative cost of the traditional process compared to the integrated process. The more likely it appears from the participants' filings that an application will have relatively few issues, little controversy, can be expeditiously processed, and can be processed less expensively under the traditional process, the more likely the Commission is to approve such a request. In recognition of the uniqueness of licensing proceedings, participants who comment on requests to use the traditional process may identify other factors they think are pertinent to the proceeding in question.
49. The NOPR proposed to require a potential applicant to serve a copy of its request, if any, to use the traditional process or ALP on all affected resource agencies, Indian tribes, and members of the public likely to be interested in the proceeding, and to give appropriate newspaper notice to the general public. Responses would be due to the Commission within 15 days.
50. Many commenters respond that this is insufficient time to respond on a matter of such importance.
51. The NOPR concluded that NEPA scoping will be greatly assisted by the availability to the participants of as much relevant existing information as possible when scoping begins. To this end, we proposed to supplant the current requirements for existing licensees to make project information available to the public when the NOI is filed, and for all potential license applicants to provide an initial consultation document (ICD) to consulted entities during first stage consultation, with the PAD.
52. The PAD should include all engineering, economic, and environmental information relevant to licensing the project that is reasonably available when the NOI is filed. It is a tool for identifying issues and information needs, including NEPA scoping, developing study requests and study plans, and providing information for the Commission's NEPA document. The PAD would be a precursor to Exhibit E, the environmental exhibit in the license application. In the integrated process, the PAD would evolve directly into a new Exhibit E that has the form and contents of an applicant-prepared draft NEPA document.
53. The PAD proposal was widely supported, and many comments were received concerning the appropriate contents, format, and distribution requirements.
54. Industry commenters generally agree that the PAD is a good idea in principle, but that the requirements need to be significantly reduced to ensure that the contents are relevant to the licensing proceeding and useful to the participants. Some industry commenters believe the PAD requires significantly more information and a
55. Consumers recommends that we allow any applicant that uses the traditional process to meet only the existing public information and ICD requirements instead of filing the PAD. NEU makes the same recommendation for existing projects of 5 MW or less. Consumers also recommends that information requirements be made flexible to accommodate different types of projects; for instance, some data that is useful for unconstructed projects greater than 5 MW may not be needed to evaluate a smaller existing project. MWH and WPSR similarly indicate the PAD requirements should be reduced for small projects because of the asserted connection between small projects with minor impacts.
56. Various industry commenters also seek affirmation or clarification of our intention that only existing information relevant to project impacts is required, and that the scope of and level of effort to obtain existing data should be commensurate with project impacts.
57. Resource agencies and NGOs support the PAD and state that a high quality PAD is essential to the success of the integrated process in light of the short time frames contemplated in the NOPR, and that an applicant's failure in this connection would interfere with the ability of other parties to timely and effectively participate in licensing.
58. California agencies and a few other commenters believe that the PAD contents should not be limited to existing information, but should include all information needed to evaluate potential effects of project operations, and that the applicant should be required to conduct whatever studies or information searches are necessary to fill in any gaps in the existing information before the PAD is filed. They assert generally that NEPA scoping cannot be done unless there already exists a complete baseline of existing environmental data, and suggest that existing licensees should have acquired such data during the term of the existing license.
59. HRC similarly states that the PAD should include a systematic discussion of the project's resource impacts, so that post-NOI information gathering and studies are minimal, even if that requires potential applicants to conduct environmental monitoring or original studies not required under the existing license.
60. Agency and NGO commenters generally recognize however that complete information on all resource impacts attributable to a project is unlikely to be available when the NOI is issued and the PAD is filed. These commenters recommend that potential applicants be subject to a due diligence standard with respect to obtaining existing information; that is, make a good faith effort to determine what relevant information is available and to obtain it.
61. We agree that a due diligence standard will apply to the development of the PAD. The regulations we are adopting provide some guidance on what constitutes due diligence, but we are not able to provide a detailed definition. Rather, the determination of whether due diligence is exercised will have to be made on case-by-case basis.
62. There is a considerable gap between the industry and other commenters on the range and level of detail that should be required in the PAD. PG&E and Georgia Power for instance, suggest that instead of specific requirements, the content requirements should be stated as broad subject matter categories, with information required to the extent reasonably known, available, and applicable. Troutman similarly recommends that specific requirements in the regulations be replaced by a policy statement or guidance document from which applicants would determine what information is relevant and appropriate.
63. In contrast, agencies and NGOs generally prefer explicit and detailed requirements. For example, Wisconsin DNR and VANR recommend that the PAD include the original license order and all amendment orders and management plans; any document that explains the existing license requirements; a layman's summary of all of the license and management plan requirements; and a list of every entity consulted by the potential applicant prior to filing the NOI and the issues those entities raised. Another recommendation is that the PAD include study plans for restoration of essential fish habitat; data needed for water quality certification; information on cumulative environmental impacts throughout the river basin; and studies of fish passage conditions and plans for improvements thereto, including restoration of historic fish habitat. CHRC states that flow data should be provided on the finest available scale, even to daily or hourly flow for the entire historical record.
64. HRC suggests that licensee compliance with the requirements can best be ensured by having the Commission evaluate whether the PAD meets certain standards for completeness and commiting to taking measures to enforce compliance with the standards beyond finding that an application is deficient. These might include requiring the applicant to file a revised PAD before the proceeding continues, and interim environmental measures in annual licenses, or civil penalties.
65. Because these disagreements relate to how the document is formatted and distributed, we will defer their resolution to the conclusion of the following section concerning those matters.
66. Several industry commenters made recommendations with respect to the format and distribution requirements for the PAD.
67. NHA's concerns are shared and the essence of its proposal supported by many licensees. They acknowledge the importance of explaining the current license requirements based on the original license and any amendments, existing management plans, and other requirements, but state that the expense of producing, packaging and distributing the underlying licensing documents and existing studies to many recipients will be burdensome in general and enormous in some cases. They say that study results are generally useful only to a few stakeholders with appropriate expertise, such as resource agencies. The common thread of these comments is that general information about existing project facilities and operations would be broadly distributed, while more detailed information would be identified and made available on request, via the internet or another means of distribution.
68. SCE has a somewhat different proposal. It recommends that the PAD be limited to: (1) A general description of the project, similar to existing Exhibit A;
69. Long View and Xcel recommend that the PAD have the same format as license application requirements for the classification of the project;
70. Agency and NGO commenters appear to be less concerned with the format of the document than with its contents. They generally contend that the range of data and level of detail set forth in the NOPR should be affirmed in the final rule.
71. WPSR opposes having to provide the PAD at all. It recommends instead that the existing requirement to make public information viewable by the public in various locations, such as company headquarters and public libraries, be retained.
72. AW/FLOW states that internet or CD distribution is good in theory, but that people attending meetings generally have paper, so this means of distribution would unfairly force cash-strapped NGOs to bear the cost of printing materials.
73. The Documents Group agreed that it makes sense for a potential applicant to incorporate into the PAD by reference voluminous information such as raw data and existing studies. They agreed that the substantial effort and expense does not necessarily make the document more useful and may, owing to sheer volume, make it less useful. This information could be summarized in the relevant section of the PAD using appropriate methods. In addition, the PAD would contain an appendix describing all materials summarized in the text, and explaining how to obtain those materials from the potential applicant.
74. The Documents Group agreed that the goal is to target insofar as is practicable the needs of various stakeholders, agencies, and Indian tribes. To that end, the potential applicant would have to deliver the summarized information upon request to any agency, Indian tribe, NGO, or other stakeholder within 20 days of the request, in a mutually agreeable format that does not require conversion by the potential applicant from paper to an electronic format. Potential applicants would have to be able to deliver electronically formatted materials in a variety of formats.
75. We are adopting requirements for the PAD that substantially incorporate the recommendations of the Documents Group. The purpose of the PAD is to provide the Commission and the consulted entities with existing information relevant to the project proposal that is in the potential applicant's possession or that it can obtain with the exercise of due diligence. Distribution of the information will enable the consulted entities to identify issues and related information needs, develop study requests and study plans, and help the Commission to analyze any application that may be filed. We will not require a potential applicant to conduct studies in order to generate information for inclusion in the PAD. The basic content requirements will be a description of the existing and proposed project facilities and operations, a description of the existing environment, existing data or studies relevant to the existing environment, and any known and potential impacts of the proposed project on relevant resources.
76. A potential applicant will not be required to include all of the studies and information sources on which the descriptions in the PAD are based, but will be required to provide these materials upon request to recipients of the PAD. Potential applicants and participants in pre-filing consultation are encouraged to accomplish such distribution by electronic means, including compact disks, but a requester is entitled to receive such materials in hard copy form. The PAD will also be required to include a process plan and schedule, a preliminary issues and studies list, and an appendix summarizing any contacts with agencies, Indian tribes, and others in obtaining relevant information. We think that the foregoing format, content, and distribution provisions should result in PADs that serve the purpose for which this document is established and
77. Most commenters support having a Commission-approved study plan in the integrated process,
78. HRC requests that we affirm that the purpose of an approved study plan is to develop a record that allows for the adequate evaluation of reasonable alternatives to mitigate ongoing impacts to resources from project operations, and not to prejudge potential mitigation measures. The purpose of an approved study plan is to bring, to the extent possible, pre-filing finality to the issue of what information gathering and studies will be required by the Commission to provide a sound evidentiary basis on which the Commission and other participants in the process can make recommendations and provide terms and conditions. The study plan is developed in conjunction with NEPA scoping, and the latter inevitably involves judgments about which potential alternatives are reasonable to consider, and which alternatives will be eliminated from detailed consideration. It therefore follows that the Commission-approved study plan will reflect those determinations.
79. Washington states that study requests should not be rejected merely because they do not employ generally accepted practices, because new methodologies or techniques may be appropriate in some cases. We agree. As noted elsewhere, with the exception of the establishment of a nexus between the study request and operation of the project, no one criteria establishes a “litmus test” for study requests.
80. Georgia DNR states that study plans should be project-specific and that the study criteria should not be interpreted so as to mandate standard form study plans. We agree. Although we would expect specific study plans for projects with features identical or similar to one another to have the same or similar components, every project is likely to have unique features that need to be accounted for in the development of the study plan.
81. NYSDEC states that the unique aspects of individual projects make extrapolated data acceptable, if at all, only if it is technically infeasible to produce site-specific data. We do not agree with blanket assertions of this nature. We agree with Oregon that the appropriateness of extrapolated data is a decision properly made on a case-by-case and issue-by-issue basis.
82. Under the proposed rule, the NEPA scoping meeting and site visit would be followed by an opportunity for participants to make comments and preliminary study requests before the potential applicant files its draft study plan.
83. As discussed below, we have modified the process to extend the time for participants to discuss the potential applicant's proposed study plan and to provide more flexibility concerning interactions during that period.
84. The NOPR proposed that an information-gathering or study request be required to address seven criteria:
(1) Describe the goals and objectives of the study and the information to be obtained;
(2) If applicable, explain the relevant resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
(3) If the requester is not a resource agency, explain any relevant public interest considerations in regard to the proposed study;
(4) Describe existing information concerning the subject of the study proposal, and the need for additional information;
(5) Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied;
(6) Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate field season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers relevant tribal values and knowledge;
(7) Describe considerations of cost and practicality, and why any proposed alternatives would not be sufficient to meet the stated information needs.
85. Commenters generally approved of the proposed study criteria subject to various recommendations for minor changes.
86. PG&E, SCE, and Duke request that we affirm in the preamble that the study criteria are not a check list; rather, they need to be considered as a whole, with each criterion addressed, and that no single criterion is determinative. The Studies Group agreed. We so stated in
87. Long View states that the preamble should clarify that requesters' desires for information must be tempered by practical considerations of relevancy, the value of the information sought in the context of the proceeding, and the complexity and effort required to obtain the information. NHA states that requesters should be required to explain the merits of their requests in the context of the case and the FPA. We think a practical application of the proposed criteria, with the minor modifications we are making in this rule, should result in the adoption of study requests that have merit, and the exclusion of those that do not. As we stated in the NOPR, “the * * * criteria implicitly require that study requests not be frivolous and add some appreciable evidentiary value to the record.”
88. HRC asks us to clarify how ongoing environmental impacts will be considered in light of our policy that the baseline for environmental analysis is current conditions.
89. Duke wants us to emphasize that decisions on study requests will be consistent with Commission policy and practice. We think the regulation text is sufficiently clear in this regard.
90. The Advisory Council states that it would be helpful to include a more complete definition of what cultural resources studies are needed. The Advisory Council makes no specific suggestions in this connection, and we continue to believe that the best forum for determining appropriate data needs and study requirements is in individual cases.
91. Oregon suggests, particularly in light of the time frames, that participants' study requests should only need to be general in nature, with the burden on potential applicants to produce detailed study plans. We disagree. As discussed below,
92. The NOPR states that judgment calls on study requests will be made “in light of the principle that the integrated licensing process should to the extent reasonably possible serve to establish an evidentiary record upon which the Commission and all agencies or Indian tribes with mandatory conditioning authority can carry out their responsibilities.”
93. No comments were filed on proposed criteria (1), (4), and (6). Comments on the other proposed criteria are considered below.
(2)
94. NYSDEC states that the relationship of a study request to agency management goals should not be the sole or even the primary measure of the need for a study because agencies may request studies that do not relate directly to agency management objectives, but do relate to mandates established in law or regulation or derive from agency policy. A statement by an agency connecting its study request to a legal, regulatory, or policy mandate is, of course, entitled to appropriate consideration. Any requester should however appreciate that the more broadly stated the legal, regulatory, or policy mandate is, the more clearly the requester needs to explain how the mandate relates to the study request and, in turn, project impacts.
95. Massachusetts DER states that only a resource agency may appropriately determine what study requests apply to its management goals, so neither the Commission nor potential applicants should make determinations of applicability. As explained in the NOPR, the Commission does not intend to second guess the appropriateness or applicability of resource agency management goals.
(3)
96. NYSDEC states that the requirement to explain relevant public interest considerations should also apply to agencies. It would be desirable for any entity requesting a study to explain how its study request relates to the public interest, but it should suffice for an agency requester to explain the connection of the study request to its resource management goals.
(5)
97. EEI requests us to state that a nexus between project operations and effects on the resource in question is a threshold requirement that must be demonstrated in every case.
98. CHRC counters that a study might be required to establish the existence of a nexus. Taken to its extreme, CHRC's position would have us approving study proposals that amount to mere speculation. We think a common sense approach to demonstrating a nexus between project operations and resource impacts, informed by the professional judgment of qualified agency, Commission, and tribal staff, should ensure that this criterion is reasonably applied.
99. Oregon approaches the nexus issue from a different perspective; that is, if a nexus is demonstrated between project operations and resource impacts (
100. NHA and PG&E also request that we add an additional criterion requiring requesters to describe how the information would be used in the proceeding in relation to resource management measures. This proposed criterion appears to be intended to elicit an explanation how the information could be used to develop protection, mitigation, or enhancement measures by the Commission or agencies with conditioning authority. The Studies Group discussed this matter and recommended that the following phrase be added to the end of Criterion (5): “and how study results would inform the development of license conditions.” We agree that this is an important aspect of study requests and are adopting the proposed modification.
(7)
101. This proposed criterion received the most comments. Several state agencies state that resource agencies should not be required to provide detailed cost estimates of proposed studies because specific knowledge concerning study costs lies with applicants or their contractors. They contend that potential applicants should have the burden of addressing cost and practicality. They also add that this may be a difficult matter on which to reach a merits conclusion, because the value of the information developed is not always known until after a study is completed.
102. NYSDEC states that the criterion should be modified to require a requester to address the proposed study's scope and level of effort. We conclude the proposed modification is not necessary because there is a built-in incentive for requesters to do so. It is implicit that cost and practicality can be addressed only to the extent the study request includes a description of the scope and level of effort. The less specificity a requester provides, the more difficult it will be to apply the criterion in its favor.
103. Finally, various Indian tribes and agencies state that where protection of tribal trust resources is at issue, the Commission's trust responsibility prohibits it from considering factors of cost and practicality, or that such factors are entitled to minimal weight. They state that the only applicable considerations are consistency with treaties, statutes, and case law defining obligations to protect the trust resources. Some add that the FPA requires the Commission to protect non-developmental resources, so matters of study cost and practicality are entitled under that Act to minimum weight.
104. The NOPR also discussed certain additional criteria proposed by NHA and SCE,
105. Industry commenters preferred the NHA/SCE language because it requires a conclusion concerning whether the cost of the study is justified by the expected value of the information.
106. California recommends that if Criterion (7) is not adopted, a better alternative than the NHA/SCE language would be to follow California's requirement that the burden of studies, including their costs, must bear a reasonable relationship to the need for the study and the benefits to be obtained therefrom. PG&E and NHA in their comments also attempt to find some middle ground by recommending that NHA/SCE criterion (3) be revised to require the requester to “Assess the relative value of the anticipated incremental information compared to the effort, including time and cost, required to obtain it.” There is clearly no agreement between the industry on the one hand, and agencies, Indian tribes, and NGOs on the other hand about how to consider cost and practicality.
107. The Studies Group considered this question at length and agreed that this criterion is not concerned solely with cost, but also generally with the level of effort the potential applicant should have to make to gather information or conduct studies with respect to an issue. They proposed to insert the words “and/or level of effort” after the word “cost” to reflect that agreement. After considering all the comments, we conclude Criterion (7), modified as recommended by the Studies Group, provides an appropriate basis for consideration of cost and
108. Various industry commenters recommend that we add a criterion requiring a requester to discuss whether or a not a resource problem has been identified that relates to the request.
109. Normandeau suggests that we consider adding a criterion that requires a requester to address the effect the information gathering or study would have on timely completion of the overall process. Criterion (6) requires each proposed study to include a schedule, including appropriate field season(s) and the study duration, so all parties should be able to assess the potential effect of the request on the timeliness of the proceeding. The appropriate length of a proposed study will, of course, be a matter best determined in the context of the specific case.
110. Menominee recommends that we add a criterion to recognize study requests made in connection with the Federal government's trust responsibility to protect the resources of Indian tribes. This does not appear to be necessary because the relationship between a study request and the trust responsibility can be addressed in Criteria (2) or (6).
111. The study criteria, modified in accordance with the foregoing discussion and as set forth in the regulations we are adopting, are set forth here:
(1) Describe the goals and objectives of each study proposal and the information to be obtained;
(2) If applicable, explain the relevant resource management goals of the agencies or Indian tribe with jurisdiction over the resource to be studied;
(3) If the requester is a not resource agency, explain any relevant public interest considerations in regard to the proposed study;
(4) Describe existing information concerning the subject of the study proposal, and the need for additional information;
(5) Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied, and how the study results would inform the development of license requirements;
(6) Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate filed season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers relevant tribal values and knowledge; and
(7) Describe considerations of level of effort and cost, as applicable, and why any proposed alternative studies would not be sufficient to meet the stated information needs.
112. The proposed rule would have required the potential applicant to file an initial status report with study results and analyses following the first season of studies, or at another appropriate time following the date of the study plan order. The report would be followed by a meeting with parties and Commission staff. The potential applicant would file a meeting summary and, if necessary, a request to modify the study plan and schedule. The request to modify the plan, if any, would be deemed approved unless any party filed a notice of disagreement. Disagreements would be resolved based on written submissions to the Director. Any request for new information or studies following the initial status report would have to address the study criteria and show good cause why the request should be approved.
113. An updated status report would follow after a second season of studies or at another appropriate time. It would be subject to the same review, comment, and disagreement resolution procedures, except that any request for new information or studies must address the study criteria and show extraordinary circumstances why the request should be approved.
114. SCE states that this is unduly burdensome for all participants. It questions the practicality of one report at a specified time because of the likelihood of multiple studies conducted on different schedules, and states that preliminary results could lead participants to false conclusions. SCE also objects to sending study results to entities that have not previously requested to be involved in the issue under study. SCE and NHA would instead require the potential applicant to distribute a status report explaining actions taken to date, any unexpected findings, and a schedule for completing the studies.
115. SCE adds that the meeting following the initial status report would be unworkable because of the large numbers of studies required to be reported in detail, and because most participants will be interested in a limited number of studies. SCE would have the potential applicant determine the need for study review meetings based on comments received on the abbreviated status report, unless a majority of participants requested a meeting with respect to a particular study. NHA would also make the meeting optional for the potential applicant. If participants wanted a meeting not proposed by the potential applicant, they would so request in their comments on the initial status report, and the Commission staff would decide if it is needed.
116. Long View shares NHA's and SCE's concerns about the status reports and meetings. It would modify the rule to allow potential applicants to issue study-specific status reports and hold study-specific meetings at appropriate times with appropriate people.
117. NYSDEC would modify the rule to state that the potential applicant's meeting summary must include a brief statement that the meeting summary is deemed to be approved unless a party files a notice of disagreement.
118. These and other concerns about the status report proposal were considered at length by the Studies Group, including the fundamental issue of whether it makes more sense to have one status report and meeting, or to issue separate reports for each study or group of related studies at different
119. These modifications should make it easier for individual participants to focus on issues of concern to them, should result in early identification of any implementation issues, and should ease the distribution and consultation burden on the potential applicant. Accordingly, this is a reasonable approach to the matter of study plan implementation and is reflected in the final rules.
120. Finally, the Studies Group and Minnesota DNR recommend that parties have 30 days to respond to the initial and updated study reports, instead of the 15 days proposed. We have so provided.
121. NHA also addressed the standard for requesting modifications to the approved study plan in response to the initial study report. NHA would require a requester to address each of the study criteria and subject the request to the same good cause standard as a request for new information or new studies. We think such a requirement is unnecessary. Requests for modifications to an ongoing study are likely to be focused on specific concerns about how the study was conducted, or straight forward matters such as whether to extend the study for an additional field season because of drought conditions. A participant with such concerns should not have to reestablish the need for the study in the first instance. Rather, it should only be required to show good cause for the proposed modification.
122. We also think good cause standard should apply to proposals to modify ongoing studies following the updated study report. The proposed regulation text was not clear on the distinction between the standards applicable to requests for modifications to existing studies versus requests for new information gathering or studies. We have modified the regulation text to make the applicable standards clear.
123. We requested comments on whether participants should be permitted to make new information-gathering or study requests (as opposed to requests for modification of, or disputes concerning the implementation of, existing studies) following the updated study report.
124. NHA and Long View would like the rules to provide more certainty regarding the potential applicant's study obligations. They propose that after the updated study report participants would be permitted to make recommendations regarding the implementation of previously approved studies, but not permitted to make new information gathering or study requests. They state that participants should know when the initial study report is made whether any new studies are needed, and allowing new study requests after the updated study report would make participants less likely to focus their efforts on developing study requests at the beginning of the process.
125. Other licensees share the desire for certainty, but support the “extraordinary circumstances” standard as an alternative to a prohibition on new study requests.
126. Agencies and NGOs support the opportunity to request new studies at this point.
127. Some agencies and NGOs accept the premise that the standard for new study requests should increase as the proceeding progresses, and do not oppose an extraordinary circumstances standard at this point.
• A finding late in the study of a listed species in the area affected by the project;
• Initial studies uncover information that must be considered to ensure agency mandates and important management objectives are met.
• A nexus between project impacts and the study request is shown;
• A good reason is offered why the study was not previously requested;
• Circumstances have changed;
• Study results indicate a new study is necessary; or
• There are changes in laws, regulations, or environment.
128. After considering the comments, we have decided to adopt the proposed rule in this regard. We appreciate the desire of potential applicants for certainty when the study plan is approved, but until the study plan is completed, it appears premature to prohibit any additional study requests. An extraordinary circumstances standard, conscientiously applied, is sufficiently strict to provide ample incentive for participants to make their study requests early on, during development of the study plan. We will not attempt to further specify in the rules what constitutes extraordinary circumstances. This is the kind of decision that needs to be made in the context of a specific proceeding.
129. Finally, HRC, apparently fearing that the “good cause” standard will be too restrictive, requests clarification of that term. Troutman, apparently fearing that “good cause” and “extraordinary circumstances,” will be interpreted too broadly, requests clarification of both terms. We think it inadvisable to attempt more specificity at this point. The only practical approach is to apply
130. We also requested comments on whether parties should be required to file written comments on the potential applicant's initial and updated study reports prior to the required meeting to discuss the report(s).
131. In light of these comments, we will not impose such a requirement. Instead, we will leave it to the parties to determine individually whether they think the time and effort to file comments before the meeting will be beneficial in the circumstances of the proceeding.
132. Finally, S-P seeks assurance that the study development process will include consultation on means of keeping confidential sensitive Indian cultural practices. Our regulations and practices ensure that Indian tribes' confidentiality concerns will be appropriately addressed.
133. The NOPR proposed to establish a dispute resolution process that serves two purposes. In the informal stage, the applicant files a draft study plan for comment; the participants (including Commission staff) meet to discuss the draft plan and attempt to informally resolve differences. The Commission then approves a study plan with any needed modifications after considering the applicant's proposed plan and the participants' comments (study plan order).
134. In the formal dispute resolution process, resource agencies with mandatory conditioning authority under FPA sections 4(e) and 18, and states or Indian tribes with water quality certification authority under Clean Water Act section 401, would be able to file a notice of study dispute with respect to studies pertaining directly to the exercise of their authorities under the aforementioned sections of the FPA or CWA. An Advisory Panel considers the dispute and makes recommendations to the Director of Energy Projects, who resolves the dispute.
135. We also proposed that the applicant, by virtue of the fact that it must conduct any studies required by the Commission and implement the license, has a special interest in the outcome of study dispute resolution, and should be afforded the opportunity to submit to the panel information and arguments with respect to a dispute.
136. The NOPR requested comments on what modifications, if any, should be made to the proposed study dispute resolution process and, in particular, the proposed advisory panel.
137. NHA and WPPD recommend that a peer review process be added for study disagreements prior to issuance of the study plan determination, to provide unbiased expert opinion on establishment of study request goals and objectives, technical design in relation to goals and objectives and the state of the art, and the anticipated utility of the study results to meeting the study goals and objectives. If the disagreement was not resolved as a result of consultation with the peer reviewers, the peer reviewers' comments would become part of the record, which would be available to the panel in formal dispute resolution, if any.
138. We will not adopt this recommendation. A peer review process would add additional time and expense to the process, and would largely replicate the formal dispute resolution process, which would be inconsistent with our goal of having a study plan development process that ensures, as best the Commission can, that the participants come together for the purpose of resolving study disagreements themselves.
139. Many commenters recommend that the formal process be made available to any participant for study requests regarding any matter.
140. The NOPR explained that agencies and Indian tribes with mandatory conditioning authority, to extent they are exercising that authority, are differently situated than participants whose role is to make recommendations pursuant to FPA sections 10(a) and 10(j), National Historic Preservation Act (NHPA) Section 106,
141. Interior contends that the National Park Service should be eligible for formal dispute resolution with respect to study recommendations that relate to potential project impacts on a unit of the National Park System or other areas of special management concern, such as National Recreation Areas. Interior offers no basis for distinguishing these studies related to FPA Section 10(a) recommendations from those of other entities, and we
142. GLIFWC, Menominee, and Nez Perce suggest that the Commission's trust responsibility requires Indian tribes to be eligible for formal dispute resolution with respect to studies related to impacts to reservation lands within the project boundary and ceded lands on which tribes have treaty reserved rights. We do not agree. The study plan development and formal dispute resolution components of the integrated process are not required by any treaty or statute, and are being created solely to provide a means of creating an evidentiary record to support, to the extent reasonably possible, the actions of agencies or Indian tribes with decisional authority.
143. Finally, NHA and PG&E request that the regulations make more clear that the formal process is available only to agencies or Indian tribes with respect to their study requests related directly to exercise of their mandatory conditioning authority, and not for study requests relating to matters wherein these entities may only make recommendations, such as FPA Section 10(j) fish and wildlife agency recommendations. We have clarified the regulatory text in this regard.
144. Several commenters object to, or express concerns about, the efficacy of, the Advisory Panel. Some licensee commenters assert that the existing dispute resolution provisions work well enough.
145. Some commenters also fear that the panel proposal is not practical, citing the lack of monetary compensation for the third-party panelist's time and effort; and the short time frames, particularly in light of the panelists' lack of familiarity with the project and background of the issues.
146. These alternative recommendations generally have the virtue of being less complicated than the Advisory Panel proposal. They lack however the presence of a third party technical expert and panelists from Commission staff and the disputing agency who have no prior connection to the proceeding, and must work cooperatively with the third party expert and one another. We have also provided for a technical conference, discussed below, at which the potential applicant may directly address the Advisory Panel. For these reasons, we will adopt the Advisory Panel proposal.
147. Many comments were received on the membership of the Advisory Panel. Various licensee commenters contend that the Advisory Panel is unfair because it includes a panelist from the disputing agency, but not the potential applicant.
148. Suggested remedies for this alleged bias include having two Commission staff members not previously associated with the proceeding and one third party expert,
149. We do not agree that the proposal for panel membership is unfair to potential applicants. Again we remind industry commenters that the purpose of the Advisory Panel is to help resolve a dispute between the Commission staff and an agency or Indian tribe with mandatory conditioning authority concerning the adequacy of the record to support agency decision-making. Potential applicants will have ample opportunity through their written submission and participation in the technical conference to make their case to the Advisory Panel and the Office Director. A potential applicant that believes the Advisory Panel recommendation and study plan determination are not based on substantial evidence or are otherwise improper may file a request for rehearing.
150. EEI states that the agency representatives are not bound by the
151. The few agency commenters on panel membership state that fairness and balance require the disputing agency to be on the panel because that is the only way to ensure that its position on biological and technical issues is properly represented.
152. We think it would be a sterile exercise to try to craft regulatory language that more precisely defines the type or degree of expertise that may be necessary for the myriad of potential dispute resolution issues. The most practical approach is to leave the selection of an appropriate third party expert from the list of technical experts to the agency or tribe and Commission staff panel members in light of the facts of the case.
153. Interior requests that the requirement that the Commission and disputing agency panel members be “not otherwise involved in the proceeding”
154. Oregon and IDPR state that the Advisory Panel should not be limited to three members because every agency that objects to the study plan determination on a particular study needs to have its own representative. We have limited the panel to three for two reasons. First, we seek to minimize the possibility of deadlock. Second, the larger the panel is, the greater are the logistical challenges associated with the panel convening, meeting, and making a recommendation. To these we add the concern that the panel not appear to be weighted in favor of disputing agencies. We see moreover no reason why two Federal agencies with disputes concerning the same or similar study requests cannot be represented by one individual with the requisite expertise.
155. The NOPR proposed that if there is no timely agreement on a third party expert, the two existing panel members carry out the panel's functions.
156. We expect instances where a third panel member cannot timely be selected by the Commission staff and disputing agency representatives to be rare. We recognize however the importance of the third panel member in providing assurance that the impartiality of the panel's recommendations. We have therefore amended the rule to provide that in such an event, an appropriate third panel member will be selected at random from the list of experts maintained by the Commission.
157. Washington thinks a state agency expert should be able to serve on the Advisory Panel. We agree. A Federal agency or Indian tribe that initiates a dispute resolution could request a state agency expert to represent it on the Advisory Panel. Likewise, for instance, a state water quality certification agency could certainly appoint as its representative a member from its own ranks, or from another state or Federal agency, or Indian tribe. There is also no reason a qualified state agency employee could not serve as a third party expert if that person was selected by the other panel members and the state's regulations and policies permit that person to engage in such activities. We think this flexibility should make it easier to quickly assemble panels with the right expertise.
158. The Studies Group agreed that it would be appropriate for the Commission staff representative to initially organize the Advisory Panel and serve as chair. We think this makes sense because the notice of dispute will first be filed with the Commission, which will maintain the list of eligible technical experts, and some individual needs to be responsible to ensure that the process starts quickly and stays on track. We have so provided in the regulation text.
159. Some commenters contend that parties other than the potential applicant should be allowed to respond to the notice of dispute, even if they cannot initiate a dispute resolution, because they may have an interest in the outcome of the process not represented by the disputing agency or the potential applicant.
160. The Advisory Council, citing 36 CFR 800.4, seeks assurance that State Historic Preservation Officers (SHPO), Tribal Historic Preservation Officers (THPO), and Indian tribes have an
161. The integrated process is fully consistent with this requirement. The study plan and schedule development process discussed above contemplates the active participation of the SHPO or THPO, local governments, Indian tribes, and any interested agency or member of the public in determining what information needs to be gathered or studies conducted with respect to historic properties. Because these entities do not have mandatory conditioning authority, they would not be eligible to initiate the formal dispute resolution process. They would however have the benefit of informal dispute resolution and be eligible to participate in the technical conference.
162. We emphasize in this connection that the study plan development process merely determines, in consultation with the participants in the Section 106 process, which information gathering and studies the potential applicant should undertake. It assists the Commission in obtaining the information needed to identify what historic properties may be present. It makes no determination whether any aspect of the potential license application or reasonable alternatives would have an adverse effect on historic properties. That determination is made later in the context of the environmental document and other elements of the Section 106 process; specifically, the Commission must, when applying the criteria of effect and, if necessary, consult with the SHPO/THPO on ways to avoid or mitigate these effects, usually by entering into a PA.
163. NHA recommended inclusion of an “Advisory Technical Conference (ATC),” which would convene just prior to the meeting of the Advisory Panel. The ATC would include representatives of the Commission staff, the agency or Indian tribe with the dispute, the potential applicant, and a neutral expert or experts. It is not clear from NHA's submission how the Advisory Panel would interact with the conferees. Commission staff with appropriate expertise would moderate the ATC,
164. Prior to the ATC, the potential applicant and the resource agency that filed the dispute would file information and arguments. During the ATC, the agency or Indian tribe would summarize its arguments based on the study criteria, the potential applicant would respond, and the conferees would then discuss the issue in dispute relative to the study criteria. NHA would, to the extent feasible, have all studies in dispute addressed at one ATC. Following the ATC, the Advisory Panel would meet without the applicant, then make its recommendation to the Director, who would also have available the record of the ATC, including the opinions of the third party technical experts.
165. The Studies Group agreed that it would assist the formal dispute resolution process to add a technical conference, to be presided over by the Advisory Panel. This meeting would be held after the written submissions to the Advisory Panel by the disputing agency and the potential applicant are made by disputing agencies and the Commission staff, and just prior to the deliberative meeting(s) of the Advisory Panel. The meeting would be open to all parties, but the topics would be restricted to the specific studies in dispute and the applicability to them of the study criteria. The Advisory Panel would determine how it wished to receive information, but we anticipate that a question and answer format would work well.
166. The NHA proposal has merit in the sense that it would bring in additional technical expertise, but it also would entail additional steps requiring more time, additional Commission resources to provide a moderator and to keep a record, and would add to the overall burden by creating additional written record material of questionable incremental utility. NHA's proposal also does not provide an avenue for other participants with an interest in the outcome of the dispute to participate in the process.
167. We conclude that a technical conference based on the Studies Group's recommendation would benefit the process. The opportunity for the members of the Advisory Panel to hear directly from and be able to question the disputing agency or Indian tribe, the potential applicant, or other participants who have an interest in the outcome of the dispute should enable them to clear up any questions about the written submissions and quickly focus on the most important elements of the dispute. This should, in turn, assist the Advisory Panel to develop its recommendation in a timely fashion.
168. Various comments were received about the role of the Advisory Panel and how it should go about its work. EEI urges us to require the Advisory Panel to specifically address the potential applicant's submissions. An explicit direction in this regard is unnecessary; particularly in light of our decision to include the technical conference.
169. Troutman and Oregon request generally more definition of how the Advisory Panel will do its work, including with whom it will communicate, and how. The technical conference proposal and clarification that strict application of the prohibition on
170. EEI believes the disputing agency representative should be barred from writing the Advisory Panel's report on the ground that this person is likely to be biased in favor the disputing agency's position and, by having control over the drafting, will wield undue influence. We reject this suggestion. First, we trust that the panelists will apply their expertise in a professional manner consistent with the purpose of the
171. California contends that it is important for the Advisory Panel to convene in the vicinity of the project (and perhaps to visit the project) in order for the panel to better understand the disputed issues and so that state agencies and local entities with limited budgets are more likely to be able to appear before the panel. Whether it is necessary for the panel to meet in the project vicinity or visit the project is a matter best determined in light of the facts and circumstances of each case.
172. Some commenters state that some or all of the time frames for the formal dispute resolution process are insufficient.
173. HRC suggests that the response times can be alleviated and the panel's deliberations better focused if the notice of dispute and potential applicant's responsive comments, if any, are required to include proposed findings and recommendations. The agency or Indian tribe's notice of dispute is already required to address the study criteria, which we expect would encompass its proposed findings and recommendations, but only from its own perspective. Any response from the potential applicant is likely to similarly address the criteria from its perspective. The task of the Advisory Panel will be to discuss and attempt to resolve differences between the submissions. The addition of the technical conference is also likely to result in clarifications to the written submissions that will influence the opinions of individual panelists. Thus, the proposed findings and recommendations are largely included in the record. Although we are not inclined to require the disputing agency or Indian tribe, or the potential applicant, to separately state its proposed findings and recommendations, they are encouraged to do so if they think it will benefit the record.
174. The NOPR proposes to require a notice of study dispute resolution to be filed within 20 days of the study plan determination.
175. IDEQ recommends a 90-day period for the participants to informally resolve remaining differences after the study plan determination before a notice of dispute must be filed. We decline to adopt this recommendation. As discussed below, we have modified the rules to provide a 90-day period before comments are filed on the potential applicant's draft study plan for this purpose.
176. The principal concern raised about the third party technical expert is whether qualified persons will be willing to serve. Some commenters think the absence of compensation for professional time beyond reimbursement of expenses will make recruiting difficult.
177. We believe potential third party technical experts may be motivated to volunteer their services for reasons other than financial gain. One reason would be that service on the panel would enhance that person's professional standing as a technical expert, or in the area of alternative dispute resolution. It would also be an opportunity to provide a public service.
178. IDFG is concerned that there may not be a sufficient number of qualified people in the pool for certain issues due to lack of familiarity with local resources or limited field level experience with the resources. We think the Commission staff and disputing agency panelists will be competent to determine who among the pool of experts is qualified to serve.
179. The other principal concern of commenters is how to ensure that third party experts are truly neutral. Minnesota DNR indicates that technical experts employed by consulting firms are biased in favor of the industry and recommends using only experts from academia who have no recent ties to the industry. EEI, on the other hand, would have us prohibit the use of academics, on the ground that they are biased in favor of expansive and expensive studies. We decline to make any such blanket characterizations about large and very diverse classes of persons. This is the kind of concern that is best dealt with by the Commission staff and agency representatives to the panel in the context of a specific proceeding.
180. A few commenters favor the use of multiple panels. NOAA Fisheries, for instance, states that there should be a separate panel for each issue relating to each study dispute;
181. We hope that the formal dispute resolution process will rarely be invoked, but must take care to structure it so as to ensure that when it is, it can accomplish its purpose of timely bringing finality to study disputes. The regime favored by NOAA Fisheries is simply not practical. A contentious case with multiple study requests and disputes could paralyze the dispute resolution process for months. The more resources, studies, and agencies involved in a proceeding, and the more integrated processes being undertaken in the same general time frame, the more panels would be required, and the more difficult it would be to timely recruit panel members.
182. The majority of commenters on this issue, and the Process Group, support the use of a single panel to deal with related resource issues in the same proceeding, subject to various caveats. They indicate that it may be necessary to reduce costs, avoid delay, and prevent sequential disputes over the same study. For instance, one panel would consider all issues relating to fishery studies in a single proceeding or, perhaps, in a multi-project proceeding.
183. The most frequent caveat of those who agree that a single panel may consider more than one dispute is that the panelists have appropriate expertise.
184. California would have the panel chair determine which disputes the panel will hear. In light of the goal of expeditious resolution, we think it falls to the Commission staff, under the direction of the Director of Energy Projects, to quickly assess the disputes and determine how many panels are needed and which issues each will consider.
185. Oregon requests clarification as to whether there will be standing panels for various resources that are likely to be the subject of many study requests at many projects, such as anadromous fisheries, or project-specific panels. Oregon does not appear to support this, but rather to recommend project-specific panels in order to help ensure that appropriate technical expertise is brought to bear. We agree.
186. GLIFWC indicates that if a panel is to consider issues pertaining to different resources, it should be supplemented with a technical expert for each resource. We do not envision that the same panel would consider issues relating to, for instance, the need for a requested turbine entrainment study and the need for additional or modified recreational use surveys. The same panel might however consider disputes concerning studies requested on turbine entrainment and bypass reach flows for fishery habitat purposes. It would be a matter for the Commission staff and agency or tribal panel members to determine which persons on the list of potential technical experts are qualified and able to serve with respect to the subject of the dispute(s).
187. The proposed rule provides for the Advisory Panel to make a finding “as to whether the criteria * * * are met or not, and why.”
188. PG&E also suggests that the Advisory Panel should address, in addition to the study criteria, “any other relevant consideration.”
189. NEU states that if all three panelists do not support a recommendation, the disagreeing panel member should be required to provide a statement of the reason for their disagreement, in order to ensure a more complete record. We think this decision is best left to individual panelists. We could not, in any case, require compliance with such a provision.
190. The Director's determination is to be made “with reference to the study criteria * * * and any applicable law or Commission policies and practices.”
191. Some licensee commenters suggest that a potential applicant should be permitted to file a response to the panel recommendation before the Director's determination is made.
192. Interior recommends that the Director be required to obtain Commission approval before issuing a decision that does not adopt the Advisory Panel's recommendation. We
193. Interior also states that it does not know which technical experts the Director may consult before the decision is issued, which could result in the Director's objectivity being compromised. The regulations provide that all communications to or from the Commission staff, which includes the Director, related to the merits of the potential application shall be placed into the record.
194. Finally, several states request that we reaffirm that the Commission's dispute resolution process does not bind state water quality certification agencies
195. Several commenters
196. Our decision to limit formal study dispute resolution to development of the study plan does not imply that any subsequent decisions with respect to studies are less important. Rather, it reflects the fact that convening an Advisory Panel at every point in the overall process where there are likely to be disagreements would severely hamper the timely conclusion of the proceeding. Subsequent resolution of disagreements over study results, modifications to the approved plan, and additional study needs are also not likely to result in substantial changes to the overall study plan. Interior's and RAW's recommendation to reconvene an Advisory Panel for later disagreements pertaining to matters previously considered by that panel is impractical. There is no assurance that the same panelists would be available in a timely manner, or at all, and it would likely hamper the recruitment of third party technical experts if by committing to serve on one panel they were also committing to serve on an undetermined number of future panels at undetermined times.
197. As proposed, the study plan order would require the potential applicant to proceed with the approved study plan. The Director's order in formal dispute resolution could amend the study plan order and, if so, would require the potential applicant to carry out the study plan as modified.
198. SCE and others
199. California, Interior, and AmRivers request that the rule be amended to ensure that there are consequences for the potential applicant if study requirements, objectives, and expectations are not met. Menominee requests that applicants be required to develop a “Quality Assurance Project Plan” prior to implementation of the study plan.
200. Orders regarding studies plans will be binding on potential license applicants, and we expect that they will comply with them. Failure to do so will put potential applicants at risk of having their applications, when filed, found to be deficient or rejected. The question of whether such orders are subject to rehearing and appellate review may have differing answers, based on the facts of individual cases. In addition, review of study plan orders could significantly lengthen the licensing process, and thus is to be avoided to the extent possible.
201. More to the point, it is crucial to the success of the integrated process that issues regarding development of the record be identified and resolved at an early stage in the licensing proceeding. To this end, the process has been designed to give all participants the opportunity to examine existing information, make proposals regarding necessary studies, work with other participants to achieve consensus regarding information-gathering and, on matters that cannot otherwise be resolved, to obtain the opinion of a three-person panel of experts and a determination from the Director based on the record compiled by the participants. It is our hope and expectation that this consensus-building process will succeed, as has the collaborative alternative licensing process, in keeping disputes regarding studies to an absolute minimum, such that all participants can meet their information needs with the study plan as approved by the Director, without the need for further proceedings.
202. Some licensee commenters
203. Given that the thrust of Section 31 is the enforcement of Commission requirements with respect to the construction, operation, and maintenance of licensed projects, and not the license application process, it is not clear that the section is applicable to licensees as potential applicants. In any event, we consider imposing civil penalties to be inappropriate in this context and do not propose to do so.
204. With respect to the concern raised by PG&E about the unfair use by a competitor of another competitor's work product, the Commission has pointed out that any improper use of a copyrighted filing is subject to remedy in an appropriate judicial forum.
205. In any event, as discussed below, we are requiring non-licensee potential applicants for a new license to file the NOI and PAD no later than the statutory deadline for an existing licensee to file its NOI.
206. NHA similarly requests that we add to the regulations a requirement that as a condition of invoking the formal dispute resolution process agencies must agree to be bound by the Director's decision. This, NHA states, would ensure that the cost and effort of formal dispute resolution is not wasted. As just stated, we cannot bind states or Indian tribes with respect to the administration of their water quality certification programs under the Clean Water Act. NHA does not moreover speak for a united industry on this issue. Several licensee commenters indicate that they may feel compelled to seek rehearing of the Director's decision, and we can see no distinction between a potential applicant, agency, or Indian tribe in this regard.
207. Finally, PG&E and SCE request that we modify the proposed rule to make clear that agencies and Indian tribes with mandatory conditioning authority may not invoke the Commission's dispute resolution processes and then use authorities they have under other statutes to require potential applicants to do information gathering or studies in addition to those the Commission requires. We cannot do this, for we have no authority to control the activities of these entities under other statutes. We do however fully expect these entities to participate in the integrated process in good faith in order that the Commission's decisional record will, to the extent reasonably possible, serve as the basis for the decisions of entities with conditioning authority, and that any additional information these entities may require is known early in the process.
208. Washington DNR recommends that the Commission establish a conflict resolution process for disputes between potential applicants and the owners of lands on which a project would be located, and that the license application not be accepted until the conflict resolution process has run its course. Such a conflict is likely to occur only in the case of a new project proposal. We think it is inappropriate to hold processing of the application in abeyance until the concerns of one party are resolved. Affected landowners, like all interested entities, are encouraged to participate in the pre-filing consultation process and to intervene if a license application is filed. If the potential applicant and the landowner are not able to resolve any differences,
209. Skagit recommends that we require tribal approval of consultants engaged by potential applicants for tribal cultural resources analysis. Nez Perce recommends that a dispute resolution process be made available for disagreements between Indian tribes and potential applicants over the identity of consultants engaged by the potential applicant to do information gathering or studies related to tribal cultural resources because potential applicants sometimes engage persons who are not acceptable to the Indian tribe. As discussed in the NOPR, we agree that it is appropriate for potential applicants to consult with interested tribes concerning the identity of consultants and, indeed, it is in their best interest to do so, but we also think that applicants need flexibility in this regard and should not be required to obtain tribal approval before engaging a consultant.
210. A few licensee commenters
211. Substantially the same recommendation was made by some of the same commenters prior to the NOPR. We there stated that while we do not intend to change our general practice of resolving most hydroelectric licensing matters by means of notice and comment procedures, we are open to setting discrete issues of fact for hearing before an ALJ in appropriate circumstances, and will give due
212. In the Final Rule, we retain the proposed language on this issue. Resolving factual disputes before an ALJ is a time-tested means of decision making; factual records developed in such hearings are useful to courts which may be called upon to review the final decision on the license.
213. The integrated process was proposed to include the filing for comment of a draft license application containing, insofar as possible, the same contents as a final license application.
214. We requested comments on whether, in lieu of filing a draft license application for comment, it would be a better use of the participants' time to continue informally working on the resolution of any outstanding issues, or whether other considerations weigh for or against a draft license application.
215. Several industry commenters state that the potential applicant should decide if a draft license application is needed, because many potential applicants feel the time and effort devoted to it would be better spent on other matters such as settlement discussions and completing study requirements.
216. These commenters contend that the other participants do not need to see the potential applicant's proposed resource protection, mitigation, and enhancement (PM&E) measures until the application is filed, and that they should have a good general idea of what the potential applicant is likely to propose from the PAD, NEPA scoping, and study plan requirements. NHA would have the potential applicant consult with the parties with the objective of an agreement on whether a draft application should be circulated.
217. Resource agencies and NGOs urge us to retain the draft license application. They state that it is the first time the potential applicant's whole proposal, including PM&E measures, is consolidated and revealed to agencies, which helps them to understand the entire effect of the project and to prepare for filing of the application in final. Some indicate that the draft application is necessary to ensure that potential applicants consider all participants' comments. Others state that it is an important last pre-filing chance to influence the potential applicant's proposed PM&E measures, and to identify areas where additional information may be needed, including for water quality certification purposes. Some also suggest that the draft license application fosters settlement negotiations. Finally, some commenters indicate that the time required to review a draft license application will not prevent parties from continuing to work on outstanding issues, such as settlements or the completion of studies.
218. Agency and NGO commenters also suggest that the cost of a draft application should be modest because it is circulated so close to the filing deadline that the draft must very closely resemble the final application, and some favor permitting control of costs by e-filing.
219. As indicated above, much of the disagreement about whether to require a draft license application turns on the contrast between the industry view that it is burdensome and of questionable utility, and the agency and NGO view that it is helpful to the participants. Our task then is to devise a document that reduces the burden imposed on the potential applicant but retains the features of the draft license application that the agencies and NGOs find useful. To that end, we must consider the commenters' views on the appropriate contents of a draft license application.
220. The NOPR requested comments on whether a draft application, if required to be filed, should track the contents of the final license application, or whether it would be preferable to require it only to include a revised Exhibit E or other materials.
221. NHA and others
222. Long View states that if a draft license application contains the potential applicant's specific proposal, then commenting agencies should be required to provide preliminary terms and conditions. This, it states, would allow the potential applicant to refine its proposal and help make Commission action more timely.
223. Agencies and NGOs, on the other hand, recommend that the draft license application continue to follow the format and content of the final application. They wish particularly to have a requirement for a specific operating proposal, and stress the need for a quality Exhibit E.
224. Several commenters also state that the draft license application should include all the data and information needed for the state to consider the potential applicant's clean water act certification application.
225. Clearly, there is no meeting of the minds on this issue in the written comments. The Process Group however discussed this issue at length and agreed that, in lieu of a draft license application, an applicant could be permitted to file a document discussing its proposal for operation of the project facilities, a range of PM&E measures under consideration by the potential applicant,
226. The underlying premise of the Process Group's compromise is that sufficient information is available through the PAD and completion of information gathering and studies under the approved study plan to support development of a range of PM&E measures and a draft environmental document.
227. We think the Process Group's agreement is by and large a reasonable attempt to bridge the gap between license applicants and other participants because the proposed document should be less burdensome for potential applicants, yet provide the specificity sought by agencies and NGOs with respect to the potential applicant's proposal and environmental impacts analysis. We have two concerns with this recommendation however. First, a document which contains a “range” of potential PM&E measures will not be very helpful to commenters, who will not know which of the potential PM&E measures the potential applicant is seriously considering. It would also needlessly complicate commenting on the draft environmental analysis. We will therefore require the Preliminary Licensing Proposal to include one set of proposed PM&E measures. Second, the utility of the Preliminary Licensing Proposal would also be compromised if the potential applicant merely provided a “summary” of its draft environmental analysis. The term “summary” is quite elastic and we do not intend to further complicate the process by trying to specify the contents of the summary. Instead, we will require the Preliminary Licensing Proposal to include the potential applicant's draft environmental analysis of its preliminary licensing proposal.
228. The NOPR states that in most cases the updated study report should indicate that all of the information required by the approved study plan, or all of the information required to support the filing of FPA Section 10(j) recommendations or mandatory terms and conditions or fishways, has been collected and distributed to the relevant agencies at the draft application stage. We suggested that in such circumstances, it may be appropriate for the parties to file preliminary draft 10(j) recommendations, terms and conditions, or fishway prescriptions, and for the Commission staff to make a preliminary response, including initial 10(j) consistency findings, to those filings. Modified recommendations, and terms and conditions would be filed in response to the Commission's ready for environmental analysis (REA) notice.
229. A few licensee commenters responded affirmatively. SCE states that under these circumstances we should require draft PM&E measures to be filed 45 days after the license application is filed because the record will be complete. SCE would have final PM&E measures filed 60 days after the REA notice. Idaho Power and EEI suggest that if parties are not required to provide recommendations and terms and conditions when the studies are completed, the goals of the integrated process will not be realized. NEU also supports earlier filing of draft PM&E measures.
230. One state agency, IDFG also supports this idea, at least with respect to fish and wildlife agency recommendations made pursuant to FPA Section 10(j).
231. Nearly all respondents however opposed this idea for various reasons. Wisconsin DNR and NCWRC state that the potential applicant needs to make its licensing proposal, at least in draft, in order for agencies to assess the potential impacts so that they can develop mitigation measures or craft water quality certification conditions.
232. NOAA Fisheries and HRC indicate that completion of the study plan does not complete the record because, at a minimum, the license application including the applicant's proposal needs to be filed.
233. GLIFWC and Skokomish state that preliminary draft conditions before the REA notice would not afford Indian tribes sufficient time to consult with Federal agencies that have authority pursuant to FPA Section 4(e) to require mandatory conditions for projects located on Indian reservations.
234. Among agencies and NGOs, only NYSDEC and Oregon do not object to filing preliminary draft PM&E measures. Oregon's tentative assent however assumes a period of one year between the draft and final license applications, in contrast to the approximate period of 150 days in the proposed rule.
235. Finally, Interior states that this might be acceptable, but only at the option of the entity filing the PM&E measures. Interior also questions the purpose of this proposal on the ground that the Commission's draft environmental document is likely to provide significant information and analysis not found in the studies or applicant's proposal. Interior adds that filing preliminary PM&E measures before the REA notice is pointless since modified PM&E measures are not due until 60 days after the comments are due on the draft NEPA document.
236. We conclude that the arguments against requiring preliminary draft PM&E measures are persuasive and will not require them to be filed.
237. Only a few comments were filed on the contents of the final license application. Long View seeks clarification that Exhibit C (proposed construction schedule) applies only to proposed construction, and need not discuss any previous construction. Long View's understanding is correct.
238. Long View requests an explanation of why the maps required in Exhibit G need to be stamped by a Registered Land Surveyor. This ensures accuracy in the maps because Registered Land Surveyors are accountable for the accuracy of their work.
239. Nez Perce indicates that the license application should include a map showing the political boundaries of any Indian reservation that may be affected, and identifying ceded and non-ceded territories where treaty rights apply. In our view, this is information that can best be provided to a potential applicant by the Indian tribe itself or with the assistance of Interior.
240. Nez Perce also states that the Exhibit E should be prepared after consultation with affected Indian tribes on the scope of cumulative environmental impacts, and should be prepared on a watershed basis. The integrated process provides ample opportunity for Indian tribes to participate in pre-filing consultation and NEPA scoping. In addition, the Commission staff's Scoping Document 1 will state what the Commission staff considers to be the geographical and temporal scope of the analysis.
241. Some commenters requested changes to the license application requirements that touch on economic analysis. Nez Perce and NOAA Fisheries request that Exhibit E include, in addition to discussion of the cost of PM&E measures, a dollar valuation of the benefits of environmental and cultural resources PM&E measures. This analysis would include, among others things, potential increases in revenues from commercial and sport fishing, increased non-fishing recreation, and potential property value increases resulting from better environmental protection.
242. Our views concerning the attachment of dollar values to natural and cultural resource benefits are set forth in
The public-interest balancing of environmental and economic impacts cannot be done with mathematical
In the context of public interest balancing for long-term authorizations, it is inappropriate to rely too heavily on the accuracy of current dollar estimates of non-power resource values, calculated using any number of reasonably disputable assumptions and methods.
243. AW/FLOW and FWS state that the final application should include projections of project revenues for the purpose of testing applicant assertions that proposed PM&E measures are too costly. That would be inconsistent with the fundamental determination underlying our policy of using current costs to value project power; that is, the futility of attempts to estimate power values on a long-term basis.
244. Long View and PG&E state that Exhibit E (which is in the form of a draft environmental document) which requires an economic analysis of “any other action alternative”
245. The action alternatives typically include PM&E measures proposed by agencies, Indian tribes, and NGOs. If such measures are not provided before the application is filed, the potential applicant has little to work with and a commensurately minor obligation in this regard. In such cases Exhibit E then will contain an economic analysis of the existing project as it currently operates and the license applicant's proposal. We expect however there will also be cases in which preliminary action alternatives or individual PM&E measures will exist when the application is filed. We share PG&E's concern about license applicants being held responsible for developing cost information about or analyses of PM&E measures of varying specificity and practicality, or those that involve long-term activity not easily translated into current costs. We would only expect a potential applicant to provide an analysis of preliminary PM&E measures if they were sufficiently specific to make that possible.
246. The proposed rule makes no provision for new information-gathering or study requests after a license application is filed, based on the premise that participants are provided ample opportunity before the application is filed and during the study period to make such requests. Industry commenters agree with this proposal.
247. Some agency and NGO commenters do not agree. They appear to concede that if such requests are permitted, the bar should be set high, but assert that to prohibit them entirely would exclude from the record information warranted by unforeseen circumstances. They cite as examples unexpected study results which establish a need for a new study; failure of the applicant to meet document production and disclosure obligations during the pre-filing period or in the application; and material changes in circumstance with respect to the environment, the applicant's license proposal or information contained therein, and applicable laws or regulations.
248. The mere fact that study results are unexpected does not indicate that a new study is needed. It is possible for study results to be so different from what was expected that questions arise concerning whether it was properly conducted, but such events are exceedingly rare in our experience. The failure of an applicant to satisfy the terms of the study plan or filing requirements is not a cause for new study requests. It is rather the cause of a deficiency that must be remedied, and may also raise compliance issues.
249. It is also possible for a material change in circumstances to occur between the completion of the study plan and the conclusion of a licensing proceeding that requires additional information to be provided. That has always been the case, and the Commission has always exercised its authority to require applicants to provide additional information for the record in appropriate cases. We will continue to do so. However, we remain convinced that the multiple opportunities to request information and studies and to resolve any study disputes during the pre-filing phase of the integrated process will ensure that the application will include all information needs.
250. PFMC requests that we clarify the relationship between licensing and other Federal and state processes. The relationships between licensing and state and tribal water quality certification and consistency certification under the Coastal Zone Management Act (CZMA) are discussed in this section.
251. Minnesota DNR asks us to affirm that the changes we are adopting are not designed to weaken the authority of state fish and wildlife agencies. We have carefully developed the final rule to ensure that the rights and views of all participants, including all state agencies, are accorded the full consideration to which they are entitled by law, and in many instances have provided procedural rights exceeding any legal requirements.
252. Long View requests that the Commission designate specific members of staff to be familiar with the water quality certification requirements of
253. The existing regulations require license applicants to file an application for a water quality certification for both the traditional process and ALP no later than the date on which the application is filed.
254. We proposed to make the license application date the deadline date for filing the water quality certification application in the integrated process because the integrated process is designed to better ensure that water quality certification data needs are timely identified and met.
255. Commenters on this issue seldom distinguished between processes, and opined that it would be confusing for participants to have a different deadline date depending on the process selection. They recommended a deadline date for all processes based on their views of how the Commission's processes should be coordinated with state water quality certification processes.
256. Only PFMC, NEU, and NJDEP recommended that the deadline date continue to be the filing date of the license application. Several commenters recommended that the deadline for filing of the water quality certification application should be 30-60 days following the Commission's REA notice.
257. In this connection, the Process Group agreed that the integrated process will work best when states and Indian tribes recognize and are actively involved throughout the pre-filing process, and that the Commission, state or Indian tribe, and applicant should discuss schedules and procedures for their respective processes early on. We wholeheartedly agree, and if this is done the integrated process should result in all parties knowing what water quality-related data the Commission will require the potential applicant to produce when the study plan determination is issued or, at the latest, the conclusion of any relevant formal dispute resolution process. This should leave ample time before the license application is filed, about two and one-half years, for the potential applicant to consult with the state regarding what, if any, additional data is required for certification, and to collect that data. If the potential applicant and the state or Indian tribe are diligent in this regard, the potential applicant should be able to file the water quality certification application by the time the license application is filed.
258. There may however be instances where the license application is required to be filed, but some information required by the Commission-approved study plan or by the water quality certification agency has not yet been obtained. In these circumstances, the REA notice will not be issued until the study plan is completed, so using the REA notice as the triggering date to file the water quality certification application allows an additional increment of time past the license application date in case there is also outstanding water quality data.
259. California, VANR, and the Process Group propose that the deadline date be negotiated by the state or Tribe and the license applicant. As a default in the event there is no agreement, California proposes a deadline of 60 days following issuance of the Commission's draft NEPA document.
260. Oregon and HRC similarly recommend that the deadline date should be established by agreement between the participants and the state on a project-by-project basis. They state that the best time to file the water quality certification application is when the studies are sufficiently complete to provide reasonable assurance of a supportable decision, so long as there is sufficient remaining time to complete the Commission's NEPA analysis and other steps and issue a new license before an existing license expires. Other factors Oregon would take into account include whether the state has public participation and SEPA requirements that rely on the federal environmental analysis.
261. We cannot accept an open-ended deadline date to be negotiated in each proceeding. That would introduce an enormous element of uncertainty into the process and subordinate the Commission's license process to the convenience of the parties or the processes of the water quality certification agency. Neither can we accept a deadline of 60 days following issuance of the draft NEPA document. First, this would be well over three years after the Commission-approved study plan is finalized. Second, in some states the potential license applicant may learn from pre-filing consultation with the certifying agency or tribe all of the data it will be required to produce, but in others this is not determined until an application has been filed. The draft NEPA document is issued at a point approximately 14 months prior to expiration of an existing license. Even if the state promptly determines what additional information is required, it is highly unlikely that the data could be gathered and a certification issued within the remaining time before license expiration. If the state does not act promptly, as much as a year could be lost from the remaining time.
262. California does not explain how the Commission's draft NEPA document could serve that state's public notice and comment requirements when there is no application pending for water quality certification. Absent that application, there would be no reason to think the state would consider the evidentiary record complete, or that the alternatives considered in the Commission's NEPA document would resemble the contents of a water quality certification. In this connection, New York states that it requires water quality certification applicants to submit studies or data based on pre-project conditions. Maine states that its water quality certification agency will not participate in the Commission's study dispute resolution process because of state sovereignty concerns and because an unfavorable decision in the Commission's process would make it more difficult to require the requested data through its own processes.
263. California indicates that the Commission need not establish a water quality application deadline because states have an incentive to informally consult with the potential applicant before the water quality application is filed to ensure that they have the data necessary to issue water quality certification before the existing license expires and thereby ensure that the environmental improvements included in the certification will timely go into effect. That incentive exists now, yet the single most common cause of new licenses not being issued prior to expiration of the existing license is the absence of water quality certification.
264. In sum, the latest date we can accept for filing of the water quality certification application is 60 days following the REA notice for all processes. This provides two to two and one-half years following issuance of the Commission-approved study plan for the potential applicant and the state agency or Indian tribe to determine what, if any, additional information will be required for a complete water quality certification application, and for the applicant to collect the data and file an application before the Commission issues its REA notice.
265. Since 1991, our policy has been to deem a water quality certification agency to have waived certification if it has not denied or granted a request for certification within one year after the request is filed. A few commenters recommend that we change the policy so that the statutory one-year period for action established by CWA Section 401 is deemed to begin when the state deems the application to be complete.
266. Alaska seeks assurance that our consideration of coordination and consultation with states includes CZMA issues. Coordination with state agencies that issue consistency certifications under the states' approved Coastal Zone Management Plans should begin with development of the process plan and schedule, in the same manner as coordination with the water quality certification process. We have added state agencies with CZMA authorities to the list of agencies with which a potential applicant must consult,
267. In the NOPR we proposed to establish the position of Tribal Liaison as a single, dedicated point of contact and a resource to which Native Americans can turn for assistance in dealing with the Commission regardless of the proceeding or issue. We also proposed to contact Indian tribes likely to be interested in a relicense proceeding in a time frame consistent with the advance notification to initiate discussions concerning consultation procedures.
268. Indian tribes offered many comments on the Commission's trust responsibility as it relates to treaty rights, legislation, and executive orders. Several tribes state that as sovereign entities, they have government-to-government consultation rights which differ from those applicable to agencies and the general public, because they must be determined by mutual agreement between the Commission and individual tribes in a case-specific and issue-specific context.
269. Many commenters
270. Various specific suggestions were also made regarding tribal consultation. For instance, the Tribal Group indicates that tribal consultation should begin when the Commission sends the licensee the advance notice of license expiration. GLIFWC, citing tribal government decision-making processes, and NF Rancheria, asserting a need for as complete a record as possible when the NOI is filed, support pre-NOI contacts between the Tribal Liaison and the potentially affected tribes. Catawba and Choctaw state that consultation needs to begin with the chief or governing body, rather than other tribal members or employees. Catawba also recommends that Commission staff visit tribal lands in order to understand local issues. The Tribal Group recommends including in the regulations a requirement for a meeting between the Commission, potentially affected tribes, and other concerned Federal agencies shortly after notice of the NOI and PAD is issued. The Tribal Group and others
271. Concerns were also expressed about the timing of consultation. One example is that some tribes require any agreement with another entity to be ratified by an executive board, while some require only the agreement of the tribal chief.
272. S-P states that tribal sovereignty requires issues scoping to be separate for tribes. NW Indians, on the other hand, suggest that tribes need to be in the same scoping process with other entities because they are likely to have overlapping issues and because the interests of other participants (such as recreational users of project lands) may be adverse to those of the tribes.
273. In light of these comments, we have decided to take a three-pronged approach to better fulfill our trust responsibility. The first prong is to publish in our regulations a policy statement on tribal consultation. The policy statement was developed from our review of the written policies of other Federal agencies concerning the trust responsibility and government-to-government consultation.
274. The policy statement recognizes the unique relationship between the Federal government and Indian tribes as defined by treaties, statutes, and judicial decisions. It acknowledges the Commission's trust relationships. It states that the Commission will endeavor to work with the tribes on a government-to-government basis pursuant to trust responsibilities, the FPA, and any other statutes governing the Commission's authority. It notes that the Commission functions as a neutral, quasi-judicial body and as such is bound by the APA and Commission rules regarding off-the-record communications. It states that the Commission will assure tribal issues and interests are considered in making decisions. Specifically to the hydroelectric program, it states that the Commission will notify tribes at the time of the NOI and will consider comprehensive plans prepared by tribes or intertribal organizations.
275. The second prong of our approach is to establish the Tribal Liaison position, discussed below. The third prong is inclusion in the regulations of a meeting with willing Indian tribes no later than 30 days after filing of the NOI.
276. NW Indians and S-B state that the Commission's rules must acknowledge that the trust responsibility supersedes public interest balancing under the FPA. We do not agree. The Commission carries out its trust responsibility towards Indian tribes in the context of the FPA, and the trust responsibility does not require the Commission to afford tribes greater rights than they would otherwise have under the FPA.
277. We will not attempt to further define the government-to-government consultation process in the regulations. The review of tribal comments above makes clear that there is no consensus on what such specific provisions might be. The one consistent comment is that an effective process needs to be established in consultation with individual tribes. Under these circumstances, we conclude that the most effective way to move forward is to issue the policy statement; include a provision in the integrated process regulations to ensure that tribal consultation begins, at the latest, no later than 30 days after issuance of the NOI; and establish the Tribal Liaison.
278. Although some other Federal agencies have done so, we will also not include a more general definition of tribal consultation in the regulations. BIA, for instance, is guided by the definition of the Advisory Council in the latter's regulations governing
279. In our view, tribal consultation pursuant to our trust responsibility encompasses far more than implementation of NHPA Section 106. It includes every issue of concern to an Indian tribe related to a treaty, statute, or executive order where the Commission can, through the exercise of its authorities under the FPA, fulfill its trust responsibility. That is a very broad concept, and we are convinced that establishing the consultation process with respect to any particular case through direct communications with the affected tribes will be more meaningful than any general language we could put in the regulations.
280. Our proposal to establish a Tribal Liaison was supported by all of the commenting tribes and the Advisory Council.
281. Commenters suggest various roles and responsibilities for the Tribal Liaison. These include facilitating government-to-government consultation by directing tribes to the right person or persons to deal with substantive or policy issues; ensuring that communications are maintained between tribal representatives and Commission staff throughout the proceeding;
282. GLIFWC and Menominee state that because the process for government-to-government consultation needs to be developed in agreement with each tribe, the roles and responsibilities of the Tribal Liaison cannot be fully determined at the outset, but must evolve in response to the development of tribal-specific agreements.
283. The Tribal Group essentially endorsed all of these recommended responsibilities and added the following:
• Coordinate with tribal liaisons at other agencies;
• Help determine which tribes may be affected by likely future relicensing applications or original license applications;
• Inform potentially affected tribes about potential future relicensing applications and facilitate tribal participation in rulemaking proceedings;
• Become educated about the rights of Indians;
• Assist tribes in making known their issues and views on compliance with treaties and the trust responsibility;
• Ensure that tribes are informed of studies and information with cultural resources or treaty rights implications;
• Manage communications between the Commission and tribes when the
• Facilitate communications between applicants and tribes; and
• Facilitate informal dispute resolution between the applicant and a tribe.
284. Only Skokomish and NW Indians suggest that the Tribal Liaison should play an active role in the substantive resolution of licensing proceedings. NW Indians recommend that the Tribal Liaison or Liaisons should be educated about individual tribes and their interests in specific proceedings and act as their advocate within the Commission.
285. We agree with the majority of the commenters that the Tribal Liaison should be a facilitator of government-to-government consultation, and should not be responsible for resolution of substantive issues. The latter requires expertise with specific resources, plus a thorough knowledge of the facts relevant to a specific case. The Commission employs technical experts for such matters, as do many tribes. The Tribal Liaison will provide expertise with respect to matters of process.
286. Regarding the specific responsibilities of the position, the Tribal Liaison will seek to educate Commission staff about tribal governments and cultures and to educate tribes about the Commission's various statutory functions and programs. The Tribal Liaison will work with the tribes during Commission proceedings, to ensure that the tribes' views are appropriately considered at every step of the process. The Tribal Liaison will act as a guide for the tribes to Commission processes, and will strive to ensure that consultation requirements are met The Tribal Liaison will have considerable flexibility in carrying out these responsibilities, consistent with the evolving nature of tribal consultation.
287. Various commenters indicate that there are too many tribes and too many tribe-specific, case-specific, and interrelated regional or watershed issues for one person to understand and act upon. Some suggestions in this regard include multiple liaison positions based on regions of the country, watersheds or river basins, or sub-regions within a state.
288. Our decision on the number of Commission staff serving as Tribal Liaison involves two basic considerations; the responsibilities of the position and the level of effort necessary to effectively carry out the responsibilities. At this point we can define the responsibilities of the position, but only time and experience will tell us with certainty what level of effort is necessary.
289. In response to licensee requests, the NOPR clarified how the Commission meets its responsibilities to Indian tribes under NHPA Section 106.
290. NHA and others
291. They also request that the Commission undertake in such circumstances to do any necessary studies itself. The fact that a potential applicant does not become the Commission's non-Federal representative, for whatever reason, does not relieve it, as the project proponent, of the responsibility to undertake the information gathering or studies the Commission determines are necessary to provide the evidentiary record to support a reasoned decision.
292. The Tribal Group recommended that the regulations require each potential applicant to designate one person as its point of contact for Indian tribes. We think this is a matter best worked out via consultation between potential applicants and individual tribes.
293. Finally, Washington, Maidu, and Skagit indicate that participation in licensing is costly and that the Commission should work with states and tribes to identify and develop sources for funding of tribal participation that will foster consistent, active participation and rapid turn-around times by tribes. CRITFC recommends that the Commission require applicants to fund liaisons under the control and direction of tribes. NW Indians add that even if the Commission cannot require applicants to fund tribal participation, it should encourage them to do so.
294. The Commission is aware that participation in licensing proceedings can entail significant expense. Federal funding for Indian tribes is however the responsibility of other Federal agencies. We note however that some applicants have found such funding to be beneficial in specific circumstances, and we encourage applicants to consider whether it may be beneficial in the context of their potential applications.
295. The NOPR proposed to modify, as to federal agencies, the Commission's policy that an agency which has served as a cooperator in the preparation of a NEPA document may not thereafter intervene in the same proceeding, and to make conforming revisions to our
296. In the NOPR, we concluded that the likely benefits of better coordination between federal agencies in the exercise of their responsibilities, a more complete record, and reduced duplication of effort outweighed the potential for prejudice to other parties that would not have access to some information and decisional communications between the Commission and the cooperating agency. To minimize the potential for prejudice to other parties, we proposed to require that any cooperating agency that provides the Commission with study results or other information also serve such materials on parties to the proceeding.
297. State agencies and NGOs generally support this proposal, and request that we also reverse the policy for state agencies, including water quality certification agencies.
298. NHA does not take a position on the proposed policy change, but suggests that any change in policy occur after the transition period, so as not to disrupt ongoing proceedings. PG&E and Duke assert that if the policy change is to apply to gas certification proceedings as well, the Commission should first provide public notice and an opportunity for comment.
299. Several commenters strongly oppose the proposed change in policy.
300. We continue to believe strongly that maximizing cooperation between the Commission and the federal resource agencies will lead to optimal results in the licensing process. However, we conclude that precedent indicates that allowing federal agencies to serve both as cooperators and intervenors in the same case would violate the APA. Our proposal to change the existing policy rested on a plain meaning reading of the APA provisions which the courts have not adopted. Rather, the courts have interpreted the APA more broadly on this point in order to ensure that the purposes of the statute are fulfilled. We therefore will not change the policy precluding cooperating agencies from also being intervenors.
301. California and PFBC state that the filing requirements for license applications include information on the costs of the applicant's proposed PM&E measures, but not information on the economic benefits of those measures. They assert that the NEPA document should contain a much expanded discussion of the latter. Our policy concerning this matter was discussed above.
302. NOAA Fisheries recommends that the regulations include a standard methodology “to calculate project economics.”
303. The means of determining the current cost of the most likely alternative source of power also cannot be reduced to a formula. It is based on the project-specific operating regime (
304. The NOPR proposed to accompany draft NEPA documents and environmental assessments with draft special license articles (
305. The NOPR proposed to revise our practice in preparing NEPA documents to more clearly separate resource impact analysis from decisional analysis.
306. NHA, SCE, HRC and others support our proposal to better separate the environmental impact analysis from decisional analysis; that is, decisional analysis will appear only in the comprehensive development section of the NEPA document. NHA and SCE ask that we make clear that discussion of alternatives and potential mitigation measures in the NEPA document is part of the resource impact analysis under NEPA. We are not entirely clear what these commenters are requesting. We think it is self-evident that the environmental impact analysis under NEPA will cover alternatives and potential mitigation measures. These things are however also likely to be considered, or at the least referred to, in the decisional analysis.
307. HRC requests that a NEPA document prepared in cooperation with another agency include in the environmental analysis the views of each agency where there is a disagreement in the agencies' conclusions concerning impacts to resources. We think the cooperating agencies should decide how best to present the resource impact analysis in such a case.
308. RAW continues to assert that the baseline for environmental analysis on relicensing should be pre-project conditions. We rejected such assertions in the NOPR,
309. Finally, VANR opposes our practice of issuing a single
310. NOAA Fisheries and Interior state that the integrated process regulations should clearly identify points at which ESA consultation occurs, such as initiation of formal and informal consultation.
311. The part 5 regulations are replete with references to ESA consultation. The section on the NOI states that the NOI may include a request by the potential applicant to be the Commission's designated non-Federal representative for this purpose.
312. In addition, although it is not reflected in the regulations, our well-established practice is to issue a biological assessment with the draft NEPA document, and the joint agency ESA regulations
313. Interior, citing the Interagency Task Force report on ESA consultation,
314. Finally, Washington DNR states a license or license amendment might be inconsistent with an existing Habitat Conservation Plan (HCP) approved by the USFWS and NOAA Fisheries for various species in Washington State and, if that were the case, the HCP would have to be amended.
315. The NOPR proposed to modify our regulations which set forth procedures for consideration under FPA Section 10(j)
316. Oregon objects to the proposal to give notice of preliminary consistency determination in the draft NEPA document. Oregon suggests that notice by letter is necessary to ensure that state agencies do not miss the opportunity for 10(j) negotiations.
317. Interior proposes that the regulations include criteria for the acceptance of 10(j) recommendations, based on a “team” approach in which the Commission staff and fish and wildlife agencies would confer before issuance of any preliminary consistency determination. However, at the point where the draft NEPA document or single environmental assessment is ready to be issued there has already been substantial consultation on these matters. Interior's proposal would also, for all practical purposes, be a pre-draft NEPA document 10(j) negotiation procedure. It would be inconsistent with our goal of expeditious resolution of licensing applications to provide an additional, duplicative process step.
318. Snohomish states that the regulations should specify the step in the integrated process at which the 10(j) process begins. The regulations state that the process begins when federal and state agencies submit their 10(j) recommendations in response to the REA notice.
319. California asserts that it cannot reasonably be asked to make final 10(j)
320. The NOPR proposes that modified mandatory terms and conditions be filed 60 days following the deadline date for comments on the draft NEPA document or environmental assessment. Washington suggests that the time frames for the 10(j) process should be on the same track as the track for mandatory conditions because there may be related issues. It states, for example, that a modified fishway prescription might be inconsistent with an earlier-filed 10(j) recommendation. The 10(j) recommendations and the Commission's preliminary consistency determination are in the public record and served on all parties to the proceeding. If a Federal or state agency or Indian tribe with mandatory conditioning authority elects to impose a condition inconsistent with a state agency's 10(j) recommendation, the mandatory condition would prevail.
321. NOAA Fisheries states that the Commission's determinations that 10(j) recommendations are inconsistent with the FPA often rest on the conclusion that a recommended measure is too costly relative to the expected environmental benefits. NOAA Fisheries states that these determinations appear to be arbitrary because there is no standard formula for determining the cost of 10(j) recommendations. It asks that we establish a standard methodology for these determinations and include it in the regulations. NOAA Fisheries' concerns in this regard were addressed above.
322. In a related vein, Interior recommends that the regulations specify in detail procedures for determining pursuant to the comprehensive development standard of FPA Section 10(a) whether to accept the recommendations of parties to licensing proceedings, including 10(j) recommendations. The procedures for processing all aspects of a license application are set forth in the integrated process rules or in parts 4 and 16, as applicable. To the extent Interior may be requesting the establishment of a formula for determining the public interest, public interest determinations are made with reference to a myriad of statutory and regulatory provisions and case-specific factual circumstances and cannot be reduced to a formula.
323. HRC does not request the establishment of a formula for acceptance or rejection of 10(j) recommendations, but does request that our consistency determinations provide a more specific explanation of how cost figures into each decision. The Commission is committed to providing a full explanation of how all relevant considerations are factored into its decisions.
324. Georgia DNR requests that we include in the integrated process formal guidelines to address state-listed threatened and endangered species. We do not believe there is a need for any additional guidelines concerning state-listed species, as consideration of them is already built into the integrated process. State fish and wildlife agencies should participate in development of the study plan and schedule, including NEPA scoping, then make recommendations concerning protection of state-listed species pursuant to FPA Section 10(j) in response to the REA notice.
325. The NOPR included a detailed, sequential description of the process steps in the proposed integrated process, including time frames for each of the process steps.
326. Many commenters state that the overall process time frame of 5.5 years is unrealistic.
327. California and others state that strict adherence to a 5.5-year time frame emphasizes speed at the expense of sound science and quality decision-making, will stifle meaningful public and agency participation, and will cause the process to break down, resulting in needless rehearings and appeals.
328. We are aware that there may be instances in which factors such as those cited above or others, such as lack of water quality certification, will prevent a license application from being developed and processed within the 5.5-year time frame, and that there will continue to be cases where annual licenses are issued. That said, we continue to think the best approach the Commission can take is to design a process that, to the greatest extent possible under the existing statutory scheme, addresses the causes of delay and disputes over the sufficiency of the record. The proposed integrated process was designed to do so. We are confident that the integrated process, with modifications based on the post-NOPR comments and consultation activities, offers the best means of meeting our goals.
329. Many commenters urge us to reconsider our decision not to include specific provisions in the regulations for a “time out” period during which processing of a license application could be suspended while settlement discussions take place.
330. These commenters do not disagree that the integrated process should help to foster settlements by ensuring early issue identification and production of information. They contend however that the labor intensive nature of the integrated process and settlement discussions, and the tight time frames in the integrated process, will prevent participants from participating simultaneously in both activities. They add that settlement agreements enhance the strength and durability of the license, help to avoid conflicting Federal and state license conditions, and minimize litigation.
331. They also challenge our statement that the pressure a firm processing schedule places on the parties is an incentive to reach settlement. They argue that time outs increase the likelihood of settlements because it often takes significant time for all parties to fully understand the implications of various potential provisions, which is needed for complete buy-in to an agreement. They add that enforcement of strict deadlines, such as for responses to REA notices, will force parties to take adversarial positions.
332. In response to the concerns expressed in the NOPR about maintaining timeliness, the commenters indicate that reaching settlement is more important than strict adherence to a schedule, and that the Commission can place reasonable limits on the amount of time that processing will be suspended while the parties negotiate and require periodic status reports. These comments essentially restate comments made prior to the NOPR.
333. We are not inclined to grant requests for regulatory language that guarantees time outs or implies that they should be routinely granted. We think however there is benefit to codifying the considerations that should be addressed by parties who seek suspension of the procedural schedule to pursue settlement agreements. The provisions we are adopting in this connection make clear that a lack of progress toward the timely filing of a settlement agreement may cause the Commission to terminate any suspension of the procedural schedule that it has granted.
334. The NOPR responded to many commenters who requested guidance in the regulations on what kinds of settlement provisions are or are not acceptable, including adaptive management programs, mitigation measures in lieu of additional studies, mitigation measures outside of existing project boundaries, and confidentiality agreements. In declining to adopt this recommendation, we explained our policies and practices in this regard, with citations to relevant orders. We further explained that it is inappropriate to put general guidance in the regulations because each settlement agreement measure must be evaluated individually in light of the entire record and factors identified in the FPA and other relevant legislation.
335. Several commenters renew their requests for guidance. Some essentially repeat their earlier submissions. Others state that the Commission's response in the NOPR, while helpful, is insufficient. Interior and Oregon, for example, request that we provide additional guidance by compiling case studies and examples of successful agreements.
336. HRC acknowledges that decisions on settlement agreements are based on the law and the record of individual cases, but requests periodically updated guidance on the boundaries of the law concerning what is acceptable, formatted similarly to the Council on Environmental Quality's “Forty Most Asked Questions Concerning CEQ's NEPA
337. NHA states that guidance on formats and components of acceptable settlement agreements would be beneficial. As a general matter, the parties are the persons best able to determine what issues they wish to address in a settlement document and to organize the document. Parties may find it particularly useful to review other settlement documents and use as models those which address the same or similar matters to their proceeding and that have a format useful to them. As with other matters pertaining to settlement documents, there have been several instances in which parties have requested informal staff review of draft documents, a practice we encourage.
338. NOAA Fisheries states that the regulations should require a communications protocol and ground rules for settlement discussions, and should prohibit discussions until the record is complete. NYSDEC disagrees. We responded to NOAA Fisheries' comment in the NOPR
339. The NOPR also explained the various means of dispute resolution available to parties to proceedings before the Commission, including the use of administrative law judges and Commission staff as facilitators, mediators, and neutrals.
340. We also explained in the NOPR that we include in licenses settlement agreement provisions that are beyond our authority to enforce if they are included in mandatory terms and conditions.
341. In many cases, settlement agreement provisions approved by the Commission are reformatted into numbered license articles.
342. In either case, if there are provisions the Commission cannot enforce, they are identified in the body of the license order.
343. We think it would be inadvisable to amend the regulations to add a time period for the parties to renegotiate the settlement agreement if it contains provisions the Commission cannot enforce. As we have stated, such provisions are almost always procedural and involve the conduct of non-jurisdictional entities, and the precedent
344. Finally, we requested comments on whether the integrated process regulations should encourage potential applicants to include with their draft license application a non-binding statement of whether or not they intend to engage in settlement discussions.
345. We have concluded that this is a matter best left to the discretion of the potential applicant because it is likely that there will be many situations in which the potential applicant has not discussed the possibility of a settlement with the other participants when the Preliminary Licensing Proposal or draft license application is filed, or is only able to assess the prospects for settlement after receiving comments on that document.
346. We proposed to make the integrated process applicable to original as well as new license applications, and requested comments on that proposal.
347. NHA's proposal is detailed. An applicant for a permit for a project at an existing non-federal dam would be required to demonstrate ownership of the dam or evidence of authorization from the existing dam owner to evaluate the dam for potential generation. If the permit applicant could not satisfy this requirement, the Commission would issue an order to show cause why the permit application should not be dismissed. If good cause to issue the permit was not shown, the permit application would be declared patently deficient and dismissed. This, states NHA, would prevent the issuance of permits to entities that do not own the site or who lack real intent to construct a project.
348. Under NHA's proposal, six months before expiration of a first permit, the permit holder would have to file its NOI,
349. NHA's proposal would impede development applications at existing dams by entities other than the dam owner. That would be fundamentally inconsistent with Congress' intent to promote competition in hydropower development.
350. California and NOAA Fisheries make much simpler proposals. California would have us require each new permittee to begin prefiling consultation within 30 days from issuance of the preliminary permit and to file an NOI and PAD within 60 days. NOAA Fisheries would require permit applicants to simultaneously file the NOI and PAD.
351. The California and NOAA Fisheries recommendations do not account for the many uncertainties associated with developing an unconstructed project, a lack of existing project-specific information and studies, or the need to obtain other permits, such as a dredge and fill permit under Section 404 of the Clean Water Act. These factors can add significant time to the period needed to prepare a new development application, or even an original license application for a project at an existing dam. For this reason, successive permits are typical in such circumstances. Other commenters recognize this,
352. We affirm our proposal to apply the integrated process to original license applications. We conclude that the existing preliminary permit program and the integrated process can exist side-by-side and do not need any special provisions for coordination. There is no need for the permit term and pre-filing consultation to begin contemporaneously because a permit holder can file a license application any time during the term of the permit, and pre-filing consultation can and does go forward regardless of whether the potential applicant has a preliminary permit.
353. The FPA requires an existing licensee that is a potential applicant for a new license to file an NOI.
354. PG&E and NHA state that they are not concerned about this, as long as we require a potential non-licensee competitor to file its PAD no later than five years prior to license expiration. In effect, this would ensure that the potential non-licensee competitor must show its hand no later than the existing licensee. Likewise, an existing licensee concerned about potential competitors could ensure that any potential competitor may not copy its PAD by also issuing its NOI and PAD at the statutory deadline.
355. Upon further reflection, we have decided that it is appropriate for a potential non-licensee competitor to file both the NOI and the PAD. We previously rejected the NOI requirement for non-licensee potential competitors in order to encourage competition on relicensing.
356. More important, the existing policy was developed when only the traditional licensing process existed. The adoption of the integrated process and the requirement for Commission approval to use the traditional process change the landscape considerably. The integrated process is based on clearly delineated steps designed to be completed before the license application is filed. The traditional process is much less prescriptive. If there were competing applications, it is mostly likely that we would require them to be developed using the same process in the same time frame. In any event, we would want to ensure that stakeholders have the same opportunity to comment on both potential applicants' process proposals, and the process proposal is required to be included with the PAD.
357. The remaining question is whether a non-licensee potential competitor should be required to file its NOI and PAD within the same six month window applicable to existing licensees. The importance of process selection to efficient processing, discussed above, persuades us that a potential non-licensee competitor should also be required to file its NOI
358. In this section, we summarize the changes we are making to the integrated process. The changes are discussed in the order in which they occur in the part 5 regulations. A flowchart of the integrated process with significant modifications in boldface print is posted on the Commission's Web site.
359. The content and distribution requirements for the PAD have been substantially modified.
360. At the time of the notice of commencement of proceeding, the Commission will request commencement of informal ESA consultation if the potential applicant is not designated as the Commission's non-federal representative for this purpose.
361. We are accepting the Tribal Group's request that early tribal consultation be specifically acknowledged in the regulations. To that end, we have added a new section providing for a meeting no later than 30 days following the filing of the NOI between each willing Indian tribe likely to be affected by the potential license application and the Commission staff and other relevant Federal agencies.
362. The NOPR proposed to have the Commission's NEPA Scoping Document 1 issued following the potential applicant's issuance of a revised PAD with a draft study plan. The Process Group concluded that because the study plan should be issue-driven, and because the PAD and other factors should enable participants to begin issue identification from the beginning of the process, the integrated process would work better if NEPA scoping begins earlier. Accordingly, we have modified the rule to provide for the issuance of Scoping Document 1 at the same time the Commission issues the notice that the proceeding has commenced.
363. The proposed rule provided that comments on the PAD “may” include initial information and study requests. In light of the fact that the beginning of NEPA scoping has been advanced to the same date as notification that the proceeding has commenced, the regulations have been modified to state that comments on the PAD “shall” include the commenters' information and study requests, and should include information and studies needed for consultation under ESA Section 7 or water quality certification.
364. The proposed rule would have required the potential applicant to file a revised PAD and a proposed study plan. The Process Group concluded that there is no need for a revised PAD if the process is modified to provide additional time for the participants to address the potential applicant's draft study plan. As we are modifying the rule for that purpose, as discussed below, the revised PAD has been eliminated. We stress once again, however, the importance of potential applicant's exercising due diligence in obtaining information and preparing all components of the PAD. It is central to the success of the enterprise.
365. At the same time the potential applicant files its draft study plan, the Commission staff will issue, if necessary, Scoping Document 2.
366. Comments on the draft study plan were proposed to be due 60 days after the draft study plan was filed, during which period the Commission staff would have issued Scoping Document 1, with the draft study plan appended.
367. As proposed, the potential applicant would file a revised study plan for Commission approval, followed by the Commission's study plan order.
368. The formal dispute resolution rules have been modified to include a technical conference open to all parties, before the Advisory Panel begins deliberations.
369. We have clarified the standards for requesting changes to ongoing studies, and for requesting new information gathering or studies following the initial and updated study reports.
370. The requirement to file for comment a draft license application has been replaced by a requirement to file a “Preliminary Licensing Proposal,” although a potential applicant may elect to file a draft application.”
371. The proposed rule provided for comments, interventions, and the filing of preliminary recommendations and terms and conditions 60 days following issuance of the REA notice,
372. The NOPR proposed four significant changes to the traditional process: (1) Full public participation; (2) mandatory, binding pre-filing dispute resolution; (3) the requirement to file an NOI and PAD; and (4) extending the deadline for filing the water quality certification application until 60 days after the REA notice. The NOI and PAD and related discussion of process selection and transition provisions were discussed above.
373. As discussed in this section, we are adopting the changes to ensure full public participation, but have decided to maintain the existing pre-filing dispute resolution process.
374. In the NOPR we proposed to modify the traditional process pre-filing consultation regulations to require potential applicants to make reasonable efforts to bring into pre-filing consultation as early as possible NGOs and other members of the public, and for these entities to be involved in the development of the potential applicant's study plans.
375. Non-industry commenters favor this proposal. NHA and SCE oppose it. NHA states that it could significantly increase the cost and time of the process. It recommends that we maintain the existing provisions for public participation, except that the public would be encouraged to provide the potential applicant with comments on its proposal following the public meeting required during stage one consultation,
376. We are strongly inclined to adopt the rule as proposed. Under NHA's proposal, the potential applicant would not be required to distribute the PAD to members of the public likely to be interested in any license application proceeding or include the public in the joint meeting with agencies and Indian tribes. There would also be no requirement for the public to provide comments and study requests following the joint meeting, and they would not be eligible to participate in the joint meeting following comments on the draft license application.
377. The principal reasons the existing study dispute resolution process is not used are that it is not required to be used and the result is advisory only.
378. We also proposed to make the outcome of dispute resolution binding on all participants; that is, the Director's order resolving the dispute would, if information or a study is determined to be necessary, direct the potential applicant to gather the information or conduct the study. Consulted entities would not be permitted to revisit the dispute after the application is filed. We further proposed to eliminate from the traditional process the opportunity to request additional scientific studies after the license application is filed.
379. NHA and EEI support the proposed change.
380. Agency and NGO commenters were less enthusiastic. HRC and Interior contend the proposed change could make the problem of post-application study disputes worse and, along with TU urge that if pre-filing binding dispute resolution is adopted, it be the same as formal dispute resolution in the integrated process. Interior argues that study disputes cannot be resolved without the aid of a panel of technical experts and the views of Commission staff, so the goal of developing a record during pre-filing consultation that will support the actions of all agencies with decisional authority would be thwarted. NYSDEC appears to support mandatory, binding dispute resolution, but opposes elimination of post-application study requests. HRC, echoing the concerns of commenters on binding dispute resolution in the integrated process, adds that if the traditional process dispute resolution is to be mandatory and binding, then the Commission must permit rehearing of the Director's decisions. Finally, Interior and NOAA Fisheries state that the Commission does not have authority to issue a binding pre-filing dispute resolution in the traditional process because in that process no formal proceeding commences until the application is filed. We think Interior and NOAA Fisheries are correct and will therefore not adopt this proposal.
381. Finally, NOAA Fisheries recommends that we modify the traditional process by requiring applicants to submit for Commission approval a study plan under conditions similar to development of the study plan in the integrated process. Since we are not adopting mandatory, binding dispute resolution in the traditional process, a Commission-approved study plan would serve no purpose, and would blur the distinction between the integrated and traditional process.
382. Interior recommends that we make no changes in the traditional process until the integrated process has become established and shown to be effective because it opposes mandatory, binding dispute resolution in the traditional process. As just discussed, we are not adopting that proposal. Because Interior does not specifically oppose increased public participation, we presume it has no objection to that aspect of the proposed rule.
383. SCE states that the best way to streamline the process would be to eliminate pre-filing consultation altogether for any project that has previously been issued a license in which a NEPA document was prepared, or for small projects where no operational or ground-disturbing changes are contemplated. Under SCE's scenario, the pre-NOI notice to the applicant would be published in a local newspaper. The potential applicant would file the NOI and an abbreviated version of the PAD, then file an application based on whatever pre-filing consultation it decides is needed. In support, SCE states that it already has relationships with the resource agencies and that anyone is welcome to make
384. We think leaving pre-filing consultation to the discretion of potential applicants is unlikely to result in any gains in the timeliness or efficiency of the licensing process, and reject the qualifying criteria proposed by SCE. A NEPA document issued many years before a new license application is filed is likely to be of very little value. Nor is a proposal to maintain the
385. SCE adds that if the PAD is required it should be scaled back for applications using the traditional process because it is too burdensome for small projects and the required amount of information is not needed at the beginning because NEPA scoping will follow filing of the application. SCE overlooks two important facts. First, the PAD is one of the tools used to inform the opinions of the participants and the Commission concerning whether to approve use of the traditional process. Second, the PAD is only required to include existing relevant information that can be obtained with the exercise of due diligence. An existing licensee already has a substantially similar obligation to produce information under the traditional process regulations.
386. The NOPR declined to adopt a proposal by NHA under which applicants could file a request for waiver of all or part of the pre-filing consultation requirements. We did so largely because the existing regulations already provide for consensual waiver by agencies and Indian tribes and owing to concerns about NHA's proposed criteria.
387. NHA responds that we should not have rejected its proposal because no other agency requires pre-filing consultation, it is not required by NEPA, and it is less important for licenses issued after enactment of the Electric Consumers Protection Act
388. We remain unpersuaded. That other agencies may not require pre-filing consultation, or that it is not required by NEPA, has no bearing on whether it makes sense for license applications. The FPA licensing scheme is unique, and commenters were nearly unanimous that the key to timely and efficient processing of applications is combining pre-filing consultation with NEPA scoping. NHA may be correct that post-ECPA licenses are likely to contain a greater level of resource protection than pre-ECPA licenses. However, as noted in our response to SCE's proposal in the preceding section, many factors are likely to change over the term of any license, regardless of when it was issued.
389. NEU recommends that projects under 5 MW with minor licenses should have the right to elect the traditional process without Commission approval, and to file the initial consultation document currently required by the regulations instead of the PAD. We think the approval requirement has been framed so that licensees of small projects will have a reasonable opportunity to make their case for using the traditional process and, as noted, we have made the PAD less burdensome for all potential applicants.
390. Agencies and NGOs continue to recommend that no special allowances be made for projects of any size unless there has been consultation with agencies, Indian tribes, and the public. They reiterate that size is no indicator of environmental impacts, case-by-case consideration of the issues is not unduly burdensome, and that if there really are few issues or little controversy, then the study design can reflect that.
391. Notwithstanding our rejection of NHA's and NEU's recommendations, we think there are likely to be instances where relicensing of a small project will be uncontroversial, and for which study requirements should be modest. For such cases, waiver of part or all of pre-filing consultation may not prejudice the timely and thorough consideration of a relicense application. We are therefore modifying Section 16.8(e) of the regulations that requires the consent of a resource agency or Indian tribe in order to waive pre-filing consultation with respect to that entity. We will now permit non-consensual requests for waivers, but will require any such request to be preceded by discussions with these other entities and for the request to include documentation of the discussions and a response to any objections to the waiver request. We will also provide an opportunity for responses to the waiver request.
392. Under the current rules, a license applicant may include a draft EA with its application if it uses the ALP (applicant-prepared EA, or APEA). The NOPR declined to adopt recommendations that we permit license applicants to include a draft EA or draft EIS with their application even if they use the existing traditional process. We stated that the limits on pre-filing public participation and the history of post-application continuation of pre-filing study disputes would likely make such documents no more useful, or even less useful, than the existing Exhibit E. We did however note that by proposing full public participation in pre-filing consultation and adding mandatory, binding study dispute resolution, the problem of an incomplete record when the application is filed should be alleviated. We requested comments on whether, in light of these proposed changes, we
393. Agencies and NGO commenters opposed this idea.
394. EEI and NEU favor this idea. EEI states that APEAs work well in the gas pipeline certificates program.
395. We have decided to permit a license applicant to include a draft EA with its application. The agency and NGO commenters may be correct that an APEA prepared under the traditional process is less likely to account for the views of all participants and may require significant revisions pursuant to the Commission's independent review. That however is not the central issue. The adequacy of an APEA for purposes of filing a license application is determined by whether it contains the information required in Exhibit E, the environmental exhibit. If it contains that information, we are not concerned that it appears in a nontraditional format. The parties will retain the same rights they now enjoy to comment on the full application and make any additional information requests. Regardless of whether an applicant includes an APEA or a traditional Exhibit E in its application, the Commission will issue its own independently prepared draft NEPA document or single environmental assessment.
396. We proposed to leave the existing, non-mandatory and non-binding dispute resolution procedures applicable to the ALP in place because mandatory, binding dispute resolution appears to be incompatible with the collaborative nature of the ALP. We did however request comments on whether there may be circumstances in which binding dispute resolution could be conducted in a manner that safeguards the collaborative process.
397. SCE recommends that the ALP include binding dispute resolution. Most commenters however state that a binding process would be inconsistent with the concept of a collaborative process and would therefore have a chilling effect on participation.
398. After considering the comments, we have decided not to change the existing ALP dispute resolution provision. Mandatory, binding dispute resolution still seems to us inconsistent with the collaborative process. For the same reason we decline to import into the ALP the formal dispute resolution procedures of the integrated process. The negotiated dispute resolution procedure contemplated by California and PFMC could however be encompassed within a communications protocol, if the participants agreed to request waiver of the process provided for in the regulations.
399. We proposed to permit Federal agencies that commonly intervene in Commission proceedings, and state fish and wildlife and water quality certification agencies, to intervene by filing a notice instead of the current requirement to file a motion to intervene.
400. No commenter objected to this proposal. Various commenters request that we clarify that the intervention by notice policy extends to, or will be expanded to include, state water rights agencies
401. NYSDEC requests that late interventions also be allowed by notice unless there is prejudice to others. We deny this request. The best means of determining whether other parties would be prejudiced is for the entity seeking untimely intervention to address that issue and for potentially prejudiced parties to respond. Our regulations on this matter make clear that this is one of the matters the Commission may consider in acting on a late motion to intervene.
402. NOAA Fisheries and Interior renew their request for automatic intervenor status, or for the ability to file one notice of intervention good for all proceedings throughout the term of a license. They advance no arguments that were not considered and rejected in the NOPR.
403. In the NOPR we denied requests by a few commenters to require that documents filed in a proceeding or required to be available to the public be served or otherwise made available on the internet. We acknowledged that there are many instances where this is very efficient and more useful for participants than distribution of paper. We also noted that many license applicants and others are taking advantage of these benefits. We concluded however that such a requirement might be an undue cost burden on licensees that are small enterprises, and noted that we have granted waiver of the “licensing library” requirement where the applicant agreed to make all of the information available on the Internet and to provide hard copies by mail on request.
404. SCE requests that we reconsider and allow applicants to use Web sites and e-mail to disseminate information and effect service in the ordinary course.
405. We continue to be concerned with the situation of small enterprises that operate jurisdictional projects, as well as small NGOs or individuals that may lack the sophistication to fully participate without physical service. We do however
406. ADK states that the Commission should permit meeting notices and other short documents to be served by facsimile machine instead of by e-mail on the ground that facsimile service is more reliable. This would be an extremely inefficient, if not impossible, means for the Commission to issue public notices. ADK is however free to request that license applicants or other participants in individual proceedings serve documents on it in this manner.
407. GLIFWC states that all documents filed in the licensing process should be made available on the Commission's Web site and an applicant's Web site in both portable document format (pdf) and a word processing format. All documents filed with the Commission are already available to the public on the Commission's Web site via FERRIS in various formats, including pdf. For this reason, there is no need to impose this burden on a potential applicant.
408. The NOPR stated that for historical reasons the current regulations do not require minor projects occupying non-federal lands to have an established project boundary, although the boundary for such projects has been considered to be the reservoir shoreline. We further observed that this situation is inconsistent with our ongoing effort to modernize project boundary mapping by conversion of such maps into highly accurate, georeferenced electronic maps, and therefore proposed to require all future license and exemption applicants, regardless of license or exemption type, to provide a project boundary with each application. We requested comments on this proposal.
409. Agencies and NGOs support the proposal. They state that it is important for compliance purposes because the Commission has said the geographical limit of its compliance authority is the project boundary.
410. NHA is not opposed to consistent standards for project boundary maps, but objects to imposing the new standards on existing minor licenses for which project boundary maps are already on file, or on exemptions. NHA states that it would cost thousands of dollars for field survey and drafting and that the Commission can obtain all the information it needs under the current rules. NHA, SCE, and NEU also state that licensees should only be required to revise their project boundaries when a new license application is filed or the licensee otherwise seeks approval to revise a particular Exhibit G drawing, because requiring georeferenced, electronically-formatted maps for all projects would be costly and extremely burdensome.
411. These commenters may misapprehend the proposed rule in this regard. It is not our intention to require all existing licensees or exemptees to file a georeferenced map of the project boundary. The project boundary data would only be required when an application is filed for a license or an exemption, or when an application to amend either authorization already requires a revised Exhibit G.
412. SCE adds that standards similar to the electronic standards required for project maps should also be established for design drawings required in a license application. Duke requests clarification of which electronic format is required for Exhibit G maps. It recommends widely used formats such as JPG, TIFF, or PDF, which do not require specialized software.
413. The revised regulations do not require Exhibit G maps to be in a GIS format. The project boundary is only one feature of Exhibit G maps, which also include the location of project features such as the reservoir, powerhouse, and other facilities. An applicant can file the Exhibit G map in a JPG, TIFF, or PDF file, or any other graphic format, the project boundary data however, must be filed in a GIS format.
414. The NOPR proposed minor additions to the application filing requirements of §§ 4.41, 4.51, and 4.61. These are: monthly flow duration curves;
415. These are items of information not specifically required to be included by the current regulations, but which the Commission staff requests as additional information in nearly every license proceeding in order to complete its NEPA and comprehensive development analyses. The NOPR found that obtaining this information with the application instead of via an additional information request will enable the staff to move forward more expeditiously to process license applications. No opposing comments were received on these proposed changes, and we are adopting them. A few commenters raised other miscellaneous filing requirement issues.
416. NOAA Fisheries requests a reduction in the number of paper copies that are required to be filed, and that we consider allowing filings to be made on compact disks (CDs) and by other electronic means. The Commission allows, indeed strongly encourages, electronic filing. Parties may also request waiver of the filing requirements in order to substitute a compact disk or CD-ROM for a hard copy filing.
417. Interior requests that we require applicants to provide aerial photographs and/or satellite images to provide an overview of the project area. We think this is excessive in light of the requirements we are already imposing for electronically formatted maps, and the ready availability of United States Geological Survey and other maps.
418. We are also taking this opportunity to correct various sections of the regulations to update them, or to cure incorrect cross-references, misspellings, or misstatements.
419. The proposed rule contemplated certain new delegations of authority to the Director, Office of Energy Projects, in the context of the proposed integrated process. Specifically, these are authority to issue: (1) Act on requests to use the traditional licensing process; (2) issue a study plan determination; (3) resolve formal study disputes; and (4) resolve disagreements brought during the conduct of studies. Consistent with our decision to adopt the integrated process as described herein, we are adopting conforming modifications to our delegations to the Director.
420. In Order No. 630,
421. CEII is required to be redacted from filings made with the Commission. A hydroelectric license application could contain various kinds of information that are CEII. The preamble to the rule gives examples of such information, including: (1) General design drawings of the principal project works, such as those found in Exhibit F; (2) Maps, such as those found in Exhibit G; (3) Drawings showing technical details of a project, such as plans and specifications, supporting design reports, part 12 independent consultant reports,
422. Of particular concern to the Commission in defining CEII was location information. Such information is particularly relevant, for example, to participants in the NEPA process. Consequently, the following types of location information were not considered to be CEII: (1) USGS 7.5-minutes topographic maps showing the location of pipelines, dams, or other aboveground facilities; (2) alignment sheets showing the location of pipeline and aboveground facilities, right of way dimensions, and extra work areas; (3) drawings showing site or project boundaries, footprints, building locations and reservoir extent; and (4) general location maps. Such information is classified as “non-Internet public access,” that is, information to be included in paper filings with the Commission and made be available in hard copy and through the Commission's public reference room, but which will not be available for viewing or downloading from Commission databases
423. Order No. 630 establishes procedures for persons to request CEII that has been filed with the Commission or to challenge CEII status.
424. Several commenters in the CEII rulemaking and on the NOPR in this proceeding
425. The final conforming rule identifies various sections of 18 CFR Parts 4 and 16 that require direct disclosure of information that could include CEII. Public disclosure requirements in part 4 include: (1) Notification of applications to affected
426. Public disclosure requirements in part 16 include: (1) When the NOI is issued, a number of items, including the original application, as-built drawings, diagrams, emergency action plans, and operation and maintenance reports;
427. The NOPR proposed to provide that regulated entities subject to the disclosure requirements of Parts 4 and 16 omit CEII from the information made available to agencies, Indian tribes, and the public. Instead, they would include with their filing a statement briefly describing the omitted information, without revealing CEII, and referring the reader to the procedures for challenging CEII claims and for requesting CEII under the procedures adopted in Order No. 630.
428. Neither the regulations promulgated in Order No. 630 nor the proposals contained in the proposed conforming rule are intended to require companies to withhold CEII. Instead, they are intended to ensure that the Commission's regulations do not require companies to reveal CEII. Consequently, the Commission anticipates that, in most instances, companies will share CEII with participants in the licensing process without requiring those entities to request access to CEII through the Commission.
429. The rules also do not alter the ability of state agencies to obtain data directly from regulated companies pursuant to whatever authorities those agencies have. State agencies are also presumed to have a need to know information involving issues that are within there are of responsibility. They may submit requests for information regarding entities outside their jurisdictions with an explanation of the need.
430. Several commenters stated that the final rule needs to clarify how the information filing and distribution aspects of the license application process would work in concert with the CEII regulations.
431. The information filing and disclosure requirements of part 5 are not covered by Order No. 630, or the proposed conforming rule. We are therefore including in the new part 5 regulations a provision consistent with the revisions to Parts 4 and 16 promulgated in Order Nos. 630 and 630-A.
432. Long View recommends that the requirements of Exhibit F to the license application be made consistent with the CEII rules. This is not a matter of conforming Exhibit F to the CEII rules, but rather making Exhibit F subject to the rules, which it is.
433. One commenter stated that the form which entities requesting CEII are to use is not available on the Commission's Web site and that the form does not provide a name or office number for the person to whom the submission is to be made. These omissions will shortly be remedied.
434. Nearly all the comments on the proposed transition provisions were made by industry representatives. Only Idaho Power found the three-month transition period to be reasonable, as long as flexibility is provided for the few existing licensees who would be immediately affected. HRC and NYSDEC agree.
435. Requests for extension of the transition period range from six months to six years, during which time applicants would have complete choice of process.
436. In light of these comments, we have concluded that the integrated process should become the default process on July 23, 2005. Until that time, potential license applicants will be able to select the integrated process or the traditional process as it currently exists (except for increased public participation, changes in miscellaneous filing requirements, and a later deadline date for filing of the water quality certification application). At the end of the two-year period, the integrated process will become the default process. All potential applicants will have to file the NOI and PAD, and obtain Commission authorization to use the traditional process.
437. All other proposed changes to the regulations will, as proposed, take effect on October 23, 2003.
438. EEI requests that changes to the
439. California asserts that any change in the deadline for applying for water quality certification from the date of the application to a later time should apply immediately. California states that this would give all licensees that have filed an NOI, but not yet filed the license application, the benefit of additional time to resolve data requirements before filing their certification request.
440. SCE and the Process Group request that we “grandfather” any potential applicant that has already been authorized to use the ALP, even if the NOI date has not arrived. This request is reasonable and we will grant it.
441. Duke requests that we grandfather “existing licensing proceedings,” by which it apparently means that the potential applicant has commenced pre-filing consultation. This request is moot with respect to the process selection rules because a potential new license applicant by definition begins pre-filing consultation when the NOI and PAD are filed, and only those for whom the deadline date is two years away will be affected. With respect to the miscellaneous filing requirements, we think the three month transition period is sufficient.
442. Duke also states that potential applicants already engaged in the traditional pre-filing process should be permitted to employ features of the integrated process in the traditional process. We proposed changes to the regulatory text which enable a potential applicant to file a request to do so during first stage consultation after consulting with potentially affected entities.
443. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have significant adverse effect on the human environment.
444. The Regulatory Flexibility Act of 1980 (RFA)
445. The Office of Management and Budget's (“OMB's”) regulations require that OMB approve certain information collection requirements imposed by agency rule.
446. The following collections of information contained in this proposed rule will be submitted to the Office of Management and Budget for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d). The Commission identifies the information provided for under parts 4, 5, and 16 and FERC-500 “Application for License/Relicense for Water Projects greater than 5 MW Capacity,” and FERC-505, “Application for License for Water Projects less than 5 MW Capacity.”
447. This Final Rule responds to comments concerning the information collections requirements specified in the NOPR, and has changed the PAD that was previously submitted to OMB. The changes make the document less burdensome on potential applicants and easier for all recipients to use. OMB did not make substantive comments on the NOPR, but directed the Commission to calculate the burden for each of the three available licensing processes and to estimate the proportion of licensees that would select each process. The burden calculation is based on the collection, dissemination of, and recordkeeping for information in the licensing process, and does not include any costs of license terms and conditions.
448.
449.
The Office of Management and Budget's (OMB) regulations
450. These requirements conform to the Commission's plan for efficient information collection, communication, and management within the hydroelectric power industry. The Commission has assured itself, by means of internal review, that there is
451. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 (Attention: Michael Miller, Office of the Executive Director, 202-502-8415 or
452. Comments on the collection of information and the associated burden estimates should be submitted to the contact listed above and to OMB. (Attention: Desk Officer for the Federal Energy Regulatory Commission, fax: 202-395-7285 or by e-mail to
453. This final rule will take effect on October 23, 2003. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this rule is not a “major rule” within the meaning of Section 251 of Small Business Regulatory Enforcement Fairness Act of 1996.
454. In addition to publishing the full text of this document in the
455. From the Commission's Home Page on the Internet, this information is available in the Federal Energy Regulatory Records Information System (FERRIS). The full text of this document is available on FERRIS in PDF and WordPerfect format for viewing, printing, and/or downloading. To access this document in FERRIS, type the docket number of this docket, excluding the last three digits, in the docket number field. User assistance is available for FERRIS and the Commission's Web site during regular business hours. For assistance, contact FERC Online Support at
Administrative practice and procedures, Electric power, Natural Gas, Pipelines, Reporting, and recordkeeping requirements.
Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements.
Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements.
Electric power, Reporting, and recordkeeping requirements.
Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements.
Authority delegations (Government agencies).
Administrative practice and procedure, Electric power, Penalties, Pipelines, Reporting and recordkeeping requirements.
By the Commission.
5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 792-825y, 2601-2645; 42 U.S.C. 4321-4361, 7101-7352.
The added text reads as follows:
(a) * * *
(1) * * *
(xi) * * *
(K) Proposed penalties under section 31 of the Federal Power Act.
16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.
The revised text of paragraph (a) reads as follows:
(a) (1) This subpart applies to applications for preliminary permit, license, or exemption from licensing.
(2) Any potential applicant for an original license for which prefiling consultation begins on or after July 23, 2005 and which wishes to develop and file its application pursuant to this part, must seek Commission authorization to do so pursuant to the provisions of part 5 of this chapter.
The revised text reads as follows:
(b) * * *
(1) * * * The applicant or petitioner must serve one copy of the application or petition on the Director of the
(2) Each applicant for exemption must submit to the Commission's Secretary for filing an original and eight copies of the application. An applicant must serve one copy of the application on each resource agency consulted pursuant to § 4.38. For each application filed following October 23, 2003, maps and drawings must conform to the requirements of § 4.39. The originals (microfilm) of maps and drawing are not to be filed initially, but will be requested pursuant to paragraph (d) of this section.
The added and revised text reads as follows:
(a) * * *
(2) Would interfere with a licensed project in a manner that, absent the licensee's consent, would be precluded by Section 6 of the Federal Power Act.
(b)
(1) An unexpired preliminary permit, unless the permittee has submitted an application for license; or
(2) An unexpired license, as provided for in Section 15 of the Federal Power Act.
The revised and added text reads as follows:
(b) * * *
(5)(i) With regard to certification requirements for a license applicant under section 401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act), an applicant shall file within 60 days from the date of issuance of the notice of ready for environmental analysis:
(A) A copy of the water quality certification;
(B) A copy of the request for certification, including proof of the date on which the certifying agency received the request; or
(C) Evidence of waiver of water quality certification as described in paragraph (b)(5)(ii) of this section.
(ii) A certifying agency is deemed to have waived the certification requirements of section 401(a)(1) of the Clean Water Act if the certifying agency has not denied or granted certification by one year after the date the certifying agency received a written request for certification. If a certifying agency denies certification, the applicant must file a copy of the denial within 30 days after the applicant received it.
(iii) Notwithstanding any other provision in title 18, chapter I, subchapter B, part 4, any application to amend an existing license, and any application to amend a pending application for a license, requires a new request for water quality certification pursuant to paragraph (b)(5)(i) of this section if the amendment would have a material adverse impact on the water quality in the discharge from the project or proposed project.
(e)
(2) The agency must specifically identify and explain the recommendations and the relevant resource goals and objectives and their evidentiary or legal basis. The Commission may seek clarification of any recommendation from the appropriate fish and wildlife agency. If the Commission's request for clarification is communicated in writing, copies of the request will be sent by the Commission to all parties, affected resource agencies, and Indian tribes, which may file a response to the request for clarification within the time period specified by the Commission. If the Commission believes any fish and wildlife recommendation may be inconsistent with the Federal Power Act or other applicable law, the Commission will make a preliminary determination of inconsistency in the draft environmental document or, if none, the environmental assessment. The preliminary determination, for any recommendations believed to be inconsistent, shall include an explanation why the Commission believes the recommendation is inconsistent with the Federal Power Act or other applicable law, including any supporting analysis and conclusions, and an explanation of how the measures recommended in the environmental document would adequately and equitably protect, mitigate damages to, and enhance, fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the project.
(3) Any party, affected resource agency, or Indian tribe may file comments in response to the preliminary determination of inconsistency, including any modified recommendations, within the time frame allotted for comments on the draft environmental document or, if none, the time frame for comments on the environmental analysis. In this filing, the fish and wildlife agency concerned may also request a meeting, telephone or video conference, or other additional procedure to attempt to resolve any preliminary determination of inconsistency.
(4) The Commission shall attempt, with the agencies, to reach a mutually
(5) The section 10(j) process ends when the Commission issues an order granting or denying the license application in question. If, after attempting to resolve inconsistencies between the fish and wildlife recommendations of a fish and wildlife agency and the purposes and requirements of the Federal Power Act or other applicable law, the Commission does not adopt in whole or in part a fish and wildlife recommendation of a fish and wildlife agency, the Commission will publish the findings and statements required by section 10(j)(2) of the Federal Power Act.
(i) * * *
(5)(i) If the potential applicant's request to use the alternative procedures is filed prior to July 23, 2005, the Commission will give public notice in the
(ii) If the potential applicant's request to use the alternative procedures is filed on or after July 23, 2005 and prior to the deadline date for filing a notification of intent to seek a new or subsequent license required by § 5.5 of this chapter, the Commission will give public notice and invite comments as provided for in paragraph (i)(5)(i) of this section. Commission approval of the potential applicant's request to use the alternative procedures prior to the deadline date for filing of the notification of intent does not waive the potential applicant's obligation to file the notification of intent required by § 5.5 of this chapter and Pre-Application Document required by § 5.6 of this chapter.
(iii) If the potential applicant's request to use the alternative procedures is filed on or after July 23, 2005 and is at the same time as the notification of intent to seek a new or subsequent license required by § 5.5, the public notice and comment procedures of part 5 of this chapter shall apply.
The revised and added text reads as follows:
(a) * * *
(2) Each requirement in this section to contact or consult with resource agencies or Indian tribes shall be construed to require as well that the potential applicant contact or consult with members of the public.
(3) If a potential applicant for an original license commences first stage pre-filing consultation on or after July 23, 2005 it shall file a notification of intent to file a license application pursuant to § 5.5 and a pre-application document pursuant to the provisions of § 5.6.
(4) The Director of the Energy Projects will, upon request, provide a list of known appropriate Federal, state, and interstate resource agencies, Indian tribes, and local, regional, or national non-governmental organizations likely to be interested in any license application proceeding.
(b)
(2) A potential applicant for an original license that commences pre-filing consultation under this part prior to July 23, 2005 or for an exemption must promptly contact each of the appropriate resource agencies, affected Indian tribes, and members of the public likely to be interested in the proceeding; provide them with a description of the proposed project and supporting information; and confer with them on project design, the impact of the proposed project (including a
(i) Detailed maps showing project boundaries, if any, proper land descriptions of the entire project area by township, range, and section, as well as by state, county, river, river mile, and closest town, and also showing the specific location of all proposed project facilities, including roads, transmission lines, and any other appurtenant facilities;
(ii) A general engineering design of the proposed project, with a description of any proposed diversion of a stream through a canal or penstock;
(iii) A summary of the proposed operational mode of the project;
(iv) Identification of the environment to be affected, the significant resources present, and the applicant's proposed environmental protection, mitigation, and enhancement plans, to the extent known at that time;
(v) Streamflow and water regime information, including drainage area, natural flow periodicity, monthly flow rates and durations, mean flow figures illustrating the mean daily streamflow curve for each month of the year at the point of diversion or impoundment, with location of the stream gauging station, the method used to generate the streamflow data provided, and copies of all records used to derive the flow data used in the applicant's engineering calculations;
(vi) (A) A statement (with a copy to the Commission) of whether or not the applicant will seek benefits under section 210 of PURPA by satisfying the requirements for qualifying hydroelectric small power production facilities in § 292.203 of this chapter;
(B) If benefits under section 210 of PURPA are sought, a statement on whether or not the applicant believes diversion (as that term is defined in § 292.202(p) of this chapter) and a request for the agencies' view on that belief, if any;
(vii) Detailed descriptions of any proposed studies and the proposed methodologies to be employed; and
(viii) Any statement required by § 4.301(a) of this part.
(3) (i) A potential exemption applicant and a potential applicant for an original license that commences pre-filing consultation;
(A) On or after July 23, 2005 pursuant to part 5 of this chapter and receives approval from the Commission to use the license application procedures of part 4 of this chapter; or
(B) Elects to commence pre-filing consultation under part 4 of this chapter prior to July 23, 2005; must:
(
(
(
(ii) The joint meeting must be held no earlier than 30 days, but no later than 60 days, from, as applicable;
(A) The date of the Commission's approval of the potential applicant's request to use the license application procedures of this part pursuant to the provisions of part 5 of this chapter; or
(B) The date of the potential applicant's letter transmitting the information required by paragraph (b)(2) of this section, in the case of a potential exemption applicant or a potential license applicant that commences pre-filing consultation under this part prior to July 23, 2005.
(4) Members of the public must be informed of and invited to attend the joint meeting held pursuant to paragraph (b)(3) of this section by means of the public notice provision published in accordance with paragraph (g) of this section. Members of the public attending the meeting are entitled to participate in the meeting and to express their views regarding resource issues that should be addressed in any application for license or exemption that may be filed by the potential applicant. Attendance of the public at any site visit held pursuant to paragraph (b)(3) of this section will be at the discretion of the potential applicant. The potential applicant must make either audio recordings or written transcripts of the joint meeting, and must promptly provide copies of these recordings or transcripts to the Commission and, upon request, to any resource agency, Indian tribe, or member of the public.
(5) Not later than 60 days after the joint meeting held under paragraph (b)(3) of this Section (unless extended within this time period by a resource agency, Indian tribe, or members of the public for an additional 60 days by sending written notice to the applicant and the Director of the Office of Energy Projects within the first 60 day period, with an explanation of the basis for the extension), each interested resource agency and Indian tribe must provide a potential applicant with written comments:
(i) Identifying its determination of necessary studies to be performed or the information to be provided by the potential applicant;
(ii) Identifying the basis for its determination;
(iii) Discussing its understanding of the resource issues and its goals and objectives for these resources;
(iv) Explaining why each study methodology recommended by it is more appropriate than any other available methodology alternatives, including those identified by the potential applicant pursuant to paragraph (b)(2)(vii) of this section;
(v) Documenting that the use of each study methodology recommended by it is a generally accepted practice; and
(vi) Explaining how the studies and information requested will be useful to the agency, Indian tribe, or member of the public in furthering its resource goals and objectives that are affected by the proposed project.
(6)(i) If a potential applicant and a resource agency or Indian tribe disagree as to any matter arising during the first stage of consultation or as to the need to conduct a study or gather information referenced in paragraph (c)(2) of this section, the potential applicant or resource agency or Indian tribe may refer the dispute in writing to the Director of the Office of Energy Projects (Director) for resolution.
(ii) At the same time as the request for dispute resolution is submitted to the Director, the entity referring the dispute must serve a copy of its written request for resolution on the disagreeing party and any affected resource agency or Indian tribe, which may submit to the Director a written response to the referral within 15 days of the referral's submittal to the Director.
(iii) Written referrals to the Director and written responses thereto pursuant to paragraphs (b)(6)(i) or (b)(6)(ii) of this section must be filed with the Commission in accordance with the Commission's Rules of Practice and Procedure, and must indicate that they are for the attention of the Director pursuant to § 4.38(b)(6).
(iv) The Director will resolve the disputes by letter provided to the
(v) If a potential applicant does not refer a dispute regarding a request for a potential applicant to obtain information or conduct studies (other than a dispute regarding the information specified in paragraph (b)(2) of this section), or a study to the Director under paragraph (b)(6) of this section, or if a potential applicant disagrees with the Director's resolution of a dispute regarding a request for information (other than a dispute regarding the information specified in paragraph (b)(2) of this section) or a study, and if the potential applicant does not provide the requested information or conduct the requested study, the potential applicant must fully explain the basis for its disagreement in its application.
(vi) Filing and acceptance of an application will not be delayed, and an application will not be considered deficient or patently deficient pursuant to § 4.32(e)(1) or (e)(2) of this part, merely because the application does not include a particular study or particular information if the Director had previously found, under paragraph (b)(6)(iv) of this section, that each study or information is unreasonable or unnecessary for an informed decision by the Commission on the merits of the application or use of the study methodology requested is not a generally accepted practice.
(7) The first stage of consultation ends when all participating agencies and Indian tribes provide the written comments required under paragraph (b)(5) of this section or 60 days after the joint meeting held under paragraph (b)(3) of this section, whichever occurs first, unless a resource agency or Indian tribe timely notifies the applicant and the Director of Energy Projects of its need for more time to provide written comments under paragraph (b)(5) of this section, in which case the first stage of consultation ends when all participating agencies and Indian tribes provide the written comments required under paragraph (b)(5) of this section or 120 days after the joint meeting held under paragraph (b)(5) of this section, whichever occurs first.
(e) * * *
(4) Following October 23, 2003, a potential license applicant engaged in pre-filing consultation under part 4 may during first stage consultation request to incorporate into pre-filing consultation any element of the integrated license application process provided for in part 5 of this chapter. Any such request must be accompanied by a:
(i) Specific description of how the element of the part 5 license application would fit into the pre-filing consultation process under this part; and
(ii) Demonstration that the potential license applicant has made every reasonable effort to contact all resource agencies, Indian tribes, non-governmental organizations, and others affected by the applicant's proposal, and that a consensus exists in favor of incorporating the specific element of the part 5 process into the pre-filing consultation under this part.
(g) * * *
(2)(i) A potential applicant must make available to the public for inspection and reproduction the information specified in paragraph (b)(2) of this section from the date on which the notice required by paragraph (g)(1) of this section is first published until a final order is issued on any license application.
(ii) The provisions of § 4.32(b) will govern the form and manner in which the information is to be made available for public inspection and reproduction.
(iii) A potential applicant must make available to the public for inspection at the joint meeting required by paragraph (b)(3) of this section at least two copies of the information specified in paragraph (b)(2) of this section.
The revised and added text reads as follows:
(a) Each original map or drawing must consist of a print on silver or gelatin 35mm microfilm mounted on Type D (3
(b) Each map must have a scale in full-sized prints no smaller than one inch equals 0.5 miles for transmission lines, roads, and similar linear features and no smaller than one inch equals 1,000 feet for other project features, including the project boundary. Where maps at this scale do not show sufficient detail, large scale maps may be required.
(e) The maps and drawings showing project location information and details of project structures must be filed in accordance with the Commission's instructions on submission of Critical Energy Infrastructure Information in §§ 388.112 and 388.113 of subchapter X of this chapter.
In paragraph (b), remove “Division of Hydropower Licensing” and add “Office of Energy Projects” in its place.
The revised and added text reads as follows.
(e) * * *
(4) * * *
(v) The estimated capital cost and estimated annual operation and maintenance expense of each proposed environmental measure;
(9) An estimate of the cost to develop the license application; and
(10) The on-peak and off-peak values of project power, and the basis for estimating the values, for projects which are proposed to operate in a mode other than run-of-river.
(h)
(3) * * *
(iv) The project location must include the most current information pertaining to affected Federal lands as described under § 4.81(b)(5).
(4) * * *
(ii) Lands over which the applicant has acquired or plans to acquire rights to occupancy and use other than fee title, including rights acquired or to be acquired by easement or lease.
The revised and added text reads as follows:
(e) * * *
(4) A statement of the estimated average annual cost of the total project as proposed specifying any projected changes in the costs (life-cycle costs) over the estimated financing or licensing period if the applicant takes such changes into account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation and amortization;
(iv) Operation and maintenance expenses, including interim replacements, insurance, administrative and general expenses, and contingencies; and
(v) The estimated capital cost and estimated annual operation and maintenance expense of each proposed environmental measure.
(7) An estimate to develop the cost of the license application;
(8) The on-peak and off-peak values of project power, and the basis for estimating the values, for projects which are proposed to operate in a mode other than run-of-river; and
(9) The estimated average annual increase or decrease in project generation, and the estimated average annual increase or decrease of the value of project power, due to a change in project operations (
(g) Exhibit F.
(h) Exhibit G.
The revised and added text reads as follows:
(c) * * *
(1) * * *
(x) The estimated capital costs and estimated annual operation and maintenance expense of each proposed environmental measure.
(3) An estimate of the cost to develop the license application; and
(4) The on-peak and off-peak values of project power, and the basis for estimating the values, for project which are proposed to operate in a mode other than run-of-river.
(5) The estimated average annual increase or decrease in project generation, and the estimated average annual increase or decrease of the value of project power due to a change in project operations (
(6) The remaining undepreciated net investment, or book value of the project;
(7) The annual operation and maintenance expenses, including insurance, and administrative and general costs;
(8) A detailed single-line electrical diagram;
(9) A statement of measures taken or planned to ensure safe management, operation, and maintenance of the project.
(e)
(f)
The revised text reads as follows:
(b) * * *
(5) All lands of the United States that are enclosed within the proposed project boundary described under paragraph (e)(3) of this section, identified and tabulated on a separate sheet by legal subdivisions of a public land survey of the affected area, if available. If the project boundary includes lands of the United States, such lands must be identified on a completed land description form, provided by the Commission. The
The revised text reads as follows:
(a) * * *
(2) Exhibits A, E, F, and G.
(d)
(f)
The revised text reads as follows:
(d)
(f)
16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.
(a) This part applies to the filing and processing of an application for an:
(1) Original license;
(2) New license for an existing project subject to Sections 14 and 15 of the Federal Power Act; or
(3) Subsequent license.
(b)
(c)
(d)
(2) The Director of the Office of Energy Projects will, upon request, provide a list of known appropriate Federal, state, and interstate resource agencies, Indian tribes, and local, regional, or national non-governmental organizations likely to be interested in any license application proceeding.
(e)
(f)
(1) 18 CFR part 4, Subparts D-H and, as applicable, part 16 (
(2) Section 4.34(i) of this chapter,
(a)
(2) The materials specified in paragraph (a)(1) of this section must be made available to the requester at the location specified in paragraph (a)(1) of this section or through the mail, or otherwise. Except as provided in paragraph (a)(3) of this section, copies of the pre-application document and any materials referenced therein must be made available at their reasonable cost of reproduction plus, if applicable, postage.
(3) A potential licensee must make requested copies of the materials specified in paragraph (a)(1) of this section available to the United States Fish and Wildlife Service, the National Marine Fisheries Service, the state agency responsible for fish and wildlife resources, any affected Federal land managing agencies, and Indian tribes without charge for the costs of reproduction or postage.
(b)
(2) The applicant must provide a copy of the complete application (as amended) to a public library or other convenient public office located in each county in which the proposed project is located.
(3) The materials specified in paragraph (b)(1) of this section must be made available to the requester at the location specified in paragraph (b)(1) of this section or through the mail. Except as provided in paragraph (b)(4) of this section, copies of the license application and any materials referenced therein must be made available at their reasonable cost of reproduction plus, if applicable, postage.
(4) A licensee applicant must make requested copies of the materials specified in paragraph (b)(1) of this section available to the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the state agency responsible for fish and wildlife resources, any affected Federal land managing agencies, and Indian tribes without charge for the costs of reproduction or postage.
(c)
(d)
(a)(1) Notwithstanding any other provision of this part or of parts 4 and 16 of this chapter, a potential applicant for a new, subsequent, or original license may until July 23, 2005 elect to use the licensing procedures of this part or the licensing procedures of parts 4 and 16.
(2) Any potential license applicant that files its notification of intent pursuant to § 5.5 and pre-application document pursuant to § 5.6 after July 23, 2005 must request authorization to use the licensing procedures of parts 4 and 16, as provided for in paragraphs (b)-(f) of this section.
(b) A potential license applicant may file with the Commission a request to use the traditional licensing process or alternative procedures pursuant to this Section with its notification of intent pursuant to § 5.5.
(c)(1)(i) An application for authorization to use the traditional process must include justification for the request and any existing written comments on the potential applicant's proposal and a response thereto.
(ii) A potential applicant requesting authorization to use the traditional process should address the following considerations:
(A) Likelihood of timely license issuance;
(B) Complexity of the resource issues;
(C) Level of anticipated controversy;
(D) Relative cost of the traditional process compared to the integrated process;
(E) The amount of available information and potential for significant disputes over studies; and
(F) Other factors believed by the commenter to be pertinent
(2) A potential applicant requesting the use of § 4.34(i)
(i) Demonstrate that a reasonable effort has been made to contact all agencies, Indian tribes, and others affected by the applicant's request, and that a consensus exists that the use of alternative procedures is appropriate under the circumstances;
(ii) Submit a communications protocol, supported by interested entities, governing how the applicant and other participants in the pre-filing consultation process, including the Commission staff, may communicate with each other regarding the merits of the potential applicant's proposal and proposals and recommendations of interested entities; and
(iii) Provide a copy of the request to all affected resource agencies and Indian tribes and to all entities contacted by the applicant that have expressed an interest in the alternative pre-filing consultation process.
(d)(1) The potential applicant must provide a copy of the request to use the traditional process or alternative procedures to all affected resource agencies, Indian tribes, and members of the public likely to be interested in the proceeding. The request must state that comments on the request to use the traditional process or alternative procedures, as applicable, must be filed with the Commission within 30 days of the filing date of the request and, if there is no project number, that responses must reference the potential applicant's name and address.
(2) The potential applicant must also publish notice of the filing of its notification of intent, of the pre-application document, and of any request to use the traditional process or alternative procedures no later than the
(i) Disclose the filing date of the request to use the traditional process or alternative procedures, and the notification of intent and pre-application document;
(ii) Briefly summarize these documents and the basis for the request to use the traditional process or alternative procedures;
(iii) Include the potential applicant's name and address, and telephone number, the type of facility proposed to be applied for, its proposed location, the places where the pre-application document is available for inspection and reproduction;
(iv) Include a statement that comments on the request to use the traditional process or alternative procedures are due to the Commission and the potential applicant no later than 30 days following the filing date of that document and, if there is no project number, that responses must reference the potential applicant's name and address;
(v) State that comments on any request to use the traditional process should address, as appropriate to the circumstances of the request, the:
(A) Likelihood of timely license issuance;
(B) Complexity of the resource issues;
(C) Level of anticipated controversy;
(D) Relative cost of the traditional process compared to the integrated process; and
(E) The amount of available information and potential for significant disputes over studies; and
(F) Other factors believed by the commenter to be pertinent; and
(vi) State that respondents must submit an electronic filing pursuant to § 385.2003(c) or an original and eight copies of their comments to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
(e) Requests to use the traditional process or alternative procedures shall be granted for good cause shown.
(a)
(2) If the Commission grants the request for acceleration pursuant to paragraph (c) of this section, the Commission will deem the request for acceleration to be a notice of intent under § 16.6 of this chapter and, unless the Commission directs otherwise, the licensee must make available the Pre-Application Document provided for in § 5.6 no later than 90 days from the date that the Commission grants the request for acceleration.
(b)
(i) Publishing notice in the
(ii) Publishing notice once in a daily or weekly newspaper published in the county or counties in which the project or any part thereof or the lands affected thereby are situated; and
(iii) Notifying appropriate Federal, state, and interstate resource agencies and Indian tribes, and non-governmental organizations likely to be interested.
(2) The notice issued pursuant to paragraphs (b)(1)(A) and (B) and the written notice given pursuant to paragraph (b)(1)(C) will be considered as fulfilling the notice provisions of § 16.6(d) of this chapter should the Commission grant the acceleration request and will include an explanation of the basis for the licensee's acceleration request.
(c)
(a)
(b)
(1) The potential applicant or existing licensee's name and address.
(2) The project number, if any.
(3) The license expiration date, if any.
(4) An unequivocal statement of the potential applicant's intention to file an application for an original license, or, in the case of an existing licensee, to file or not to file an application for a new or subsequent license.
(5) The type of principal project works licensed, if any, such as dam and reservoir, powerhouse, or transmission lines.
(6) The location of the project by state, county, and stream, and, when appropriate, by city or nearby city.
(7) The installed plant capacity, if any.
(8) The names and mailing addresses of:
(i) Every county in which any part of the project is located, and in which any Federal facility that is used or to be used by the project is located;
(ii) Every city, town, or similar political subdivision;
(A) In which any part of the project is or is to be located and any Federal facility that is or is to be used by the project is located, or
(B) That has a population of 5,000 or more people and is located within 15 miles of the existing or proposed project dam;
(iii) Every irrigation district, drainage district, or similar special purpose political subdivision:
(A) In which any part of the project is or is proposed to be located and any Federal facility that is or is proposed to be used by the project is located; or
(B) That owns, operates, maintains, or uses any project facility or any Federal facility that is or is proposed to be used by the project;
(iv) Every other political subdivision in the general area of the project or proposed project that there is reason to believe would be likely to be interested in, or affected by, the notification; and
(v) Affected Indian tribes.
(c)
(d)
(e)
(f)
(g)
(a)
(2) The agencies referred to in paragraph (a)(1) of this section include: Any state agency with responsibility for fish, wildlife, and botanical resources, water quality, coastal zone management plan consistency certification, shoreline management, and water resources; the U.S. Fish and Wildlife Service; the National Marine Fisheries Service; Environmental Protection Agency; State Historic Preservation Officer; Tribal Historic Preservation Officer; National Park Service; local, state, and regional recreation agencies and planning commissions; local and state zoning agencies; and any other state or Federal agency or Indian tribe with managerial authority over any part of project lands and waters.
(b)
(2) A potential applicant is not required to conduct studies in order to generate information for inclusion in the pre-application document. Rather, a potential applicant must exercise due diligence in determining what information exists that is relevant to describing the existing environment and potential impacts of the project proposal (including cumulative impacts), obtaining that information if the potential applicant does not already possess it, and describing or summarizing it as provided for in paragraph (d) of this section. Due diligence includes, but is not limited to, contacting appropriate agencies and Indian tribes that may have relevant information and review of Federal and state comprehensive plans filed with the Commission and listed on the Commission's Web site at
(c)
(2)
(d)
(2)
(i) The exact name and business address, and telephone number of each person authorized to act as agent for the applicant;
(ii) Detailed maps showing lands and waters within the project boundary by township, range, and section, as well as by state, county, river, river mile, and closest town, and also showing the specific location of any Federal and tribal lands, and the location of proposed project facilities, including roads, transmission lines, and any other appurtenant facilities;
(iii) A detailed description of all existing and proposed project facilities and components, including:
(A) The physical composition, dimensions, and general configuration of any dams, spillways, penstocks, canals, powerhouses, tailraces, and other structures proposed to be included
(B) The normal maximum water surface area and normal maximum water surface elevation (mean sea level), gross storage capacity of any impoundments;
(C) The number, type, and minimum and maximum hydraulic capacity and installed (rated) capacity of any proposed turbines or generators to be included as part of the project;
(D) The number, length, voltage, and interconnections of any primary transmission lines proposed to be included as part of the project, including a single-line diagram showing the transfer of electricity from the project to the transmission grid or point of use; and
(E) An estimate of the dependable capacity, average annual, and average monthly energy production in kilowatt hours (or mechanical equivalent);
(iv) A description of the current (if applicable) and proposed operation of the project, including any daily or seasonal ramping rates, flushing flows, reservoir operations, and flood control operations.
(v) In the case of an existing licensed project;
(A) A complete description of the current license requirements;
(B) A summary of project generation and outflow records for the five years preceding filing of the pre-application document;
(C) Current net investment; and
(D) A summary of the compliance history of the project, if applicable, including a description of any recurring situations of non-compliance.
(vi) A description of any new facilities or components to be constructed, plans for future development or rehabilitation of the project, and changes in project operation.
(3)
(A) A description of the existing environment as required by paragraphs (d)(3)(ii)-(xiii) of this section;
(B) Summaries (with references to sources of information or studies) of existing data or studies regarding the resource;
(C) A description of any known or potential adverse impacts and issues associated with the construction, operation or maintenance of the proposed project, including continuing and cumulative impacts; and
(D) A description of any existing or proposed project facilities or operations, and management activities undertaken for the purpose of protecting, mitigating impacts to, or enhancing resources affected by the project, including a statement of whether such measures are required by the project license, or were undertaken for other reasons. The type and amount of the information included in the discussion must be commensurate with the scope and level of resource impacts caused or potentially caused by the proposed project. Potential license applicants are encouraged to provide photographs or other visual aids, as appropriate, to supplement text, charts, and graphs included in the discussion.
(ii)
(A) A description of geological features, including bedrock lithology, stratigraphy, structural features, glacial features, unconsolidated deposits, and mineral resources at the project site;
(B) A description of the soils, including the types, occurrence, physical and chemical characteristics, erodability and potential for mass soil movement;
(C) A description of reservoir shorelines and streambanks, including:
(
(
(iii)
(A) Drainage area;
(B) The monthly minimum, mean, and maximum recorded flows in cubic feet per second of the stream or other body of water at the powerplant intake or point of diversion, specifying any adjustments made for evaporation, leakage, minimum flow releases, or other reductions in available flow;
(C) A monthly flow duration curve indicating the period of record and the location of gauging station(s), including identification number(s), used in deriving the curve; and a specification of the critical streamflow used to determine the project's dependable capacity;
(D) Existing and proposed uses of project waters for irrigation, domestic water supply, industrial and other purposes, including any upstream or downstream requirements or constraints to accommodate those purposes;
(E) Existing instream flow uses of streams in the project area that would be affected by project construction and operation; information on existing water rights and water rights applications potentially affecting or affected by the project;
(F) Any federally-approved water quality standards applicable to project waters;
(G) Seasonal variation of existing water quality data for any stream, lake, or reservoir that would be affected by the proposed project, including information on:
(
(
(H) The following data with respect to any existing or proposed lake or reservoir associated with the proposed project; surface area, volume, maximum depth, mean depth, flushing rate, shoreline length, substrate composition; and
(I) Gradient for downstream reaches directly affected by the proposed project.
(iv)
(A) Identification of existing fish and aquatic communities;
(B) Identification of any essential fish habitat as defined under the Magnuson-Stevens Fishery Conservation and Management Act and established by the National Marine Fisheries Service; and
(C) Temporal and spacial distribution of fish and aquatic communities and any associated trends with respect to:
(
(
(
(
(
(v)
(A) Upland habitat(s) in the project vicinity, including the project's transmission line corridor or right-of-way and a listing of plant and animal species that use the habitat(s); and
(B) Temporal or spacial distribution of species considered important because of their commercial, recreational, or cultural value.
(vi)
(A) A list of plant and animal species, including invasive species, that use the wetland, littoral, and riparian habitat;
(B) A map delineating the wetlands, riparian, and littoral habitat; and
(C) Estimates of acreage for each type of wetland, riparian, or littoral habitat, including variability in such availability as a function of storage at a project that is not operated in run-of-river mode.
(vii)
(A) A list of Federal- and state-listed, or proposed to be listed, threatened and endangered species known to be present in the project vicinity;
(B) Identification of habitat requirements;
(C) References to any known biological opinion, status reports, or recovery plan pertaining to a listed species;
(D) Extent and location of any federally-designated critical habitat, or other habitat for listed species in the project area; and
(E) Temporal and spatial distribution of the listed species within the project vicinity.
(viii)
(A) Text description illustrated by maps of existing recreational facilities, type of activity supported, location, capacity, ownership and management;
(B) Current recreational use of project lands and waters compared to facility or resource capacity;
(C) Existing shoreline buffer zones within the project boundary;
(D) Current and future recreation needs identified in current State Comprehensive Outdoor Recreation Plans, other applicable plans on file with the Commission, or other relevant local, state, or regional conservation and recreation plans;
(E) If the potential applicant is an existing licensee, its current shoreline management plan or policy, if any, with regard to permitting development of piers, boat docks and landings, bulkheads, and other shoreline facilities on project lands and waters;
(F) A discussion of whether the project is located within or adjacent to a:
(
(
(G) Whether any project lands are under study for inclusion in the National Trails System or designated as, or under study for inclusion as, a Wilderness Area.
(H) Any regionally or nationally important recreation areas in the project vicinity;
(I) Non-recreational land use and management within the project boundary; and
(J) Recreational and non-recreational land use and management adjacent to the project boundary.
(ix)
(x)
(A) Identification of any historic or archaeological site in the proposed project vicinity, with particular emphasis on sites or properties either listed in, or recommended by the State Historic Preservation Officer or Tribal Historic Preservation Officer for inclusion in, the National Register of Historic Places;
(B) Existing discovery measures, such as surveys, inventories, and limited subsurface testing work, for the purpose of locating, identifying, and assessing the significance of historic and archaeological resources that have been undertaken within or adjacent to the project boundary; and
(C) Identification of Indian tribes that may attach religious and cultural significance to historic properties within the project boundary or in the project vicinity; as well as available information on Indian traditional cultural and religious properties, whether on or off of any federally-recognized Indian reservation (A potential applicant must delete from any information made available under this section specific site or property locations, the disclosure of which would create a risk of harm, theft, or destruction of archaeological or Native American cultural resources or to the site at which the resources are located, or would violate any Federal law, including the Archaeological Resources Protection Act of 1979, 16 U.S.C. 470w-3, and the National Historic Preservation Act of 1966, 16 U.S.C. 470hh).
(xi)
(xii)
(A) Identification of information on resources specified in paragraphs (d)(2)(ii)-(xi) of this section to the extent that existing project construction and operation affecting those resources may impact tribal cultural or economic interests,
(B) Identification of impacts on Indian tribes of existing project construction and operation that may affect tribal interests not necessarily associated with resources specified in paragraphs (d)(3)(ii)-(xi) of this Section,
(xiii)
(A) The area of the river basin or sub-basin and length of stream reaches therein;
(B) Major land and water uses in the project area;
(C) All dams and diversion structures in the basin or sub-basin, regardless of function; and
(D) Tributary rivers and streams, the resources of which are or may be affected by project operations;
(4)
(i) Issues pertaining to the identified resources;
(ii) Potential studies or information gathering requirements associated with the identified issues;
(iii) Relevant qualifying Federal and state or tribal comprehensive waterway plans; and
(iv) Relevant resource management plans.
(5)
(e) If applicable, the applicant must also provide a statement of whether or not it will seek benefits under section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA) by satisfying the requirements for qualifying hydroelectric small power production facilities in § 292.203 of this chapter. If benefits under section 210 of PURPA are sought, a statement of whether or not the applicant believes the project is located at a new dam or diversion (as that term is defined in § 292.202(p) of this chapter), and a request for the agencies' view on that belief, if any.
A meeting shall be held no later than 30 days following issuance of the notification of intent required by § 5.5 between each Indian tribe likely to be affected by the potential license application and the Commission staff if the affected Indian tribe agrees to such meeting.
(a)
(b)
(1) The decision of the Director of the Office of Energy Projects on any request to use the traditional licensing process or alternative procedures.
(2) If appropriate, a request by the Commission to initiate informal consultation under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402, section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920, or section 106 of the National Historic Preservation Act and implementing regulations at 36 CFR 800.2, and, if applicable, designation of the potential applicant as the Commission's non-federal representative.
(3) If the potential license application is to be developed and filed pursuant to this part, notice of:
(i) The applicant's intent to file a license application;
(ii) The filing of the pre-application document;
(iii) Commencement of the proceeding;
(iv) A request for comments on the pre-application document (including the proposed process plan and schedule);
(v) A statement that all communications to or from the Commission staff related to the merits of the potential application must be filed with the Commission;
(vi) The request for other Federal or state agencies or Indian tribes to be cooperating agencies for purposes of developing an environmental document;
(vii) The Commission's intent with respect to preparation of an environmental impact statement; and
(viii) A public scoping meeting and site visit to be held within 30 days of the notice.
(c)
(1) An introductory section describing the purpose of the scoping document, the date and time of the scoping meeting, procedures for submitting written comments, and a request for information or study requests from state and Federal resource agencies, Indian tribes, non-governmental organizations, and individuals;
(2) Identification of the proposed action, including a description of the project's location, facilities, and operation, and any proposed protection and enhancement measures, and other alternatives to the proposed action, including alternatives considered but eliminated from further study, and the no action alternative;
(3) Identification of resource issues to be analyzed in the environmental document, including those that would be cumulatively affected along with a description of the geographic and temporal scope of the cumulatively affected resources;
(4) A list of qualifying Federal and state comprehensive waterway plans;
(5) A list of qualifying tribal comprehensive waterway plans;
(6) A process plan and schedule and a draft outline of the environmental document; and
(7) A list of recipients.
(d)
(1) Initiate issues scoping pursuant to the National Environmental Policy Act;
(2) Review and discuss existing conditions and resource management objectives;
(3) Review and discuss existing information and make preliminary identification of information and study needs;
(4) Review, discuss, and finalize the process plan and schedule for pre-filing activity that incorporates the time periods provided for in this part and, to the extent reasonably possible, maximizes coordination of Federal, state, and tribal permitting and certification processes, including consultation under section 7 of the Endangered Species Act and water quality certification or waiver thereof under section 401 of the Clean Water Act; and
(5) Discuss the appropriateness of any Federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document pursuant to the National Environmental Policy Act.
(e)
(1) Publishing notice in the
(2) Publishing notice in a daily or weekly newspaper published in the county or counties in which the project or any part thereof or the lands affected thereby are situated, and, as appropriate, tribal newspapers;
(3) Notifying appropriate Federal, state, and interstate resource agencies, state water quality and coastal zone management plan consistency certification agencies, Indian tribes, and non-governmental organizations by mail.
(a)
(b)
(1) Describe the goals and objectives of each study proposal and the information to be obtained;
(2) If applicable, explain the relevant resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
(3) If the requester is a not resource agency, explain any relevant public interest considerations in regard to the proposed study;
(4) Describe existing information concerning the subject of the study proposal, and the need for additional information;
(5) Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied, and how the study results would inform the development of license requirements;
(6) Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate filed season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers relevant tribal values and knowledge; and
(7) Describe considerations of level of effort and cost, as applicable, and why any proposed alternative studies would not be sufficient to meet the stated information needs.
(c)
Within 45 days following the deadline for filing of comments on Scoping Document 1, the Commission staff shall, if necessary, issue Scoping Document 2.
(a) Within 45 days following the deadline for filing of comments on the pre-application document, including information and study requests, the potential applicant must file with the Commission a proposed study plan.
(b) The potential applicant's proposed study plan must include with respect to each proposed study:
(1) A detailed description of the study and the methodology to be used;
(2) A schedule for conducting the study;
(3) Provisions for periodic progress reports, including the manner and extent to which information will be shared; and sufficient time for technical review of the analysis and results; and
(4) If the potential applicant does not adopt a requested study, an explanation of why the request was not adopted, with reference to the criteria set forth in § 5.9(b).
(c) The potential applicant's proposed study plan must also include provisions for the initial and updated study reports and meetings provided for in § 5.15.
(d) The applicant's proposed study plan must:
(1) Describe the goals and objectives of each study proposal and the information to be obtained;
(2) Address any known resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
(3) Describe existing information concerning the subject of the study proposal, and the need for additional information;
(4) Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied;
(5) Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate field season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers any known tribal interests;
(6) Describe considerations of level of effort and cost, as applicable.
(e) The potential applicant's proposed study plan must be accompanied by a proposal for conducting a study plan meeting or meetings during the 90-day period provided for in § 5.12 for the purpose of clarifying the potential applicant's proposed study plan and any initial information gathering or study requests, and to resolve any outstanding issues with respect to the proposed study plan. The initial study plan meeting must be held no later than 30 days after the deadline date for filing of the potential applicant's proposed study plan.
Comments on the potential applicant's proposed study plan, including any revised information or study requests, must be filed within 90 days after the proposed study plan is filed. This filing must also include an explanation of any study plan concerns and any accommodations reached with the potential applicant regarding those concerns. Any proposed modifications to the potential applicant's proposed study plan must address the criteria in § 5.9(b).
(a) Within 30 days following the deadline for filing comments on the potential applicant's proposed study plan, as provided for in § 5.12, the potential applicant must file a revised study plan for Commission approval. The revised study plan shall include the comments on the proposed study plan and a description of the efforts made to resolve differences over study requests. If the potential applicant does not adopt a requested study, it must explain why the request was not adopted, with
(b) Within 15 days following filing of the potential applicant's revised study plan, participants may file comments thereon.
(c) Within 30 days following the date the potential applicant files its revised study plan, the Director of Energy Projects will issue a Study Plan Determination with regard to the potential applicant's study plan, including any modifications determined to be necessary in light of the record.
(d) If no notice of study dispute is filed pursuant to § 5.14 within 20 days of the Study Plan Determination, the study plan as approved in the Study Plan Determination shall be deemed to be approved and the potential applicant shall proceed with the approved studies. If a potential applicant fails to obtain or conduct a study as required by Study Plan Determination, its license application may be considered deficient.
(a) Within 20 days of the Study Plan Determination, any Federal agency with authority to provide mandatory conditions on a license pursuant to FPA Section 4(e), 16 U.S.C. 797(e), or to prescribe fishways pursuant to FPA Section 18, 16 U.S.C. 811, or any agency or Indian tribe with authority to issue a water quality certification for the project license under section 401 of the Clean Water Act, 42 U.S.C. 1341, may file a notice of study dispute with respect to studies pertaining directly to the exercise of their authorities under sections 4(e) and 18 of the Federal Power Act or section 401 of the Clean Water Act.
(b) The notice of study dispute must explain how the disputing agency's or Indian tribe's study request satisfies the criteria set forth in § 5.9(b), and shall identify and provide contact information for the panel member designated by the disputing agency or Indian tribe, as discussed in paragraph (d) of this section.
(c) Studies and portions of study plans approved in the Study Plan Determination that are not the subject of a notice of dispute shall be deemed to be approved, and the potential applicant shall proceed with those studies or portions thereof.
(d) Within 20 days of a notice of study dispute, the Commission will convene one or more three-person Dispute Resolution Panels, as appropriate to the circumstances of each proceeding. Each such panel will consist of:
(1) A person from the Commission staff who is not otherwise involved in the proceeding, and who shall serve as the panel chair;
(2) One person designated by the Federal or state agency or Indian tribe that filed the notice of dispute who is not otherwise involved in the proceeding; and
(3) A third person selected by the other two panelists from a pre-established list of persons with expertise in the resource area. The two panelists shall make every reasonable effort to select the third panel member. If however no third panel member has been selected by the other two panelists within 15 days, an appropriate third panel member will be selected at random from the list of technical experts maintained by the Commission.
(e) If more than one agency or Indian tribe files a notice of dispute with respect to the decision in the preliminary determination on any information-gathering or study request, the disputing agencies or Indian tribes must select one person to represent their interests on the panel.
(f) The list of persons available to serve as a third panel member will be posted, as revised from time-to-time, on the hydroelectric page of the Commission's Web site. A person on the list who is requested and willing to serve with respect to a specific dispute will be required to file with the Commission at that time a current statement of their qualifications, a statement that they have had no prior involvement with the proceeding in which the dispute has arisen, or other financial or other conflict of interest.
(g) All costs of the panel members representing the Commission staff and the agency or Indian tribe which filed the notice of dispute will be borne by the Commission or the agency or Indian tribe, as applicable. The third panel member will serve without compensation, except for certain allowable travel expenses as defined in 31 CFR part 301.
(h) To facilitate the delivery of information to the dispute resolution panel, the identity of the panel members and their addresses for personal service with respect to a specific dispute resolution will be posted on the hydroelectric page of the Commission's Web site.
(i) No later than 25 days following the notice of study dispute, the potential applicant may file with the Commission and serve upon the panel members comments and information regarding the dispute.
(j) Prior to engaging in deliberative meetings, the panel shall hold a technical conference for the purpose of clarifying the matters in dispute with reference to the study criteria. The technical conference shall be chaired by the Commission staff member of the panel. It shall be open to all participants, and the panel shall receive information from the participants as it deems appropriate.
(k) No later than 50 days following the notice of study dispute, the panel shall make and deliver to the Director of the Office of Energy Projects a finding, with respect to each information or study request in dispute, concerning the extent to which each criteria set forth in § 5.9(b) is met or not met, and why, and make recommendations regarding the disputed study request based on its findings. The panel's findings and recommendations must be based on the record in the proceeding. The panel shall file with its findings and recommendations all of the materials received by the panel. Any recommendation for the potential applicant to provide information or a study must include the technical specifications, including data acquisition techniques and methodologies.
(l) No later than 70 days from the date of filing of the notice of study dispute, the Director of the Office of Energy Projects will review and consider the recommendations of the panel, and will issue a written determination. The Director's determination will be made with reference to the study criteria set forth in § 5.9(b) and any applicable law or Commission policies and practices, will take into account the technical expertise of the panel, and will explain why any panel recommendation was rejected, if applicable. The Director's determination shall constitute an amendment to the approved study plan.
(a)
(b)
(c)
(2) Within 15 days following the filing of the initial study report, the potential applicant shall hold a meeting with the participants and Commission staff to discuss the study results and the potential applicant's and or other participant's proposals, if any, to modify the study plan in light of the progress of the study plan and data collected.
(3) Within 15 days following the meeting provided for in paragraph (c)(2) of this section, the potential applicant shall file a meeting summary, including any modifications to ongoing studies or new studies proposed by the potential applicant.
(4) Any participant or the Commission staff may file a disagreement concerning the applicant's meeting summary within 30 days, setting forth the basis for the disagreement. This filing must also include any modifications to ongoing studies or new studies proposed by the Commission staff or other participant.
(5) Responses to any filings made pursuant to paragraph (c)(4) of this section must be filed within 30 days.
(6) No later than 30 days following the due date for responses provided for in paragraph (c)(5) of this section, the Director will resolve the disagreement and amend the approved study plan as appropriate.
(7) If no participant or the Commission staff files a disagreement concerning the potential applicant's meeting summary and request to amend the approved study plan within 15 days, any proposed amendment shall be deemed to be approved.
(d)
(1) Approved studies were not conducted as provided for in the approved study plan; or
(2) The study was conducted under anomalous environmental conditions or that environmental conditions have changed in a material way.
(e)
(1) Any material changes in the law or regulations applicable to the information request;
(2) Why the goals and objectives of any approved study could not be met with the approved study methodology;
(3) Why the request was not made earlier;
(4) Significant changes in the project proposal or that significant new information material to the study objectives has become available; and
(5) Why the new study request satisfies the study criteria in § 5.9(b).
(f)
(a) No later than 150 days prior to the deadline for filing a new or subsequent license application, if applicable, the potential applicant must file for comment a preliminary licensing proposal.
(b) The preliminary licensing proposal must:
(1) Clearly describe, as applicable, the existing and proposed project facilities, including project lands and waters;
(2) Clearly describe, as applicable, the existing and proposed project operation and maintenance plan, to include measures for protection, mitigation, and enhancement measures with respect to each resource affected by the project proposal; and
(3) Include the potential applicant's draft environmental analysis by resource area of the continuing and incremental impacts, if any, of its preliminary licensing proposal, including the results of its studies conducted under the approved study plan.
(c) A potential applicant may elect to file a draft license application which includes the contents of a license application required by § 5.18 instead of the Preliminary Licensing Proposal. A potential applicant that elects to file a draft license application must include notice of its intent to do so in the updated study report required by § 5.15(f).
(d) A potential applicant that has been designated as the Commission's non-Federal representative may include a draft Biological Assessment, draft Essential Fish Habitat Assessment, and draft Historic Properties Management Plan with its Preliminary Licensing Proposal or draft license application.
(e) Within 90 days of the date the potential applicant files the Preliminary Licensing Proposal or draft license application, participants and the Commission staff may file comments on the Preliminary Licensing Proposal or draft application, which may include recommendations on whether the Commission should prepare an Environmental Assessment (with or without a draft Environmental Assessment) or an Environmental Impact Statement. Any participant whose comments request new information, studies, or other amendments to the approved study plan must include a demonstration of extraordinary circumstances, pursuant to the requirements of § 5.15(f).
(f) A waiver of the requirement to file the Preliminary Licensing Proposal or draft license application may be requested, based on a consensus of the participants in favor of such waiver.
(a)
(b)
(c)
(d)(1)
(2) An applicant must publish notice twice of the filing of its application, no later than 14 days after the filing date in a daily or weekly newspaper of general circulation in each county in which the project is located. The notice must disclose the filing date of the application and briefly summarize it, including the applicant's name and address, the type of facility applied for, its proposed location, and the places where the information specified in § 5.2(b) is available for inspection and reproduction. The applicant must promptly provide the Commission with proof of the publication of this notice.
(e)
(2) If an applicant reverses a statement of intent not to seek PURPA benefits:
(i) Prior to the Commission issuing a license, the reversal of intent will be treated as an amendment of the application under § 4.35 of this chapter and the applicant must:
(A) Repeat the pre-filing consultation process under this part; and
(B) Satisfy all the requirements in § 292.208 of this chapter; or
(ii) After the Commission issues a license for the project, the applicant is prohibited from obtaining PURPA benefits.
(f)
(g)
(a)
(1) Identify every person, citizen, association of citizens, domestic corporation, municipality, or state that has or intends to obtain and will maintain any proprietary right necessary to construct, operate, or maintain the project;
(2) Identify (providing names and mailing addresses):
(i) Every county in which any part of the project, and any Federal facilities that would be used by the project, would be located;
(ii) Every city, town, or similar local political subdivision:
(A) In which any part of the project, and any Federal facilities that would be used by the project, would be located; or
(B) That has a population of 5,000 or more people and is located within 15 miles of the project dam;
(iii) Every irrigation district, drainage district, or similar special purpose political subdivision:
(A) In which any part of the project, and any Federal facilities that would be used by the project, would be located; or
(B) That owns, operates, maintains, or uses any project facilities that would be used by the project;
(iv) Every other political subdivision in the general area of the project that there is reason to believe would likely be interested in, or affected by, the application; and
(v) All Indian tribes that may be affected by the project.
(3)(i) For a license (other than a license under section 15 of the Federal Power Act) state that the applicant has made, either at the time of or before filing the application, a good faith effort to give notification by certified mail of the filing of the application to:
(A) Every property owner or record of any interest in the property within the bounds of the project, or in the case of the project without a specific project boundary, each such owner of property which would underlie or be adjacent to any project works including any impoundments; and
(B) The entities identified in paragraph (a)(2) of this section, as well as any other Federal, state, municipal or other local government agencies that there is reason to believe would likely be interested in or affected by such application.
(ii) Such notification must contain the name, business address, and telephone number of the applicant and a copy of the Exhibit G contained in the application, and must state that a license application is being filed with the Commission.
(4)(i) As to any facts alleged in the application or other materials filed, be subscribed and verified under oath in the form set forth in paragraph (a)(3)(B) of this Section by the person filing, an officer thereof, or other person having knowledge of the matters set forth. If the subscription and verification is by anyone other than the person filing or an officer thereof, it must include a statement of the reasons therefor.
(ii) This application is executed in the:
Subscribed and sworn to before me, a [Notary Public, or title of other official authorized by the state to notarize documents, as appropriate] this___ day of ____, 2__.
(5) Contain the information and documents prescribed in the following Sections of this chapter, except as provided in paragraph (b) of this Section, according to the type of application:
(i) License for a minor water power project and a major water power project 5 MW or less: § 4.61 (General instructions, initial statement, and Exhibits A, B, C, D, F, and G);
(ii) License for a major unconstructed project and a major modified project: § 4.41 of this chapter (General instructions, initial statement, Exhibits A, B, C, D, F, and G);
(iii) License for a major project—existing dam: § 4.51 of this chapter (General instructions, initial statement, Exhibits A, F, and G); or
(iv) License for a project located at a new dam or diversion where the applicant seeks PURPA benefits: § 292.208 of this chapter.
(b)
(1)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(4)
(i) Maps showing existing and proposed project facilities, lands, and waters within the project boundary;
(ii) The configuration of any dams, spillways, penstocks, canals, powerhouses, tailraces, and other structures;
(iii) The normal maximum water surface area and normal maximum water surface elevation (mean sea level), gross storage capacity of any impoundments;
(iv) The number, type, and minimum and maximum hydraulic capacity and installed (rated) capacity of existing and proposed turbines or generators to be included as part of the project;
(v) An estimate of the dependable capacity, and average annual energy production in kilowatt hours (or mechanical equivalent);
(vi) A description of the current (if applicable) and proposed operation of the project, including any daily or seasonal ramping rates, flushing flows, reservoir operations, and flood control operations.
(5)
(A) A discussion of the affected environment;
(B) A detailed analysis of the effects of the applicant's licensing proposal and, if reasonably possible, any preliminary terms and conditions filed with the Commission; and
(C) Any unavoidable adverse impacts.
(ii) The environmental document must contain, with respect to the resources listed in the Pre-Application Document provided for in § 5.6, and any other resources identified in the Commission's scoping document prepared pursuant to the National Environmental Policy Act and § 5.8, the following information, commensurate with the scope of the project:
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(2) The applicant must also provide in the Environmental Document:
(A) Functional design drawings of any fish passage and collection facilities or any other facilities necessary for implementation of environmental measures, indicating whether the facilities depicted are existing or proposed (these drawings must conform to the specifications of § 4.39 of this chapter regarding dimensions of full-sized prints, scale, and legibility);
(B) A description of operation and maintenance procedures for any existing or proposed measures or facilities;
(C) An implementation or construction schedule for any proposed measures or facilities, showing the intervals following issuance of a license when implementation of the measures or construction of the facilities would be commenced and completed;
(D) An estimate of the costs of construction, operation, and maintenance, of any proposed facilities, and of implementation of any proposed environmental measures.
(E) A map or drawing that conforms to the size, scale, and legibility requirements of § 4.39 of this chapter showing by the use of shading, cross-hatching, or other symbols the identity and location of any measures or facilities, and indicating whether each measure or facility is existing or proposed (the map or drawings in this exhibit may be consolidated).
(c)
(1)
(A) A discussion of the plans and ability of the applicant to operate and
(
(
(
(B) A discussion of the need of the applicant over the short and long term for the electricity generated by the project, including:
(
(
(
(
(
(
(C) The following data showing need and the reasonable cost and availability of alternative sources of power:
(
(
(
(
(
(
(D) If an applicant uses power for its own industrial facility and related operations, the effect of obtaining or losing electricity from the project on the operation and efficiency of such facility or related operations, its workers, and the related community.
(E) If an applicant is an Indian tribe applying for a license for a project located on the tribal reservation, a statement of the need of such Indian tribe for electricity generated by the project to foster the purposes of the reservation.
(F) A comparison of the impact on the operations and planning of the applicant's transmission system of receiving or not receiving the project license, including:
(
(
(
(G) If the applicant has plans to modify existing project facilities or operations, a statement of the need for, or usefulness of, the modifications, including at least a reconnaissance-level study of the effect and projected costs of the proposed plans and any alternate plans, which in conjunction with other developments in the area would conform with a comprehensive plan for improving or developing the waterway and for other beneficial public uses as defined in Section 10(a)(1) of the Federal Power Act.
(H) If the applicant has no plans to modify existing project facilities or operations, at least a reconnaissance-level study to show that the project facilities or operations in conjunction with other developments in the area would conform with a comprehensive plan for improving or developing the waterway and for other beneficial public uses as defined in Section 10(a)(1) of the Federal Power Act.
(I) A statement describing the applicant's financial and personnel resources to meet its obligations under a new license, including specific information to demonstrate that the applicant's personnel are adequate in number and training to operate and maintain the project in accordance with the provisions of the license.
(J) If an applicant proposes to expand the project to encompass additional lands, a statement that the applicant has notified, by certified mail, property owners on the additional lands to be encompassed by the project and governmental agencies and subdivisions likely to be interested in or affected by the proposed expansion.
(K) The applicant's electricity consumption efficiency improvement program, as defined under Section 10(a)(2)(C) of the Federal Power Act, including:
(
(
(L) The names and mailing addresses of every Indian tribe with land on which any part of the proposed project would be located or which the applicant reasonably believes would otherwise be affected by the proposed project.
(ii)
(A) The information specified in paragraph (c)(1) of this section.
(B) A statement of measures taken or planned by the licensee to ensure safe management, operation, and maintenance of the project, including:
(
(
(
(
(
(C) A description of the current operation of the project, including any constraints that might affect the manner in which the project is operated.
(D) A discussion of the history of the project and record of programs to upgrade the operation and maintenance of the project.
(E) A summary of any generation lost at the project over the last five years because of unscheduled outages, including the cause, duration, and corrective action taken.
(F) A discussion of the licensee's record of compliance with the terms and conditions of the existing license, including a list of all incidents of noncompliance, their disposition, and any documentation relating to each incident.
(G) A discussion of any actions taken by the existing licensee related to the project which affect the public.
(H) A summary of the ownership and operating expenses that would be reduced if the project license were transferred from the existing licensee.
(I) A statement of annual fees paid under part I of the Federal Power Act for the use of any Federal or Indian lands included within the project boundary.
(iii)
(A) The information specified in paragraph (c)(1) of this section.
(B) A statement of the applicant's plans to manage, operate, and maintain the project safely, including:
(
(
(
(
(d)
(e)
(f)
(a)
(1) Issuance of the acceptance for filing and ready for environmental analysis notice provided for in § 5.22.
(2) Filing of recommendations, preliminary terms and conditions, and fishway prescriptions;
(3) Issuance of a draft environmental assessment or environmental impact statement, or an environmental assessment not preceded by a draft.
(4) Filing of comments on the draft environmental assessment or environmental impact statement, as applicable;
(5) Filing of modified recommendations, mandatory terms and conditions, and fishway prescriptions in response to a draft NEPA document or Environmental Analysis, if no draft NEPA document is issued;
(6) Issuance of a final NEPA document, if any;
(7) In the case of a new or subsequent license application, a deadline for submission of final amendments, if any, to the application; and
(8) Readiness of the application for Commission decision.
(b)
(c)
(1) Publishing notice in the
(2) Notifying appropriate Federal, state, and interstate resource agencies, state water quality and coastal zone management plan consistency certification agencies, Indian tribes, and non-governmental organizations by mail.
(d)
(e)
(a)
(2) Within 30 days of the filing date of any application for a license under this part, the Director of the Office of Energy Projects will notify the applicant if, in the Director's judgment, the application does not conform to the prefiling consultation and filing requirements of this part, and is therefore considered deficient. An applicant having a deficient application will be afforded additional time to correct the deficiencies, not to exceed 90 days from the date of notification. Notification will be by letter or, in the case of minor deficiencies, by telephone. Any notification will specify the deficiencies to be corrected. Deficiencies must be corrected by submitting an a filing pursuant to the requirements of subpart T of part 385 of this chapter within the time specified in the notification of deficiency.
(3) If the revised application is found not to conform to the prefiling consultation and filing requirements of this part, or if the revisions are not timely submitted, the revised application will be rejected. Procedures for rejected applications are specified in paragraph (b)(3) of this section.
(b)
(2) If, after 30 days following its filing date, the Director of the Office of Energy Projects determines that an application patently fails to comply with the prefiling consultation and filing requirements of this part, or is for a project that is precluded by law:
(i) The application will be rejected by order of the Commission, if the Commission determines that it is patently deficient; or
(ii) The application will be considered deficient under paragraph (a)(2) of this Section, if the Commission determines that it is not patently deficient.
(iii) Any application for an original license that is rejected may be submitted if the deficiencies are corrected and if, in the case of a competing application, the resubmittal is timely. The date the rejected application is resubmitted will be considered the new filing date for purposes of determining its timeliness under § 4.36 of this chapter and the disposition of competing applications under § 4.37 of this chapter.
An applicant may be required to submit any additional information or documents that the Commission considers relevant for an informed decision on the application. The information or documents must take the form, and must be submitted within the time, that the Commission prescribes. An applicant may also be required to provide within a specified time additional copies of the complete application, or any of the additional information or documents that are filed, to the Commission or to any person, agency, Indian tribe or other entity that the Commission specifies. If an applicant fails to provide timely additional information, documents, or copies of submitted materials as required, the Commission may dismiss the application, hold it in abeyance, or take other appropriate action under this chapter or the Federal Power Act.
(a) When the Commission has determined that the application meets the Commission's filing requirements as specified in §§ 5.18 and 5.19, the approved studies have been completed, any deficiencies in the application have been cured, and no other additional information is needed, it will issue public notice as required in the Federal Power Act:
(1) Accepting the application for filing and specifying the date upon which the application was accepted for filing (which will be the application filing date if the Secretary receives all of the information and documents necessary to conform to the requirements of §§ 5.1 through 5.21, as applicable, within the time frame prescribed in § 5.20 or § 5.21;
(2) Finding that the application is ready for environmental analysis;
(3) Requesting comments, protests, and interventions;
(4) Requesting recommendations, preliminary terms and conditions, and preliminary fishway prescriptions, including all supporting documentation; and
(5) Establishing the date for final amendments to applications for new or subsequent licenses; and
(6) Updating the schedule issued with the tendering notice for processing the application.
(b) If the project affects lands of the United States, the Commission will notify the appropriate Federal office of the application and the specific lands affected, pursuant to Section 24 of the Federal Power Act.
(c) For an application for a license seeking benefits under Section 210 of the Public Utility Regulatory Polices Act of 1978, as amended, for a project that would be located at a new dam or diversion, the Applicant must serve the public notice issued under paragraph (a)(1) of this Section to interested agencies at the time the applicant is notified that the application is accepted for filing.
(a)
(b)
(i) A copy of the water quality certification;
(ii) A copy of the request for certification, including proof of the date on which the certifying agency received the request; or
(iii) Evidence of waiver of water quality certification as described in paragraph (b)(5)(2) of this Section.
(2) A certifying agency is deemed to have waived the certification requirements of section 401(a)(1) of the Clean Water Act if the certifying agency has not denied or granted certification by one year after the date the certifying agency received a written request for certification. If a certifying agency denies certification, the applicant must file a copy of the denial within 30 days after the applicant received it.
(3) Notwithstanding any other provision in 18 CFR part 4, subpart B, any application to amend an existing license, and any application to amend a pending application for a license, requires a new request for water quality certification pursuant to § 4.34(b)(5) of this chapter if the amendment would have a material adverse impact on the water quality in the discharge from the project or proposed project.
(a) If the Commission determines that a license application will be processed with an environmental assessment rather than an environmental impact statement and that a draft environmental assessment will not be required, the Commission will issue the environmental assessment for comment no later than 120 days from the date responses are due to the notice of acceptance and ready for environmental analysis.
(b) Each environmental assessment issued pursuant to this paragraph must include draft license articles, a preliminary determination of consistency of each fish and wildlife agency recommendation made pursuant to Federal Power Act section 10(j) with the purposes and requirements of the Federal Power Act and other applicable law, as provided for in § 5.26, and any preliminary mandatory terms and conditions and fishway prescriptions.
(c) Comments on an environmental assessment issued pursuant to paragraph (a) of this section, including comments in response to the Commission's preliminary determination with respect to fish and wildlife agency recommendations and on preliminary mandatory terms and conditions or fishway prescriptions, must be filed no later than 30 or 45 days after issuance of the environmental assessment, as specified in the notice accompanying issuance of the environmental assessment, and should any revisions to supporting documentation.
(d) Modified mandatory prescriptions or terms and conditions must be filed no later than 60 days following the date for filing of comments provided for in paragraph (c) of this section, as specified in the notice accompanying issuance of the environmental analysis.
(a) If the Commission determines that a license application will be processed with an environmental impact statement, or a draft and final environmental assessment, the Commission will issue the draft environmental impact statement or environmental assessment for comment no later than 180 days from the date responses are due to the notice of acceptance and ready for environmental analysis provided for in § 5.22.
(b) Each draft environmental document will include for comment draft license articles, a preliminary determination of the consistency of each fish and wildlife agency recommendation made pursuant to section 10(j) of the Federal Power Act with the purposes and requirements of the Federal Power Act and other applicable law, as provided for in § 5.26, and any preliminary mandatory terms and conditions and fishways prescriptions.
(c) Comments on a draft environmental document issued pursuant to paragraph (b) of this section, including comments in response to the Commission's preliminary determination with respect to fish and wildlife agency recommendations and on preliminary mandatory terms and conditions or prescriptions must be filed no later than 30 or 60 days after issuance of the draft environmental document, as specified in the notice accompanying issuance of the draft environmental document.
(d) Modified mandatory prescriptions or terms and conditions must be filed no later than 60 days following the date for filing of comments provided for in paragraph (c) of this section.
(e) The Commission will issue a final environmental document within 90 days following the date for filing of modified mandatory prescriptions or terms and conditions.
(a) In connection with its environmental review of an application for license, the Commission will analyze all terms and conditions timely recommended by fish and wildlife agencies pursuant to the Fish and Wildlife Coordination Act for the protection, mitigation of damages to, and enhancement of fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the proposed project. Submission of such recommendations marks the beginning of the process under section 10(j) of the Federal Power Act.
(b) The agency must specifically identify and explain the recommendations and the relevant resource goals and objectives and their evidentiary or legal basis. The Commission may seek clarification of any recommendation from the appropriate fish and wildlife agency. If the Commission's request for clarification is communicated in writing, copies of the request will be sent by the Commission to all parties, affected resource agencies, and Indian tribes, which may file a response to the request for clarification within the time period specified by the Commission. If the Commission believes any fish and wildlife recommendation may be inconsistent with the Federal Power Act or other applicable law, the Commission will make a preliminary determination of inconsistency in the draft environmental document or, if none, the environmental assessment. The preliminary determination, for any recommendations believed to be inconsistent, shall include an explanation why the Commission believes the recommendation is inconsistent with the Federal Power Act or other applicable law, including any supporting analysis and conclusions and an explanation of how the measures recommended in the environmental document would adequately and equitably protect, mitigate damages to, and enhance, fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the project.
(c) Any party, affected resource agency, or Indian tribe may file comments in response to the preliminary determination of inconsistency, including any modified recommendations, within the time frame allotted for comments on the draft environmental document or, if none, the time frame for comments on the environmental assessment. In this filing, the fish and wildlife agency concerned may also request a meeting, telephone or video conference, or other additional procedure to attempt to resolve any preliminary determination of inconsistency.
(d) The Commission shall attempt, with the agencies, to reach a mutually acceptable resolution of any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities of the fish and wildlife agency. If the Commission decides, or an affected resource agency requests, the Commission will conduct a meeting, telephone or video conference, or other procedures to address issues raised by its preliminary determination of inconsistency and comments thereon. The Commission will give at least 15 days' advance notice to each party, affected resource agency, or Indian tribe, which may participate in the meeting or conference. Any meeting, conference, or additional procedure to address these issues will be scheduled to take place within 90 days of the date the Commission issues a preliminary determination of inconsistency. The Commission will prepare a written summary of any meeting held under this paragraph to discuss section 10(j) issues, including any proposed resolutions and supporting analysis, and a copy of the summary will be sent to all parties,
(e) The section 10(j) process ends when the Commission issues an order granting or denying the license application in question. If, after attempting to resolve inconsistencies between the fish and wildlife recommendations of a fish and wildlife agency and the purposes and requirements of the Federal Power Act or other applicable law, the Commission does not adopt in whole or in part a fish and wildlife recommendation of a fish and wildlife agency, the Commission will publish the findings and statements required by section 10(j)(2) of the Federal Power Act.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(a)
(b)
(2) If an agency, Indian tribe, member of the public fails to timely comply with a provision regarding a requirement of this section, an applicant may proceed to the next sequential requirement of this section without waiting for the agency, Indian tribe, or member of the public.
(c)
(d)
(e)
(f)
(2) The Director of Energy Projects may waive or modify any of the provisions of this part for good cause. A commenter or reply commenter may obtain an extension of time from the Commission only upon a showing of good cause or extraordinary circumstances in accordance with § 385.2008 of this chapter.
(3) Late-filed recommendations by fish and wildlife agencies pursuant to the Fish and Wildlife Coordination Act and section 10(j) of the Federal Power Act for the protection, mitigation of damages to, and enhancement of fish and wildlife affected by the development, operation, and management of the proposed project and late-filed terms and conditions or prescriptions filed pursuant to sections 4(e) and 18 of the Federal Power Act, respectively, will be considered by Commission under section 10(a) of the Federal Power Act if such consideration would not delay or disrupt the proceeding.
(g)
(i) Whether requests for suspension of the procedural schedule have previously been made or granted;
(ii) Whether the request is supported by a consensus of participants in the proceeding and an explanation of objections to the request expressed by any participant;
(iii) The likelihood that a settlement agreement will be filed within the requested suspension period; and
(iv) Whether the requested suspension is likely to cause any new or subsequent license to be issued after the expiration of the existing license.
(2) The Commission reserves the right to terminate any suspension of the procedural schedule if it concludes that insufficient progress is being made toward the filing of a settlement agreement.
(h)
(2) Subject to paragraph (f)(3) of this section, fish and wildlife conditions shall be based on recommendations timely received from the fish and wildlife agencies pursuant to the Fish and Wildlife Coordination Act.
(3) The Commission will consider the timely recommendations of resource agencies, other governmental units, and members of the public, and the timely recommendations (including fish and wildlife recommendations) of Indian tribes affected by the project.
(4) Licenses for a project located within any Federal reservation shall be issued only after the findings required by, and subject to any conditions that may be timely filed pursuant to section 4(e) of the Federal Power Act.
(5) The Commission will require the construction, maintenance, and operation of such fishways as may be timely prescribed by the Secretary of Commerce or the Secretary of the Interior, as appropriate, pursuant to section 18 of the Federal Power Act.
(i)
(2) If there are only insignificant differences between the final applications of an existing licensee and a competing Applicant after consideration of the factors enumerated in section 15(a)(2) of the Federal Power Act, the Commission will determine which Applicant will receive the license after considering:
(i) The existing licensee's record of compliance with the terms and conditions of the existing license; and
(ii) The actions taken by the existing licensee related to the project which affect the public.
(iii) An existing licensee that files an application for a new license in conjunction with an entity or entities that are not currently licensees of all or part of the project will not be considered an existing licensee for the purpose of the insignificant differences provision of section 15(a)(2) of the Federal Power Act.
(j)
If any action required by this part requires a potential Applicant or Applicant to reveal Critical Energy Infrastructure Information, as defined by § 388.113(c) of this chapter, to the public, the Applicant must follow the procedures set out in § 4.32(k) of this chapter.
This part shall apply to license applications for which the deadline for filing a notification of intent to seek a new or subsequent license, or for filing a notification of intent to file an original license application, as required by § 5.5 of this part, is July 23, 2005 or later.
Sec. 8, 41 Stat. 1068, sec. 309, 49 Stat. 858; 16 U.S.C. 801, 825h; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501
16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.
(c) Any potential applicant for a new or subsequent license for which the deadline for the notice of intent required by § 16.6 falls on or after July 23, 2005 and which wishes to develop and file its application pursuant to this part, must seek Commission authorization to do so pursuant to the provisions of part 5 of this chapter.
(b) * * *
(10) * * *
(v) Affected Indian tribes.
(d)
(1) If the notification is filed prior to July 23, 2005;
(i) Publishing notice in the
(ii) Publishing notice once in a daily or weekly newspaper published in the county or counties in which the project or any part thereof or the lands affected thereby are situated; and
(iii) Notifying the appropriate Federal and state resource agencies, state water quality and coastal zone management consistency certifying agencies, and Indian tribes by mail.
(2) If the notification is filed on or after July 23, 2005, pursuant to the provisions of § 5.8 of this chapter.
(d)
(2) A licensee for which the deadline for filing a notification of intent to seek a new or subsequent license is prior to July 23, 2005, and which elects to seek a license pursuant to this part must make the following information regarding its existing project reasonably available to the public as provided in paragraph (b) of this section:
(i) The following construction and operation information:
(A) The original license application and the order issuing the license and any subsequent license application and subsequent order issuing a license for the existing project, including
(
(
(
(B) All data relevant to whether the project is and has been operated in accordance with the requirements of each license article, including minimum flow requirements, ramping rates, reservoir elevation limitations, and environmental monitoring data;
(C) A compilation of project generation and respective outflow with time increments not to exceed one hour, unless use of another time increment can be justified, for the period beginning five years before the filing of a notice of intent;
(D) Any public correspondence related to the existing project;
(E) Any report on the total actual annual generation and annnual operation and maintenance costs for the period beginning five years before the filing of a notice of intent;
(F) Any reports on original project costs, current net investment, and available funds in the amortization reserve account;
(G) A current and complete electrical single-line diagram of the project showing the transfer of electricity from the project to the area utility system or point of use; and
(H) Any bill issued to the existing licensee for annual charges under Section 10(e) of the Federal Power Act.
(ii) The following safety and structural adequacy information:
(A) The most recent emergency action plan for the project or a letter exempting the project from the emergency action plan requirement;
(B) Any independent consultant's reports required by part 12 of this chapter and filed on or after January 1, 1981;
(C) Any report on operation or maintenance problems, other than routine maintenance, occurring within the five years preceding the filing of a notice of intent or within the most recent five-year period for which data exists, and associated costs of such problems under the Commission's Uniform System of Accounts;
(D) Any construction report for the existing project; and
(E) Any public correspondence relating to the safety and structural adequacy of the existing project.
(iii) The following fish and wildlife resources information:
(A) Any report on the impact of the project's construction and operation on fish and wildlife resources;
(B) Any existing report on any threatened or endangered species or critical habitat located in the project area, or affected by the existing project outside the project area;
(C) Any fish and wildlife management plan related to the project area prepared by the existing licensee or any resource agency; and
(D) Any public correspondence relating to the fish and wildlife resources within the project area.
(iv) The following recreation and land use resources information:
(A) Any report on past and current recreational uses of the project area;
(B) Any map showing recreational facilities and areas reserved for future development in the project area, designated or proposed wilderness areas in the project area; Land and Water Conservation Fund lands in the project area, and designated or proposed Federal or state wild and scenic river corridors in the project area.
(C) Any documentation listing the entity responsible for operating and maintaining any existing recreational facilities in the project area; and
(D) Any public correspondence relating to recreation and land use resources within the project area.
(v) The following cultural resources information:
(A) Except as provided in paragraph (d)(2)(v)(B) of this section, a licensee must make available:
(
(
(
(B) A licensee must delete from any information made available under paragraph (d)(2)(v)(A) of this section, specific site or property locations the disclosure of which would create a risk of harm, theft, or destruction of archeological or Native American cultural resources or to the site at which the resources are located, or would violate any Federal law, including the Archeological Resources Protection Act of 1979, 16 U.S.C. 470w-3, and the National Historic Preservation Act of 1966, 16 U.S.C. 470hh.
(vi) The following energy conservation information under section 10(a)(2)(C) of the Federal Power Act related to the licensee's efforts to conserve electricity or to encourage conservation by its customers including:
(A) Any plan of the licensee;
(B) Any public correspondence; and
(C) Any other pertinent information relating to a conservation plan.
(a) * * *
(2) Each requirement in this section to contact or consult with resource agencies or Indian tribes shall require as well that the potential Applicant contact or consult with members of the public.
(3) If the potential applicant for a new or subsequent license commences first stages pre-filing consultation under this part on or after July 23, 2005, it must file a notification of intent to file a license application pursuant to § 5.5 of this chapter and a pre-application document pursuant to the provisions of § 5.6 of this chapter.
(4) The Director of the Office of Energy Projects will, upon request, provide a list of known appropriate Federal, state, and interstate resource agencies, and Indian tribes, and local, regional, or national non-governmental organizations likely to be interested in any license application proceeding.
(b)
(2) A potential applicant for a nonpower license or exemption must promptly contact each of the appropriate resource agencies, Indian tribes, and members of the public listed in paragraph (a)(1) of this section, and the Commission with the following information:
(i) Detailed maps showing existing project boundaries, if any, proper land descriptions of the entire project area by township, range, and section, as well as by state, county, river, river mile, and closest town, and also showing the specific location of all existing and proposed project facilities, including roads, transmission lines, and any other appurtenant facilities;
(ii) A general engineering design of the existing project and any proposed changes, with a description of any existing or proposed diversion of a stream through a canal or penstock;
(iii) A summary of the existing operational mode of the project and any proposed changes;
(iv) Identification of the environment affected or to be affected, the significant resources present and the applicant's existing and proposed environmental protection, mitigation, and enhancement plans, to the extent known at that time;
(v) Streamflow and water regime information, including drainage area, natural flow periodicity, monthly flow rates and durations, mean flow figures illustrating the mean daily streamflow curve for each month of the year at the point of diversion or impoundment, with location of the stream gauging station, the method used to generate the streamflow data provided, and copies of all records used to derive the flow data used in the applicant's engineering calculations;
(vi) Detailed descriptions of any proposed studies and the proposed methodologies to be employed; and
(vii) Any statement required by § 4.301(a) of this chapter.
(3)(i) A potential applicant for an exemption, a new or subsequent license for which the deadline for filing a notification of intent to seek a license is prior to July 23, 2005 and which elects to commence pre-filing consultation under this part, or a new or subsequent license for which the deadline for filing a notification of intent to seek a license is on or after July 23, 2005 and which receives Commission approval to use the license application procedures of this part must:
(A) Hold a joint meeting, including an opportunity for a site visit, with all pertinent agencies, Indian tribes and members of the public to review the information and to discuss the data and studies to be provided by the potential applicant as part of the consultation process; and
(B) Consult with the resource agencies, Indian tribes and members of the public on the scheduling of the joint meeting; and provide each resource agency, Indian tribe, member of the public, and the Commission with written notice of the time and place of the joint meeting and a written agenda of the issues to be discussed at the meeting at least 15 days in advance.
(ii) The joint meeting must be held no earlier than 30 days, and no later than 60 days from, as applicable:
(A) The date of the potential applicant's letter transmitting the information required by paragraph (b)(2) of this section, in the case of a potential exemption applicant or a potential license applicant that commences pre-filing consultation under this part prior to July 23, 2005; or
(B) The date of the Commission's approval of the potential license applicant's request to use the license application procedures of this part pursuant to the provisions of part 5, in the case of a potential license applicant for which the deadline for filing a notification of intent to seek a license is on or after July 23, 2005.
(4) Members of the public are invited to attend the joint meeting held pursuant to paragraph (b)(3) of this section. Members of the public attending the meeting are entitled to participate fully in the meeting and to express their views regarding resource issues that should be addressed in any application for a new license that may be filed by the potential applicant. Attendance of the public at any site visit held pursuant to paragraph (b)(3) of this section shall be at the discretion of the potential applicant. The potential applicant must make either audio recordings or written transcripts of the joint meeting, and must upon request promptly provide copies of these recordings or transcripts to the Commission and any resource agency and Indian tribe.
(5) Unless otherwise extended by the Director of Office of Energy Projects pursuant to paragraph (b)(6) of this section, not later than 60 days after the joint meeting held under paragraph (b)(3) of this section each interested resource agency, and Indian tribe, and member of the public must provide a potential applicant with written comments: (i) Identifying its determination of necessary studies to be performed or information to be provided by the potential applicant;
(ii) Identifying the basis for its determination;
(iii) Discussing its understanding of the resource issues and its goals objectives for these resources;
(iv) Explaining why each study methodology recommended by it is more appropriate than any other available methodology alternatives, including those identified by the potential applicant pursuant to paragraph (b)(2)(vi) of this section;
(v) Documenting that the use of each study methodology recommended by it is a generally accepted practice; and
(vi) Explaining how the studies and information requested will be useful to the agency, Indian tribe, or member of the public in furthering its resource goals and objectives.
(6)(i) If a potential applicant and a resource agency, Indian tribe, or member of the public disagree as to any matter arising during the first stage of
(ii) The entity referring the dispute must serve a copy of its written request for resolution on the disagreeing party at the time the request is submitted to the Director. The disagreeing party may submit to the Director a written response to the referral within 15 days of the referral's submittal to the Director.
(iii) Written referrals to the Director and written responses thereto pursuant to paragraphs (b)(6)(i) or (b)(6)(ii) of this section must be filed with the Secretary of the Commission in accordance with the Commission's Rules of Practice and Procedure, and must indicate that they are for the attention of the Director of the Office of Energy Projects pursuant to § 16.8(b)(6).
(iv) The Director will resolve disputes by an order directing the potential applicant to gather such information or conduct such study or studies as, in the Director's view, is reasonable and necessary.
(v) If a resource agency, Indian tribe, or member of the public fails to refer a dispute regarding a request for a potential applicant to obtain information or conduct studies (other than a dispute regarding the information specified in paragraph (b)(1) or (b)(2) of this section, as applicable), the Commission will not entertain the dispute following the filing of the license application.
(vi) If a potential applicant fails to obtain information or conduct a study as required by the Director pursuant to paragraph (b)(6)(iv) of this section, its application will be considered deficient.
(7) Unless otherwise extended by the Director pursuant to paragraph (b)(6) of this section, the first stage of consultation ends when all participating agencies, Indian tribes, and members of the public provide the written comments required under paragraph (b)(5) of this section or 60 days after the joint meeting held under paragraph (b)(3) of this section, whichever occurs first.
(e) * * *
(4) Following July 23, 2003 a potential license applicant engaged in pre-filing consultation under this part may during first stage consultation request to incorporate into pre-filing consultation any element of the integrated license application process provided for in part 5 of this chapter. Any such request must be accompanied by a:
(i) Specific description of how the element of the part 5 license application would fit into the pre-filing consultation process under this part; and
(ii) Demonstration that the potential license applicant has made every reasonable effort to contact all resource agencies, Indian tribes, non-governmental organizations, and others affected by the potential applicant's proposal, and that a consensus exists in favor of incorporating the specific element of the part 5 process into the pre-filing consultation under this part.
(d)
The revised text reads as follows:
(c)
5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
(aa) Take the following actions to implement part 5 of this chapter on or after October 23, 2003:
(1) Act on requests for approval to use the application procedures of parts 4 or 16, pursuant to § 5.3 of this chapter;
(2) Approve a potential license applicant's proposed study plan with appropriate modifications pursuant to § 5.13 of this chapter;
(3) Resolve formal study disputes pursuant to § 5.14 of this chapter; and
(4) Resolve disagreements brought pursuant to § 5.15 of this chapter.
5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988).
(a) * * *
(2) Any State Commission, the Advisory Council on Historic Preservation, the U.S. Departments of Agriculture, Commerce, and the Interior, any state fish and wildlife, water quality certification, or water rights agency; or Indian tribe with authority to issue a water quality certification is a party to any proceeding upon filing a notice of intervention in that proceeding, if the notice is filed within the period established under
(3) Any person seeking to intervene to become a party, other than the entities specified in paragraphs (a)(1) and (a)(2) of this section, must file a motion to intervene.
The following Appendix will appear in the Code of Federal Regulations:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule: effectiveness of collection-of-information requirements.
NMFS announces approval by the Office of Management and Budget (OMB) of collection-of-information requirements contained in the following American Fisheries Act (AFA)-related amendments: Amendment 61 to the Fishery Management Plan (FMP) for the Groundfish Fishery of the Bering Sea and Aleutian Islands (BSAI) Area, Amendment 61 to the FMP for Groundfish of the Gulf of Alaska, Amendment 13 to the FMP for BSAI King and Tanner Crab, and Amendment 8 to the FMP for the Scallop Fishery off Alaska (collectively referred to as Amendment 61/61/13/8), and in Amendment 69 to the FMP for the Groundfish Fishery of the BSAI Area, and issues a final rule to make effective the collections of information contained in those amendments. The collections provide that if an AFA cooperative contract was previously filed with NMFS and the North Pacific Fishery Management Council (Council), a renewal letter may be submitted to NMFS and the Council in lieu of the cooperative contract and business review letter. Each AFA cooperative contract must include a clause that the parties agree to make payments to the State of Alaska for any pollock harvested in the directed pollock fishery that are not landed in the State of Alaska; and an AFA cooperative may contract with a non-member vessel to harvest a portion of the cooperative's annual pollock allocation. The intent of this final rule is to inform the public of the effective date of the requirements.
Sections 679.61(d)(1) and (d)(2), and § 679.61(e)(1)(v), published at 67 FR 79692 (December 30, 2002), and § 679.62(c), published at 68 FR 6833 (February 11, 2003), are effective on September 24, 2003.
Any comments regarding burden-hour estimates for collection-of-information requirements contained in this final rule should be sent to Lori Durall, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802, phone: 907-586-7247, email: lori.durall@noaa.gov and to OMB, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 (Attn: NOAA Desk Officer).
Patsy A. Bearden, NMFS, 907-586-7228 or e-mail at
A final rule that implemented the measures contained in Amendment 61/61/13/8 was published in the
OMB approval for those measures was received on July 14, 2003. No comments were received in response to this review. Consequently, this rule makes the following requirements effective:
This rule has been determined to be not significant for the purposes of Executive Order 12866.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
This rule contains collection-of-information requirements subject to the PRA that have been approved by OMB under control numbers 0648-0393 (AFA Vessel and Processor Permit Applications) and 0648-0401 (American Fisheries Act: Recordkeeping and Reporting). The estimated time per response to submit a cooperative contract renewal letter and a contract clause regarding payments to the State of Alaska is estimated as part of the permit process (0648-0393), which is 2.5 hours. The estimated time per response to contract fishing by non-member vessels (0648-0401) is 30 minutes.
The estimated response time includes the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collection-of-information, including suggestions for reducing the burden, to NMFS and OMB (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to remove the expiration date of regulations published as a final rule in the
Comments must be received by September 24, 2003.
Comments may be sent to Sue Salveson, Assistant Regional Administrator for Sustainable Fisheries, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 99802, Attn: Lori Durall, or delivered to room 401 of the Federal Building, 709 West 9th Street, Juneau, AK. Comments also may be sent via facsimile (FAX) to 907-586-7557. Comments will not be accepted if submitted via e-mail or Internet. The Final Environmental Impact Statement/Regulatory Impact Review/Final Regulatory Flexibility Analysis (FEIS/RIR/FRFA) prepared for Amendments 61/61/13/8 is available in the NEPA section of the NMFS Alaska Region home page at
Patsy A. Bearden, NMFS, 907-586-7228 or
The final rule implementing the AFA was published on December 30, 2002 (67 FR 79692), and became effective January 29, 2003. Excepted from this period of effectiveness were several paragraphs under review by the Office of Management and Budget (OMB) under the requirements of the Paperwork Reduction Act (PRA). The
This action is necessary to make the regulations governing the pollock fishery in the BSAI consistent with statute. In October 1998, the AFA mandated sweeping changes to the conservation and management program for the pollock fishery of the Bering Sea and Aleutian Islands (BSAI) and to a lesser extent, affected the management programs for other groundfish fisheries of the BSAI, the groundfish fisheries of the Gulf of Alaska (GOA), the king and Tanner crab fisheries of the BSAI, and the scallop fishery off Alaska. With respect to the fisheries off Alaska, the AFA requires a suite of new management measures that fall into four general categories:
(1) regulations that limit access into the fishing and processing sectors of the BSAI pollock fishery and that allocate pollock to such sectors,
(2) regulations governing the formation and operation of fishery cooperatives in the BSAI pollock fishery,
(3) regulations to protect other fisheries from spillover effects from the AFA, and
(4) regulations governing catch measurement and monitoring in the BSAI pollock fishery.
Section 213 of the AFA as originally passed by Congress contained a December 31, 2004, sunset date and authorized the Council to review and extend the AFA management program in 2004. As submitted by the Council, Amendments 61/61/13/8 contained this December 31, 2004, sunset date. However, after the amendments were submitted for Secretarial review, the “Department of Commerce and Related Agencies Act, 2002,” was enacted which contained a provision that removed the December 31, 2004, sunset date from the AFA. As a result, NMFS found it necessary to reconcile the sunset dates contained in the FMP amendments and proposed rule with the newly-amended AFA which contained no such sunset date. On February 27, 2002, NMFS partially approved Amendments 61/61/13/8, implementing the AFA. NMFS disapproved the December 31, 2004, sunset dates contained in the amendments because the sunset dates were inconsistent with new legislation making the AFA permanent. The remaining text in Amendments 61/61/13/8 was approved.
The final rule implementing these amendments was published on December 30, 2002 (67 FR 79692) and became effective January 29, 2003. The pollock fisheries in the BSAI are subject to observer requirements under regulations at § 679.50. These observer requirements have an independent sunset date of December 31, 2007. The final rule made changes to these observer regulations. The DATE section of the preamble to the final rule contained a reference to the sunset date for these observer requirements, but as the preamble was written, this observer sunset date applied to the entire final rule. Thus, the DATES section of the preamble text described the period of effectiveness for the final rule as January 29, 2003 through December 31, 2007. This proposed rule would state that the phrase “effective through December 31, 2007” applies only to those paragraphs dealing with the observer program, and that the other provisions would be effective indefinitely.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
The impacts of this action have already been analyzed pursuant to the Regulatory Flexibility Act by way of the FRFA completed for Amendments 61/61/13/8, and may be found in Section 4.6 of the Final Environmental Impact Statement for American Fisheries Act Amendments 61/61/13/8 (NMFS, 2002). The FRFA is further summarized in the final rule (December 30, 2002, 67 FR 79692). The FRFA identified a total of 41 small pollock fishing industry entities to which the rule applied (Table 4.6.2). A description of the fleet, fishery
Similarly, the FRFA in Section 4.6.8 described the negative impacts of Amendments 61/61/13/8 on small entities, summarized in the final rule (December 30, 2002, 67 FR 79692). This proposed rule corrects the described period of effectiveness in the DATES section of the preamble to a final rule. The proposed rule results in no impacts on small entities.
Two criteria were considered in determining the significance of regulatory impacts, namely, disproportionality and profitability. These criteria consider the effect of regulations on small businesses and other small entities. The correction of the effective dates section in this proposed rule will not place a substantial number of small entities at a significant competitive disadvantage to large entities. Similarly, this proposed rule will not significantly reduce profit for a substantial number of small entities. This proposed rule will not impact industry.
The final rule for Amendments 61/61/13/8 (December 30, 2002, 67 FR 79692), addressed whether the rule would impose impacts on a substantial number of small entities. As discussed above, this proposed action will not impact the numbers of affected entities.
The findings of fact underlying a certification should “describe the data sources and analytical methods used in the analyses, variability, and uncertainty in the cost and revenue estimates, explain the assumptions used, and indicate the extent to which the results were affected by those assumptions.” The findings of fact underlying this certification are based on a review of the FRFA for the original action, and did not utilize new data sets, analytical methods, or cost and revenue estimates beyond those incorporated in the earlier analysis.
On this basis, the Chief Counsel for Regulation has certified that this action will not have “a significant impact on a substantial number of small entities.” As a result, a regulatory flexibility analysis was not prepared.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.